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2012 DIGILAW 916 (KAR)

Kishor Kumar S/O K. Rangappa v. K. Narasimha Rao

2012-11-06

K.L.MANJUNATH

body2012
JUDGMENT K.L. MANJUNATH, J.—The concurrent findings of the Courts below are called in question by the unsuccessful plaintiff in this appeal. 2. Heard the learned counsel for the appellant. 3. Facts leading to this appeal are as hereunder: Plaintiff and defendants are the legal heirs of one Rangappa who was the owner of 20 cents of land in Sy. No. 113/11 of Kadekar village in Udupi. The suit was filed by him in OS No. 123/1994 on the file of the Additional Civil Judge (Sr. Dn.), Udupi claiming partition and separate possession of his 1/7th share in the suit property. 4. According to the plaint averments, the defendant Nos. 1 to 5 and deceased Kanya Kumari, whose husband is arrayed as Defendant No. 6 and Defendant Nos. 7 to 10 are the children of Rangappa. ‘A’ schedule property was granted to the deceased Rangappa by the Tahsildar, Udupi under grant order dated 19.10.1959 and that the plaintiff and defendants are the members of Hindu Joint Family governed by Mitakshara school of law. His father Rangappa was working as a Court Amin and died about 20 years ago and after his death his mother and other brothers are residing in ‘A’ schedule property and mother also died on 29.08.1992 and later he shifted his residence to a different house on account of misunderstanding among other brothers and, therefore, he filed the suit claiming his 1/7th share in the plaint schedule property. The defendant Nos. 3, 5 and 6 filed separate written statement supporting the case of the plaintiff. The second defendant alone contested the suit. According to the second defendant, Rangappa was the absolute owner of the suit property. He gifted the same in her favour after obtaining permission from the Assistant Commissioner, Udupi under a registered deed dated 20th July 1963, since then she has been enjoying the same as absolute owner and further contends that the plaintiff and other defendants have no right or interest to claim any share. Based on the above pleadings the following issues are framed by the Court below: Issues:- (1) Whether the plaintiff proves that the immovable property bearing Sy. No. 113/11, Punja, measuring 20 cents of Kadekar Village of Udupi Taluk belongs to undivided family of plaintiff and defendants? (2) Whether the plaintiff proves that he and his mother have renovated the house existing in plaint ‘A’ schedule property? No. 113/11, Punja, measuring 20 cents of Kadekar Village of Udupi Taluk belongs to undivided family of plaintiff and defendants? (2) Whether the plaintiff proves that he and his mother have renovated the house existing in plaint ‘A’ schedule property? (3) Whether the plaintiff proves that net annual income from the plaint ‘A’ schedule property is Rs. 6,000/-? (4) Whether the plaintiff proves that the ‘B’ schedule movables are existing in the plaint ‘A’ schedule property and it is divisible? (5) Whether the 2nd defendant proves that her father had executed Gift Settlement Deed dated 20.7.1963? (6) Whether the 2nd defendant proves that she was residing through out in the plaint ‘A’ schedule property during the life time of K. Rangappa and after his death along with her mother? (7) Whether the 2nd defendant proves that the plaintiff and other defendants have no right over the plaint ‘A’ schedule property? (8) Whether the 3rd defendant proves that she is entitled for 1/7th share in plaint ‘A’ & ‘B’ schedule properties? (9) Whether the 5th defendant proves that she is entitled 1/7th share? 10. Whether the 5th defendant further proves that there are other stainless steel and copper articles omitted in schedule ‘B’ the value of which is more than Rs. 10,000/-? 11. Whether the defendants 6 to 10 are entitled for 1/7th share together? 12. Whether plaintiff is entitled for reliefs claimed in plaint? 5. In order to prove the respective contentions plaintiff got himself examined as PW1 and he relied upon Exs.P1 to 6. The first defendant was examined as DW1. She relied upon Exs.D1 to D9. 6. The trail Court after considering the entire evidence held issue Nos. 1, 6 & 7 in affirmative, issue Nos. 2, 4 and 8 to 12 in negative in regarding to issue No. 5 suit document is held to be gift deed executed by Rangappa in favour of the plaintiff. Accordingly, the suit came to be dismissed. 