Bangalore District Court
Mangala R vs Manjula R on 5 December, 2025
KABC010128052021
IN THE COURT OF THE XLI ADDL.CITY CIVIL AND
SESSIONS JUDGE : AT BANGALORE [CCH-42]
:PRESENT:
SMT. SUMANGALA CHAKALABBI, B.A. LL.B. (Hons.),
LL.M.
XLI Addl. City Civil and Sessions Judge,
Bengaluru
Dated this the 5th day of December 2025
O.S.No.3339/2021
PLAINTIFF : 1. Smt. Mangala R.
W/o Sri Mahesh Kumar B.N.,
Aged about 52 years
R/o No.108, ground floor,
2nd Cross, Vinayaka Extension,
Kempegowda Nagar,
Bengaluru - 560 019.
2. Smt. Nagarathna,
W/o Late Venkatesh,
Aged about 56 years,
R/o No.108, First floor,
2nd Cross, Vinayaka Extension,
Kempegowda Nagar,
Bengaluru - 560 019.
(By Sri Narasimha Raju, Advocate)
O.S. No.3339/2021
2
V/s.
DEFENDANTS : Smt. R. Manjula,
W/o Sri Harish,
Aged about 46 years,
R/o No.108, ground floor,
2nd Cross, Vinayaka Extension,
Kempegowda Nagar,
Bengaluru - 560 019.
(By Sri S.G.A., Advocate)
Date of Institution of the Suit: 30.06.2021
Nature of the suit
(Suit on Pronote, suit for Suit for partition and
declaration & possession, suit declaration
for injunction)
Date of commencement of 31.03.2023
recording of evidence:
Date on which the Judgment 05.12.2025
was pronounced:
Total Duration: Year/s Month/s Day/s
04 05 05
JUDGMENT
The Plaintiffs have filed this suit against the defendant for the relief of partition of their 1/3rd share in the suit O.S. No.3339/2021 3 schedule property by metes and bounds and put them in separate possession and enjoyment of the schedule property in respect of their shares ;
To declare that the gift deed dated 18.03.2009 in favour of the defendant is not binding on the plaintiffs ;
To declare that the registered Will dated 29.03.1999 is not binding on the share of the plaintiffs ;
For the relief of permanent injunction restraining the defendant from alienating / creating third party interest in respect of the schedule property ;
To award mesne profits of the schedule property ; and To grant such other reliefs, which the court may deem fit under the circumstances of the case in the interest of justice and equity.
SCHEDULE PROPERTY All the piece and parcel of the property bearing House No.103, present Corporation No.22/3 (22) situated at Vinayaka Extension, Bengaluru City Corporation, 45th Division, presently ward No.49, consisting of site O.S. No.3339/2021 4 measuring East to West 18'3" towards North, 18'3@ towards South, North to South 13 feet towards East and 17'10" towards West with a house with all civic amenities constructed thereon and bounded on the:
East by : property belonging to Smt. Jayalakshmi; West by : Smt. Padmavathi and thereafter property of Smt. Nagarathna ;
North by : Passage and property of Smt.
Mahalakshmi;
South by : Bid Drain.
2. The case of the plaintiff in brief is that, the plaintiff No.1 and defendant are the sisters and plaintiff No.2 is the wife of late Venkatesh, who is the brother of the plaintiff No.1 and defendant.
2.1 The plaintiffs and defendant constitute a Hindu joint family having common interest in the suit schedule property. The suit schedule property was owned by Smt. Gangamma, wife of Sri Rangappa, who is the grandmother of the plaintiff No.1 and defendant. The said Gangamma O.S. No.3339/2021 5 died leaving behind her husband Rangappa to succeed to her estate. Subsequent to the death of Gangamma, the katha was mutated in the name of Rangappa, who is the grandfather of plaintiff No.1. Late Rangappa during his lifetime has executed a registered Will dated 20.03.1993 bequeathing all the joint family properties amongst his legal heirs. Under the said Will schedule - C property had fallen to R. Gangamma, who is the mother of plaintiff No.1. It is averred that during the lifetime of mother of plaintiff No.1, all the legal heirs of R. Gangamma have taken care of her and the plaintiffs and defendant have attended the day to day needs of R. Gangamma. On 02.05.2013 R. Gangamma died leaving behind the plaintiffs and defendant to succeed to her estate. One Venkatesh, who is the son of R. Gangamma died leaving behind 2nd plaintiff to succeed to his estate. It is averred that R. Gangamma was suffering from cancer during her lifetime. The medical expenditure of the R Gangamma was equally borne the plaintiffs and defendant. Thus, the plaintiffs and defendants are equally O.S. No.3339/2021 6 entitled for their equal share in the suit schedule property.
