- 1 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 10TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100223 OF 2018 (DEC/PAR) BETWEEN: 1. SMT. SIDDAVVA W/O. SIDDAPPA IDUDDI, AGE: 50 YEARS, OCC: AGRICULTURE, R/O. MARADISHIVPUR, TQ: GOKAK, HALIVASTI, CHIKKANANDI, TQ: GOKAK. 2. SRI YALLAPPA S/O. KENCHAPPA BANAVI, AGE: 46 YEARS, OCC: AGRICULTURE, R/O. CHIKKANANDI, TQ: GOKAK. 3. SMT. INDRAVVA W/O. YALLAPPA BANAVI, AGE: 42 YEARS, OCC: AGRICULTURE, R/O. CHIKKANANDI, TQ: GOKAK. 4. KENCHAPPA S/O. YALLAPPA BANAVI, AGE: 21 YEARS, OCC: STUDENT, R/O. CHIKKANANDI, TQ: GOKAK. 5. SMT BASAVVA W/O. YALLAPPA BANAVI, AGE: 40 YEARS, OCC: AGRICULTURE, R/O. CHIKKANANDI, TQ: GOKAK. 6. KUMAR ANAND S/O. YALLAPPA BANAVI, AGE: 15 YEARS, OCC: STUDENT, R/O. CHIKKANANDI, TQ: GOKAK. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 (APPELLANT NO.4 HEREIN WAS MINOR DURING THE PENDENCY OF SUIT AND HE HAS BECOME MAJOR WHEREFORE GUARDIANSHIP OF APPELLANT NO.4 HEREIN IS DISCHARGED. APPELLANT NO.6 IS MINOR AND REPRESENTED BY NATURAL GUARDIAN MOTHER APPELLANT NO.5 HEREIN) …APPELLANTS (BY SRI JAGADISH PATIL, ADVOCATE.) AND: 1. SMT. YAMANAVVA D/O. KENCHAPPA BANAVI, AGE: 55 YEARS, OCC: AGRICULTURE, R/O. CHIKKANANDI, TQ: GOKAK, HALIVASTI: BAGARNAL, TQ: GOKAK. 2. SMT. TANGEVVA W/O. VITTAL RANGANI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O. BAGARNAL, TQ: GOKAK. …RESPONDENTS (BY SRI GURUDEV GACHCHINAMATH, ADVOCATE.) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CIVIL PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE, PRINCIPAL SENIOR CIVIL JUDGE, GOKAK, DATED 02.03.2018 IN O.S.NO.292/2014 AND DIRECT THE RESPONDENT TO GIVE COST OF PROCEEDING AND SUCH ANY OTHER RELIEF AS THIS COURT MAY DEEM FIT IN THE INTEREST OF JUSTICE AND EQUITY. THIS REGULAR FIRST APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by defendants No.1 to 6 in the suit, challenging the judgment and decree dated 02.03.2018, passed in O.S.No.292/2014, by the Court of Principal Senior Civil Judge, Gokak, thereby the suit of the plaintiff was decreed and plaintiffs No.1 and 2 and defendants No.1 and 2 were given 1/4th share each in the suit schedule properties by metes and bounds. It is also declared that the gift deed dated 14.11.2013 is null and void. 2. For the purpose of convenience, ranking of the parties is referred to as per their status before the trial Court. 3. The plaintiffs have filed suit for partition and declaration that they are entitled for 1/4th share each in the suit schedule properties and the gift deed dated 14.11.2013 executed by defendant No.2 in favour of defendants No.4 and 6 is null and void. It is the case of - 4 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 the plaintiffs that the suit schedule properties are ancestral and joint family properties and there is no partition in the family. Therefore, there is no severance in the joint family till the date of filing of the suit. Therefore, the plaintiffs have filed suit for partition claiming 1/4th share each in the suit schedule properties. 4. The defendants filed the written statement contending that the suit schedule properties are not ancestral and joint family properties, but one Hanamavva who is the wife of original propositus Kenchappa was the absolute owner of the suit schedule properties and the said Hanamavva had relinquished the entire property in favour of defendant No.2 who is her son. Therefore, it is pleaded that the suit schedule properties are not ancestral and joint family properties. After relinquishing the property in favour of defendant No.2, the defendant No.2 had gifted the suit schedule properties in favour of defendants No.4 and 6 by way of gift deed dated 14.11.2013. Therefore prayed to dismiss the suit. - 5 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 5. The trial Court upon completion of the pleadings, has framed the following issues: ISSUES i) Whether defendant No.2 proves that plaintiffs have given up their right over suit properties? ii) Whether defendant No.2 further proves that suit is bad for non-joinder of one Vitthala? iii) Do the plaintiffs prove that gift deed executed by defendant No.2 in favour