7. Challenging the judgment and decree of the Trial Court, the appellant filed an appeal before the Fast Track Court, Udupi in RA No. 45/2009. The learned Judge after hearing the parties formulated the following points for its consideration. Points:- (1) Whether the plaintiff proves that he is entitle for partition and separate possession in ‘A’ and ‘B’ schedule properties? If so, what is his share and which of the properties? The learned Judge after hearing the parties formulated the following points for its consideration. Points:- (1) Whether the plaintiff proves that he is entitle for partition and separate possession in ‘A’ and ‘B’ schedule properties? If so, what is his share and which of the properties? (2) Whether the defendant No. 2 proves that her deceased father K. Rangappa had executed a gift deed in her favour in respect of ‘A’ schedule properties, accordingly she is in exclusive possession of ‘A’ schedule property in exclusion of plaintiff and other defendants? (3) Whether any interference with the impugned judgment and decree passed by the lower Court is called for? (4) What order? 8. After re-appreciating the pleadings, evidence and considering the arguments Lower Appellate Court held point No. 1 in negative, point No. 2 in affirmative, point No. 3 in negative and dismissed the appeal concurring with the findings of the Trial Court. Challenging the same the present appeal is filed. 9. I have heard Mr. Hegde, learned counsel for the appellant. According to him the Courts below have committed an error in not considering that gift deed is obtained by the second defendant by playing fraud on the plaintiff and remaining defendants by undue influence, coercion and pressurizing late Rangappa to execute a gift deed. According to him when gift deed was executed, Rangappa was not having sound mind and body and the Courts below did not consider the aforesaid facts. In the circumstances, he requests the Court to re-appreciate the evidence and set-aside the order of the Lower Appellate Court. He alternatively contends that defendants failed to prove Ex.D3 in accordance with law. When the appellants have disputed the execution of gift deed, the second defendant was required to prove the gift deed by examining the attester. Since the same was not been done, the finding of the Courts below that property was gifted by the father has to be set-aside. 10. Having heard the learned counsel for the appellant, this Court does not see any substantial question of law arises in this appeal for the following reasons. 11. Even according to the plaint averment, suit property was the self acquired property of Rangappa. The right of Rangappa to execute a gift deed cannot be disputed by the plaintiff. 10. Having heard the learned counsel for the appellant, this Court does not see any substantial question of law arises in this appeal for the following reasons. 11. Even according to the plaint averment, suit property was the self acquired property of Rangappa. The right of Rangappa to execute a gift deed cannot be disputed by the plaintiff. The suit is filed by the plaintiff claiming 1/7th share as if Rangappa died intestate and after his death property has to be divided equally by all his children. 12. When the defendant has pleaded the gift deed executed by his father, plaintiff has not chosen to amend the plaint and no additional prayer to seek cancellation of the gift deed has been sought by the plaintiff except filing a rejoinder. 13. In order to prove the execution of the gift deed the defendant No. 2 alone has been examined. It is a 30 years old registered document. The same has been produced from proper custody. In her evidence she has categorically stated that the attesters and the scribe to Ex.D3 are not alive. If attesters and the scribe are not available to prove Ex.D3, the Courts below considering presumptive value attached to Ex.D3 under Section 90 of Indian Evidence Act has held that Ex.D3 is proved and the contention of the appellants that Ex.D3 has not been proved by the second defendant cannot be accepted. Ex.D2 is the permission granted by the Assistant Commissioner, Udupi to gift the property by Rangappa in favour of second defendant, wherein it is clearly stated that Rangappa was required to put up construction of a house within the time stipulated. As he could not construct the building on account of his illness, he sought permission to gift the property and the permission sought has been granted. Admittedly, Rangappa was working as Amin in the Court when he had obtained the permission from Appellate Court to execute the gift deed Rs. 1 in favour of his daughter, it is not possible for this Court to accept the arguments that a fraud has been committed by the defendant No. 2 in order to secure the gift deed from her father. 1 in favour of his daughter, it is not possible for this Court to accept the arguments that a fraud has been committed by the defendant No. 2 in order to secure the gift deed from her father. Even otherwise no iota of evidence has been placed before the Court below by the plaintiff to show that gift deed came to be registered on account of fraud or coercion played by second defendant on deceased Rangappa. Viewed from any angle this Court does not see any substantial question of law arises in this appeal. 14. Accordingly the appeal is dismissed.