After the death of mother of the plaintiff No.1, a panchayath was convened requesting the defendant to allot a legitimate share of the plaintiffs in the suit schedule property. The defendant kept on assuring to allot share in the suit schedule property, but inspite of several requests she did not yield to the request. It is the further case of the plaintiffs that on 18.03.2009 a gift deed was registered in the name of the defendant by the mother of the defendant. The plaintiffs were shocked to know about the said fact and subsequently they requested the defendant to provide the copy of the gift deed. The defendant has produced the Xerox copy of the gift deed. Upon enquiries it was noticed that the defendant has manipulated the alleged gift deed from the hands of the mother of the defendant. The said gift deed was created only with an intention to defeat the rights of the plaintiffs herein by brainwashing the mother of the defendant. After gaining knowledge about execution of the gift deed, the plaintiffs have applied for the certified copies of the same O.S. No.3339/2021 7 and they have produced it before the court. The said gift deed does not convey any valid right, title or interest over the suit schedule property in favour of the defendant as it is created for the purpose of defeating the rights of the plaintiffs. It is further averred that the defendant not being satisfied with the gift deed dated 18.03.2009, during the existence of the same, in collusion with her mother R. Gangamma had fraudulently obtained registered Will dated 29.03.1999 in respect of the suit schedule property. It is further contended that the mother of the plaintiff No.1 R.Gangamma had no intention to execute any Will, but the defendant had instigated her mother to execute the Will and the said fact came to the knowledge of the plaintiff No.1 during her cross-examination before this court. It is further contended that the said Will is created, fabricated and not binding on the share of the plaintiffs and thus, sought for the above said reliefs.
3. It is pertinent to note that the relief with respect to registered Will dated 29.03.1999 was not sought at the O.S. No.3339/2021 8 time of filing of the plaint. However, when the registered Will was confronted to PW.1, the plaintiff had got amended the plaint and sought the additional relief in respect of the registered Will executed by her mother in favour of the defendant.
4. Thereafter, the plaintiff has filed her additional affidavit on the amended plaint.
5. The defendant has filed written-statement and additional written-statement. It is averred that the defendant alone has taken care of her mother and the plaintiffs have not at all spent any amount for the medical and hospital expenditure of her mother.
5.1 It is also contended that the plaintiffs are aware of the execution of the Will dated 29.03.1999 and execution of the gift deed dated 18.03.2009 executed by the mother of the defendant in favour of the defendant long back.
5.2 According to the defendant that the plaintiffs have tried to challenge the gift deed and Will only to harass the defendant and to knock of the suit schedule property. It is O.S. No.3339/2021 9 averred that the mother of the defendant had voluntary executed registered Will dated 29.03.1999 and a registered gift deed dated 18.03.2009 in her favour.
5.3 In the additional written-statement the defendant has denied the allegations of fraud, fabrication and the alleged collusion between the defendant and her mother . The defendant has also contended that the plea of Will was already taken in the written-statement and therefore, the contention of the plaintiffs that they were not aware of the Will executed by the mother of the defendant in her favour is not sustainable. Hence, sought to dismiss the suit with exemplary costs.
6. On the above pleadings of the parties, the following issues have been framed:
(1) Whether the plaintiffs prove that the suit schedule property is jointly inherited by the Plaintiffs and defendants from their mother- R Gangamma.
O.S. No.3339/2021 10
2. Whether the Plaintiffs prove that they are entitled for 1/3rd share in the suit schedule property.
3. Whether the Plaintiffs prove that the registered Gift deed dated 18.03.2009 is not binding on the share of the Plaintiffs.
4. Whether the Plaintiffs are entitled for the relief of permanent injunction restraining defendant from alienating the suit schedule property.
5. Whether the defendant proves that she is the absolute owner of the suit schedule property by virtue of registered Gift deed dated 18.03.2009.
6. Whether the defendant proves that she is the absolute owner of the suit schedule property by virtue of registered Will deed dated 29.03.1999.
7. Whether the plaintiffs are entitled to the reliefs sought for?
8. What decree or order?
O.S. No.3339/2021 11 ADDITIONAL ISSUE FRAMED ON 06.07.2024
1. Whether the plaintiff proves that the registered Will dated 29.03.1999 is created and not binding on the share of the plaintiffs.
7. In order to prove the case of the plaintiffs, the plaintiff No.1 got examined herself as PW.1 on 31.03.2023 and got marked documents at Ex.P.1 to Ex.P.15. On 14.08.2024 PW.1 has filed her additional affidavit.
6.1 To prove the defence, the defendant got examined herself as DW.1 and Ex.D.1 to D.3 were got marked by PW.1 through confrontation during the course of her cross- examination.
8. Heard the arguments. Perused the records.
9. My findings to the above issues are as under:
Issue No.1 to 4 - In the Negative Issue No.5 - In the Affirmative Issue No.6 & 7 - In the Negative Addl.Issue No.1 - In the Negative O.S. No.3339/2021 12 Issue No.8 - As per the final order for the following:
REASONS
10. ISSUE Nos.1 TO 4 AND ADDITIONAL ISSUE No.1:-
These issues are interrelated and therefore, they are taken up together for common discussion in order to avoid repetition of facts. The plaint averments disclose that on the death of R.Gangamma who is the mother of the plaintiff no.1 and the defendant, the plaintiffs are claiming inheritance rights in the suit property . According the plaintiffs the disclosure of the execution of the Gift deed was made by the defendant herself when the plaintiffs demanded partition in the suit property. It is contended by the plaintiffs that the Gift deed and the Will deed are fabricated by the defendant to defeat the right of the plaintiffs and therefore there are liable to be declared as null and void.