of defendants No.4 & 6 as null and void? iv) Whether the plaintiffs are entitled for the reliefs as sought? v) To what order or decree parties are entitled to? 6. The plaintiffs, on their behalf examined two witnesses as PW.1 and PW.2. Plaintiff No.2 is examined as PW.1 and one witness is examined as PW.2 and got marked documents as Exs.P.1 to P.7. On behalf of defendants, defendant No.2 is examined as DW.1 and got marked one document as Ex.D.1. - 6 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 7. The trial Court after appreciating the evidence on record has given a finding on the issues that the suit schedule properties are ancestral and joint family properties of plaintiffs and defendants No.1 and 2. It is held that one Kenchappa is the original propositus and his wife is Hanamavva. It is not disputed that the plaintiffs and defendants No.1 and 2 are children of Kenchappa and Hanamavva. Therefore, after demise of Kenchappa, his wife Hanamavva has not become full and absolute owner of suit schedule properties, since, the plaintiffs and defendants No.1 and 2 are also other coparceners. Therefore, by holding that Hanamavva did not have absolute right to relinquish the entire property in favour of defendant No.2 and thus, the gift deed made by the defendant No.2 in favour of defendant Nos.4 and 6 is not correct. Therefore, the suit is decreed by granting share to the plaintiffs and defendants No.1 and 2 and also declared that the gift deed is null and void. - 7 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 8. Being aggrieved by it, the defendant Nos.1 to 6 have preferred the present Regular First Appeal by raising various grounds that the trial Court has not appreciated evidence on record correctly. It is urged that the suit is bad for non-joinder of necessary parties and the genealogy produced is not correct. It is contended that just because Vittal who is also another son of Kenchappa and Hanamavva had gone in adoption to grandfather Yamanappa, that does not amount that he is not a necessary party. The date of adoption and status of the property as on such date of adoption is relevant factor for consideration. Vittal is a necessary party to the proceedings, but the said Vittal is not made as a party. Thus, the suit is bad for non-joinder of necessary party. 9. Further urged ground that the judgment is not a speaking order and has not discussed anything regarding evidence placed by both the parties. Therefore, the judgment and decree passed is as if it is considered the case in a summary way which is not permissible in the eye - 8 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 of law. Therefore, on all these grounds filed the appeal praying to allow the appeal and set aside the judgment and decree passed by the trial Court. 10. Learned counsel for the appellants/defendant Nos.1 to 6 submitted that Vittal who is son of Kenchappa and Hanamavva is a necessary party, in the absence of whom, the said decree cannot be passed. Further submitted that after death of Kenchappa, Hanamavva has become the absolute owner of the suit schedule properties and thus, she has rightly relinquished her share in favour of defendant No.2 and in turn, defendant No.2 had gifted the property in favour of defendant Nos.4 and 6. Therefore, the gift deed is valid and this is not considered by the trial Court. Hence, prays to allow the appeal by setting aside the judgment and decree passed by the trial Court. 11. On the other hand, the learned counsel for the respondents justified the judgment and decree passed by the trial Court and prays to dismiss the appeal. - 9 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 12. Upon hearing the arguments of respective counsels and perusing the evidence on record, the points that arise for consideration are as follows: i. Whether, under the facts and circumstances involved in the case, defendant No.2 proves that the suit is bad for non-joinder of necessary parties by not making Vittal as party in the suit? ii. Whether, under the facts and circumstances involved in the case, plaintiffs prove that the gift deed dated 14.11.2013 executed by defendant No.2 in favour of defendant Nos.4 and 6 is null and void? iii. Whether, under the facts and circumstances involved in the case, the judgment and decree passed by the trial Court requires any interference by this Court? 