- 1 - HC-KAR NC: 2026:KHC:31256 RFA No. 1512 of 2011 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JUNE, 2026 BEFORE THE HON'BLE MS. JUSTICE JYOTI M REGULAR FIRST APPEAL NO. 1512 OF 2011 (DEC/INJ) BETWEEN: 1. 1(A) B.M.GURAPPA, S/O. LATE B.P.MALLESGOWDA, SINCE DEAD BY HIS LRS B.G.PRAVEEN KUMAR, S/O. LATE B.M.GURAPPA, AGED ABOUT 58 YEARS, R/O ANUGATTA VILLAGE AND POST AREHALLI HOBLI, BELUR TALUK-57315. …APPELLANT (BY SRI. M.B.CHANDRACHOOD, ADVOCATE FOR SRI. K.C.SHANTHAKUMAR, ADVOCATE FOR LRS OF DECEASED A1) AND: 1. B.G.SANTHOSH KUMAR, S/O. B.M.GURAPPA, AGED ABOUT 45 YEARS, R/O ANUGATTA VILLAGE AND BELUR TALUK, HASSAN DISTRICT-573115. 2. B.G.ROOPA KUMAR, S/O. LATE B.M.GURAPPA, AGED ABOUT 62 YEARS, R/O. MALLIKARJUN RICE MILL, Digitally signed by GEETHA P G Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:31256 RFA No. 1512 of 2011 BICCODU, BELUR TALUK, HASSAN DISTRICT. …RESPONDENTS (BY SRI. A.RAVISHANKAR, ADVOCATE AND SMT. H.C.LOKESHWARI, ADVOCATE FOR R1 AND R2) THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96 OF THE CODE OF CIVIL PROCEDURE. THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 15.06.2026, THIS DAY, AN JUDGMENT IS PRONOUNCED AS UNDER: CAV JUDGMENT Sri.M.B.Chandrachood, counsel on behalf of Sri.K.C.Shanthakumar, for the appellant and Sri.A.Ravishankar, counsel for the respondents, appeared in person. The sole plaintiff, who is now deceased, had an appeal filed to set aside the judgment and decree dated 18th February 2010, passed by the Court of Civil Judge (Senior Division) and JMFC at Belur in O.S.No.98/2008 on several grounds as outlined in the memorandum of appeal. 2. It is noteworthy that the appellant engaged several advocates during the proceedings. The appellant, who was the - 3 - HC-KAR NC: 2026:KHC:31256 RFA No. 1512 of 2011 sole plaintiff, died on 18.09.2018. However, his death was brought to the court's attention on July 3, 2020, when his advocate submitted a copy of the death certificate. Despite being aware of the appellant's death, the applications to bring the legal representatives on record were not filed in time, prompting this Court to pass an order on 05.03.2021 declaring that the appeal had abated. As the matter stood thus, interlocutory applications, namely, seeking condonation of delay, setting aside of abatement, and for bringing the legal representatives on record, were filed. When the matter was listed on 04.10.2021, this Court directed the office to delete the name of counsel Sri.L.Sreekanta Rao from the cause list and to print the name of counsel Sri.Jwala Kumar, as he had filed vakalath on behalf of the legal representatives of the appellant, arrayed as applicant No.1. Thereafter, the appeal was listed at intervals. It is noticed from the records that counsel Sri.K.C.Shanta Kumar., has filed vakalath on 24.06.2025. Finally, by order dated 12.09.2025, this Court allowed the applications, thereby condoning the delay, setting aside the abatement, and - 4 - HC-KAR NC: 2026:KHC:31256 RFA No. 1512 of 2011 permitting the legal representatives of the appellant to come on record. However, the contentions regarding the maintainability of the appeal were kept open. When the appeal was listed for final hearing, counsel for the respondent insisted that the issue of maintainability and continuation of the suit by the appellant be heard first. Counsel for the appellant fairly submitted that he had no objection to addressing the contentions and arguments on maintainability and continuation of the suit by the appellant at the outset. Hence, this Court is presently hearing the matter confined to the question of maintainability / prosecuting the suit by the appellant. 3. Counsel for the appellant, in presenting his arguments, submitted that the sole plaintiff, Sri.Gurappa, had three children, and upon his death, one of his sons, viz., Praveen Kumar, seeks to contest the appeal as one of the legal representatives of Sri.Gurappa. It is also submitted that the other son is already contesting the matter as the sole defendant, and at the request of the appellant, the other son, namely Sri.Roopa Kumar, has been transposed as respondent - 5 - HC-KAR NC: 2026:KHC:31256 RFA No. 1512 of 2011 No.2. It has been vehemently contended on behalf of the appellant that one of the legal representatives of the deceased sole plaintiff possesses the right to continue the appeal. The plaintiff, by legal notice dated 25.09.2007, asserted that the Will dated 04.07.2005 stood cancelled. Thereafter, on 10.01.2008, the plaint came to be presented. It is further urged on behalf of the appellant that, though the plaintiff had admittedly executed the gift deed on 25.09.2007, the said deed was procured by means of fraud and misrepresentation. It is contended that the plaintiff was taken to the office of