11. The plaintiff No.1 got examined herself as PW.1. The plaintiff No.2 has not at all appeared before the court to contest the case. It is pertinent to note that the plaintiffs O.S. No.3339/2021 13 No.1 and 2 who are claiming their rights in respect of the suit schedule property by challenging the execution of the registered Will dated 29.03.1999 and the registered gift deed dated 18.03.2009 have taken up vague contentions regarding the execution of the aforesaid registered instruments in the plaint. In para No.7 of the plaint, the plaintiffs have merely stated when the plaintiffs demanded partition the defendant disclosed about the execution of the Gift deed and thereafter they requested the defendant to provide a copy of the gift deed. The plaintiffs themselves have admitted that the defendant had produced the Xerox copy of the gift deed to the plaintiffs. According to the plaintiffs after they gained knowledge about the execution of the gift deed, they realized that the gift deed was fabricated. The plaintiffs except using the words such as manipulation, brain wash, creation and fabrication have not at all pleaded any particular material facts to demonstrate as to how the manipulation, brain wash, creation and fabrication of the gift deed have taken place. The particulars of the O.S. No.3339/2021 14 alleged fraud are not at all pleaded by the plaintiffs to establish that the said gift deed relied upon by the defendant does not convey a valid title in her favour. Even in relation to the challenge to the execution of the registered Will dated 29.03.1999, it is averred that the defendant not being satisfied with the gift deed in collusion with her mother has obtained a Will dtd 29.3.1999 fraudulently in her favour to defeat the rights of the plaintiffs. Even though the Will at Ex.D3 was executed on 29.3.1999, the plaintiffs have contended that not being satisfied with the execution of the Gift deed on 18.3.2009 the defendant has fraudulently obtained the Will in her favour in her plaint without realizing that the Will at Ex.D3 was executed in favour of the defendant much prior to the Gift deed at Ex.D2.
12. Except asserting that R. Gangamma had no intention to execute the Will and stating that the defendant instigated the mother of the plaintiffs no.1 to create the Will, the plaintiffs have not pleaded the essentials elements of O.S. No.3339/2021 15 fraud or force. It is not the case of the plaintiffs that the Will was executed under suspicious circumstances or the mother of the plaintiffs was not in sound disposing state of mind. Order VI Rule 4 mandates that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. The element of fraud, fabrication and creation alleged in the plaint must state those facts which together taken as a whole, if proved, would show and establish the same. The plea of fraud and misrepresention should be conspicuous and palpable, and should not be predicated on mere suspicion and conjecture. Section 10 of the Indian Contract Act provides that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Section 14 O.S. No.3339/2021 16 of the Indian Contract Act further provides that Consent is said to be free when it is not caused by--(1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or(3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake, subject to the provisions of sections 20, 21 and 22. In the above case it is not the case of the plaintiffs that there was no free consent in relation to the execution of the Gift deed or the Will on account of the any of the aforesaid reasons. In this context it is appropriate to refer to the judgment of the Apex Court in the case of C.S.Ramaswamy v. V.K.Senthil in Civil Appeal No. 500/2022 dtd. 30.9.2022, has held that mere using the word fraud as opposed to making specific averments was not sufficient. Therefore the plaintiffs could have narrated the circumstances which led to manipulation and fabrication of the impugned deeds. It is not even stated by the plaintiff as to what positive statement or representations were made by the defendant to obtain the registered Gift deed and Will in her favour in order to O.S. No.3339/2021 17 procure the aforesaid deeds in her favour.. At this stage it is appropriate to refer to Section 17 of the Indian Contract Act Section 17: 'Fraud' defined.--
'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent', with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:--(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;(2)the active concealment of a fact by one having knowledge or belief of the fact;(3)a promise made without any intention of performing it;(4)any other act fitted to deceive;(5)any such act or omission as the law specially declares to be fraudulent.
The above provision provides the foundational parameters to decide the act of fraud. But in the above case though the plaintiff has alleged fraud the details of the commission of the fraud and the in manner in which fraud was alleged to have been committed is not pleaded at all. The plaintiffs in their plaint have not narrated any events, time, date or the manner in which fraud , manipulation and fabrication has taken place at the relevant point of time and consequentially there is absolutely no disclosure of any O.S. No.3339/2021 18 cause of action in relation to the execution of the Gift deed and Will in favour of the defendant.
13. In Colonel Shrawan Kumar Jaipuriyar. vs Krishna Nandan Singh in Civil Appeal NO. 6760 OF 2019, the Supreme Court referring to Court in Church of Christ Charitable Trust and Educational Society Represented by its Chairman v. Ponniamman Educational Trust Represented by its Chairman/ Managing Trustee (2012) 8 SCC 706 and A.B.C. Laminart Pvt. Ltd. and Another. A.P. Agencies, Salem, (1989) 2 SCC 163 the Apex court has sought to explain that the cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to seek a decree and relief against the defendant. Cause of action requires infringement of the right or breach of an obligation and comprises of all material facts on which the right and claim for breach is founded, that is, some act done by the defendant to infringe and violate the right or breach an obligation ... For a right to exist, there must be a corelative duty which can be enforced in a law suit. A right O.S. No.3339/2021 19 cannot exist without an enforceable duty. In the present case, the pleadings fail to establish violation of a statutory right which creates an enforceable right in the court of law. In the absence of any disclosure of such right or even a claim, the plaint would not disclose cause of action.
