Karnataka High Court
Ningappa Since Deceased His Lrs vs Chinnarasamma W/O Rangappa on 29 September, 2022
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
RSA No.7370/2010
C/w
RSA No.7371/2010
In RSA No.7370/2010
BETWEEN:
Ningappa Since deceased
Through his LRs.
1. Bhimashappa Adopted
S/o Ningappa & Manikamma,
Age: 37 years, Occ: Agri.
2. Bandemma
D/o Ningappa, Age: 42 years,
Occ: Agri Both R/o Kadlapur,
Tq. Sedam,
Dist.Gulbarga-585222.
... Appellants
(By Sri Gururajrao Kakkeri, Advocate)
AND:
1. Chinnarasamma
2
W/o Rangapa,
Age: 44 years, Occ: Agri.
2. Manikamma W/o Rangappa
Age: 77 years,
dead by LRs.
3. Pedda Narsamma W/o Gopanna,
Since Deceased by LRs.
a) Gopanna S/o Bachanna,
Age: 66 years,
dead by LRs.
b) Chinnabandemma,
W/o Bhimshappa, Age. 31 years,
Occ: H.H. Work
All R/o Kadlapur,
Tq. Sedam-585222.
Dist: Gulbarga.
Amended as per Court order
Dated 25.06.2015
Dead by LRs.
... Respondents
(By Sri S.B.Hangarki, Advocate for R1;
Sri. V.S.Patil, Advocate for R3(b);
Respondent No.1 & R3(b) are treated as LR's of
deceased R2 & R3(a))
This Regular Second Appeal is filed under Section
100 of CPC, praying to allow the Second appeal by setting
aside the Judgment and Decree passed by the IV Addl.
District Judge Gulbarga in RA No.200/2009 dated
3
16.07.2010 and restore the Judgment and Decree passed
by the Civil Judge (Sr.Divn) Sedam in OS.No.85/2005
dated 09.10.2009.
In RSA No.7371/2010
BETWEEN:
1. Bhimashappa Adopted
S/o Ningappa & Manikamma,
Age: 37 years, Occ: Agri.
2. Bandemma D/o Ningappa,
Age: 42 years,
Occ: Agri Both R/o Kadlapur,
Tq. Sedam,
Dist.Gulbarga- 585222.
... Appellants
(By Sri Gururajrao Kakkeri, Advocate)
AND:
1. Chinnarasamma
W/o Rangapa,
Age: 51 years, Occ: Agri.
2. Manikamma W/o Rangappa
Age: 77 years,
dead by LRs.
3. Ningappa S/o Chinnayya, &
Narsamma W/o Gopanna,
Since both are Deceased
Through LRs.
4
a) Gopanna S/o Bachanna,
Age: 66 years,
dead by LRs.
b) Chinnabandemma,
W/o Bhimshappa, Age: 31 years,
Occ: H.H. Work
All R/o Kadlapur,
Tq. Sedam-585222.
Dist: Gulbarga.
Amended as per Court order
Dated 25.06.2015
Dead by LRs.
... Respondents
(By Sri S.B.Hangarki, Advocate for R1;
Notice to R3(b) served;
R1 & R3(b) are treated as LR's of deceased R2 & R3(a))
This Regular Second Appeal is filed under Section
100 of CPC, praying to allow the Second appeal, set aside
the Judgment and Decree passed by the IV Addl. District
Judge Gulbarga in RA No.201/2009 dated 16.07.2010 and
restore the Judgment and Decree passed by the Civil
Judge (Sr.Dn) Sedam in OS.No.79/2006 dated
09.10.2009.
These appeals having been heard and reserved,
coming on for 'Pronouncement OF Judgment', this day, the
court delivered the following:
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JUDGMENT
RSA No.7370/2010 is filed by Sri.Bhimshappa and Bandemma the plaintiff Nos.1 (b) and 1(c) being legal representatives of deceased plaintiff-Ningappa in O.S.No.85/2005 aggrieved by the judgment and order dated 16.07.2010 passed in RA.No.200/2009 on the file of the IV Addl. District Judge at Gulbarga, (herein after referred to as "First Appellate Court") by which the First Appellate Court while allowing the regular appeal filed by Smt.Chinna Narasamma - the defendant in the said suit the had set aside the common judgment and decree dated 09.10.2009 passed in O.S.No.79/2006 and O.S.No.85/2005 on the file of Civil Jude (Sr.Dn) Sedam (herein after referred to as "trial Court") and allowed the counter claim made by the defendant.
RSA No.7371/2010 is filed by Bhimshappa and Bandemma the plaintiff Nos.1 and 2 in O.S.No.79/2006 aggrieved by the judgment and order dated 16.07.2010 6 passed in R.A.No.201/2009 on the IV Addl. District Judge at Gulbarga, (herein after referred to as "First Appellate Court") by which the First Appellate Court allowing the regular appeal filed by Smt.Chinna Narasamma the defendant No.3 in the said suit set aside the common judgment and decree dated 09.10.2009 passed in O.S.No.79/2006 and O.S.No.85/2005 on the file of Civil Jude (Sr.Dn) Sedam (herein after referred to as "trial Court") and allowed the counter claim made by the defendant No.3 therein.
2. Since the aforesaid appeals arise out of the common judgment and decree dated 09.10.2009 passed in O.S.Nos.85/2005 and 79/2006 between the same parties and in respect of the same subject matter, they are taken up together for analogous hearing.
The brief facts of the case in O.S.No.85/2005:
3. The aforesaid suit in O.S.No.85/2005 was filed by Ningappa against his daughter Smt.Chinna Narasamma 7 for relief of declaration to the effect that he is the owner and possessor of the suit properties being:
(i) Land in Sy.No.148/4 measuring 5 acres
(ii) Land in Sy.No.126 measuring 7 acres 29 guntas
(iii) Land in Sy.No.78 measuring 2 acres 10 guntas
(iv) Land in Sy.No.63/1 measuring 32 guntas
(v) Land in Sy.No.62/ measuring 20 guntas All situated at Kadlapur village, Sedam taluk, Dist:
Gulbarga, and to declare that the registered deed of gift bearing document No.951/2001-02 dated 17.08.2001 as null and void and to cancel the same with consequential relief of perpetual injunction.
(a) It is the case of the plaintiff that he has three daughters namely (i) Pedda Narasamma, (ii) Bandemma and (iii) Chinna Narasamma the defendant in the said suit.
