This regular second appeal challenged the decree dismissing a partition suit. The Court upheld the lower courts' finding that the disputed land was self-acquired, individually granted to the deceased father, and not joint family property, rendering the plaintiff's claim to a share unsustainable against the defendant's title derived via a deed of gift.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1338 OF 2022 (PAR)
BETWEEN:
SRI BHOJARAJ, AGED ABOUT 45 YEARS, S/O LATE VENKATRAMANA GANIGA R/O VENKATRAMANA ARCADE, KUNDAPURA TOWN, UDUPI DISTRICT - 576 204.
…APPELLANT
(BY SRI. K SHRIHARI.,ADVOCATE)
AND:
Digitally signed by SUMA B N Location: High Court of Karnataka
…RESPONDENTS
(BY SRI. CHANDRANATH ARIGA K.,ADVOCATE)
NC: 2024:KHC:6142 RSA No. 1338 of 2022
THIS RSA FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE PASSED IN RA.No.39/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE KUNDAPURA DATED 26.07.2022 AND THE JUDGMENT AND DECREE IN O.S. No.137/2008 DATED 22.09.2017 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC KUNDAPURA AND PASS JUDGMENT BY DECREEING THE SUIT OF THE PLAINTIFF AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the unsuccessful plaintiff aggrieved by the judgment and decree dated 22.09.2017 passed in O.S.No.137/2008 on the file of II Additional Civil Judge and J.M.F.C, Kundapura (hereinafter 'the Trial Court') which is confirmed by the judgment and order dated 26.07.2022 passed in R.A.No.39/2017 on the file of Senior Civil Judge, Kundapura. (hereinafter 'the First Appellate Court').
NC: 2024:KHC:6142 RSA No. 1338 of 2022
there is a residential house constructed by the amount invested by the plaintiff and Late Venkataramana Ganiga. It is further contended that defendant No.2 who has been involved in criminal activities was constantly creating mischief and nuisance to the defendant No.1 and her husband. The father of the defendant No.1 and the plaintiff unbearable torture of went into illness from which he never recovered. He was admitted to the hospital between 07.06.2008 to 17.06.2008. That he was in unconscious stage when he was admitted to K.M.C. Hospital, Manipal. That, upon the request of the defendant No.2 to discharge his father, he was discharged against the medical advise of the doctor and defendant No.2 had taken him while he was in unconscious stage and readmitted him to S.D.M. Ayurvedic Hospital, Udupi. Again on 17.06.2008 at about 3.00 p.m., defendant No.2 had came to S.D.M. Ayurveda and insisted the doctors to discharge the him. Accordingly, doctors had discharged him at 3.00 p.m. Defendant had taken him in a vehicle and came home at 6.00 p.m. and found that her husband was in deep coma stage. As such he was shifted to N.R.Acharya Memorial Hospital, Koteshwara on 18.06.2008 and was kept in Intensive Care Unit till he passed away on 20-062008.
2.1 It is contended that plaintiff and defendant No.1 together completed all the final rites and rituals of Venkataramana Ganiga. Soon thereafter defendant No.2 had
NC: 2024:KHC:6142 RSA No. 1338 of 2022
given ultimatum to the defendant No.1 and the plaintiff to vacate the house situated in the suit schedule property, though the plaintiff and the defendant were entitled for 1/3rd equal share over the suit schedule property. When the plaintiff demanded partition of the suit schedule property seeking allotment of 1/3rd of his share, same was refused. Hence, he filed the suit.
2.2 The defendant No.1 filed the written statement admitting the claim of the plaintiff. The defendant No.2 in his written statement has denied the plaint averments. He however admitted the grant of occupancy rights in respect of suit schedule property in favour of his father. He contended that the suit schedule property was the self acquired property of deceased Venkataramana Ganiga and as such he was in occupation and enjoyment of the said property. It is further contended that said Venkataramana Ganiga during his lifetime in exercise of his absolute ownership over the property had executed a Registered Deed of Gift dated 17.06.2008 in favour of defendant No.2. The allegation made in the plaint in regard to health condition of the deceased Venkataramana Ganiga has been denied. It is contended that right, title and interest in the suit schedule property was duly conveyed by Venkataramana Ganiga in favour of defendant No.2 by virtue of said Registered Deed of Gift dated 17.06.2008 which is valid and subsisting. Hence, sought for dismissal of the suit.
NC: 2024:KHC:6142 RSA No. 1338 of 2022
"1) Whether the plaintiff proves that 'A' schedule property is a joint family property and in the joint possession and enjoyment of plaintiff and defendants?
2) Whether the plaintiff proves that suit 'A' schedule property is liable to divided into 3 shares and plaintiff is entitled for 1/3rd share?
3) Whether the 2nd defendant proves that suit 'A' schedule property was granted by Land Tribunal in favour of Venkataramana Ganiga, the father of 1st and 2nd defendants on his individual capacity? and
4) Whether the 2nd defendant proves that the father of the defendants in sound and good disposing state of mind executed a registered deed for gift dated 1706-2008 document No. 710/1/08-09 in favour of 2nd defendant and the same was acted upon and came into force during the life time of his father?
5) Whether the Court fee paid is sufficient?
6) What order or decree?'
NC: 2024:KHC:6142 RSA No. 1338 of 2022
"1. Whether the plaintiff established before the Trial Court that the suit land is under joint possession of himself and defendants?
2. Whether the plaintiff establishes that the execution of the Gift Deed in the name of the defendant No.2 was concocted by taking the advantages of Venkatramana Ganiga when he was in hospital between 27-05-2008 to 20-062008.?
