Shyalaja Prasad Vs Guthi Chennappa S/O Late G. Kotrappa

SHYALAJA PRASAD W/O. H.V.R PRASAD, AGE: 67 YEARS, NO.301, PARVI GOLDEN NEST, MALATHAHALLI LAKE ROAD, KENGUNTE CROSS, SRI. M.VISVESVARAYA LAYOUT, 9^TH BLOCK, NAGARBHAVI, BENGALURU-560056.

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SUJATHA HATTE W/O. KASHINATH HATTE, AGE: 62 YEARS, L 3/12, ABHANGA SAMATA COOPERATIVE HOUSING SOCIETY, SUNDENAGAR, NEAR DALMIA COLLEGE, BESIDES ONGC COLONY, MALAD WEST, MUMBAI-400064, MAHARASHTRA.

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…APPELLANTS

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(BY SRI. HARSH DESAI, ADVOCATE)

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AND:

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GUTHI CHENNAPPA S/O. LATE G. KOTRAPPA SINCE DECEASED BY HIS LR’s.

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1(A). GUTHI JAGDEVI AGE: 64 YEARS, W/O. LATE GUTHI CHENNAPPA,

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1^ST WARD, NEAR SECOND CHARIOT STAND, CHITWADGI, HOSAPETE TALUK, BALLARI DISTRICT-583211.

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1(B). GUTHI PRABHULINGA AGE: 42 YEARS, S/O. LATE GUTHI CHENNAPPA, 1^ST WARD, NEAR SECOND CHARIOT STAND, CHITWADGI, HOSAPETE TALUK, BALLARI DISTRICT-583211.

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1(C). GUTHI SUJAY AGE: 38 YEARS, S/O. LATE GUTHI CHENNAPPA, 1^ST WARD, NEAR SECOND CHARIOT STAND, CHITWADGI, HOSAPETE TALUK, BALLARI DISTRICT-583211.

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GUTHI GADDEPPA S/O. LATE G. KOTRAPPA SINCE DECEASED BY HIS LR’s.

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2(A). RAJESHWARI AGE: 39 YEARS, W/O. GUTHI GADDEPPA, 1^ST CROSS, 10^TH WARD, GUTHI THOTAPPA COMPOUND, HOSAPETE-583201, VIJAYANAGARA DISTRICT.

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2(B). KARTHIK AGE: 43 YEARS, S/O. GUTHI GADDEPPA, 1^ST CROSS, 10^TH WARD, GUTHI THOTAPPA COMPOUND, HOSAPETE-583201, VIJAYANAGARA DISTRICT.

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2(C). KAILASH AGE: 42 YEARS, S/O. GUTHI GADDEPPA, 1^ST CROSS, 10^TH WARD, GUTHI THOTAPPA COMPOUND, HOSAPETE-583201, VIJAYANAGARA DISTRICT.

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2(D). ASHWINI

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AGE: 41 YEARS, D/O. GUTHI GADDEPPA, 1^ST CROSS, 10^TH WARD, GUTHI THOTAPPA COMPOUND, HOSAPETE-583201, VIJAYANAGARA DISTRICT.

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2(E). ANITHA AGE: 40 YEARS, D/O. GUTHI GADDEPPA, 1^ST CROSS, 10^TH WARD, GUTHI THOTAPPA COMPOUND, HOSAPETE-583201, VIJAYANAGARA DISTRICT.

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GUTHI ALLAMAPRABHU AGE: 54 YEARS, S/O. LATE G KOTRAPPA, NEHRU COOPERATIVE COLONY, HOSAPETE TALUK, BALLARI DISTRICT-583201.

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G. VIJAYA AGE: 58 YEARS, W/O. LATE BASAVARAJAPPA, 15/124, NC COLONY, HOSAPETE TALUK, BALLARI ISTRICT-583201.

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G. SANKETH AGE: 30 YEARS, S/O. LATE G BASAVARAJAPPA, 15/124, NC COLONY, HOSAPETE TALUK, BALLARI ISTRICT-583201.

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G. MEGHANA AGE: 29 YEARS, D/O. LATE BASAVARAJAPPA, 15/124, NC COLONY, HOSAPETE TALUK, BALLARI ISTRICT-583201.