That since his daughter Pedda Narasamma did not have a male child, plaintiff adopted one Bhimshappa S/o; Ramappa of Injalapur village as his adopted son about 23 to 24 years back. That the daughter of Pedda Narasamma by name Chinna Bandemma was given in marriage to the said adopted son of plaintiff. That said adopted son 8 Bhimshappa insisted plaintiff for effecting partition. He had also obtained his name enter in the revenue records as cultivator. The plaintiff had filed an appeal against the said mutation order in the name of Bhimshappa. As defendant Chinna Narasamma was his younger daughter, the plaintiff deposing full faith in her had taken her to Sedam to meet his advocate whom he had engaged to represent him in the revenue proceedings. That the plaintiff was advised to execute a letter of authority in favour of the defendant for management of family property by her. Accordingly, plaintiff agreed to execute a power of attorney in favour of the defendant.
(b) That his first daughter Pedda Narasamma had filed a suit in O.S.NO.433/2002 against the plaintiff seeking partition and separate possession of family properties. In the said suit, plaintiff herein was arraigned as defendant No.1. Plaintiff had filed his Written statement in the said suit in O.S.No.433/2002, wherein it was pleaded that 9 plaintiff had executed a gift deed in respect of the suit lands in favour of his daughter Chinna Narasamma the defendant herein. That the plaintiff never intended to gift the suit lands in favour of the defendant. The possession of the suit lands remained with him and he never delivered the same to the defendant. Defendant did not acquire any right title interest in the suit lands. The plaintiff was illiterate and did not know to read or write. He was also not knowing Kannada language. He could only sign in modee language. Plaintiff was aged about 85 years. He never suspected the intention of defendant, who taking undue advantage of his confidence, illiteracy and old age had created deed of gift in her favour by practicing fraud and misrepresentation. The power of attorney was executed by the plaintiff in favour of his daughter, upon her insistence that he was aged and was not able to manage the affairs of the suit lands therefore he had gone to Sub-Registrar and affixed his signature without knowing the contents of the documents which were never read over 10 to him. The said deed of gift dated 17.08.2001 is thus a product of fraud and misrepresentation. That in the aforesaid suit in OS.NO.433/2002 defendant herein had been arraigned as defendant No.2. She had obtained the signatures of the plaintiff on the premise of same were required for filing reply in the said suit filed by Pedda Narasamma accordingly, he signed on the written statement. Later, he learnt about the misdeeds played by defendant in the said original suit. That the plaintiff demanded his counsel to return his file, which though he aggrieved initially but did not agree later constraining the plaintiff to issue a letter requesting him to return the file. A retirement notice was issued to the counsel who appeared on behalf of the plaintiff on 04.01.2002. Later on the plaintiff engaged another advocate through whom he filed an application to withdraw his written statement.
(c) That plaintiff adopted one Bhimshappa as his adopted son. he has another daughter by name 11 Bandemma who is not married and residing with the plaintiff.
(d) That taking undue advantage of the aforesaid gift deed, defendant was attempting to get her name mutated in the revenue records and to alienate the suit lands claiming herself to be the owner of the property. Therefore, the plaintiff filed the suit seeking aforesaid reliefs.
4. Defendant filed written statement and also made a counter claim seeking relief of declaration of a title in respect of the suit lands and for consequential relief of permanent injunction. In the written statement defendant contended that:
(a) She is the second daughter of the plaintiff and that Pedda Narasmma was her elder sister. She denied plaintiff adopting Bhimshappa as his adopted son about 23 years ago. She admitted that Bhimsappha had got his name 12 mutated in the revenue records and an appeal is filed by the plaintiff before the Assistant Commissioner Sedam, who had set aside the entries made in the name of Bhimshappa. That aggrieved by the said order, Bhimshappa had preferred a writ petition before the High Court of Karnataka. That the plaintiff in the said proceedings had denied factum of adoption.
(b) She admitted Pedda Narasamma having filed suit in O.S.No.433/2002 against plaintiff and defendant herein for relief of partition and separate possession. It is contended that in the said suit, plaintiff and defendant had jointly filed written statement. She denied plaintiff being the owner of the suit schedule property contended that the present suit is filed by the plaintiff at the ill advice of Bhimshappa.
(c) That the plaintiff had executed deed of gift in her favour in respect of the suit land and had delivered the possession in her favour. Thus, she was the absolute 13 owner and possession of the suit lands. That the execution and registration of deed of sale by the plaintiff in her favour on 17.08.2001 has been admitted by the plaintiff in his written statement filed in O.S.No.433/2002 in which even evidence of the plaintiff and defendants have been recorded. When the said suit was posted for further evidence, Pedda Narasamma in collusion with the plaintiff had withdrawn the said suit. That the plaintiff was trying to dispossess the defendants from the suit lands. Hence, she is making the counter claim.
5. On the basis of the pleadings, the trial Court framed the following issues:
(a) Whether the plaintiffs prove that deceased Ningappa (original sole plaintiff) never executed registered gift deed dated 17.08.2001 in favour of defendant?
(b) Whether the plaintiffs further prove that defendant has got created registered gift deed in her favour by practicing and by misrepresenting the facts to the deceased Ningappa as averred in the plaint?
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(c) Whether plaintiffs prove that plaintiff No.1(b) is the adopted son of deceased Ningappa (original plaintiff)?
(d) Whether the plaintiffs prove that they alone are the absolute owners and possessors of suit properties?
(e) Whether the defendant proves that she acquired title deed suit properties on the strength of registered gift deed?
(f) Whether the defendant proves that she is in actual possession of the suit properties as averred in the plaint?
(g) Whether the plaintiff proves that, defendant tried to dispossess the original plaintiff, from the suit properties?
(h) Whether the plaintiffs are entitled for the relief sought for?
(i) To what relief parties are entitled?
(j) To what order or decree?
Brief facts of the case in O.S.No.79/2006 are that;
6. (a) This suit in O.S.NO.79/2006 is filed by Bhimshappa and Bandemma as plaintiffs against Ningappa and his wife Manikamma and daughter Chinna Narasamma as defendants Nos.1 to 3 respectively, seeking relief of 15 partition and separate possession in respect of suit lands namely:
(i) Land in Sy.No.148/4 measuring 5 acres
(ii) Land in Sy.No.78 measuring 2 acres 10 guntas (iii) Land in Sy.No.126 measuring 7 acres 29 guntas
(iv) Land in Sy.No.63/1 measuring 32 guntas
(v) Land in Sy.No.4 measuring 1 acre 18 guntas
(vi) Land in Sy.No.206 measuring 5 acre 34 guntas
(vii) Land in SY.No.99/2 measuring 25 guntas
(viii) Land in Sy.No.1-5/b measuring All situated at Kadlapur village, Sedam taluk, Dist:
Gulbarga.