3. Whether the defendant No.2 established before the Trial Court that the Ex.D.1 gift deed dated 1706-2008 was voluntarily executed by the deceased Venkatramana Ganiga out of his love and affection without any influence?
4. Whether the trial Court has grossly erred in dismissal of the suit and it requires interference by this Court?
5. If so, what order or decree?"
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that grant made in favour of the member of the joint family would enure to the benefit of other members of the joint family and the plaintiff being the member of the joint family was entitled to the share of the property. Since the suit schedule property is the joint family property in which the plaintiff had his vested 1/3rd share, deceased Venkataramana Ganiga could not have executed the deed of gift in favour of defendant No.2. He submits that even otherwise facts pleaded by the plaintiff with regard to frequent admission and discharge of the deceased Venkataramana Ganiga few months prior to his death would indicate that he was not in a sound mind of disposition as such the deed of gift under which defendant No.2 is claiming is void and unenforceable.
i. N.Padmamma Vs S.Ramakrishna Reddy reported in (2008) 15 SCC 517.
ii. Thamma Venkata Subbamma Vs. Thamma Rattamma and Others reported in (1987) 3 SCC 294.
Thus, he submits that substantial question of law would raise for consideration in this matter.
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First Appellate Court submits that, the Trial Court and the First Appellate Court on appreciating the pleading and evidence has come to the conclusion that the suit schedule property was never a joint family property and it was absolute property of the deceased Venkataramana Ganiga. He submits that being the findings on facts, Venkataramana Ganiga had every right to execute the deed of gift, which he did during his lifetime and the same not having been challenged by the plaintiff cannot be called in question. He submits that the reliance placed by learned counsel for the appellant and the judgments are not applicable to the facts situation of the matter. He submits that, no substantial question of law would arise for consideration and hence seeks for dismissal of the appeal.
NC: 2024:KHC:6142 RSA No. 1338 of 2022
Form No.10 granted by Land Tribunal, Kundapura which is marked as Ex.P2, which according to the findings of the Trial Court indicate that the land was granted in favour Venkataramana Ganiga in his individual capacity. The Trial Court has also taken note of the deposition of the PW.1, who in the cross-examination has stated that suit 'A' property was acquired by his father from his mother (grand mother of the plaintiff) and that they are governed by the Mithakshara Law. He has further admitted that, while he was giving instruction to his counsel he had stated that it was a self acquired property of his father. He has also admitted that he had no document to show that his father acquired the suit schedule property through his mother (grand mother of the plaintiff). He has also pleaded ignorance if his mother had executed any document in favour of his father, though he has claimed that he has seen such a document and that he has no difficulty in producing such a document. He has admitted that on and from 01.03.1974 and just before the death of his father, said property was in absolute possession of his father Venkataramana Ganiga. He denied that the application for grant of land was made in his individual capacity. However, he has admitted that the Land Tribunal had declared Venkataramana Ganiga was entitled for occupancy rights in his individual capacity. He has however expressed his ignorance of he having seen any order of the
NC: 2024:KHC:6142 RSA No. 1338 of 2022
Land Tribunal. The Trial Court taking note of the pleadings and the depositions, more particularly the admission referred to above has opined that there is inconsistency in the pleadings and the depositions of the plaintiff. In that while plaintiff No.1 claims that his father acquired the property through his mother (grand mother of the plaintiff) and having failed to produce any document in support of his said contention, has also admitted that land was granted to his father in his individual capacity. In the absence of any material evidence produced by the plaintiff in justification of the suit schedule property was acquired by his father through his grand mother and in view of the order of the Tribunal, more particularly Form No.10 produced at Ex.P2 by the plaintiff himself indicating the schedule property was granted to the deceased Venkataramana Ganiga in his individual capacity, finding and the conclusion arrived at by the Trial Court declining the contention of the plaintiff of suit schedule property being the joint family property cannot be found fault with. The First Appellate Court on re-appreciation of the evidence has confirmed the same.
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judgment emphatically submitted that the law is well settled in that grant of occupancy right made in favour of co-sharer is held to enure to the benefit of entire family members. The other judgments referred to by the appellant are on the same principle. There is no dispute with regard to the said proposition, however application of the same to the instant case is of no avail.
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admitted and discharged to and from various hospital for the purpose of treatment. He submits that these events are sufficient enough to indicate that he was not in sound mind of disposition. Which in other words have effect on validity or otherwise of the deed of gift.
Court on facts have arrived at the conclusion as noted above that the land was granted in favour of Venkataramana Ganiga in his individual capacity, execution of the deed of gift not having been challenged cannot be presumed to be void merely because Venkataramana Ganiga was admitted into and discharged from the hospitals prior to his death. Secondly , the reliance placed by the counsel for the appellant in the case of Thamma Venkata Subbamma(Supra) is completely on a different factual aspect of the matter, wherein, admittedly subject matter of gift was coparcenary property.
appeal is dismissed .
List No.: 2 Sl No.: 25
Sd/JUDGE
RL
2 issues framed by the court
Whether the plaintiff proved that the suit schedule property was joint family property entitling him to a 1/3rd share?
Whether the registered deed of gift executed by the deceased father in his individual capacity is valid and operative?
Colour shows how this judgement treated each authority
N.Padmamma Vs S.Ramakrishna ReddyReferred¶70
(2008) 15 SCC 517 · Who else cites this
Thamma Venkata Subbamma Vs. Thamma Rattamma and OthersReferred¶76
(1987) 3 SCC 294 · Who else cites this
Sri Bhojaraj
Smt. Sharada
Sri. Nataraj G.V.
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