14. It is pertinent to note that during the course of cross-examination of PW.1, she has admitted the execution of the registered Will and gift deed by her mother in favour of the defendant and they are marked as Ex.D.2 and D.3. PW.1 has further admitted that she gained knowledge of the gift deed and Will about two years ago. She has also admitted that she has not inquired anything about the authenticity of the Gift and Will from the witnesses of the gift deed and Will which are executed in favour of the defendant. She has further admitted that she has not produced any document to show that she has utilized her funds for the medical treatment of her mother who was suffering from Cancer. The plaintiffs in order to prove that O.S. No.3339/2021 20 they too have contributed to the medical expenses of the mother of the plaintiff no.1 have no produced any iota of evidence to prove the same. Even if it is assumed that the plaintiffs had spent for the medical expenses of R.Gangamma, it is evident that much contrary to the plea of plaintiffs in the plaint, suggestions are made to DW1 that R.Gangamma had spent a sum of RS.4,00,000/- which was obtained under a decree towards her medical expenses and she also had sufficient rental income to meet her treatment charges. The plaintiffs have not produced any documentary evidence to prove that R.Gangamma had sufficient funds for her medical treatment and therefore the contention of the defendant that she had exclusively spent her amount towards the medical expenses of her mother is not sustainable. The fact that the mother of the plaintiff No.1 was suffering from cancer and she was under
treatment is not at all disputed by the plaintiffs. DW1 had categorically deposed that Ex.D2 & Ex.D3 were executed in her favour on account of the fact that she had taken care of O.S. No.3339/2021 21 her mother and she had spent sufficient amount towards the medical expenses of her mother. In fact in terms of the recitals of Ex.D1 at paragraph No. 5 the mother of the plaintiff no.1 has herself stated that the defendant has spent her amount towards the medical expenses of her husband, son and herself. Therefore there is nothing on record to disbelieve the case of the defendant. DW1 has named the witnesses of Ex.D3 (Will dtd 29.3.1999 during her cross examination and she has denied that she has obtained the impugned instruments by force and coercion. PW1 has deposed that the she is not residing in the suit property from the date of the death of her mother and in fact defendant is residing in the suit schedule property. The suggestions made by the counsel for the plaintiffs to DW1 denotes that the plaintiffs case is founded on the premise that the defendant has got executed the Gift deed in her favour by taking undue advantage of the ill health of the mother of the defendant and she herself has taken active participation in execution of the gift deed when O.S. No.3339/2021 22 R.Gangamma had not intention to execute the same but none of these suggestions are founded on the pleadings. Similarly though PW1 has stated that her mother was suffering from depression during her evidence she has not pleaded the same in the plaint. The counsel for the plaintiffs have challenged the mental capacity of the mother of the defendant at the time of execution of the Gift deed and Will in favour of the defendant and has demanded medical certificate from the defendant in this regard but in the absence of any plea with regard to the mental fitness in the plaint such a suggestion is not sustainable.
15. The plaintiffs who have persistently taken the stand during the course of evidence that the R.Gangamma was not physically and mentally fit at the time of execution of the Gift deed and Will deed in favour of the defendant have lost sight of the fact that the Will at Ex.D1 under which the plaintiff No.1 has derived the benefit of one of the properties held by R.Gangamma was executed in favour of the plaintiff no.1 and defendant jointly on 14.10.2010 O.S. No.3339/2021 23 much after the execution of the gift deed at Ex.D2 and Will deed at Ex.D3, On 22.11.2024 PW1 has admitted during her cross examination that she has acquired rights over property no. 108 under the registered Will dtd. 14.10.2010 executed by R.Gangamma and at the time of execution of the said Will at EX.D1 , her mother R.Gangamma was hale and healthy. She has further admitted that R. Gangamma executed a registered Will deed at Ex.D1 after knowing the contents of the same. It is pertinent to note that another property owned by R.Gangamma bearing property no. 108 situated at Kempegouda nagar, acquired by her under a decree in O.S.No. 4470/07 was bequeathed under a registered Will in favour of the plaintiff No.1 and the defendant. In terms of the recitals of the Will at EX.D1 R.Gangamma has categorically stated that she has already executed a registered Gift deed in favour of the defendant in respect of her another property and therefore the said property is not the subject matter of the Will at Ex.D1. The plaintiffs who are claiming inheritance rights in respect of O.S. No.3339/2021 24 the suit property are very aware of the execution of the Will in respect of the property bearing No. 108 and also of the recitals of the same where in a reference is made to the Gift deed executed in favour of the defendant in respect of the suit property. It is not the case of the plaintiffs that they are unaware of the execution of the Will at Ex.D1 dtd 14.10.2010. Once the plaintiffs have accepted and acquiscenced the Will at Ex.D1, it is deemed that the execution of the Gift deed in favour of the defendant at Ex.D2 is very much within the knowledge of the plaintiffs and now they are estopped from challenging the same in 2021. DW1 has denied that R.Gangamma was not physically and mentally fit at the time of the execution of the Gift deed in favour of the defendant and she has stated that R.Gangamma was physically mobile and she was contesting a case on her own during 2008-09. The evidence of PW1 clearly indicates that the Gift deed executed in favour of the defendant was acted upon and the plaintiffs have acquiescenced the same. The materials on record O.S. No.3339/2021 25 reveal that the plaintiffs have not registered any criminal complaint alleging fabrication of the impugned instruments at Ex.D2 and D3 by the defendant. If the plaintiffs were genuinely aggrieved with the execution of the Gift deed and Will in favour of the defendant certainly they would have initiated criminal proceedings against the defendant.