(b) It is contended that defendant No.1-Ningappa is the husband of defendant No.2 Manikappa. Plaintiff No.1 is the adopted son of defendant Nos.1 and 2. Plaintiff Nos.2 and defendant No.3 are the daughters of defendant Nos.1 and
2. That the suit lands are joint and ancestral properties of the parties in the suit. That defendant No.3 was married long back before 1994 and as such she had no right title or share in the suit properties. Since defendant No.1 and 2 had not male issues, they had adopted plaintiff No.1 as their adopted son in the year 1980 and after performing all 16 necessary ceremonies including ceremony of giving and taking. The natural parents of plaintiff No.1 are late Kumarappa and Mallamma. Plaintiff No.1 became coparcener in the family of defendant No.1 and 2. That there was a dispute between the plaintiff and defendant No.1 with regard to entry of his name in the revenue records of the suit lands which dispute went up to High Court of Karnataka, thereafter the matter amicable resolved. The defendant No.1 did not dispute the adoption.
Plaintiff No.2 being unmarried is also entitled for share in the suit lands.
(c) That during second week of July 2006, defendant No.3 had interfered with the peaceful possession of the plaintiff over the suit lands. Plaintiff learnt that Pedda Narasamma had filed suit in O.S.No.433/2002 for partition and separate possession, summons of which were not served on the plaintiffs. In the said suit, defendant No.3 had appeared and claimed that Ningappa the defendant No.1 had gifted item No.1 to 5 of the suit lands in her 17 favour in terms of deed of gift. That subsequently, defendant No.1 had filed a suit in O.S.No.85/2005 seeking cancellation of the said deed of gift.
(d) That all the suit properties are the joint ancestral properties. Defendant No.1 had never gifted any of the suit lands as he was not competent to gift away the joint family properties. The gift deed is void ab-initio and not binding on the plaintiffs. Hence, the suit for partition and declaration.
7. In the said suit, defendant No.1 appeared through counsel, defendant No.2 placed ex-parte, defendant No.3 appeared through her counsel and contested the suit by filing written statement. The contents of the written statement filed by defendant No.3 are similar and identical to that of the written statement filed by her in O.S.NO.85/2002 referred to herein above. 18
8. Based on the pleadings, the trial Court framed following issues:
(a) Whether the plaintiffs prove that plaintiff No.1 is the adopted son of defendant Nos. 1 and 2?
(b) Whether the plaintiffs prove that the suit properties are the joint family properties?
(c) Whether the plaintiffs prove that they are in joint possession of the suit properties along with defendant Nos. 1 and 2?
(d) Whether plaintiffs proves that the gift deed execution by defendant No.1 is not binding on the plaintiff?
(e) Whether the plaintiffs prove that the suit land bearing Sy.No.126, 148/4, 78 and 4 are acquired out of joint family once?
(f) Whether the defendant No.3 proves that the suit properties are self acquired properties of deceased defendant No.1 Ningappa?
(g) Whether the suit of the plaintiffs is bad for non-joinder of necessary parties?
(h) Whether the plaintiffs are entitled for the relief sought?
(i) What is quantum of share of plaintiffs and in which properties plaintiffs are entitled for?
(j) What order or decree?
9. The Trial Court clubbed the aforesaid two suits and recorded common evidence. Bandemma 19 examined herself as PW.1 and plaintiff No.1 - Bhimshappa examined as PW.2 and exhibited 33 documents marked as Exs.P1 to P33. Chinna Narasamma, the defendant No.3 examined herself as DW.1 and two witnesses namely, Sri R.S.Patil and Sri Hanumayya have been examined as DW.2 and DW.3 and exhibited 39 documents marked as Exs.D1 to D39.
10. On appreciation of evidence, the Trial Court by its common Judgment and Decree dated 09.10.2009 decreed the suit in O.S.No.85/2005 declaring the legal representatives of deceased plaintiff - Ningappa as joint owners and possessors of suit schedule property along with defendant and further ordered that the registered deed of gift dated 17.08.2001 is null and void and same is cancelled and counter claim of defendant was dismissed.
As regards suit in O.S.No.79/2006, the Trial Court decreed the said suit and held plaintiff Nos.1 and 2 are entitled for 20 2/5th share in each items of suit schedule properties and directed to draw preliminary decree accordingly.
11. Being aggrieved by the aforesaid Judgment and Decree passed in O.S.No.85/2005, Chinna Narasammam, the defendant therein filed an appeal in R.A.No.200/2009 on the file of First Appellate Court and being aggrieved by the Judgment and Decree in O.S.No.79/2006, the said Chinna Narasamma - the defendant No.3 therein filed appeal in R.A.No.201/2009 on the file of the First Appellate Court. The First Appellate Court on consideration of the grounds urged in R.A.No.200/2009 framed the following points for its consideration:
1. Whether the defendant/ appellant able to justify that the knowing the contents of alleged registered gift deed bearing document No.951/2001-2002 dated 17.08.2001 executed as per law and handed over possession of lands by virtue of gift deed?
2. Whether by way counter claim, defendant/appellant entitled to be declared as owner and possessor from the date of alleged gift deed?
3. As to what order?21
12. In R.A.No.201/2009, the First Appellate Court framed the following points for its consideration:
1. Whether the defendant No.3/appellant justifies that plaintiff No.1 failed to prove adoption by statutory formalities and also not proved as adopted son-in-law of late Ningappa?
2. Whether the defendant No.3/appellaet proves that plaintiff No.1 and L.Rs. of late Ningappa including defendant No.3/appellant entitled to have share in the remaining lands and house properties in exclusion of in case of proof of registered Will deed in accordance with law?
3. As to what order?
13. The First Appellate Court by separate judgments and orders dated 16.07.2010 passed in the aforesaid R.A.No.200/2009 and R.A.No.201/2009 allowed the said appeals setting aside the common Judgment and Decree dated 09.10.2009 passed in aforesaid suits in O.S.No.75/2006 and O.S.No.85/2005 on the file of Civil Judge (Sr.Dn.) at Sedam and allowed the counter claim of the defendant. It is further ordered and decreed that defendant in O.S.No.85/2005 is the owner and possessor of the suit lands by virtue of registered gift deed bearing 22 document No.951/2001-02 dated 17.08.2001 and further decreed that all the three daughters of late Ningappa and wife of Ningappa namely, Manikamma are entitled to claim 1/4th share in the remaining lands excluding the lands covered under registered gift deed in accordance with law. It further ordered that the adoption is not proved and therefore, with respect to O.S.No.79/2006, plaintiff No.1 failed to establish that the he is the adopted son of late Ningappa.
