- 1 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO.423 OF 2023 (DEC/POS) BETWEEN: 1. SRI JAGADISH. R AGED 64 YEARS, S/O LATE SRI R. RAMU, (RETPD. BY HIS GPA HOLDER SMT. SAVITHRI, 2ND APPELLANT) 2. SMT. SAVITHRI AGED 55 YEARS, W/O SRI R. JAGADISH, BOTH OF THEM R/AT NO.2, 1ST FLOOR, CHANDRAPPA GARDEN, EJIPURA, BENGALURU-560047. …APPELLANTS (BY SRI NARAYANA K., ADVOCATE) AND: 1. SMT. R. UMA @ M. MARY, AGED ABOUT 85 YEARS, W/O LATE SRI R. RAMU, R/AT OLD NO.34, NEW NO.2, 2ND FLOOR, CHANDRAPPA GARDEN, R.A. ROAD, VIVEKNAGAR, EJIPURA, BENGALURU-560047. Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 2. SMT. JAMUNA, AGED ABOUT 62 YEARS, W/O SRI R. VIJAYAKUMAR, R/OF NO.853, TRIVENI ROAD, YESHWANTHAPURA, BENGALURU-560022. 3. SMT. MARIA GLADYS DEVAN, AGED ABOUT 59 YEARS, W/O MR. DEVASAGAYAM, R/AT NO.12, 2ND CROSS, EJIPURA, VIVEKNAGAR, BENGALURU-560047. 4. SMT. PREMA AGED ABOUT 54 YEARS, W/O SRI PRATHABAN, R/AT NO.1, 2ND CROSS, 3RD MAIN, AIYAPPA BLOCK STREET, BENGALURU-560047. …RESPONDENTS (BY SRI NAGESH S., ADVOCATE FOR C/R-1 TO R-4) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 31.01.2023 PASSED IN O.S.NO.5964/2015 ON THE FILE OF THE XXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR DECLARATION AND POSSESSION. THIS APPEAL COMING ON FOR ORDER, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA ORAL JUDGMENT This Regular First Appeal is preferred by the defendants assailing the judgment and decree dated 31.01.2023 in OS No. 5964 of 2015 on the file of XXIV Additional City Civil and Sessions Judge, Bengaluru (CCH6) (‘the trial Court’ for short) whereby the trial Court partly decreed the suit for declaration and possession in favour of the plaintiff. BRIEF FACTS PLAINT AVERMENTS 2. The suit property is mentioned as property bearing site No. 2, first floor. The plaintiffs averred that the suit schedule property was the self acquired property of plaintiff No. 1. It was purchased under a registered sale deed dated 30.11.1992 from the original owner out of her own earnings while she was employed abroad in Kuwait. After purchase, she has constructed a three storied RCC - 4 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 building out of her own earnings. The first defendant, being her son, was permitted to occupy the first floor, while the ground floor was let out to a tenant and plaintiff No. 1 resided in the second floor. It is further pleaded that the first defendant and his wife (defendant No. 2) gradually became hostile, refused to vacate and began asserting ownership. Plaintiff No. 1 had executed registered gift deeds in favour of her daughters/plaintiffs No. 2 to 4, thereby transferring her title to them. Despite repeated requests the defendants failed to deliver possession. The suit was therefore filed seeking declaration that plaintiffs No. 2 to 4 are the absolute owners and recovery of vacant possession of the first floor and the mesne profits/ damages of Rs.5,000/- per month for unauthorised occupation. Written statement averments 3. The defendants denied the plaint allegations and contended that the entire sale consideration and construction costs were provided by the first defendant out - 5 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 of his own earnings. It was asserted that from 1972 to 1985 he was employed in Bengaluru and thereafter at Kuwait, and that the suit property though standing in the name of his mother, was benami, purchased with his funds. It was contended that the plaintiff No.1, who worked only for 3 years as an Ayah could not have saved enough to purchase property worth Rs.50,000/- in 1992 and build a three storied house. The defendants further contended that the suit schedule property is the only shelter for their livelihood and the suit is filed with an ulterior motive to deprive the right of the defendants over the suit property. 4. The trial Court upon considering the oral and documentary evidence, held that plaintiffs No. 2 to 4 had proved their ownership and the defendants were only in permissive possession. The Court found that the sale deed - Exhibit P1, katha, tax receipts and employment records clearly show that the property was purchased in the name of plaintiff No. 1 and she possessed sufficient independent - 6 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 means from her service in Kuwait from 1979 to 1991. The receipt produced by the defendants - Exhibit D3 to D5 were found unreliable, being unproved by any builder or supporting evidence, and their dates did not correlate with the purchase of 1992. The trial Court noted that the defendants had produced no document showing bank's transfer or remittance to the vendor or contractor and that Exhibit D2 (beneficiary card), did not establish contribution. The trial Court concluded that Section 14 of the Hindu Succession Act, 1956 (‘the HAS’ for short) was applicable to reinforce the principle that the property standing in the woman's name is her absolute property and further held that the registered gift deeds - Exhibits P14 and P15 in favour of the daughters were valid and binding, and that the defendants possession, having been originally permissive. The claim of damages was however disallowed for want of proof. By the judgment and decree, the trial Court partly decreed the suit, declaring plaintiffs 2 to 4 as absolute owners of the suit property and directing - 7 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 the defendants to vacate and hand over possession of the first floor within a stipulated time, while declining the claim for mesne profits. 5. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents. 6. Learned counsel appearing for the appellants contend that the judgment and decree under appeal are unsustainable in law and on facts. It is urged that although the property (site No. 2) stands in the name of plaintiff No. 1, she had no independent financial means to purchase or construct the same. It is submitted by the appellants that between 1972 and 1985 defendant No. 1 was gainfully employed in Bengaluru, and thereafter went to Kuwait for employment, from which earnings he contributed substantially to the purchase and construction of the suit property. It is contended that the sale deed dated 30.11.1992 - Exhibit P1 mentions a consideration of Rs. 50,000/-, whereas plaintiff No. 1 herself has - 8 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 inconsistently stated that she paid only Rs. 28,000/-, thus creating doubt about the source of funds. The learned counsel submits that the building contractor's receipts - Exhibit D3 to D5 show the payments of Rs. 1,50,000/- were made towards the construction of the ground floor and Rs.2,20,000/- for first floor and Rs 70,000/- for the second floor, and that such construction was undertaken under the General Power of attorney executed in 1986, even before the sale deed was registered in 1992. It is further contended that the plaintiff, who worked only for 3 years as an Ayah in Kuwait from 1985 to 1988, could not have acquired sufficient funds to purchase and build a three storied building in 1992. It is asserted that defendant No. 1, being the real source of fund, is a true owner of the property, and that the mother's name was used only nominally. It is also urged that the trial Court erred in invoking Section 14 of the HSA since plaintiff No. 1 was professing Christianity, and therefore provisions of Hindu Law were inapplicable. The said issue was neither - 9 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 pleaded nor framed, and no opportunity was given to the appellants to adduce evidence on this aspect. The learned counsel further contends that the trial Court drew an erroneous presumption of ownership in favour of the plaintiffs without properly examining the financial capacity, and that the Court's reliance under Section 14 of the HSA Act and Section 114 of the Evidence Act, 1872 was misplaced. It is submitted that the matter deserves to be remanded for fresh consideration after awarding full opportunity to the appellants to lead evidence on the financial contribution of defendant No.1 and on the question of applicability of Section 14 of the HSA. 7. Per contra, the learned counsel appearing for the respondents/plaintiffs supporting the decree submits that the trial Court has rightly appreciated the oral and documentary evidence in holding that the property is self acquired property of plaintiff No. 1. It is argued that the marriage of defendant No. 1 took place only on 03.11.1991, whereas the construction of the house had - 10 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 already been completed earlier, as evidenced by the construction completion certificate - Exhibit P10 dated 08.10.1991, and the construction agreement - Exhibit P12 dated 17.02.1991, both showing that the building was completed prior to the marriage and entirely under the supervision of plaintiff No. 1. The affidavit- Exhibit P20 and cash receipt- Exhibit P21 clearly prove that a total sum of Rs. 52,000/- (Rs.27,000/- + Rs 25,000/-) was paid by plaintiff No. 1 towards purchase and advance consideration, and there was no cross-examination of PW1 challenging the genuineness of these documents. It is contended that the defendants have not produced any credible proof of having contributed to the purchase or construction, except a beneficiary card - Exhibit D2, which does not establish any financial contribution. It is contended that defendant No. 1 was born in 1959, was a minor in 1972, and could not have earned any income, on the other hand the records show that plaintiff No. 1 was employed abroad in Kuwait from 1979 until 1991, thereby - 11 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 