16. The relevant portion of the deposition of PW.1 is herein extracted below:
ನನ್ನ ತಾಯಿಯ ತಾಯಿಯ ಹೆಸರು ಗಂಗಮ್ಮ ಅವರಿಗೆ ಯಾವುದೇ ಇನಿಷಿಯಲ್ ಇಲ್ಲ. ವಿಲ್ ಮತ್ತು ದಾನಪತ್ರ ಮಾಡಿರುವವರ ಹೆಸರು ಆರ್ ಗಂಗಮ್ಮ ಅಲಿಯಾಸ್ ಪಾಪು. ಈಗ ನಾನು ನಮ್ಮ ತಾಯಿಯವರು ಬರೆದು ಕೊಟ್ಟಂತಹ ಮರಣ ಶಾಸನದ ಮೂಲ ದಾಖಲೆಯನ್ನು ನೋಡುತ್ತಿದ್ದು ಅದು ಸರಿ ಇರುತ್ತದೆ. ಸದರಿ ದಾಖಲೆಯನ್ನು ನಿಡಿ-1 ಎಂದು ಗುರುತಿಸಲಾಯಿತು. ಅದೇ ರೀತಿ ನೊಂದಾಯಿತ ದಾನಪತ್ರವನ್ನು ನೋಡುತ್ತಿದ್ದು , ಅದು ಸರಿ ಇರುತ್ತದೆ. ಸದರಿ ದಾಖಲೆಯನ್ನು ನಿಡಿ-2 ಎಂದು ಗುರುತಿಸಲಾಯಿತು. ಈಗ ನಾನು ದಿನಾಂಕ 29.03.1999ರ ಮರಣಶಾಸನವನ್ನು ನೋಡುತ್ತಿದ್ದು ಅದನ್ನು ನನ್ನ ತಾಯಿಯವರಾದ ಆರ್.ಗಂಗಮ್ಮ ಎನ್ನು ವವರು ಬರೆದಿರುತ್ತಾ ರೆ. ಸದರಿ ದಾಖಲೆಯನ್ನು ನಿಡಿ-3 ಎಂದು ಗುರುತಿಸಲಾಯಿತು. ಈಗ ನಾನು ನಿಪಿ -6 ಮತ್ತು 6(ಎ)ಅನ್ನು ನೋಡುತ್ತಿದ್ದು ಅದರಲ್ಲಿ ಸರ್ವೆ ನಂ. 22/1 40 X 45 ದಾವಾ ಆಸ್ತಿಯನ್ನು ಗಂಗಮ್ಮನವರು ಖರೀದಿ ಮಾಡಿದ್ದಾ ರೆ ಎಂದು ಉಲ್ಲೇಖ ಇರುತ್ತದೆ . ಗಂಗಮ್ಮನವರು ತೀರಿ ಹೋದ ನಂತರ ನಮ್ಮ ತಾತನವರಾದ ರಂಗಪ್ಪ ನವರ ಹೆಸರಿಗೆ ಬಂದಿರುತ್ತದೆ. ನಮ್ಮ ತಾತನವರಾದ ರಂಗಪ್ಪನವರು ತಮಗೆ ಬಂದ O.S. No.3339/2021 26 ಆಸ್ತಿಯನ್ನು ವಿಭಾಗ ಮಾಡಿರುತ್ತಾ ರೆ. ಸದರಿ ವಿಭಾಗದಲ್ಲಿ ನನಗೆ ಯಾವುದೇ ಭಾಗ ಬಂದಿರುವುದಿಲ್ಲ. ಸದರಿ ವಿಭಾಗದಲ್ಲಿ ರಂಗಪ್ಪ ನವರ ಮಕ್ಕಳಿಗೆ ಭಾಗ ಕೊಟ್ಟಿರುತ್ತಾ ರೆ. .. ದಾವಾ ಆಸ್ತಿಯ ಯಾವುದೇ ಭಾಗ ನನ್ನ ಸ್ವಾ ಧೀನಲ್ಲಿ ಇಲ್ಲ ಎಂದರೆ ಸರಿ. ನಮ್ಮ ತಾಯಿಯವರು ತೀರಿ ಹೋದ ನಂತರ ನಾವು ದಾವಾ ಆಸ್ತಿಯಲ್ಲಿ ವಾಸವಾಗಿಲ್ಲ... ಪ್ರತಿವಾದಿಯು ಮೇಲೆ ಹೇಳಿದ ದಾಖಲೆಗಳನ್ನು ಮೋಸದಿಂದ ಬರೆಸಿಕೊಂಡಿರುತ್ತಾ ರೆ, ಏಕೆಂದರೆ ಸದರಿ ದಾಖಲೆಯಲ್ಲಿ ನನಗೆ ಹಾಗೂ ಎರಡನೇ ವಾದಿಗೆ ಯಾವುದೇ ಹಕ್ಕನ್ನು ಕೊಟ್ಟಿರುವುದಿಲ್ಲ.