14. Aggrieved by the aforesaid judgment and orders passed in R.A.No.200/2009 by the First Appellate Court, Bhimshappa and Bandemma as plaintiff Nos.1(b) and (c) in O.S.No.85/2005 have filed the present appeal in RSA No.7370/2010 and aggrieved by judgment and order passed in R.A.No.201/2009, the said Bhimshappa and Bandemma as plaintiffs No.1 and 2 in O.S.No.79/2006 have filed the appeal in RSA No.7371/2010. This Court considering commonalities in the appeals in terms of 23 parties and subject matter, has connected both these appeals for analysis and disposal and by its order dated 30.11.2016 framed the following substantial questions of law for its consideration:
1. Whether the lower appellate Court committed an error in the manner of consideration of document at Ex.D4 so as to hold the gift deed as valid despite there being admission of defendant in the cross examination with regard to the manner in which the said document had come into existence?
2. Whether the lower appellate Court has committed an error in the manner of assessment of evidence to hold that the adoption of Sri Bhimsahappa is not valid in law and in that circumstances whether the admission made by adoptive father and mother would be sufficient to come to the conclusion in that regard?
15. Sri Gururaj Rao Kakkeri, learned counsel appearing for the appellants in the aforesaid appeals submitted that:
a. The First Appellate Court grossly erred in reversing the well reasoned judgment and decree passed 24 by the Trial Court without appreciating the evidence in proper perspective.
b. That Ningappa the father of Chinna Narasamma, who was arraigned as defendant in the suit in O.S.No.433/2002 filed by his elder daughter Pedda Narasamma, immediately on learning about the fraud and misrepresentation played on him by Chinna Narasamma had filed an application seeking withdrawal of his written statement in which he had allegedly admitted about the gift deed in favour of Chinna Narasamma.
c. That since the application seeking withdrawal of written statement was rejected, immediately thereafter he filed a suit in O.S.No.85/2005 seeking substantive relief of declaration. That this conduct of the Ningappa categorically establishes the fact that he was made subject of fraud and misrepresentation by his daughter Chinna Narasamma in obtaining the alleged deed of gift dated 17.08.2001.25
d. That one of the witnesses to the said deed of gift namely, Hanumayya S/o. Tippanna Koli is an imposter. In fact one Hanumayya S/o. Bhimappa Thirlapur had impersonated as Hanumayya S/o. Tippanna Koli. Ex.P32 is the voter list, in which name of his father is shown as Bhimappa. In the cross examination recorded on 21.08.2009, he has admitted that his surname is Thirlapur and not Koli. as such, his deposition as a attesting witness to the gift deed cannot be trusted and the same is surrounded by suspicion.
e. That execution is not mere affecting of signature and it is a process by which a person executing should mentally and physically be aware of what he is doing. That Ningappa in his application seeking withdrawal of the written statement filed in O.S.No.433/2002 has deposed regarding fraud discovered by him for the first time and thereafter has filed the present suit in O.S.No.85/2005. 26
f. That any instrument which has effect of diverting natural succession has to be construed strictly and no leniency can be shown.
g. The Chinna Narasamma herself in her deposition admitted to have obtained deed of gift while executing general power of attorney.
h. As regards adoption of Bhimshappa, he submits that Ningappa in his plaint in O.S.No.85/2005 had admitted him to be his adopted son, no amount of evidence contrary to the same can be accepted.
He relies upon the decision of this Court reported ILR 2006 KAR 1740 - Veerabhadrayya R. Hiremath and Ors. Vs. Irayya A.F. Basayya Hiremath. Hence, seeks for allowing of the appeals by answering substantial questions of law in favour of the appellants. 27
16. Sri.B.D.Hangarki, learned counsel for the respondents justifying the judgment and order impugned in these appeals submitted that;
a. Deed of gift dated 17.08.2001 is a registered document executed by Ningappa without there being any fraud or misrepresentation. That Ningappa had 34 acres 1 gunta of land of which only 16 acres 11 guntas of land being suit lands in O.S.No.85/2005 was conveyed by way of gift by him in favour of his second daughter Chinna Narasamma while he retained balance 17 acres 13 guntas and two house properties.
b. All the member of family of Ningappa were aware of the execution of deed of gift by Ningappa in favour of Chinna Narasamma even as evident from the contents of plaint in O.S.No.433/2002 (old O.S.No.341/2001) filed by Pedda Narasamma seeking partition of all the family properties. There is specific 28 reference to the deed of gift executed by Ningappa in favoiur of Chinna Narsamma.
c. Even Ningappa in his written statement filed on 06.11.2003 in the said suit in O.S.NO.433/2002 has admitted regarding execution of deed of gift in favour of Chinna Narasamma. The said written statement in O.S.No.433/2002 was sought to be withdrawn and order thereon was passed on 09.06.2005. That the present suit in O.S.No.85/2005 has been filed on 22.06.2005.
d. That there was earlier proceedings before the Tahsildar with regard to the mutation entries in which Ningappa had personally participated and has confirmed the above execution of the gift deed in favour of Chinna Narasamma and an order in this regard has been passed by the Tahsildar. The said proceedings were of the year 2001.
e. Thus, the suit in O.S.No.85/2005 is barred by limitation.
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f. That since there is no specific denial of execution of deed of gift by Ningappa, except pleading alleged fraud and misrepresentation, burden of proof cannot be casted upon the defendant.
g. That the said Ningappa has not adduced evidence during his life time and said plaintiff Nos.1(b) and 1(c) namely, Bhimshappa and Bandemma are incompetent to speak about the fraud and misrepresentation alleged to have been exerted by the defendant in obtaining the deed of gift on Ningappa.
h. That withdrawal of the suit in OS.No.433/2002 by Pedda Narasamma was to overcome the admission made by Pedda Narasamma in the plaint and in the deposition with regard to gift as well as the adoption and also to overcome the admission made by Ningappa in his written statement with regard to the execution of gift in favour of Chinna Narasamma.