having sufficient earnings to purchase and develop the property. In the cross-examination of DW1, the wife of defendant No. 1, she categorically admitted that she had no knowledge as to who was the Power of Attorney Holder or what payments were made by her husband, and further admitted that her mother-in-law was working abroad and providing financial support. The plea that the mother was a Christian and hence the HSA could not apply is stated to be an afterthought, raised for the first time in appeal, the defendants themselves have admitted that they belong to a Hindu Adi Dravida community and have not produced a single document to show that plaintiff No. 1 professed Christianity. In any event, the trial Court's decree is founded on registered documents of title and gift, not on succession, and therefore the reference of Section 14 of the HSA was only incidental. It is thus contended that the evidence on record conclusively prove that the property was the self-acquired property of plaintiff No. 1 purchased and constructed from her own income and the trial Court - 12 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 rightly decreed the suit for declaration and possession, warranting no interference by this Court in this appeal. 8. Having heard the learned counsel for the parties, the point that arises for consideration is, whether the judgment and decree of the trial Court decreeing the suit of the plaintiffs warrants any interference by this Court? 9. The registered sale deed - Exhibit P1 dated 30.11.1992 is in favour of plaintiff No. 1 i.e., all the piece and parcel of the land and building bearing site No. 2, VP Khahta No. 686, BBMP No. 2, measuring 30 feet x 30 feet, the General Power of Attorney in favour of plaintiff No.1 is Exhibit P11, the affidavit - Exhibit P20 and the cash receipt - Exhibit P21, clearly establishes that the plaintiff No. 1 purchased the suit schedule property in her own name and paid the sale consideration from her independent earnings while employed abroad. The construction completion certificate - Exhibit P10 dated 08.10.1991 and construction - 13 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 agreement - Exhibit P12 dated 17.02.1991 further established that the construction was completed under the supervision of plaintiff No. 1. The receipts relied by the appellants/defendants Exhibits D3 to D5 remained unproved, as no corroborative evidence has been produced to link those payments to the construction of the suit property. The appellant was born in the year 1959. He could not have been employed in 1972 as claimed by the defendants, as he was only 14 years as on that date and has produced no acceptable proof of financial capacity. On the other hand, the immigration and employment record of plaintiff No. 1 shows that she worked in Kuwait from 1979 to 1991, to hold that she had means to purchase and construct the property. In the cross-examination, DW1 - the wife of the appellant categorically admitted that her mother-in-law was working abroad and was providing financial assistance to the family, and she had no personal knowledge of any payments made by her husband towards construction. The plea raised for the first time in the - 14 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 appeal that plaintiff No. 1 professed Christianity and that Section 14 of the HSA is applicable is an afterthought, as no such pleadings was made nor any issue framed before the trial Court. In any event the decree does not rest upon succession but upon self acquisition and registered gift deeds and the reference to Section 14 HSA is merely illustrative of a settled principle that property standing in the name of a woman is presumed to be her separate and absolute property. The gift deeds executed by plaintiff No. 1 in favour of plaintiffs No. 2 to 4 are unchallenged and convey a valid title. The learned counsel for the appellant has relied upon the decisions in Trimukh Maroti Kirkan vs State of Maharashtra1 (Trimukh Maroti Kirkan), M.S. Narayana Menon alias Mani vs State of Kerala and Another2 (Narayana Menon) and Neeraj Dutta vs State (Government of NCT of Delhi)3 (Neeraj Dutta) to contend that the presumption of fact is only an inference 1 (2006) 10 SCC 681 2 (2006) 6 SCC 39 3 AIR 2023 SC 330 - 15 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 drawn from other proved facts and the Court must exercise this process of reasoning strictly in accordance with Section 114 of the Indian Evidence Act. The appellants submit that the presumption is not itself evidence but merely creates a prima facie case, and the Court should be cautious into drawing such inference unless foundational facts are formally established. In particular, it is argued, following paragraph 46 of Neeraj Dutta, that the Court is authorized to draw an inference