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GUTHI JAMBUNATH MAJOR, S/O. LATE G. KOTREPPA RATNATRAYA, 2^ND MAIN, 3^RD CROSS, RAJATGIRI, DHARWAD-580004.

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BASAROLLI CHANDRASHEKAR MAJOR, S/O. B.CHENNAPPA, NAGENAHALLI VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT-583201.

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B. SHARANAMMA MAJOR, W/O. LATE B.CHENNAPPA, NAGENAHALLI VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT-583201.

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B.C. AMARNATH MAJOR, H/O. MANGALAGOWRI, BILWAKANTI, 2/1, NATIONAL HIGH SCHOOL ROAD, BASAVANAGUDI, BENGALURU-560004.

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B.A. SHARATH AGE: 45 YEARS, S/O. LATE G. MANGALAGOWRI, R/O. BILWAKANTI, 2/1 NATIONAL HIGH SCHOOL ROAD, BADAVANAGUDI, BENGALURU-560004.

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B.A. SHILPA AGE: 45 YEARS, W/O. MOHAN, 34351 NIMAOSA TERRACE, FREEMONT, CALIFORNIA, UNITED STATES OF AMERICA, C/O. B C AMARNATH, BILWAKANTI, 2/1 NATIONAL HIGH SCHOOL ROAD, BASAVANAGUDI, BENGLAURU-560004.

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…RESPONDENTS

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(BY SRI. R.M.JAVED, ADVOCATE FOR R1(A TO C);

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SRI. ARUN NEELOPANT AND SMT. KAVITA S.JADHAV, ADVOCATES FOR R2(A TO E) AND R3;

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SRI. SUNIL S.DESAI, ADVOCATE FOR R4;

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SRI. S.K.KAYAKMATH, ADVOCATE FOR R8 AND R9; SRI. IRANAGOUDA K.KABBUR, ADVOCATE FOR R7; NOTICE TO R5, R6, R10 TO R12 ARE SERVED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.08.2016 PASSED IN O.S.NO.28/2003 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HOSAPETE, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION

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IN RFA CROSS OBJ. NO.100003 OF 2024: BETWEEN:

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RAJESHWARI W/O. GUTHI GADEPPA AGE: 69 YEARS, OCCU: HOUSE HOLD, R/O. 1^ST CROSS, 10^TH WARD, GUTHI THOTAPPA COUMPUND, HOSAPETE-583201, VIJAYANAGAR DISTRICT.

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KARTHIK S/O. GUTHI GADEPPA AGE: 43 YEARS. OCCU: PRIVATE SERVICE, R/O: 1^ST CROSS, 10^TH WARD, GUTHI THOTAPPA COUMPUND, HOSAPETE-583201, VIJAYANAGAR DISTRICT.

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KAILASH S/O. GUTHI GADEPPA AGE: 42 YEARS. OCCU: PRIVATE SERVICE, R/O: 1^ST CROSS, 10^TH WARD, GUTHI THOTAPPA COUMPUND, HOSAPETE-583201, VIJAYANAGAR DISTRICT.

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ASHWINI D/O. GUTHI GADEPPA AGE: 41 YEARS. OCCU: HOUSE HOLD, R/O: 1^ST CROSS, 10^TH WARD, GUTHI THOTAPPA COUMPUND, HOSAPETE-583201, VIJAYANAGAR DISTRICT.

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ANITA D/O. GUTHI GADEPPA AGE: 40 YEARS. OCCU: HOUSE HOLD,

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R/O: 1^ST CROSS, 10^TH WARD, GUTHI THOTAPPA COUMPUND, HOSAPETE-583201, VIJAYANAGAR DISTRICT.

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GUTHI ALLAMAPRABHU S/O. LATE G. KOTRAPPA AGE: 60 YEARS, OCCU: SERVICE, R/O: NEHRU COOPERATIVE COLONY, HOSAPETE 583201, BALLARI DISTRICT.

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…CROSS-OBJECTORS

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(BY SRI. ARUN L.NEELOPANT AND SMT. KAVITA S.JADHAV, ADVOCATES)

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AND:

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SHYALAJA PRASAD W/O. H V R PRASAD AGE: 73 YEARS, OCCU: HOUSE HOLD, R/O. RAJAJINAGAR, BENGALURU-560010, NOW AT NO.301, PARVI GOLDERN NEST, MALATHAHALLI LAKE ROAD, KENGUNTE CROSS, SRI. M VISVESVARAYA LAYOUT, 9^TH BLOCK, NAGARBHAVI, BENGALURU-560056.