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i. That there is no abnormality in slight difference of name of one of the attesting witnesses to the deed of gift wherein only the surname appears to have been shown as "Koli" instead of "Thirlapur". Except the same there is no infirmity to disbelieved the said witness.
j. Admittedly, Sri.R.S.Patil who has been examined as DW.2 is an advocate whom the Ningappa had engaged to represent him in the revenue proceedings. It is same advocate who had prepared and filed written statement on behalf of Ningappa. The said DW.2 is a scribe to the deed of gift and his deposition in fact stands on a higher footing than that of the attesting witness.
k. As regard to the adoption, there is no reference either in the plaint in O.S.NO.433/2002 or in the evidence with regard to the Ningappa adopted Bhimshappa. There is no logic in Ningappa adopting Bhimshappa because the elder daughter of Ningappa namely Pedda Narasamma did not have male child. That 31 even according to the witnesses the said Bhimshappa was allegedly adopted at the time of his marriage with daughter of Pedda Narasamma namely Sanna Bandemma and her age at the time of marriage is shown as 16 years, which means the Bhimshappa must have been older to her. Thereby the adoption if any was against the provisions of law.
l. There has been no evidence either of the adoptive parents or the natural parents. Ningappa has not entered into the witness box either in OS.No.433/2002, or O.S.no.85/2005 or in O.S.No.79/2006. Therefore, the claim of the appellant that there was an admission of adoption by Ningappa cannot be accepted.
m. Learned counsel relied upon the following judgments of the Apex Court in support of his submissions:
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(i) AIR 2021 SC 899, Rattansingh and other Vs. Nirmal Gil and Others.
(ii) 2011 SCC 436, State of Orissa Vs. Mamata Mohanty Hence, seeks for dismissal of the appeals.
17. Heard the learned counsel for the parties and perused the records.
18. There is no dispute with regard to the relationship amongst the parties. There is also no dispute that the suit lands (in both the suits) belonging to Ningappa. The dispute is with regard to:
(i) The execution and registration of gift dated 17.08.2001 as per Ex.P1 also marked as Ex.D18 executed by Ningappa in favour of Chinna Narasamma conveying suit lands described in O.S.No.85/2005.33
(ii) The factum of adoption of Bhimshappa by Ningappa and the entitlement of share of Bhimshappa in the suit lands described in O.S.No.79/2006.
Regarding execution deed of gift at Ex.P1 also marked as Ex.D18:
19. There is no dispute with regard to Ningappa executing deed of gift at Ex.D18 in favour of Chinna Narasamma but the allegation is with regard to same having been obtained allegedly by playing fraud and misrepresentation. This allegation of fraud and misrepresentation is made by Ningappa for the first time in his plaint in O.S.No.85/2005. It is claimed by Ningappa that he learnt about the execution of deed of gift at the time when he was asked to give evidence in O.S.No.433/2002 in the third week of June 2005 and immediately on learning about the same he had taken steps to withdraw the written statement filed by him in O.S.No.433/2002 and thereafter filed the suit in 34 OS.No.85/2005 on 22.06.2005. It is contended that he was taken to the Sub-Registrar office by Chinna Narasamm on the pretext of obtaining power of attorney and he being aged about 80 years, illiterate and not knowing to read or write had executed the documents without knowing the contents of the same.
20. Before adverting to the aforesaid aspect of the matter, it is appropriate to refer certain facts and events that have taken place at an undisputed point in time which are as under:
1. That Smt. Pedda Narasamma had made an application on 09.09.1996 to the Revenue Inspector, Mudhol Range as per Ex.D31 requesting for transfer of patta in her name in respect of lands in Survey No.55, 62/1, 63/1, 78, 126, 148/4, on the premise that Ningappa is her father and he had no male issues. He had taken herself and her sister Bandemma 35 into his family fold and had conducted marriage of another sister. That the aforesaid properties had been equally allotted to her and her said sister.
2. Ex.D35 is the notice dated 10.09.1996 issued by the village accountant to Ningappa in Form No.U calling upon him to file objections, if any, to the aforesaid application filed by Pedda Narasamma.
3. Ex.D36 is Form No.12, extract of the mutation register which reads that Ningappa had filed objections to the aforesaid application dated 09.09.1996 filed by Pedda Narasamma.
4. Ex.D37, D38 and D39 are the notices dated 13.11.1996 and 20.11.1996 issued by the office of Deputy Tahsildar, Mudhol intimating 36 date and time of hearing of the proceedings to Ningappa and Pedda Narasamma.
5. Ex.D32 and D33 are the statement of objections and reply to the notices dated 18.11.1996 filed by Ningappa disputing the claim of Pedda Narasamma over the properties and objecting for affecting the mutation of lands. The contents of Ex.D33 at paragraph No.3 and 4 are relevant which refer to a dispute between Ningappa and Bhimshappa pending before the High Court of Karnataka and an allegation that Bhimshappa himself instigating his mother-in-law Pedda Narasamma to file petition seeking mutation entries without having any right or interest over the lands in question.37
6. Ex.D34 is the office notice with regard to the said proceedings between Pedda Narasamma and Ningappa.
7. Ex.D17 is an order dated 28.03.2002 passed by the Deputy Tahsildar which refers to an application made by Ningappa seeking transfer of Patta in respect of land in Survey Nos.148/4, 126, 78, 63/1 and 62/1 in the name of his daughter Chinna Narasamma on the premise of he executing a deed of gift dated 17.08.2001 in her favour. A notice in this regard had been issued to concerned persons in response of which Pedda Narasamma had filed objections dated 24.09.2001. Consequently, the said proceedings were treated as dispute and enquiries were held on 16.01.2002,
21.02.2002, 28.01.2002, 15.02.2002, 38 05.03.2002 and 15.03.2002 and considering the submission made by Pedda Narasamma about she having filed a suit in O.S.No.341/2001, the Tahsildar had passed order directing not to transfer the Patta until disposal of eth said suit by the Civil Court.
8. Ex.D16 is the order dated 20.10.2004 passed by Assistant Commissioner allowing the appeal filed by Chinna Narasamma against the order of the Tahsildar (as per Ex.D17) in which, the Assistant Commissioner set aside the order of Tahsidlar and directed for transfer of Patta in her name.
9. Pedda Narasamma who has been examined as PW.1 in her suit in O.S.No.433/2002 (old O.S.No.341/2001) in her cross examination recorded 16.08.2004 at page No.9 has admitted about the aforesaid dispute between 39 her, Ningappa and Bhimshappa right up to the High Court.
10. Bhimshappa the plaintiff, who has been examined as PW.2 in his deposition recorded on 30.05.2009 has also admitted about the aforesaid revenue proceedings and has further stated that the matter was compromised between him and late Ningappa but though he claims that there are document to prove the compromise he has no produced the same.
11. Ex.D5 is the plaint in O.S.No.433/2002 (old O.S.No.341/2001) filed by Pedda Narasamma against Ningappa, Chinna Narasamma, Bandemma and Bhimshappa on 13.09.2001. In which, at paragraph Nos.5, 6 and 7 she has specifically pleaded about Ningappa executing deed of gift dated 18.08.2001 bearing document No.951/2001 in favour of Chinna 40 Narasamma and has sought for declaration of the said gift deed to be null and void and also relief of partition and separate possession of her 1/5th share.
