In this regular second appeal regarding property title, the High Court of Karnataka dismissed the appeal at the admission stage. The appellant challenged a decree confirming a Gift Deed but failed to prove fraud or misrepresentation, finding no substantial question of law under Section 100 CPC.
Regular Second Appeal dismissed at the admission stage.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST 2021
BEFORE
THE HON’BLE MR. JUSTICE E.S.INDIRESH
R.S.A. No.1483/2018 (DEC/INJ)
BETWEEN:
ALL ARE R/AT: GADDEMANE, HEMMAKKI VILLAGE, KELAGOOR POST, MUDIGERE TALUK, CHICKMAGALORE – 577 132.
... APPELLANTS
(BY SRI. V. SRINIVAS, ADVOCATE)
AND:
SHRI. K C CHANDRAPPA GOWDA, AGED ABOUT 72 YEARS, S/O. LATE K S CHINNEGOWDA, GADDEMANE, HEMMAKKI VILLAGE, KELAGOOR POST, MUDIGERE TALUK, CHICKMAGALORE – 577 132.
... RESPONDENT
(BY SRI. YASHIR ALI, ADVOCATE)
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THIS R.S.A. IS FILED U/S. 100 R/W ORDER LXII RULE 1 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 21.06.2016 PASSED IN R.A.NO. 152/2011 ON THE FILE OF II ADDL. DISTRICT JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.06.2011 PASSED IN OS.NO. 128/2004 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, CHIKKAMAGALURU.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, MADE THE FOLLOWING:
O R D E R
This appeal is filed challenging the judgment and decree dated 21.06.2016 passed in R.A.No.152/2011 on the file of the II Addl. District and Sessions Judge, at Chikkamagaluru, confirming the judgment and decree dated 18.06.2011 passed in O.S.No.128/2004 on the file of the Addl. Senior Civil Judge and JMFC, Chikkamagaluru.
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O.S.No.128/2004 is filed by K.C. Chandrappa Gowda (respondent herein) claiming to declare that the plaintiff is the owner of the suit schedule property on the basis of the Gift Deed dated 05.10.2001 and also seeking possession of the suit schedule property against the defendants, inter alia sought for permanent injunction restraining the defendants from trespassing, disposing, encroachment and alienating item Nos.1 and 2 of the suit schedule properties.
Uma and others (appellants herein) claiming to declare that the defendant No.2 has no right in so far as claiming right under the Gift Deed and also challenged the Gift Deed dated 05.10.2001 as invalid and outcome of fraud, misrepresentation and not binding on the appellants herein.
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as described in the suit in O.S.No.128/2004 filed by K.C.Chandrappa Gowda is that he and Subbaraya Gowda are the children of Chinnegowda. Subaraya Gowda died leaving behind his LRs (appellants herein). It is the case of the plaintiff that the suit schedule property fell to the share of Chinnegowda (father of Chandrappa Gowda and Subaraya Gowda) as per Partition Deed dated 23.09.1990 entered into between the plaintiff, his father Chinnegowda and his brother Subaraya Gowda. It is the case of the plaintiff that Chinnegowda (father of Chandrappa Gowda and Subaraya Gowda) has executed a registered Gift Deed dated 05.10.2001 in favour of the plaintiff (Chandappa Gowda) in respect of the suit schedule property which is the subject matter of the suits in O.S.No.128/2004 and O.S.No.202/2004.
appearance and filed their written statement denying
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the averments made in the plaint. The Trial Court after considering the pleadings on record, formulated the following issues for its consideration.
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his share has to devolve into the share of the husband of defendant No.1?
witness was examined as PW2 and produced 14 documents and same were marked as Ex.P1 to P14. Defendant No.1 was examined as DW1 and also examined one witness on their behalf as DW2 and produced 14 documents and same were was marked
as Ex.D1 to D14. The trial Court after considering the
materials on record by its judgment and decree dated 18.06.2011, decreed the suit in O.S.No.128/2004 and declared that the plaintiff i.e., Chandrappa Gowda as the owner of the suit schedule property as per Gift Deed dated 05.10.2001 and consequently directed the defendants to vacate and handover the actual and vacant possession of the suit item No.3 to the plaintiff
within two months from the date of judgment. The trial Court however dismissed the suit in
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O.S.202/2004. Being aggrieved by the judgment and
decree passed by the trial Court, the appellants herein have filed R.A.Nos.152/2011 and 155/2011 challenging the impugned judgment and decree passed by the trial Court in O.S.Nos.128/2004 and 202/2004. The said appeals were filed against the respondent herein. The First Appellate Court after considering material on record, by its judgment and decree dated 21.06.2016, dismissed both the appeals and as such confirmed the judgment and decree dated 18.06.2011 passed in O.S.No.128/2004 and O.S.202/2004. Being aggrieved
by the judgment and decree passed by the First Appellate Court in R.A.No.152/2011, the appellants herein have preferred this Regular Second Appeal.
