- 1 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO.100150 OF 2020 (PAR/POS) BETWEEN: SRI. NAVEEN BASANAGOUDA HIREGOUDAR AGED: 48 YEARS, OCC: AGRICULTURE & MEDICAL PRACTITIONER, R/O: NEAR K.H. PATIL STADIUM, GADAG, TQ & DIST: GADAG. …APPELLANT (BY SRI. B SHARANABASAWA, ADV) AND: 1. SRI. SHANMUKHAGOUDA SHANKARGOUDA HIREGOUDAR SINCE DECEASED BY HIS LR’S., 1a. NEELAMMA W/O SHANMUKHAGOUDA HIREGOUDAR, AGED: 62 YEARS, OCC: HOUSEHOLD, R/O: VENKATAPUR, TQ: MUNDARGI, DIST: GADAG-582118. 1b. HARISH SHANMUKAGOUDA HIREGOUDAR AGED: 41 YEARS, OCC: AGRICULTURE, R/O: VENKATAPUR, TQ: MUNDARGI, DIST: GADAG-582118. 1c. KUMARI SAVITA D/O SHANMUKAGOUDA HIREGOUDAR, AGED: 37 YEARS, OCC: HOUSEHOLD WORK, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.02.21 12:43:55 +0530 - 2 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 R/O: VENKATAPUR, TQ: MUNDARGI, DIST: GADAG-582118. 1d. MAHESH S/O SHANMUKAGOUDA HIREGOUDAR, AGED: 32 YEARS, OCC: AGRICULTURE, R/O: VENKATAPUR, TQ: MUNDARGI, DIST: GADAG-582118. 2. SMT. KASTURI W/O BASANAGOUDA HIREGOUDAR, AGED: 73 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR K.H.PATIL STADIUM, GADAG-582118. 3. KAVITA W/O SHARANABASAPPA DAMBAL AGED: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: MUNDARGI, GADAG-582118. 4. ANUPAMA D/O SHANMUKAGOUDA HIREGOUDAR, AGED: 34 YEARS, OCC: HOUSEHOLD, R/O: VENKATAPUR, NOW AT GADAG-582118. …RESPONDENTS (BY SRI. ARVIND D. KULKARNI, ADV FOR R1(A TO D) & R4, NOTICE TO R2 & R3 ARE SERVED THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD.21.11.2019 PASSED IN O.S.NO.124/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MUNDARGI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant challenging the judgment and preliminary decree dated 21.11.2019 passed in O.S.No.124/2011 by the learned Senior Civil Judge, Mundargi. 2. For convenience, the parties are referred to based on their ranking before the trial court. 3. The appellant was defendant No.2, and the respondents were the legal representatives of the deceased plaintiff and other defendants. 4. Brief facts leading rise to the filing of this Regular First Appeal are as follows: 5. The plaintiffs filed the suit against the defendants for the relief of partition and separate possession. It is the case of the plaintiffs that the plaintiffs and the defendants are the members of the undivided Hindu family. It is contended that one Shankaragouda, - 4 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 died in 1938, was the original propositus of the family and plaintiff No.1 and one Basanagouda are the children of the original propositus. Basanagouda died in 2011, leaving behind him, defendant Nos.1 to 4 as his legal heirs. It is contended that, schedule ‘A’ and ‘B’ properties are the ancestral properties of the plaintiffs and the defendants. Out of love and affection, suit lands shown under schedule ‘A’ are separately entered in the name of plaintiff No.1 deceased Basanagouda and their mother, but there is no partition. Schedule ‘A’ (1) and (4) properties are standing in the name of Basanagouda. Schedule ‘A’(2) and (4) properties are standing in the name of plaintiff No.1. Schedule ‘A’(3) property is standing in the name of plaintiff No.2. Schedule ‘A’ (5) property is standing in the name of defendant No.2. Schedule ‘C’ (1) property was purchased in the name of defendant No.1, and schedule ‘C’ (2) property was purchased in the name of Basanagaouda, but the properties are not absolute properties of Basanagouda and his wife Kasturibai, i.e., defendant No.1. Kasturibai has gifted schedule ‘C’(1) in - 5 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 favour of Basanagaouda, but such a gift deed is void ab- initio. Schedule ‘D’ and ‘E’ properties were also purchased by plaintiff No.1 and deceased Basanagouda, out of the joint family income, wherein, schedule ‘D’ property was purchased in the name of defendant No.2, and schedule ‘E’ properties were purchased in the name of defendant Nos.1 and 2. All the suit properties are the joint family properties, which are earned from the income of schedule ‘A’ and ‘B’ properties. It is contended that partition was/is effected between the plaintiffs and the defendants. It is contended that defendant No.4 is aged about 112 years, and by playing fraud and misrepresentation against defendant No.4, defendant No.2 created gift deed dated 07.04.2011 regarding Sy.No.291, item No.8 of the suit ‘A’ property, measuring 20 acres 26 guntas, phot kharab 19 guntas of Venkatapur village, and got entered his name, and is trying to alienate Sy.No.291. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. - 6 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 6. Defendant No.2 filed a written statement contending that the suit is not maintainable, either in law or on facts. It is admitted that the suit schedule ‘A’ and ‘B’ properties are the ancestral properties of the plaintiffs and the defendants. It is contended that there was a partition, which took place under M.E.No.201 in 1972, between Shanmukhagouda and Basanagouda. Accordingly, the lands bearing Sy.Nos.19, 116 and 111 have fallen to the share of Basanagouda and Sy.Nos.20, 21, 110 and 291 are fallen to the share of Shanmukhagouda. Till today, the mutation entries have not been challenged by the plaintiffs. It is contended that his father has completed M.D. in 1973 and was working as a Medical Officer and running a private hospital. Out of the income derived from the said profession, he had purchased schedule ‘C’, ‘D’ and ‘E’ properties. Defendant No.1 had purchased schedule ‘E’ properties under a registered sale deed dated 04.11.1993. It is contended that Sy.No.291 of Venkatapur village came to Parvatevva from her brother under a gift deed dated 28.04.2003, and she has became the absolute owner and - 7 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 possessor of Sy.No.291. In turn, she has gifted Sy.No.291 in favour of defendant No.2 under registered gift deed dated 07.04.2011. Defendant No.2 became the absolute owner of Sy.No.291 under the registered gift deed. Hence, prays to dismiss the suit against defendant No.2 regarding Sy.No.291. 7. Defendant No.5 filed a written statement admitting the case of the plaintiffs, denying the case of defendant Nos.1 to 4. It is contended that Parvatevva was the absolute owner and in possession of the suit survey No.290, and she had executed a Will dated 30.03.2011, in favour of defendant No.5. Hence, prays to decree the suit and allot her legitimate share in the suit properties, except Sy.No.290 and to declare her as an absolute owner of the suit schedule property. 8. The trial court, based on the pleadings of the parties, framed the following issues and additional issue; 1) Whether the plaintiffs prove that, suit properties are their ancestral joint family properties? - 8 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 2) Whether plaintiffs prove that suit 1(d) purchased in the name of defendant No.2, suit 1(e) purchased in the name of defendant No.1 by complying the joint family fund? 3) Whether the plaintiffs prove that the gift in respect of suit 1(a)(viii) properties is void abinitio? 4) Whether the defendant No.1 to 4 prove the previous partition is in the year 1972? 5) Whether the plaintiffs prove that they entitled for the relief? 6) What order or decree? Additional issue: 1) Whether the defendant No.5 proves that, deceased Parvatevva has executed will deed dated 30.03.2011 in her favour pertains to Sy.No.290 of Venkatapur village, accordingly she has become absolute owner and possessor of the said property? 9. To prove his case, the plaintiff himself was examined as P.W.1. He died and his legal representatives - 9 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 were brought on record. Subsequently, plaintiff No.1(b) was examined as P.W.2 and examined four witnesses as P.Ws.3 to 6, and marked 35 documents as Exs.P1 to P35. Defendant No.5 was examined as D.W.1 and examined three witnesses as D.Ws.2 to 4 and marked 54 documents as Exs.D1 to D54. The trial court, after recording the evidence, hearing on both sides and on assessment of the oral and documentary evidence, answered issue Nos.1 and 5 partly in the affirmative, issue No.2 and additional issue No.1 in the negative, issue Nos.3 and 4 in the affirmative, and issue No.6 as per the final order. The suit of the plaintiffs was decreed in part. It is declared that plaintiff No.1(a) to 1(d) and defendant No.5 are jointly entitled for ½ share in schedule ‘B’ properties and land Sy.No.290 of Venkatapur village and defendant Nos.1 to 3 are entitled for ½ share in the said properties. Further, the plaintiffs and defendant No.5 are declared as absolute owners and possessors of lands Sy.No.20, 21, 110, 291 of Venkatapur village. Defendant Nos.1 to 3 are entitled to ½ share in schedule ‘B’ properties and Sy.No.290 of Venkatapur - 10 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 village. Defendant Nos.1 to 3 are declared as absolute owners and possessors of lands Sy.Nos.19, 111 and 116 of Venkatapur village, further defendant Nos.1 to 3 are declared as absolute owners and possessors of suit schedule ‘C’, ‘D’ and ‘E’ properties. The gift deed dated 07.04.2011 and Will deed dated 30.03.2011 are not proved, and defendant No.5 is not entitled to Sy.No.290, and defendant No.2 is not entitled to Sy.No.291 of Venkatapur village. 10. Defendant No.2, aggrieved by the portion of the judgment and the preliminary decree, insofar as Sy.No.291 is concerned, has filed this Regular First Appeal. 