ನಾನು ಆಸ್ತಿ ಸಂಖ್ಯೆ 103 ರಲ್ಲಿ ವಾಸವಾಗಿದ್ದೇನೆ. ನನಗೆ ಆಸ್ತಿ ಸಂಖ್ಯೆ 103 ಮತ್ತು 108 ರಲ್ಲಿ ಹಕ್ಕು ಇರುತ್ತದೆ. ನನಗೆ ಆಸ್ತಿ ಸಂಖ್ಯೆ 108 ಒಂದು ನೊಂದಾಯಿತ ಮರಣ ಶಾಸನ ದಿನಾಂಕ 14.10.2010 ರ ಮೂಲಕ ಬಂದಿರುತ್ತದೆ. ಸದರಿ ನೊಂದಾಯಿತ ಮರಣ ಶಾಸನ ಬರೆಯುುವ ಕಾಲಕ್ಕೆ ಗಂಗಮ್ಮನವರ ಆರೋಗ್ಯ ಸರಿ ಇತ್ತು ಎಂದರೆ ಸರಿಯಲ್ಲ. ಗಂಗಮ್ಮ ರವರು ತಮ್ಮ ಸ್ವ ಇಚ್ಚೆಯಿಂದ ನೊಂದಾಯಿತ ಮರಣ ಶಾಸನವನ್ನು ಬರೆದುಕೊಟ್ಟಿದ್ದಾ ರೆ ಎಂದರೆ ಸರಿ. ತಿದ್ದು ಪಡಿ ದಾವೆಯಲ್ಲಿ ಹಾಕಿರುವ ಅಂಶಗಳು ಸುಳ್ಳು ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಿಶಾನೆ ಡಿ -1 ರಲ್ಲಿ ರುಜು ಮಾಡಬೇಕಾದರೆ ಗಂಗಮ್ಮ ನವರು ಅದರಲ್ಲಿರುವ ವಿಷಯವನ್ನು ತಿಳಿದುಕೊಂಡು ರುಜು ಮಾಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ.
17. It is pertinent to note that even though in the plaint the plaintiffs have admitted the factum of acquisition of the larger extent of the suit property by Gangamma W/o. Rangappa namely the grandmother of the plaintiff no.1 and the fact that the suit property was bequeathed to the mother of the plaintiff No.1 under the Will dtd 20.3.1993 executed by Rangaappa, the counsel for the O.S. No.3339/2021 27 plaintiff has made an attempt to suggest that the Gangamma W/o Rangappa has not executed any Will in favour of the mother of the defendant and therefore the grand father of the defendant has no right to execute the Will in favour of the mother of the defendant. It is well settled principle of law that the evidence of the parties cannot travel beyond the pleadings. In Kashi Nath (Dead) through L.Rs. v.Jaganath,Kashi Nath (Dead) Through Lrs v. Jagannath,(2003) 8 SCC 740. It was held that where the evidence is not in line with the pleadings and is at variance with it, the evidence cannot be looked into or be depended upon. Along these lines it has been held by the Supreme Court in Bachhaj Nahar v. Nilima Mandal & Ors, AIR 2009 SC 1103 that no amount of evidence, on a plea that is not suggested in the pleadings,can be looked into to grant any relief. Hence the contentions raised by the plaintiffs during the course of evidence or arguments cannot be looked into. Section 104 of the Bharatiya Sakshaya Adhiniyam 2023 provides : whoever desires any Court to O.S. No.3339/2021 28 give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 105 of the said Act provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 106 of the said Act provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Thus under the aforesaid provisions the initial burden lay on the plaintiffs for establishing a case of fraud, misrepresentation and coercion, etc. In Ningawwa v. Byrappa (1968) 2SCR 797, it was observed that:
"It is well established that a contract or other transaction induced or tainted is not void, but only voidable at the option of the party defrauded. Until it avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests O.S. No.3339/2021 29 in the matter which they may enforce against the party defrauded".
