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2020 DIGILAW 1065 (KAR)

Neelawwa v. Sekharayya Mallayya Bardur

2020-06-12

N.S.SANJAY GOWDA

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JUDGMENT N.S. Sanjay Gowda, J. - The 2nd and 3rd defendants are in the second appeal. 2. Shekharayya Mallayya Baradoor, the third son of Mallayya (Defendant No.1) filed a suit for partition. 3. The genealogy as set out by the plaintiff was as follows: "IMAG" 4. It was the case of Shekharayya that all the suit properties were joint family properties and he had a share in the said properties. It was his case that his father was taking the assistance of the 3rd defendant Shidramayya his elder son and the 3rd defendant had taken disadvantage of this proximity and had not only raised loans on the certain properties but he had also obtained the signatures of his father on certain documents. He stated that when this fact came to his knowledge, he raised a protest and could not pull on with the joint family and he claimed to for his share, which was refused and hence the suit. 5. In the said suit, his father was arrayed as the 1st defendant and his mother as the 2nd defendant and his brothers and sisters were arrayed as defendant Nos.3 to 9. The wife of 3rd defendant-Shidramayya was arrayed as defendant No.10. 6. His father and mother (Defendant Nos.1 & 2) filed a common written statement. In the common written statement, his father and mother categorically stated that the suit properties were self acquired properties of the father. The averments in the plaint were denied. It was however admitted that the 3rd defendant was serving as teacher in Mandya. His father specifically denied the allegations that he had any kind of special love and affection towards the 3rd defendant and that the 3rd defendant had taken advantage of the said love and affection and had obtained signatures on the several documents. 7. The other son i.e. 3rd defendant filed a separate written statement, which was adopted by defendants No.5, 6 and 9. The case put forth by the 3rd defendant was that the suit properties were self acquired properties of his father and plaintiff had no right or title in the suit to seek for partition. Further, in the written statement he put forth a plea that his father, the 1st defendant, had gifted him item No.1-A-5th property under the registered gift deed on 23.08.2006 and this fact was known to the plaintiff. Further, in the written statement he put forth a plea that his father, the 1st defendant, had gifted him item No.1-A-5th property under the registered gift deed on 23.08.2006 and this fact was known to the plaintiff. He also stated that on the same day his father, 1st defendant, had gifted item No.1-A-6th property to his mother i.e. 2nd defendant and ever since they were in possession. 8. The 3rd defendant also put forth the plea that suit 1-B properties were the self acquired properties of his father-1st defendant and he had executed a Will on 12.02.2007, by which the suit 1-B properties had been bequeathed to defendant Nos.2, 3, 4, 6 & 9. 9. The Trial Court on consideration of the evidence adduced before it came to the conclusion that it had not been established that the 1st defendant had gifted item No. 1-A-5th property to the 3rd defendant. The Trial Court also held that the gift of item No.1-A-6th property in favour of 2nd defendant had also not been established notwithstanding the fact both the gift deeds were registered gift deeds. 10. Trial Court also recorded a finding that the 3rd defendant had failed to prove that 1st defendant has executed a Will on 12.02.2007 whereby the suit B house properties had been bequeathed in favour of defendant Nos.2, 3, 4, 6 and 9 . 11. It was held that since the 1st defendant had died during the pendency of the suit and in view of contention of the 1st defendant himself in the suit that the suit properties were his self acquired properties, which was also admitted by the other defendants, the plaintiff was entitled to a share. 12. The Trial Court proceeded to decree the suit and granted the plaintiff 1/9th share in item No.1 A-1 to 6 properties and also in the suit schedule B properties. The Trial Court held that gift deeds Ex.D.1 and Ex.D.3 did not bind the plaintiff in any manner. 13. This decree of granting 1/9th share to the plaintiff was challenged by 2nd defendant (mother) and also by 3rd defendant, both of whom were beneficiaries of the gift deeds. 14. The Trial Court held that gift deeds Ex.D.1 and Ex.D.3 did not bind the plaintiff in any manner. 13. This decree of granting 1/9th share to the plaintiff was challenged by 2nd defendant (mother) and also by 3rd defendant, both of whom were beneficiaries of the gift deeds. 