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SUJATHA HATTE W/O. KASHINATH HATTE AGE: 68 YEARS, OCCU: EMPLOYEE IN STATE BANK OF INDIA, R/O: THANE, MUMBAI-400601, R/O.L 3/12, ABHANGA SAMATA COOPERATIVE HOUSING SOCIETY, SUNDENAGAR, NEAR DALMIA COLLEGE, BESIDES ONGC COLOY, MALAD WEST, MUMBAI-400064, MAHARASHTRA.

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G. VIJAYA W/O. LATE G BASAVARAJAPPA, AGE: 64 YEARS, OCC HOUSEWIFE, R/O: 15/124, N C COLONY, HOSAPETE 583201, BALLARI DISTRICT.

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G SANKETH W/O. LATE G BASAVARAJAPPA, AGE: 36 YEARS, OCC: AGRICULTURE,

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R/O: 15/124, N C COLONY,

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HOSAPETE 583201, BALLARI DISTRICT.

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G MEGHANA W/O. LATE G BASAVARAJAPPA, AGE: 35 YEARS,OCC: AGRICULTURE, R/O:15/124, N C COLONY, HOSAPETE 583201, BALLARI DISTRICT.

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GUTHI JAMBUNATH S/O. LATE G KOTRAPPA AGE:64 YEARS, OCC: GOVT. EMPLOYEE RATNATRAYA, R/O: 2^ND MAIN, 3^RD CROSS, RAJATGIRI, DHARWAD-580004.

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BASAROLLI CHANDRASHEKAR S/O. B CHENNAPPA, AGE: 70 YEARS, OCCU: LAND OWNER, R/O: NAGENAHALLI VILLAGE, HOSAPETE-583201, BALLARI DISTRICT.

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B SHARANAMMA W/O. LATE B CHENNAPPA AGE: 85 YEARS, OCCU: HOUSE HOLD, R/O: NAGENAHALLI VILLAGE, HOSAPETE-583201, BALLARI DISTRICT.

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B C AMARNATH AGE: 80 YEARS, OCC: PVT. EMPLOYEE, H/O. MANGALAGOWRI, BALWAKANTI, 2/1, NATIONAL HIGH SCHOOL ROAD, BASAVANAGUDI, BENGALURU-560004.

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B.A. SHARATH S/O. LATE G. MANGALAGOWRI, AGE: 51 YEARS, OCC: PVT. EMPLOYEE, R/O. BILWAKANTI, 2/1 NATIONAL HIGH SCHOOL ROAD, BASAVANAGUDI, BENGALURU-560004

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B A SHILPA W/O. MOHAN AGE: 51 YEARS, OCCU: HOUSE HOLD, R/O:34351 NIMAOSA TERRACE, FREEMONT, CALIFORNIA, UNITED STATES OF AMERICA, C/O. B C AMARNATHM BILWAKANTI,

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2/1 NATIONAL HIGH SCHOOL ROAD, BASAVANAGUDI, BENGLAURU-560004.

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GUTHI JAGADEVI W/O. LATE GUTHI CHENNAPPA, AGE: 64 YEARS, OCCU: HOUSE HOLD, R/O. 1^ST WARD, NEAR SECOND CHARIO STAND, CHITWADAGI, HOSAPETE TALUK, BALLARI DISTRICT-583211.

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GUTHI PRABHULINGA S/O. LATE GUTHI CHENNAPPA, AGE: 42 YEARS, OCCU: HOUSE HOLD, R/O. 1^ST WARD, NEAR SECOND CHARIO STAND, CHITWADAGI, HOSAPETE TALUK, BALLARI DISTRICT-583211.

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GUTHI SUJAY S/O. LATE GUTHI CHENNAPPA AGE: 38 YEARS, OCCU: HOUSE HOLD, R/O. 1^ST WARD, NEAR SECOND CHARIO STAND, CHITWADAGI, HOSAPETE TALUK, BALLARI DISTRICT-583211.