18. Therefore in the light of the above precedent and provision of the Bharatiya Sakshiya Adhiniyam, 2023 the plaintiffs who were bound to prove that the impugned instruments are voidable and that the defendant does not derive any valid title under the aforesaid instruments have failed to prove the same by way of pleadings and proof. In the case of Manager, Reserve Bank of India, Bangalore vs. S.Mani, (2005) 5 SCC 100 that mere pleadings of a party cannot be treated as substitute for proof. None of the documents produced by the plaintiff establish that the plaintiffs are in the joint possession and enjoyment of the suit property. No independent witnesses are summoned as witnesses to demonstrate and prove that they are in the joint possession and enjoyment of the suit property and Gift deed at Ex.D2 & Will at Ex.D3 are sham documents . Nothing material is elicited from DW1 to establish the legal right of the plaintiffs over the suit property. Section 34 of O.S. No.3339/2021 30 the Specific Relief Act, 1963 categorically provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled. In spite of seeking a declaratory relief qua the Gift deed and Will deed the plaintiffs have utterly failed to prove their case on preponderance of probability. In the result the plaintiffs have failed to prove that they have jointly inherited the suit property with the defendant and they are entitled for 1/3rd share in the suit property. The plaintiffs have also utterly failed to prove that the Gift deed dtd 18.3.2009 is not binding on the plaintiffs and the the registered Will dated 29.03.1999 is created and not binding on the share of the plaintiffs. Accordingly Issue Nos.1 to 3 and Additional Issue No.1 are answered in the Negative.
19. Issue No. 4 to 7 :- It is the specific case of the defendant that she is the absolute owner of the suit O.S. No.3339/2021 31 schedule property by virtue of the gift deed dated 18.03.2009 and registered Will dated 29.03.1999.
20. It is pertinent to note that Ex.D.2 is the original registered gift deed executed by the mother of the defendant on 18.03.2009 in favour of the defendant herein in respect of the suit schedule property. In the said gift deed there is a categorical recital by R. Gangamma that she has already executed registered Will dated 29.03.1999 in favour of the defendant. However, she has stated that in order to confer the title over the suit schedule property during her lifetime she has executed gift deed in favour of the defendant.
21. When Ex.D.2 which is a Gift deed dtd 18.3. 2009 is read in the light of Ex.D.3, which is the original registered Will executed by R. Gangamma on 29.03.1999 in favour of the defendant, it is forthcoming that R. Gangamma had executed the Will in favour of the defendant in respect of the very same property. In this background when there are two registered instruments in respect of the very same property, O.S. No.3339/2021 32 the question that arises is, which of the instruments would prevail and confer right upon the defendant.
22. It is an undisputed fact that R.Gangamma died on 2.5.2013 and therefore at this stage it is appropriate to refer to Section 152 of the Indian Succession Act, 1925, which states that if anything which has been specifically bequeathed does not belong to the testator at the time of his death, then it cannot take effect by reason of the subject matter having been withdrawn from the operation of the Will. Thus it is clearly evident that if a property which has been specifically bequeathed does not exist at the time of the testator death, then such legacy stands adeemed owing to the non existence of the property and therefore in the present case also the execution of the Gift deed in favour of the defendant in terms of Ex.D2 has extinguished the bequest under Ex.D3 made in favour of the defendant. In view of the aforesaid provision of law it is pellucid that even though R. Gangamma had executed a registered Will on 29.03.1999 as per Ex.D.3, the said registered Will cannot O.S. No.3339/2021 33 be given effect to on account of subsequent execution of the gift deed by R. Gangamma in favour of the defendant under Ex.D.2 during her lifetime much prior to her death. Therefore, the defendant cannot derive any right, title or interest on the basis of the registered Will dated 29.03.1999 on account of the subsequent execution of the Gift deed in her favour on 18.3.2009 and thereby the registered Will at Ex.D3 has lost its validity.
23. Now the question that arises is whether the defendant proves the valid execution of the Gift deed at Ex.D2. Chapter VII of the Transfer of Property Act deals with 'Gifts'. Section 122 of the Transfer of Property Act defines what a gift is. It reads as under: "Gift" defined. -
"Gift" is the transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one person call the donor, to another, called the donee, and accepted by or on behalf of the donee. From the aforesaid section, it is clear that a gift to be valid, it should be made voluntarily and without consideration.
O.S. No.3339/2021 34 The gift should be accepted by or on behalf of the donee. Therefore, what is to be demonstrated before the Court is that the gift is made voluntarily and is duly accepted by the donees. Section 123 of the Transfer of Property Act deals with as to how transfer of a property by way of gift, is effected. The said gift must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Therefore, a gift deed is a compulsorily attestable document. How a document, which is compulsorily attestable should be proved is found in Section 68 of the Indian Evidence Act, now Section 67 of the Bharatiya Sakshya Adhiniyam, 2023.
24. Section 67 of the BSA 2023 mandates that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:Provided that it shall not be necessary to call an attesting witness in proof of O.S. No.3339/2021 35 the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. But proviso to Section 67 provides that, if the document is registered in accordance with the provisions of the Indian Registration Act, unless its execution by the person by whom it purports to have been executed is specifically denied. Thus it is not necessary to examine the attesting witness in relation to a gift deed to prove it. However, this proviso has no application in the case of a Will.