12. Ex.D6 is the written statement filed by Ningappa in the said suit denying the allegations and averments made in plaint in O.S.No.433/2002 and confirming execution of deed of gift by him in favour of Chinna Narasamma.
13. Both Bhimshappa and Bandemma who are the plaintiffs in the present O.S.No.79/2006 have been placed ex-parte in the aforesaid suit.
21. From the aforesaid documentary evidence right from the year 1996, it is seen that Pedda Narasamma and Bhimshappa have been in dispute with Ningappa concerning the suit lands. It is also seen that Ningappa 41 has confirmed execution of deed of gift 17.08.2001 as per Ex.D18 in favour of Chinna Narasamma. The claim of Bhimshappa being adopted son is also disputed by Ningappa.
22. However, there appears to be a complete turn of events in suit in O.S.No.433/2002 (old O.S.No.331/2001) when the evidence of both the plaintiff and defendants therein were concluded, an application has been filed purportedly by Ningappa seeking withdrawal of his written statement alleging fraud and misrepresentation which application has been rejected by the Court vide order dated 09.06.2005 as per Ex.D7.
23. It appears thereafter said Ningappa has filed the present suit in O.S.No.85/2005 against Chinna Narasamma on 22.06.2005 seeking cancellation of gift deed on the allegations of fraud and misrepresentation. 42
24. Thereafter, a memo dated 25.07.2005 as per Ex.D8 has been filed by Pedda Narasamma stating as under:
"In the above case, plaintiff is prevailed upon by the defendant No.1 Ningappa to withdraw the suit in view of he filing the suit for declaration and injunction in O.S.No.85/2005 on the file of Hon'ble Court.
Therefore, the plaintiff does not press present suit and suit may be dismissed as not pressed without cost."
25. In fact an application has been made by Chinna Narasamma objecting grant of permission to withdraw the said suit which has been rejected by the Court and accordingly, the said suit in O.S.No.433/2002 has been permitted to be withdrawn by order dated 05.11.2005.
26. In the mean while, Ningapa passed away, the aforesaid Bandemma, Bhimshappa and Pedda Narasamma have come on record as his legal representatives as plaintiff Nos.1(a), 1(b) and 1(c) and have prosecuted the 43 suit in O.S.No.85/2005. Pedda Narasamma is also stated to have been passed away.
27. Bandeamma who has been examined as PW.1 has reiterated the plaint averments earlier filed by Ningappa similarly Bhimshappa who has been examined as PW.2 has also reiterated the plaint averments.
28. The Trial Court referring to Section 68 of the Indian Evidence Act has opined that since the execution of deed of gift at Ex.D18 has been denied, the burden was on the defendant - Chinna Narasamma to prove the execution of deed of gift. Thus, no witnesses have been examined by the plaintiffs to disprove the execution of deed of gift. Defendant - Chinna Narasamma has examined DW.2 - Sri Rajendra S. Patil, counsel who earlier represented Ningappa in the revenue proceedings, and who also drafted Ex.D18 at the instructions of Ningappa. DW.3 is one Hanamayya the son of Tippanna, who is stated to be an attesting witness to the deed of gift. The Trial Court 44 has declined to take into consideration the evidence of said two witnesses primarily because there were discrepancy in the fathers name of DW.3 - Hanamayya as stated in the affidavit which is not in consonance with Ex.P32 the voters list wherein his father's name is shown as Bhimappa. The Trial Court also declined to accept the evidence of DW.2 as he was the counsel of Ningappa and was not an attesting witness but a mere scribe to the deed of gift. The First Appellate Court has however, relied upon and accepted the evidence of these two witnesses to uphold the genuineness of the gift deed.
29. It is relevant to note that in the suit in O.S.No.85/2005, there is no denial of execution of deed of gift dated 17.08.2001 as per Ex.D18. What is alleged is the said document was obtained by Chinna Narasamma on the pretext of getting a power of attorney executed. Before adverting to the truthfulness of this allegation, it is appropriate to advert to if the said averments in the plaint 45 amounts to 'specific denial of execution' as contemplated under Section 68 of the Indian Evidence Act. Section 68 of the Indian Evidence Act and the position of law in this regard referred to hereunder:
30. Section 68 of the Evidence Act, 1872 provides as under:
"68. Proo f of executio n of document require d by law to be atteste d.--If a document is required by law to be atteste d, it shall not be used as evidence until one attesting witness at least has been called for the purpose o f proving its e xecution, if there be an atte sting witness alive, and subject to the process of the Co urt and capable of giving evide nce:
[Pro vide d that it shall not be necessary to call an attesting witness in proof o f the execution o f any document, not being a Will, which has been registered in accordance with the pro visions of the Indian Registratio n Act, 1908 (16 o f 1908) , unless its e xecutio n by the perso n by whom it purports to have been e xecuted is specifically denied.]"
31. Proviso to the said section, makes it clear that it is not necessary to call an attesting witness in proof of execution of any document 46 which has been registered in accordance with the provisions of Indian Registration Act unless its execution by the person by whom it purports to have been executed is "specifically denied". What is required therefore is to see if Ningappa - original plaintiff had specifically denied the execution of the deed of gift - Ex.D8.
32. Specific denial ought to be in the nature of denial of very execution of the document by the executant, namely denial of very affixing the signature, denial of admission of the execution before the concerned officer. Such denial is not forthcoming. There is no dispute or denial with regard to Ningappa executing deed of gift at Ex.D18 in favour of Chinna Narasamma. What is contended is that same was obtained by fraud and misrepresentation. There is nothing on record in infer that Chinna Narasamma was in dominating position over Ningappa. On the other hand, there 47 is sufficient evidence to suggest that Ningappa was prosecuting and defending the matter against Pedda Narasamma and Bhimshappa right from the year 1996. Under these circumstances, the burden ought to have been on person pleading fraud and misrepresentation and therefore rigour of Section 68 of the Indian Evidence Act would not be applicable to the instant case.