of fact from other facts proved on record. But such inference remains rebuttable until disproved by contrary material. However while the above propositions of law are unexceptionable, their application to the facts of this case does not assist the appellants. In Trimukh Maroti Kirkan, the Apex Court observed that presumption of fact is an inference as to the existence of one fact from the existence of others, having regard to human conduct and natural course of events. Similarly, in Narayana Menon, the Apex Court held that such presumptions are rebutatble - 16 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 and may be displaced by the accused or opposite party by showing a probable defence or by relying on other materials on record. In Neeraj Dutta, The principle was restated that under Section 4 and Section 114 of the Evidence Act, the Court may presume ‘a fact likely to have happened, but such presumption is always subject to rebuttal by other facts proved in the case’. 10. Applying these principles here, the trial Court's presumption of ownership in favour of plaintiff No. 1 was not drawn in the abstract, but based on proved facts namely the registered sale deed - Exhibit P1, Exhibit P11, Exhibit P20-the affidavit, Exhibit-P21- the cash receipt and the construction completion certificate - Exhibit P10 and the construction agreement - Exhibit P12, all of which established that the property was purchased and developed by plaintiff No. 1 with her own resources. The defendants/appellants though contended that defendant No.1 had contributed, produced no credible evidence to rebut this influence. The receipts - Exhibits D3 to D5 relied - 17 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 upon by him remained unproved. Neither the contractor was examined nor the bank remittance or financial statement connects the appellants to the payment or construction. Therefore, under the very principle laid down in Trimukh Maroti Kirkan, Narayana Menon and Neeraj Dutta, the presumption drawn by the trial Court is once the foundational facts showing purchase and possession in the name of plaintiff No. 1 was proved, the Court may under Section 114 of the Evidence Act, presume that she is the owner of the property and that such ownership continues until rebutted by contrary proof. Since no such rebuttal has been made, the presumption stands confirmed. Moreover, as held in Neeraj Dutta, the expression, “shall presume” in certain provisions creates a stronger obligation than “may presume”, but even under the permissive presumption of Section 114, the inference drawn in favour of plaintiff No. 1 is consistent with human conduct, natural probabilities and evidence on record. Accordingly while the legal proposition advanced by the - 18 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 appellants are correct in principle, their factual application fails in the present case because the appellants have not produced any set of proved facts from which contrary inference could logically be drawn. The presumption on ownership in favour of the plaintiff No. 1 having arisen from undisputed title documents, remains unshaken. As regards the authorities cited by the respondents, it is true that Marabasappa (Dead) by L.Rs and Others vs Ningappa (Dead) by L.Rs and Others4 and Gangamma and Others vs G. Nagarathnamma and Others5 were in the context of the joint family property and laid down that there is no presumption of joint family ownership merely because the parties are related, and that the person alleging joint family status must produce strong and convincing evidence. Even applying the ratio to the present facts, the appellants have not produced any positive evidence to prove that the purchase or construction was made from joint or common family funds. 4 (2011) 9 SCC 451 5 (2009) 15 SCC 756 - 19 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 The property therefore, remains the exclusive and self- acquired property of plaintiff No. 1. The trial Court's decree concluding that the suit property was the self- acquired property of plaintiff No. 1, that the registered gift deeds in favour of plaintiffs No. 2 to 4 are valid and binding and the defendants possession was merely permissive does not suffer from any infirmity or illegality and is based on sound reasoning and warrants no interference in this appeal. This appeal lacks merits and the point framed for consideration is answered accordingly and this Court pass the following : ORDER (a) The Regular First Appeal is hereby dismissed. (b) The judgment and decree of the trial Court stands confirmed. - 20 - HC-KAR NC: 2025:KHC:41664 RFA No. 423 of 2023 (c) Appellants to vacate the schedule premises within three months from the date of receipt of this order. Sd/- _____________________ JUSTICE K.S. HEMALEKHA CKL List No.: 1 Sl No.: 38