11. Heard the learned counsel for defendant No.2 and the learned counsel for the plaintiffs. 12. Learned counsel for defendant No.2 submits that Sy.No.291 was owned and possessed by defendant No.4, and defendant No.4 gifted Sy.No.291 in favour of defendant No.2 under a registered gift deed dated - 11 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 07.04.2011. He submits that defendant No.2 had acquired the title based on the registered gift deed. He submits that the trial court committed an error in decreeing the suit regarding Sy.No.291. He submits that the trial court has committed an error in not considering Ex.D53, i.e., the registered gift deed, on the ground that the attesting witness is an advocate and close friend of the donee. He submits that the reasons assigned by the trial court for not considering Ex.D53 are incorrect. Hence, on these grounds, he prays to allow the appeal. 13. Per contra, learned counsel for the plaintiffs supports the impugned judgment and decree, and contended that defendant No.4 had no right to execute the gift deed in favour of defendant No.2. Defendant No.2 had not acquired any right, title or interest under Ex.D53. He submits that the trial court was justified in passing the impugned judgment and the decree. Hence, on these grounds, he prays to dismiss the appeal. - 12 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 14. Heard, perused the records and considered the submissions of the learned counsel for the parties. 15. The points that would arise for our consideration are; 1) Whether defendant No.2 proves that he had acquired title under Ex.D53, i.e, the registered gift deed executed by defendant No.4 in his favour? 2) Whether defendant No.2 proves that the trial court committed an error in decreeing the suit regarding Sy.No.291 of Vankatapur village? 3) What order or decree? Point Nos.1 and 2. 16. Point Nos.1 and 2 are interlinked, and they are taken up together for common discussion, to avoid repetition of facts. 17. To substantiate his case, the plaintiff examined himself as P.W.1, and he died during the pendency of the suit. Thereafter, his legal representative, i.e., plaintiff No.1(b) was examined as P.W.2 and examined three witnesses as P.Ws.3 to 6. In rebuttal, defendant No.5 was - 13 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 examined as D.W.1 and also examined other witnesses as D.Ws.2 to 4. 18. The crux of the present appeal is, whether the plaintiffs are entitled to a share in suit Sy.No.291? 19. Admittedly, the suit schedule property, i.e,. Sy.No.291 was acquired by defendant No.4 under Ex.D47, and based on Ex.D47, defendant No.4 became the absolute owner of the said suit schedule property. Defendant No.4 executed the registered gift deed, i.e., Ex.D53, in favour of defendant No.2 regarding Sy.No.291. Based on the registered gift deed, the name of defendant No.2 was entered in the revenue records, during the lifetime of defendant No.4. The plaintiffs filed a suit for partition and separate possession and arrayed donee as defendant No.4 in the said suit. Defendant No.4 entered through counsel before the trial court, but did not file the written statement, nor questioned the registered gift deed executed in favour of defendant No.2, as per Ex.D53. Defendant No.4 did not denied the execution of the - 14 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 registered gift deed. Admittedly, defendant No.4 became the absolute owner of the said property, as per Section 14(1) of the Hindu Succession Act, and she had gifted the said property in favour of defendant No.2. 20. As observed above, defendant No.4 did not challenged the registered gift deed, i.e., Ex.D53, during her lifetime. The gift deed executed by defendant No.4 in favour of defendant No.2 has remained unchallenged. The said aspect was not considered by the trial court and committed an error in granting a share to the plaintiffs in Sy.No.291. The trial court committed an error in passing the impugned judgment and decree. Based on the above discussion, we answer point No.1 and 2 in the affirmative. Point No.3. 21. In view of the above discussion, we proceed to pass the following; ORDER The appeal is allowed in part. The judgment and the preliminary decree dated 21.11.2019, passed in O.S.No.124/2011 by the learned - 15 - NC: 2025:KHC-D:2588-DB RFA No. 100150 of 2020 Senior Civil Judge, Mundargi, regarding Sy.No.291 is set aside. The suit of the plaintiffs, regarding Sy.No.291 is dismissed. The rest of the judgment and the preliminary decree passed by the trial court is remain intact. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE MBS CT: BSB List No.: 1 Sl No.: 10