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…RESPONDENTS (BY SRI. HARSH DESAI, ADVOCATE FOR R1 AND R2; SRI. SUNIL S.DESAI, ADVOCATE FOR R3; SRI. IRANAGOUDA K.KABBUR, ADVOCATE FOR R6; SRI. S.K.KAYAKMATH, ADVOCATE FOR R7 AND R8; SRI. R.M.JAVED, ADVOCATE FOR R12 AND R14)

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THIS RFA.CROB IN RFA NO.100116/2018 IS FILED UNDER SECTION 96(1) READ WITH ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 20.08.2016 PASSED IN O.S.NO.28/2003 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, HOSPET, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL AND CROSS OBJECTION COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)

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RFA.No.100116/2018 is filed by the defendants No.4 and 5 in O.S.No.28/2003 on the file of the Principal Senior Civil Judge & JMFC, Hospet (hereinafter referred to as the ‘trial Court’, for short) challenging the judgment and decree dated 20.08.2016 by which, it decreed the suit for partition and declared that the plaintiffs No.2 to 4 are entitled to 9/48^th share each in suit schedule properties except R.S.No.123 of Kalagatti village. Likewise, it declared that the defendants No.1(a) to 1(c) are entitled to 9/48^th share and defendant No.2 is entitled 9/48^th share, defendants No.4 and 5 are entitled 1/48^th share each and defendants No.7 to 9 are entitled for 1/48^th share in suit schedule properties except R.S.No.123 of Kalagatti village. The Court directed the defendants No.1(a) to 1(c), 2, 4, 5, 7 to 9 to hand over 9/48^th share each of the plaintiffs in suit schedule properties except R.S.No.123 of Kalagatti village.

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RFA.CROB.No.100003/2024 is filed by the plaintiff

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No.4 and the legal representatives of plaintiff No.3 challenging

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the aforesaid judgment and decree insofar as it relates to the finding of the trial Court that the gift deed executed by the Guthi Jambappa dated 21.02.1945 is not binding on the defendants and to modify the judgment and decree by allotting 1/5^th share each in the suit schedule properties.

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The parties shall henceforth be referred to as they were arrayed before the trial Court.

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(i) The suit in O.S.No.28/2003 was filed for partition and separate possession of plaintiffs' share in the suit properties. The plaintiff No.1 was the mother of plaintiffs No.2 to 4 and defendants No.1, 2, 4, 5 and Smt. Mangalagowri (now deceased) represented by defendants No.7 to 9. The defendant No.3 was a purchaser of Sy.No.123 of Kalagatti village, while defendant No.6 was the mother of defendant No.3 in whose name Sy.No.123 was purchased. The plaintiffs claimed they and defendants No.1, 2, 4 and 5 constituted a joint family and that the propositus of the family Sri. Guthi Kotrappa died in the year 1976. They claimed that the propositus received the properties as his share in a suit for partition in O.S.No.123/1964 on the file of the Civil Judge (Sr.Dn.), Bellary.

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After his death, the plaintiffs and defendants succeeded to the properties and were in joint possession and enjoyment. They claimed that the suit properties were not partitioned and there was no severance of status of the joint family.

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(ii) They claimed that suit items 1 and 2 of Schedule-I and suit item 2 of Schedule-II was owned by Sri. Guthi Jambappa and that he executed a gift deed dated 21.02.1945 bequeathing them to his cousins to be held by them during their lifetime and later to the sons born to the cousins. The plaintiffs therefore claimed that in respect of the above properties, it was only the sons of Guthi Kotrappa who were entitled for an equal share.

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(iii) The plaintiffs claimed that the defendant No.1 sold Sy.No.123 of Kalagatti to the defendant No.3 without their consent and hence did not bind their interest. They claimed that the plaintiff No.1 submitted in application for change of revenue entries in respect of Sy.No.279 of Chitwadigi, which was opposed by the defendant No.1 and resulted in a dispute before the Tahsildar, Hospet. The defendant No.1 had

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acknowledged the fact of existence of the joint family and admitted the relationship.

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(iv) The plaintiffs alleged that the defendant No.1 was neither co-operating nor allowing the division of the properties of the family but on the other hand was scheming to sell off some properties without notice/consent of the other members.

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(v) The plaintiffs claimed that the daughters namely, defendant No.4, defendant No.5 and Smt. Mangalagowri were not entitled to any share as they were married prior to 1995 and that Smt. Mangalagowri had died in the year 2002.