13. Though, the defendants have taken pleading that Vittal who is son of Kenchappa and Hanamavva was gone in adoption to grandfather Yamanappa, but, it has - 10 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 not been said in the written statement. Upon perusing the evidence of both plaintiffs and defendants, it is proved that Vittal had gone in adoption to grandfather Yamanappa. The said son Vittal who had gone in adoption to grandfather, has no grievance against the partition sought for by the plaintiffs. If defendants want to make utilize a party in the suit, an impleading application could have been filed by the defendants for making Vittal as a party to the suit. But Vittal had gone in adoption to another family. Therefore, in the absence of Vittal also the suit could be decided effectively and this is rightly considered by the trial Court. Accordingly, point No.1 is answered in the negative. 14. The defendants have not disputed that the suit schedule properties are not ancestral joint family properties. It is the case of the defendants that the plaintiffs have relinquished their share in favour of mother-Hanamavva by relinquishment deed. But, there is proof that the suit schedule properties are ancestral and - 11 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 joint family properties. When it is the case as contended by the defendants that the plaintiffs have relinquished the property, then, it ought to have been proved by producing registered document of relinquishment deed. If it is not registered, then there is no valid relinquishment deed. Therefore, when the suit properties are ancestral and joint family property, then the plaintiffs and defendants No.1 and 2 have also right over the property being coparceners and Hanamavva did not have absolute right over the properties. 15. When Hanamavva did not have absolute right over the properties, then she could not bequeath the property exclusively in favour of the defendant No.2. Thus, in this way, when defendant No.2 did not have absolute right, title and interest over the property, then, he could not have gifted absolutely bequeathing entire properties in favour of defendant Nos.4 and 6 for want of competency to execute gift deed in respect of the entire property. Thus, in this way, the gift deed made by defendant No.2 is - 12 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 amounting to deprivation of right of the plaintiffs and defendant No.1. Therefore, it was not a valid gift deed. 16. In this regard, the trial Court has rightly considered these aspects and gift dated 14.11.2013 as null and void. Therefore, considering the case once again with reference to evidence on record, the plaintiffs No.1 and 2 and defendants No.1 and 2 are entitled to 1/4th share each in the suit schedule properties. This is rightly considered by the trial Court and accordingly, granted decree for partition which needs no interference by this Court. Further, the gift deed executed by defendant No.2 in favour of defendants No.4 and 6 is not a valid gift deed as the defendant No.2 does not have absolute right over the suit properties. Hence, he could not have gifted the property in favour of defendant Nos.4 and 6. What the defendant No.2 could make gift deed in favour of defendant Nos.4 and 6 is only in respect of his share but not the entire property. Hence, I answer point No.2 in the ‘affirmative’ and point No.3 in the ‘negative’. - 13 - NC: 2025:KHC-D:418 RFA No. 100223 of 2018 17. Therefore, in this regard, the trial Court is correct in holding the gift deed dated 14.11.2013 is null and void. Hence, the judgment and decree passed by the trial Court is perfect justifiable, correct and legal. Hence, it is confirmed. Therefore, the appeal is liable to be dismissed. Accordingly, the appeal is dismissed. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK-para 1 to 6. RKM-para 7 to end. CT: UMD List No.: 1 Sl No.: 18