for the appellants and Sri. Yashir Ali, learned counsel appearing for the respondent. Sri. V.Srinivas learned counsel appearing for the appellants contended that both the Courts below have not properly appreciated
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the factual aspects on record and the appellants herein have contended in the written statement that the Gift Deed dated 05.10.2001 executed by Chinnegowda and affixed initials of Chinnegowda over the same and therefore, this aspect of the matter was not properly dealt with by both the Courts below. He further contended that it was also not urged in the memorandum of appeal. He argued that, the subject matter of the suit is with the possession of appellants herein and when such being the case, both Courts below ought to have appreciated Ex.P2 Gift Deed dated 05.10.2001 as the Donor has not put the Donee into possession of suit schedule property, thus it cannot be considered as gift under Section 122 of Transfer of Property Act.
discrepancy in the evidence of PW1 and PW2 to prove the Gift Deed dated 05.10.2001 and on the said aspect, evidence of PW1 and PW2 was not properly
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appreciated and noticed by the Court below and in that view of the matter he contends that both the judgment and decree passed by the Courts below require interference by this Court.
and volition and also taken note of the fact that Chinnegowda (Donor) has stated in the written statement with regard to the execution of the said Gift Deed dated 05.10.2001 and in that view of the matter, expressing any doubt with regard to Ex.P.2 does not arise. He further contended that as per Ex.P.1 the partition was effected between Chandrappa Gowda, Subaraya Gowda and Chinnegowda wherein 7 acre of land was allotted to Subaraya Gowda (appellants share) and 2 acres 26 guntas was allotted in favour of
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the plaintiff (Chandrappa Gowda) and 1 acre 31 guntas along with a old house was allotted to Chinnegowda (father of Chandrappa Gowda and Subaraya Gowda). In that view of the matter of inequitable distribution of the properties, Chinnegowda had executed the Gift Deed dated 05.10.2001 in favour of Chandrappa Gowda and this aspect of the matter was noticed by both the Courts below and as such the First Appellate Court rightly confirmed the judgment and decree passed by the trial Court. He submits that there is no interference is called for in this appeal.
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O.S.128/2004 and plaintiffs in O.S.202/2004, are the wife and children of late Subaraya Gowda.
Partition Deed, the properties of Chinnegowda was partitioned amongst his children Chandrappa Gowda and Subaraya Gowda and thereafter Chinnegowda executed a registered Gift Deed dated 05.10.2001 in favour of Chandrappa Gowda. Though the contention raised by the learned counsel for the appellants that
the Gift Deed is invalid document and cannot be considered and is not binding on the appellants herein as the same has been executed by the parties fraudulently, however it is not in dispute that the Gift Deed is compulsorily requires registration and attestable document as per the provision of Section 122 of TP Act and it is not in dispute that, the Donor himself has filed written statement before the trial
Court admitting execution of the Gift Deed. In that view of the matter doubt expressed by the learned
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counsel appearing in the oral testimonies of PWs1 and 2 cannot be accepted. However the trial Court had taken into account the said aspect as per the discussion made at paragraph 26 to 29 of the judgment and decree and arrived at conclusion that the Donor himself has admitted about execution of the Gift Deed dated 05.10.2001 in favour of Chandrappa Gowda and as such the contention of the learned counsel for the appellant cannot be accepted.
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18.06.2011. In that view of the matter, I am of the
view that the trial Court has properly appreciated the material on record, particularly the evidence of the parties. I have also noticed in Paragraph 33 of the judgment passed by the trial Court, wherein proceedings were initiated by the Tahsildar in No.5/2002-03, wherein father of the complainant i.e., Chinnegowda himself has adduced evidence admitting the execution of Gift Deed dated 05.10.2001 as per Ex.P.10. This would substantial to the fact that the
Gift Deed dated 05.10.2001 executed by Chinnegowda in favour of Chandrappa Gowda on love and affection and on the ground that there is inequitable distribution of the property as per the Partition Deed Ex.P1. I have also examined the reasons assigned by the First Appellate Court wherein after re-appreciating the material on record, particularly with regard to the Ex.P2 Gift Deed, has arrived at a conclusion that the reasons assigned by the trial Court is based on the
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facts on records and accordingly rightly confirmed the judgment and decree passed by the trial Court.
Sd/JUDGE
AS
1 issue framed by the court
Whether the appellants have made out a substantial question of law or material irregularity/perversity in the judgments and decrees of the courts below regarding the validity of the Gift Deed.
1 provisions across 1 enactments
SMT.UMA
SHRI. SARVAJITH
MISS. SHIVADARSHINI
K C CHANDRAPPA GOWDA
E.S.INDIRESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