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(vi) The plaintiffs claimed that though they were residing separately for the sake of convenience, the suit properties were not partitioned by metes and bounds and hence sought partition of the suit properties.

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The suit was filed initially against defendants No.1, 2 and 3. Later, the daughters were impleaded as defendant Nos.4 and 5. The legal heirs of Mangalagowri were impleaded as defendants No.7 to 9. The defendant No.6 was impleaded in view of the written statement of defendant No.3 that Sy.No.123

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was purchased by his mother i.e. defendant No.6. The defendant No.1 died and his legal representatives were brought on record.

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(i) One of the legal representatives of defendant No.1 namely, defendant No.1(a) filed his written statement inter-alia contending that suit properties were not partitioned and prayed that a decree be passed partitioning the suit properties and declaring their shares.

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(ii) The defendant No.1 belatedly filed a written statement which was not accepted by the Trial Court.

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(iii) The defendant No.3 denied the plaint averments and contended that he did not purchase Sy.No.123 of Kalagatti and therefore was not a necessary party to the suit. He claimed that his mother had purchased Sy.No.123 of Kalgatti and hence, she had to be arrayed as a party.

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(iv) The defendants No.4 and 5 admitted the relationship and claimed that the suit properties belonged to the joint family comprised of the plaintiffs, defendants No.1, 2, 4 and 5. They claimed that they were entitled to an equal

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share in the suit properties in view of the Hindu Succession (Amendment) Act, 2005. They contended that Sy.No.136-E situate at Chikkajaiganur, Hospet taluk stood in the name of plaintiff No.1 but belonged to the family and prayed that the said property be included.

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(v) Defendant No.6 filed her written statement inter alia contending that she had purchased suit item 3 at an auction held by the Assistant Registrar, Cooperative Society. She contended that the defendant No.1 had raised a loan of by mortgaging R.S.No.123 to V.S.S.S.N. Bank Ltd., Chitwadigi, Hospet Taluk for the purpose of development and other properties and for legal necessity of the family. However, he failed to discharge the loan and therefore the Society was compelled to initiate proceedings which culminated in an award against the defendant No.1 and the mortgaged property was brought to sale in a public auction. She claimed that she participated in the auction and she was the highest bidder and therefore the sale was confirmed and a sale deed was executed and registered in her favour by the Assistant Registrar of Cooperative Society, Hospet. She claimed that from the date of purchase she was in possession and enjoyment of the said

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property and hence, the sale was binding the plaintiffs and the defendants.

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Based on these contentions, the trial Court framed

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the following issues:

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“ISSUES

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1. Whether the plaintiffs prove rove that suit properties are the joint family properties?

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2. Whether plaintiffs prove that they are entitled for the share in the suit properties?

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3. Whether defendant No:3 proves that his mother Smt: B. Shanthamma is a necessary party to this suit? (Issue deleted as per order dt: 6.1.2016)

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4. Whether the plaintiffs are entitled for the reliefs as prayed?

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5. What decree or order?

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ADDITIONAL ISSUE FRAMED ON 1.8.2007

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1. Whether defendant no:6 proves that she is a bonafide purchaser of suit property for valuable consideration?

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ADDITIONAL ISSUE FRAMED ON 6.1.2016

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1. Whether the defendants No;4 and 5 are entitled for 1/8th share in schedule properties?”

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The plaintiff No.4 was examined as PW.1 and he marked Exs.P.1 to P17. He examined a witness as PW.2. On behalf of the defendants, one of the legal heirs of defendant No.1 namely, Guthi Vijaya was examined as DW.1. The defendant No.6 was examined as DW.2 and she examined a witness as DW.3. She examined the Secretary of VSSSN Bank Ltd., Chitwadigi Taluk as DW.4. They marked Exs.D1 to D16.