33. This Court in the case of Kumbara Narasimhappa vs. Lakkanna and Another - AIR 1959 KAR 148 at paragraph No.3 has held as under:
"3. The next point for consideration is what amounts to a s pecific de nial and whethe r there is any such de nial in this case by de fendant 2. The learned A dvocate for the appe llant contends that a mere denial of the mortgage transactio n is not enough and that there must be specific words to convey that the party denies the execution by the executant and also its attestation by the attesters. As against this , the learned Advocate fo r respondent 2 urges that all that is neede d is that the party should indicate that he does not admit the mortgage.48
Looking to the wo rding of the proviso, it is apparent that what the law requires is not a mere denial but a specific denial, which means , not only that the de nial must be in express terms but that it should be definite and unam biguous. What has to be specifically de nied is the executio n of the document. Other contentions not necessarily and distinctly refe rring to the execution of the document by the allege d executant cannot be covere d by the denial contemplate d in this proviso . Such contentions may be, fo r instance , in respect of the co nsideration fo r the document or the sham or co lourable nature of the transactio n e vide nced by the document."
34. Learned counsel for the respondent has relied upon the judgment of the Apex Court in the case of Rattan Singh (Supra) wherein, the Apex Court has held that since the execution of the documents namely GPA and sale deeds have been denied by the plaintiff, became necessary for the plaintiff to examine attesting witnesses of disputed document to establish her allegation about its non-execution.
35. Thus, from the aforesaid provisions of law and settled legal position, it is clear the burden of proof 49 regarding non- execution of the deed of gift at Ex.D18 is on the plaintiffs who have failed to discharge the said burden.
36. Another aspect of the matter as noted above is the truthfulness of the case of the plaintiffs regarding the disputed deed of gift at Ex.D18. It is seen that Pedda Narasamma and her son-in-law Bhimshappa have been at logger heads with Ningappa at least right from the year 1996 when Pedda Narasamma has attempted to seek mutation of her name in the revenue records. Ningappa has denied the rights of Pedda Narasamma and Bhimshappa. He has also alleged Bhishmappa being the cause of the said dispute. The said dispute has admittedly gone up to the High Court. It is at that relevant point of time, Ningappa has executed gift deed at Ex.D18 conveying about 16 acres 11 guntas of land in favour of Chinna Narasamma retaining 17 acres 30 guntas and 2 residential houses for himself. From the fact situations of 50 the matter, it is quite natural that he has executed a deed of gift conveying almost to half of his properties in favour of Chinna Narasamma and has admittedly continued to live with her thereafter. It appears Pedda Narasamma and Bhishmappa having realized the determined stand of Ningappa more particularly his written statement in O.S.No.433/2002 regarding he executing deed of gift have though it appropriate to withdraw the said suit by adopting the methods narrated above. Thus, in the facts and circumstances of the matter, this court is of the considered view that Ningappa had voluntarily executed deed of gift at Ex.D18 and the same is valid and subsisting.
37. The purported admission by Chinna Narasamma in her cross examination of she obtaining deed of gift while getting GPA executed cannot be read in isolation to the entire facts and circumstances of the mater. As rightly taken note of by the First Appellate Court, the same has to be read in the light of pleading and 51 entire deposition of Chinna Narasamma. Read as above, the deposition of Chinna Narasamma to the said effect cannot be construed as an unequivocal and unambiguous admission giving any advantage to the plaintiffs.
REGARDING LIMITATION
38. As seen above, in Ex.D17, Ningappa in his application before the Deputy Tahsildar has sought for mutation of name of Chinna Narasamma in respect of lands in Survey No.148/4, 126, 78, 63/1 and 62/1 on the grounds of he having executed deed of gift dated 17.08.2001 and the same was objected to by Pedda Narasamma and an order in this regard had been passed on 26.03.2002. There is no explanation of any nature by the plaintiffs with regard to this aspect of the matter. The order at Ex.P17 specifically refers to Ningappa personally prosecuting the said matter. The other instance is that suit summons in O.S.No.341/2001 later renumbered as O.S.No.433/2002 have been personally delivered on said 52 Ningappa as seen from Ex.D29. The said Ningappa has affixed his thumb impression. As per the report of the bailiff seen at Ex.D30, Ningappa himself has received the summons on behalf of his daughters as well. There is no evidence led by the plaintiffs to dispute or discredit this piece of evidence produced by the defendant - Chinna Narasamma. Thus, making it clear that Ningappa had clear knowledge about he executing deed of gift in favour of Chinna Narasamma, cancellation of which was sought for by Pedda Narasamma in her suit in O.S.No.341/2001 as early as 28.11.2001 when the summons in the said suit were served on him. Plead of Ningappa being aged, illiterate, not being award of things around him stands believed in view of Ex.D17 to D18, D31 to D39 being the proceedings before the Tahsildar and the memo dated 25.07.2005 at Ex.D8 wherein it is stated that Pedda Narasamma the plaintiff in O.S.No.433/2002 was prevailed over by Ningappa to withdraw the suit. Therefore, if at all Ningappa had any grievance with regard to the said deed 53 of gift, he ought to have challenged the same within 3 years thereof. The suit in O.S.No.85/2005 has been filed on 22.06.2005 thereby completely barred by limitation. As held by the Apex Court in the case of Mamata Mohanty (Supra) at paragraph No.32 has held that:
"32. Section 3 of the Limitation Act, 1963, makes it obligatory on the part of the Court to dismiss the suit or appeal if made after the prescribed period even though the limitation is not set up as depends and there is no plea raised, the issue of limitation even at appellate stage because some cases may go to the root of the matter.
Thus, on the count of limitation also the suit in O.S.No.85/2005 cannot be considered.
39. Learned counsel for the appellants referring to Article 109 of the Limitation Act, submits that the gift deed was in respect of the ancestral properties which amounts to alienation and since the plaintiffs in O.S.No.79/2006 have also challenged the deed of gift, the Article 109 of the Limitation Act is providing a time limit of 12 years 54 applicable and not limitation period of 3 years as provided under Article 58 of the Limitation Act. He also relies upon the judgment of the Apex Court in the case of K.C.Laxman vs. K.C.Chandrappagowda and Another - 2022 (3) KCCR 2765 (SC). In the said judgment, the Apex Court has held that the period of limitation to challenge alienation of joint family property without consent of all coparceners including alienation by way of gift in respect of ancestral property would be governed under Special Article 109 of the Limitation Act which provides 12 years of period of limitation and Article 58 of the Limitation Act providing 3 years of limitation has no application.
40. Per contra, learned counsel for the respondents submits that even as per the judgment of the Apex Court in K.C.Laxman (Supra) the application of Article 109 of the Limitation Act applies in the case of alienation without consent of all coparceners in respect of the ancestral 55 properties. That in the instant case, the plaintiffs have failed to prove the properties to be the ancestral properties, as such, the said judgment is of no avail.