25. Interpreting this provision, the Apex Court in the case of Surendra Kumar Vs. Nathulal and another reported in (2001)5 SCC 46 had an occasion to consider the requirement of due execution of a gift deed as contemplated under Section 123 of the Transfer of Property Act. The Apex Court held that in the present case there exists a registered deed of gift signed by the donor and attested by two O.S. No.3339/2021 36 witnesses. Therefore, the requirement of the law as incorporated in the Section is satisfied. On a plain reading of the proviso, it is manifest that a registered deed of gift can be received in evidence without examining one of the attestors if the person who has executed the deed of gift has not specifically denied its execution. In view of the above proviso to Section 67 of the BSA, the defendant who is relying upon the registered gift deed is not required to examine any attesting witness in proof of the execution of the Will or the gift deed, by virtue of the fact that it is a registered instrument, which is registered in accordance with the provisions of Indian Registration Act, 1908. Besides the execution of the gift deed is not challenged by the executant namely R. Gangamma in any proceedings during her lifetime. Similarly it is not the case of the plaintiffs that the Gift deed at ExD2 is not registered in accordance with the provisions of the Indian Registration Act, 1908. In fact the execution of the Gift deed at Ex.D2 in favour of the defendant is categorically admitted by O.S. No.3339/2021 37 R.Gangamma while executing a registered Will at Ex.D1 jointly in favour of the plaintiff no.1 and the defendant. Besides the plaintiff No.1 has admitted the execution of the Gift deed at Ex D2 in favour of the defendant during her cross examination. The gift deed at Ex.D2 being a registered document is presumed to be genuine unless its authenticity is challenged and proved that it is not a valid instrument. In the above case as observed the plaintiffs have miserably failed to prove that the Gift deed at Ex.D2 is a fraudulent document and consequentially in the absence of any plea or evidence to the contrary the Gift deed is valid and binding on the plaintiffs. Therefore, the defendant has proved Issue No.5 but has failed to prove Issue No.6. Meanwhile the plaintiffs have failed to prove their legal right over the suit property and the defendant has proved that there is a valid execution of the Gift deed in her favour thus the relief sought by the plaintiffs for the relief of permanent injunction restraining defendant from alienating the suit schedule property falls to the ground for want of any legal O.S. No.3339/2021 38 right over the suit property. The above suit is filed on 30.6.2021 challenging the Gift deed at Ex.D2 dated 18.3.2009, the purpose of registration of a document is to put the members of the public on notice about the particular document being registered and transaction having occurred. The registration of a document makes it a public document and consequently the same is reflected in the encumbrance certificate. The registration of a document constitutes constructive notice to the parties having interest in the subject-matter of the property. By referring to the explanation I appended to Section 3 of the Transfer of Property Act it is held that registration of a document constitutes sufficient notice so long as the details thereto are entered in the concerned registers and the period of limitation would commence from the date of registration in Jannardhanam Prasad v. Ramdas in (2007) 15 SCC 174. In the above case though the registered gift deed is executed in the year 2009 the plaintiffs have contended that the cause of action for the suit arose on 25.6.2021 O.S. No.3339/2021 39 when the plaintiffs demanded partition of the suit schedule property from the defendant. There is absolutely no averment in the plaint disclosing as to why the plaintiffs have not approached the court at the first instance despite there being registered gift deed in respect of the suit schedule property. The plaint is bereft of material particulars regarding the cause of action in instituting the above suit. It is not the case of the plaintiffs that they are entitled for the benefit of Section 17 of the Limitation Act. . In the absence of any material pleading for the condonation of delay as required under Section 17 of the Limitation Act, it cannot be said that the suit of the plaintiffs is well within the limitation. For all the aforesaid reasons the plaintiffs are not entitled for any reliefs sought in the suit. In the conclusion the defendant has proved that she is the absolute owner of the suit property by virtue of the Gift deed at Ex.D2. Hence, Issue No.5 is answered in the Affirmative and Issue No. 4, 6 & 7 are answered in the Negative.
O.S. No.3339/2021 40
26. ISSUE No.8 :- In view of my findings on Issue Nos.1 to 6 and additional Issue No.1, I proceed to pass the following:
ORDER The suit of the plaintiff is dismissed.
Draw decree accordingly.
(Dictated to the judgment writer, transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 5th day of December , 2025).
(SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 - Smt. Mangala R. -22.11.2024
b) Defendants' side:
DW.1 - Smt. Manjula - 09.01.2025
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P. 1 Genealogical tree
Ex.P. 2 Certified copy of Will deed dated 20.03.1993
O.S. No.3339/2021
41
Ex.P. 3 Computer Generated copy of Gift deed
dated 18.03.2009
Ex.P. 4 Certified copy of EC from 01.04.2004 to
17.03.2023
Ex.P. 5 Death certificate of Gangamma
Ex.P. 6 Certified copy of sale deed dated
16.09.1942
Ex.P. 7 Certified copy of Bifurcation plan
Ex.P. 8 One CD containing photographs subject to
production 65 B certificate
Ex.P. 9 5 Photographs
to 13
Ex.P. 14 Receipt issued by photo shop
Ex.P. 2(a) Typed copy of Will dated 20.03.1993 Ex.P. 6(a) Typed copy of sale deed dated 16.09.1942 Ex.P. 15 Section 65B certificate in support of Ex.P.8
b) Defendants' side :
Ex.D.1 Orig inal Will dated 14.10.2010 Ex.D.2 Gift deed dated 18.03.2009 Ex.D.3 Will dated 29.03.1999
Ex.D.1 to D.3 marked in the cross-examination of PW.1 through confrontation (SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.