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Based on the oral and documentary evidence, the trial Court held that the plaintiffs and the defendants constituted a joint family and that all the suit properties were properties of the joint family except Sy.No.123 of Kalagatti. It therefore held that the plaintiffs are entitled to a share in the properties that were with the joint family. Consequently, it decreed the suit in part and as plaintiff No.1 died pendente lite, it notionally partitioned the suit properties and allotted 1/6^th share to defendants No.1, 2 and the propositus and declared that the plaintiffs No.2 to 4 are entitled to 9/48^th share each in suit schedule properties except R.S.No.123 of Kalagatti village. Likewise, it declared that the defendants No.1(a) to 1(c) are entitled to 9/48^th share and defendant No.2 is entitled to 9/48^th

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share, defendants No.4 and 5 are entitled 1/48^th share each and defendants No.7 to 9 are entitled for 1/48^th share in suit schedule properties except R.S.No.123 of Kalagatti village. The Court directed the defendants No.1(a) to 1(c), 2, 4, 5, 7 to 9 to hand over 9/48^th share each of the plaintiffs in suit schedule properties except R.S.No.123 of Kalagatti village.

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10. In so far as the gift deed marked as Ex.P.1, it perused the judgment passed by the Division Bench of this Court in Gooty Thotappa by LRs vs Gooty Gurusiddappa and another [1977(1) KAR L.J. 231] and held that "it is not clear from the said judgment that the donor Jambappa had put any restriction that after the death of donees only their male children are entitled to have the properties." It further held "the material placed before the Court by the plaintiffs side is not sufficient to hold that in suit schedule-I item 1 and 2 and suit schedule-II item No.2 properties only the male members of the ancestors are having a share but not female members."

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Being aggrieved by the said judgment and decree, the defendants No.4 and 5 have filed RFA.No.100116/2018 primarily contending that the suit schedule properties were not

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partitioned as on the date of the Hindu Succession (Amendment) Act, 2005 coming into force. Therefore, they claimed that they were entitled to an equal share and not a notional share. They also contended that the finding of the trial Court that they were not entitled to a share in R.S.No.123 is incorrect and therefore, share has to be granted in that property also.

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The cross objectors in RFA.CROB.No.100003/2024 have claimed that the trial Court committed an error by holding that the plaintiffs failed to prove the gift deed dated 21.02.1945. They contend that the trial Court has overlooked Ex.P.2 which was the judgment and decree passed in O.S.No.123/1964 dated 04.11.1970 which disclosed that the Court had given a finding that the gift deed dated 21.02.1945 was validly executed by Guthi Jambappa and the properties fell to the share of Jambappa who was the son of brother of Sri.Guthi Kotrappa’s grandfather. They contended that RFA No.36/1971 filed against the judgment and decree passed in O.S.No.123/1964 was dismissed. They therefore contend that since Guthi Kotrappa was a party in O.S.No.123/1964, the findings in that case regarding the execution of the gift deed is

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binding upon the plaintiffs and the defendants No.1, 2, 4, 5 and defendants No.7 to 9. It is contended that the trial Court was not justified in holding that the original of gift deed dated 21.02.1945 was not produced as PW.1 had deposed that the original of the gift deed was lost during the lifetime of his father. They contend that the trial Court did not consider the evidence of PW.2 who was grandson of the witness to the gift deed dated 21.02.1945. They also contend that since the gift deed was executed more than 30 years before the suit was filed, the presumption under Section 90 of the Indian Evidence Act, 1872 had to be drawn. He contends that as per the gift deed, suit items 2 and 3 of Schedule-I and suit item 2 of Schedule-II were gifted by Guthi Jambappa in favour of the deceased Kotrappa and his brothers namely Veerappa, Thotappa and Chandrappa to be held by them in this life time and thereafter, the said properties were devised in favour of the sons born to them. Hence, it is contended that the plaintiffs No.2 and 4 and defendants No.1 and 2 being the sons of deceased Kotrappa are only entitled to the said properties and that defendants No.4, 5 and legal representatives of Smt. Mangalagowri are not entitled to any share therein. It is

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therefore contended that the trial Court was not justified in allotting the share to the defendants No.4 and 5 in the properties that were the subject matter of the gift deed.

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The learned counsel for the defendants No.4 and 5 submitted that as per the gift deed dated 21.02.1945, the properties were to be held by the brothers of Kotrappa and they were not entitled to partition them. He contends that all the brothers of Kotrappa had disowned the condition attached to the gift deed and had partitioned the same. Therefore, he contends that the properties that fell to the sons of Kotrappa should be treated as belonging to the family. Consequently, the defendants No.4 and 5 being the granddaughters of Kotrappa are entitled to share in the suit schedule properties.