14. The Appellate Court on re-appreciation of the entire evidence, came to the conclusion that, the finding recorded by the Trial Court that both the gift deed in favour of 2nd defendant and 3rd defendant and the Will had not been proved, could not be found fault with and as a consequence the decree of partition granted to the plaintiff, on the premise that the suit properties were self acquired, was correct. Accordingly the Appellate Court dismissed the appeal. 15. It is against this concurrent finding, the 2nd and 3rd defendants are in second appeal. 16. The learned counsel for the appellants strenuously contended that the Trial Court and Appellate Court, without any justified reasons had discarded the registered gift deeds, especially, when the 2nd defendant had deposed before the Court that her husband had in fact executed the gift deed and further when another son of the 1st defendant had also admitted the execution of the gift deed. He contended that the reliance placed by the Courts about the statement of the 1st defendant that he had not executed any document and he did not possess any extra love and affection towards the 3rd defendant had been read out of context and this had led to incorrect inferences. He stated that in the light of the registered gift deeds, the Trial Court and the Appellate Court ought to have dismissed the suit and they could not have granted the plaintiff a share. He also contended that the Will was a registered document and had been duly proved and therefore the rejection of Will by Courts was also incorrect. 17. I have considered the submission of the learned counsel and perused the Trial Court records and perused the entire material on record. 18. The Trial Court as well as the Appellate Court have taken note of the fact that the plaintiff had specifically raised a plea that the 3rd defendant had taken advantage of his proximity with his father and had obtained certain documents in his favour. 18. The Trial Court as well as the Appellate Court have taken note of the fact that the plaintiff had specifically raised a plea that the 3rd defendant had taken advantage of his proximity with his father and had obtained certain documents in his favour. Both the Courts have noticed that the father's response in the written statement was clear and unequivocal. He had clearly stated that though he was aged he was capable of taking care of his own affairs in a prudent manner and he would affix signatures only after he was satisfied and that he would affix his signature cautiously and that he had never executed any documents in favour of anybody. The Courts also took note of the fact that he had also specifically stated that he had equal love and affection to plaintiff and his other children and that he had no enmity towards any of the children. 19. Both the Courts noticed that though the gift deed was stated to have been executed on 23.08.2006, i.e. just two months prior to the filing of the suit in the month of October 2006, the 1st defendant (father) had categorically stated that he had not executed any documents in favour of anybody. This plea of the father (Defendant No.1) by itself, created a serious suspicion regarding the execution of the gift deeds. The Trial Court in the background of this plea has considered the evidence and has taken into consideration the fact that the plaintiff had denied the photograph of his father found on the gift deeds and the Courts on an over all consideration of the evidence have recorded a finding of fact that the 2nd and 3rd defendants had failed to prove that 1st defendant has executed the registered gift deeds and also the Will. 20. Both the Courts have considered the entire oral evidence as well as documentary evidence and have also considered the suspicious circumstances surrounding the execution of Will and have recorded a clear finding that execution of Will and so also the gift deed, had not been proved. 21. In other words, there a clear finding of fact has been recorded by the both the Courts, that the gift deeds as well as the Will have not been executed by the 1st defendant. 21. In other words, there a clear finding of fact has been recorded by the both the Courts, that the gift deeds as well as the Will have not been executed by the 1st defendant. This finding, being essentially, a finding of fact, no question of law as such arises for consideration in this second appeal. 22. As the Courts have found that neither the registered gift deeds nor the Will have been executed, as a necessary consequence of such a finding, the plaintiff and defendant Nos. 2 to 9 would all be entitled for an equal share in the properties, since it is a common ground of all the parties that all the suit properties were self acquired properties. 23. Consequently, the decree of partition granting 1/9th share in favour of plaintiff cannot be found fault with. There is no question of law, much less, a substantial question of law arising for consideration in this second appeal. Consequently, the second appeal is dismissed.