- 1 - NC: 2025:KHC-D:1855 WP No. 105047 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 105047 OF 2024 (GM-CPC) BETWEEN: 1. SIDDESHWAR MARUTI HANABAR, AGE: 31 YEARS, OCC: AGRICULTURE, R/O. SADALAGA, TAL: CHIKODI, DIST: BELAGAVI-591201. 2. SMT. CHANDA MARUTI HANABAR, AGE: 67 YEARS, OCC: HOUSEHOLD, R/O. SADALAGA, TAL: CHIKODI, DIST: BELAGAVI-591201. …PETITIONERS (BY SRI. RAMESH I. ZIRALI, ADVOCATE) AND: 1. ASHOK MALLAPPA HANABAR, AGE: 74 YEARS, OCC: AGRICULTURE, R/O. SADALAGA, TAL: CHIKODI, DIST: BELAGAVI-591201. 2. VIVEK MALLAPPA HANABAR, AGE: 66 YEARS, OCC: AGRICULTURE, R/O. SADALAGA, TAL: CHIKODI, DIST: BELAGAVI-591201. 3. DILIP MALLAPPA HANABAR, AGE: 58 YEARS, OCC: AGRICULTURE, R/O. SADALAGA, TAL: CHIKODI, DIST: BELAGAVI-591201. …RESPONDENTS (NOTICE TO RESPONDENTS IS DISPENSED WITH V/O/D 30.01.2025) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI AND QUASH THE IMPUGNED ORDER DATED 5.7.2024 PASSED ON I.A.NO.III IN O.S.38/2019 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE, CHIKODI, PRODUCED VIDE ANNEXURE-E, TO MEET THE ENDS OF JUSTICE AND EQUITY AND ETC. R GIRIJA A BYAHATTI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:1855 WP No. 105047 of 2024 THIS PETITION, COMING ON FOR PRELIMINARY HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. The petitioners are before this Court seeking for the following reliefs: i. Issue writ of certiorari and quash the impugned order Dated 5.7.2024 passed on I.A.No.III in O.S.38/2019 on the file of Principal Senior Civil Judge, Chikodi, produced vide Annexure-E, to meet the ends of justice and equity. ii. Issue any other writ or direction as deemed fit by this Hon’ble court. 2. A suit in O.S.No.38/2019 had been filed by the plaintiffs, seeking the following reliefs: a. A decree for declaration may be passed declaring that the plaintiffs have succeeded to the deceased Shrimanti and are the absolute owners of the suit properties. b. A decree for declaration may be passed declaring that the registered Gift Deed, Dated: 07-01-2011 got executed by defendants No.1 to 3 in their favor from the deceased Srimanti is null and void. c. A decree for consequential relief of injunction may be passed restraining the defendant No.1 to 3 from obstructing the peaceful possession and enjoyment of the plaintiffs over the suit property. d. Costs of the suit may be awarded. - 3 - NC: 2025:KHC-D:1855 WP No. 105047 of 2024 3. In the said suit, the written statement having been filed, issues were framed as under: ISSUES 1. Whether the plaintiffs prove that they are the absolute owners of suit schedule property having inherited the same from deceased Shrimanti? 2. Whether the plaintiffs prove that they are in possession of suit schedule property? 3. Whether the plaintiffs prove that the registered gift deed dated 7/01/2011 executed by deceased Shrimanti in favour of defendants 1, is null and void, as alleged? 4. Whether the plaintiffs prove that defendants are trying to interfere with their peaceful possession and enjoyment of suit schedule properties? 5. Whether plaintiffs are entitled to the relief of declaration as prayed for in their plaint? 6. Whether plaintiffs are entitled to the relief of perpetual injunction against the defendants as prayed for in their plaint? 7. What decree or order? 4. An application under Order XIV Rule 5 of CPC came to be filed by the petitioner (plaintiff) which reads as under: APPLICATION UNDER ORDER 14 RULE 5 OF C.P.C. Herein, the application on behalf of the defendants is as under: - 4 - NC: 2025:KHC-D:1855 WP No. 105047 of 2024 For the reasons stated to in the accompanying affidavit it is most humbly prayed that, the issue No 3 may kindly be re-casted as shown in below in the interest of justice and equity. Issue No 3: Whether the defendants prove that they have not exercised undue influence over their sister Smt. Srimanti Maruti Hanabar in getting the registered gift deed executed in their favor on 07-01-2011? 5. The said application came to be rejected vide the impugned order dated 05/07/2024, on the ground that issue No.3 has been rightly framed by casting the burden on the plaintiffs to prove that the registered gift deed dated 07/01/2011 is null and void. The Trial Court also held that the pleadings made by the plaintiff did not warrant the reframing of the said issue. It is challenging the said order, the petitioner is before this Court. 6. Sri.Ramesh I. Zirali, learned counsel appearing for the petitioner, would submit that it is for the defendants to prove that the Gift Deed has been executed of the free will and volition of Smt.Srimanti - 5 - NC: 2025:KHC-D:1855 WP No. 105047 of 2024 Maruti Hanabar and that the defendants did not exercise any undue influence over their sister, Smt.Srimanti Maruti Hanabar, while getting the registered gift deed executed in their favor on 07/01/2011. His submission is that, since the defendants have received benefits under the gift deed, it is for them to establish that the gift deed was executed out of the free will and volition of Smt.Srimanti Maruti Hanabar, and the Trial Court has not taken this into consideration and has rejected the application. 7. Heard Sri. Ramesh I. Zirali, learned counsel appearing for the respondents and perused the papers. 8. The relief sought for by the plaintiff in the plaint is for declaration that the registered gift deed dated 07/01/2011, got executed by defendants No.1 to 3 in their favour by deceased Smt.Srimanti Maruti Hanabar, is null and void. This relief having been - 6 - NC: 2025:KHC-D:1855 WP No. 105047 of 2024 sought for by the plaintiff on the ground that the gift deed was executed fraudulently by exercising undue influence, the allegation made by the plaintiff is required to be established by the plaintiff to be entitled to the relief. 9. It is for this reason that the Trial Court had framed issue No.3 extracted hereinabove by casting the burden on the plaintiff to prove that the gift deed is null and void. 10. By filing an application under Order XIV Rule 5 of CPC, the plaintiff seeks to shift the burden onto the defendants to prove that they did not exercise undue influence, that is to say that if the issue is re-cast, the defendants would have to prove a negative fact of not having exercised undue influence. A negative fact cannot be proved in law, rather, it is for the plaintiff to establish the positive fact of any undue influence being exercised. The defendants cannot be expected, nor can they be required to prove that - 7 - NC: 2025:KHC-D:1855 WP No. 105047 of 2024 undue influence has not been exercised being a negative fact. 11. While framing issues, the Court can always cast the burden of proving the positive fact on the person who alleges that fact. An issue of proving a negative fact cannot be framed while framing the issues. 12. In that view of the matter, I am of the considered opinion that the order of the Trial Court is proper and correct and does not suffer from any infirmity requiring interference by this Court. 13. Accordingly, the petition stands dismissed. Sd/- (SURAJ GOVINDARAJ) JUDGE gab CT-MCK List No.: 1 Sl No.: 43