¶171

As regards the claim of the defendants No.4 and 5 that they are entitled to an equal share in the properties of the family, the learned counsel for the plaintiffs did not dispute the fact that the properties of the family were not partitioned until the Hindu Succession (Amendment) Act, 2005 came into force. They also did not dispute the fact that the defendants No.4 and 5 are entitled to an equal share.

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The learned counsel for the plaintiffs contended that the defendants No.4, 5 and defendants No.7 to 9 were not entitled for any share in suit items 1, 2 of Schedule-I and suit item 2 of Schedule-II as it was specifically mentioned in the gift deed of Jambappa that it should only go to the sons of Kotrappa. He contends that the validity of this gift deed was established before the Court in O.S.No.123/1964 to which the propositus Guthi Kotrappa was a party. Therefore, he contends that the Trial Court committed an error in decreeing the suit in respect of the above properties. He contended that the Trial Court wrongly ignored the gift deed on extraneous reasons. Besides, he contends that even the defendants No.4 and 5 did not dispute the execution of the gift deed. Nonetheless, the grandson of one of the witnesses to the gift deed was examined before the Court and this was sufficient for the Court to accept the validity of the gift deed. Even otherwise, he contends that if the gift deed is rejected, then there could be no partition of suit items 1 and 2 of Schedule-I and suit item 2 of Schedule-II as they belonged to Guthi Jambappa and not to the propositus Guthi Kotrappa.

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We have considered the submissions of the learned counsel for the legal representatives of plaintiffs No.3 and 4 and defendants No.4 and 5. We have also considered the records of the trial Court which were made available to us by the learned counsel for the appellants as well as the judgment and decree passed by the trial Court.

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The points that arise for our consideration in this appeal are:

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(i) Whether the suit items 1 and 2 of Schedule-I and suit item 2 of Schedule-II in O.S.No.28/2003 were the properties that were bequeathed by Guthi Jambappa and if yes, whether the defendants No.4 and 5 were entitled to a share in the said properties?

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(ii) Whether the defendants No.4 and 5 were entitled to an equal share in all the suit properties?

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The genealogy of the family of the plaintiffs and the defendants that can be gathered from the judgment and decree passed by this Court in RFA.No.36/1971 and the plaint and written statement filed in O.S.No.28/2003 and the same is extracted below:

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Gaddeppa (dead)

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Veerappa (dead) Thotappa (dead)
Channappa Jambappa
(died in 1943 (died after 1945)
and predeceased
Jambappa)
Gaddeppa-II Kotrappa Andanavva
(dead) (dead)
Veerappa Thotappa Kotrappa-II Chandrappa
alias
Girusiddappa Chandraveerappa
Annapoornamma (P-1)
(Wife) (Dead)
Guthi Guthi Guthi Guthi Guthi Shylaja B. Mangala
Chennappa Gadeppa Allama Basavarappa Jambunath Prasad Sharan gowri
(P-2) (P-3) prabhu (D-1) (D-2) (D-4) amma
(P-4) (D-6)
B.C.Amarnath
(D-7) (Husband)
B.A.Sharath B.A.Shilpa
(D-8) (Son) (D-9) (Daughter)

¶187

The plaintiffs No.2 to 4 and defendants No.1, 2, 4 and 5 and late Smt.Mangalagowri are the children of KotrappaII. It is evident from the judgment and decree passed by the Division Bench of this Court in the case of Gooty Thotappa by LRs (supra) that Gurusiddappa S/o Veerappa had filed the suit for partition against Thotappa, Kotrappa-II and Chandrappa. In

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the said suit, the propositus of the plaintiffs namely Guthi Kotrappa-II submitted that a gift deed was executed by Guthi Jambappa on 21.02.1945. A certified copy of the said gift deed was marked as Ex.P1 in the suit on hand. Therefore, the plaintiffs, defendants No.1, 2, 4, 5 and defendants No.7 to 9 are bound by the statement made by the propositus in O.S.No.123/1964. The Trial Court misdirected itself in not considering the gift deed on invalid grounds. A perusal of the said gift deed shows that Jambappa had gifted suit items 1 and 2 of Schedule-I and suit item 2 of Schedule-II in the present suit to be held by the four sons of Gaddeppa-II namely, Veerappa, Thotappa, Kotrappa and Chandrappa during their lifetime. The said property was to thereafter devolve upon their respective sons. Hence, Jambappa had specifically devised that his properties would ultimately devolve upon the sons of Kotrappa-II and not on his daughters. In so far as this gift deed is concerned, this Court in RFA No.36/1971 held as follows:

¶191

"Jambappa gifted the properties obtained by him at that partition in favour of Veerappa and defendants No.1 to 3."