41. The Trial Court in O.S.No.79/2006 had framed issue No.2 casting burden on the plaintiff to prove if the suit schedule properties are the joint family properties. By issue No.6, the Trial Court casted the burden on defendant No.3 to prove if the suit schedule properties are the self acquired properties of the deceased defendant No.1 - Ningappa. The Trial Court by its elaborate reasoning at paragraph No.24 of its judgment has answered issue No.2 in the negative and issue No.6 in the affirmative. There is no challenge to the said finding of the Trial Court. Besides, the plaintiffs have failed to prove the properties to be the ancestral coparcenery properties. In that view of the matter, the plea of appellants with regard to applicability of provisions of Article 109 of the Limitation Act and reliance placed on the aforesaid judgment is of no avail. 56
REGARDING ADOPTIONS
42. The other aspect of the matter is the claim of plaintiffs regarding Bhimshappa having been adopted by Ningappa. It is the case of the plaintiffs that Bhimshappa had three daughters, namely, Pedda Narasamma, Bandemma-Plaintiff No.2 and Chinna Narasamma- the defendant. That Pedda Narasamma did not have a male issue, therefore, Ningappa adopted Bhimshappa. Though there are no detailed pleadings in the plaint regarding mode, manner, method or even the date of adoption, P.W.1, namely, Smt.Bandemma during the cross- examination recorded on 24.04.2009 has deposed that she do not remember the date on which Bhimshappa was adopted. She further deposes that he was adopted at Najanapura village. That there may be a deed of adoption, but she does not know about the same. That at the time of adoption, her sister, her mother, her father, one Kumbar Erappa and Moulana Sab were present. P.W.2- 57 Bhimshappa in his evidence has merely reiterated the plaint averments. In the cross-examination recorded on 30.05.2009, has stated that he was adopted by Ningappa in the year 1984 when he was 13 years of age and the talks of adoption were held in the presence of one Sanna Bandeppa, Kumbar Erappa and Moulana Sab and he does not remember the duration of the talks. That at the time of adoption, he was made to sit on the lap of Ningappa and was given dresses. That there was a deed of adoption, but he does not remember where has it been kept and he has not produced the said deed of adoption in the case. Except this, there is no other evidence produced by the plaintiffs in proof of adoption.
43. It is relevant at this juncture to refer to the deposition of Pedda Narasamma in O.S.No.433/2002 (old O.S.No.341/2001) recorded on 16.08.2004 in which he has admitted that her daughter was given in marriage to Bhimshappa. She does not remember the name of the 58 father of Bhimshappa. She also speaks about deed of adoption being made at the time of adoption. That she does not remember who was the priest at the time of adoption ceremony. She does not remember what was the religious ritual performed at the time of adoption. But she says that Bhimshappa was adopted at the time of his marriage with her daughter. She does not remember age of Bhimshappa at the time of adoption. But she speaks about her daughter being aged 16 years at the time of marriage.
44. Another witness by name Hussain Sab has been examined as P.W.2 in the said suit in O.S.No.433/2002 (old O.S.No.341/2001). The said witness in his cross-examination recorded on 16.11.2004 has deposed that Bhimshappa married to daughter of Pedda Narasamma in the year 1982-83. At that time, age of Bhimshappa was about 25 years.59
45. That parties have not pleaded any special usage or custom prevailing in their community. Section 10(iv) of the Hindu Adoption and Maintenance Act, 1956 prohibits adoption unless he or she not completed age of 15 years.
46. As seen above, from the deposition of Pedda Narasamma and Hussain Sab examined as P.Ws.1 and 2 in the said suit in O.S.No.433/2002, Bhimshappa was purportedly adopted by Ningappa at the time of his marriage with the daughter of Pedda Narasamma. That she does not remember his age, but age of his daughter at that time was about 16 years. Hussain Sab in his deposition has stated that at the time of marriage, age of Bhimshappa was about 25 years. Be that as it may. The fact remains that daughter of Pedda Narasamma who was given in marriage to Bhimshappa was 16 years of age. Presumption therefore, can be drawn that Bhimshappa was over 16 years at the time of marriage. In the deposition of 60 Bhimshappa, he has claimed to have been aged about 13 years at the time of adoption. Though witnesses claimed that there was deed of adoption, no evidence in this regard has been brought on record. It is relevant to note that Ningappa has not stepped into the witness box to depose regarding the alleged adoption.
47. Learned counsel for the appellants has relied upon the Judgment of the co-ordinate Bench of this Court in the case of Veera Bhadrayya (Supra). The facts and circumstances of the said case are completely different and distinct from the one at hand. In the said case, admittedly, there was a deed of adoption which was allegedly obtained by playing fraud and the appellants therein were aware of existence of said adoption deed. In the said circumstances, this Court had held the same not having been challenged during the life-time of adoptive father, it was not open for the appellants therein to 61 challenge the adoption. The Judgment in the said case is of no avail to the plaintiffs in the present case.
48. The plaintiffs in the instant case having set up the theory of adoption ought to have pleaded by giving specific details and proved it by leading cogent evidence. The factum of adoption is pleaded in the Plaint in O.S.No.85/2005 which has been filed under the doubtful circumstances narrated hereinabove. It could therefore be presumed that the theory of adoption is set up by Pedda Narasamma, Bhimshappa in the background of the dispute. As already noted, Ningappa had serious dispute against Pedda Narasamma and Bhimshappa with regard to revenue entries as far back as in the year 1996 which dispute went upto the High Court up to the year 2002. Therefore, the entire facts and circumstances of the matter casts serious doubts about the entire story of adoption set up by the plaintiffs.62
49. Thus, this Court is of considered view that the plaintiffs have failed to prove the theory of adoption propounded by them.
CONCLUSION:
50. For the aforesaid reasons and analysis, this Court is of considered view that Ningappa, the original plaintiff in O.S.No.85/2005 had executed a deed of gift produced at Ex.D18 in favour of Chinna Narasamma conveying the properties detailed therein and the said deed of gift is valid and subsisting. Accordingly, the substantial question of law No.1 is answered in the negative in that the First Appellate Court has committed no error in upholding the validity of the gift in favour of Chinna Narasamma.
51. In view of the discussions and reasoning on the point of adoption and the plaintiffs having failed to prove the factum of adoption, the substantial question of law No.2 is answered in the negative in that the First Appellate 63 Court has committed no error in holding that adoption of Bhimshappa was not valid.
52. Accordingly, the following:
ORDER
i) Appeals in RSA No.7370/2010 and RSA No.7371/2010 are dismissed;
ii) The Judgment and Decree dated 16.07.2010 passed in R.A.No.200/2009 and 201/2009 on the file of the IV Additional District Judge at Kalaburagi are confirmed.
iii) In the circumstances, no order as to costs.
Sd/-
JUDGE Msr/Srt/BNV