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When a gift is subject to a condition, then the gift has to be accepted in toto including the condition attached to the gift, else the gift would become invalid. The donees namely Veerappa, Thotappa, Kotrappa-II and Chandrappa have accepted the gift and therefore are bound by the condition. A mere partition of the properties gifted by Jambappa amongst the four brothers does not efface the further condition that it shall devolve upon their respective sons. As a result, the defendants No.4 and 5 in the instant suit are not entitled to claim any share in the properties which were the subject matter of the gift deed at Ex.D.1. The trial Court instead of considering the same has doubted the correctness of the gift deed on the ground that the original gift deed was not produced. As rightly contended by the learned counsel for the plaintiffs, PW.1 had specifically deposed that the original of the gift deed was lost and therefore a certified copy was admissible in evidence. Therefore, the trial Court committed an error in decreeing the suit in respect of the properties that were subject matter of the gift deed at Ex.D.1. In that view of the matter, the impugned judgment and decree passed by the trial Court insofar as decreeing the suit as regards the properties that were subject

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matter of the gift deed is liable to be set aside. However, the trial Court ought to have granted an equal share to the daughters instead of a notional share as the suit properties were with the family when Hindu Succession (Amendment) Act, 2005 came into force and were neither partitioned nor alienated. In view of the above point (i) framed by this Court is answered in favour of the plaintiffs and against the defendants No.4 and 5 and point (ii) in favour of defendants No.4 and 5. Consequently, the judgment and decree of the trial Court deserves to be modified by exercising power under Order XLI Rule 33 of CPC. Hence, the following:

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ORDER

¶199

(i) RFA.No.100116/2018 is allowed in part .

¶200

(ii) It is made clear that the plaintiffs No.2 to 4 are entitled to 1/8^th share each, while the legal representatives of defendant No.1 together are entitled to 1/8^th share, the defendants No.2, 4 and 5 are entitled to 1/8^th share each and defendants No.7 to 9 are together entitled to 1/8^th share in suit items 4, 5 and 6 of Schedule-I i.e. Survey No.27A, Survey No.84

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of Nagenahalli village and Survey No.136E of Chikkajayiganur village.

¶205

(iii) The plaintiffs No.2 to 4 are entitled to 1/8^th share each, while legal representatives of defendant No.1 are together entitled to 1/8^th share and defendants No.2, 4 and 5 are entitled to 1/8^th share each and defendants No.7 to 9 are together entitled to 1/8^th share in suit items 1 and 3 of Schedule-II.

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(iv) The suit in respect of other suit items of Schedule-I is dismissed.

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(v) RFA.CROB.100003/2024 is allowed .

¶208

Consequently, the judgment and decree dated 20.08.2016 passed in O.S.No.28/2013 by the Principal Senior Civil Judge and JMFC, Hospet, is modified only to the extent of shares of the defendants No.4 and 5, plaintiffs No.2 to 4, legal representatives of defendant No.1, and defendant No.2.

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(vi) The plaintiffs No.2 to 4 are entitled to 1/5^th share each, while legal representatives of defendant No.1 are together entitled for 1/5^th share and defendant No.2 is entitled to 1/5^th share in suit items 1 and 2 of Schedule-I i.e. Survey No.276 and Survey No.279 of Chitwadigi village.

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(vii) Similarly, The plaintiffs No.2 to 4 are entitled to 1/5^th share each and legal representatives of defendant No.1 are together entitled to 1/8^th share and defendant No.2 is entitled to 1/5^th share in suit item 2 of Schedule-II.

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Office is directed to draw a decree in terms of the above.

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Sd/(R.NATARAJ) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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RH Ct:vh List No.: 1 Sl No.: 25

Shyalaja Prasad v. Guthi Chennappa S/O Late G. Kotrappa

Case brief

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Shyalaja Prasad v. Guthi Chennappa S/O Late G. Kotrappa

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