the Sub-Registrar under the pretext of signing certain revenue documents; however, to his surprise, what was procured was a gift deed. It is also contended that, since the plaintiff had already executed a Will, he had no intention of gifting the property. It is further submitted that the appellant had instituted a suit against his father, contending that the gift deed executed by the father was not binding upon him. The Trial Court, by judgment dated 30.01.2020, dismissed the said suit. Aggrieved by the dismissal, a regular appeal is presently pending before - 6 - HC-KAR NC: 2026:KHC:31256 RFA No. 1512 of 2011 the Appellate Court. It is also pointed out that the present suit has been filed under a distinct and independent cause of action. Lastly, it is submitted that the appeal is maintainable, since one of the sons of Sri.Gurappa is asserting his right to immovable properties along with the other heirs. Consequently, he is entitled to continue the appeal and to seek the same relief as was originally claimed by his father in the plaint. Counsel for the appellant placed reliance on the following decision: SMT.AMBALIKA PADHI AND ANOTHER VS. SH.RADHAKRISHNA PADHI AND OTHERS reported in AIR 1992 SC 431. Counsel for the respondent strenuously urged that the sole plaintiff had instituted a suit seeking a declaration that the registered gift deed dated 25.09.2007, executed by him in respect of the suit schedule properties in favor of the defendant, is not binding upon him, and further to declare that he is the absolute owner of the suit schedule properties. It has been vehemently contended that if a person has executed a - 7 - HC-KAR NC: 2026:KHC:31256 RFA No. 1512 of 2011 document like a gift deed and alleges that it was obtained by fraud, misrepresentation, or without intention, the proper relief is to seek cancellation of that instrument under Section 31. Merely seeking a declaration that the deed is “not binding” without asking for cancellation generally renders the suit defective, because the instrument continues to exist on record and may affect third parties. It has been vehemently contended that, since the original plaintiff himself could not have maintained the suit, the appellant cannot be permitted to prosecute it. Lastly, counsel submitted that the appellant cannot be permitted to continue the appeal and prosecute the suit and therefore, the appeal may be dismissed. Counsel for the respondents placed reliance on the following decision: 1. ASUNTHA D'SOUZA VS. JOYCE PASKINA D'SOUZA NEE D'MELLO AND ANOTHER REPORTED IN 2017 SCC ONLINE KAR 3679. 2. HUSSAIN AHMED CHOUDHURY AND OTHERS VS. HABIBUR RAHMAN (DEAD) THROUGH LRS - 8 - HC-KAR NC: 2026:KHC:31256 RFA No. 1512 of 2011 AND OTHERS REPORTED IN 2025 SCC ONLINE SC 892. 4. Heard the arguments and perused the records with utmost care. The issue revolves within a narrow compass and relates to the continuation of the appeal and prosecute the suit by the appellant. 5. The points that arise for consideration are; 1. Whether the appellant, being one of the legal representatives of the deceased sole plaintiff, is entitled to continue the appeal and prosecute the suit for the relief originally claimed. 2. Whether a suit filed by the plaintiff/ executant of a gift deed, seeking a declaration that the said gift as not binding on him, is maintainable without a prayer for cancellation under Section 31 of the Specific Relief Act, 1963. 6. Reverting to the facts of the case, one Sri.Gurappa had three children, and it is undisputed that there was a partition between Sri.Gurappa and his minor children, and in the said partition dated August 8, 1974, the suit property fell to Sri.Gurappa's share. He gifted the property in favor of one of - 9 - HC-KAR NC: 2026:KHC:31256 RFA No. 1512 of 2011 his sons, the defendant, on 25.09.2007. However, he filed a suit contending that the gift executed by him is not binding on him as the same has been obtained by fraud and misrepresentation. 7. In the suit, the Plaintiff sought the following reliefs. a) To declare that the Plaintiff is the absolute owner and in possession of the Suit Schedule Properties. b) To declare that the registered gift deed dated 25.9.2007 set to have been executed in favour of the Defendant by the Plaintiff in respect of the Suit Schedule Properties is not binding on the Plaintiff. c) From restraining the defendant, his men and agents, from interfering with Plaintiff's peaceful possession and enjoyment of the Suit Schedule Properties in any manner whatsoever by means of a permanent injunction. d) For the cost of this suit and such other relief as the Hon'ble court may deem fit to grant under the circumstances of the case, in the interest of justice and equity. It is a settled principle that upon the death of a sole plaintiff, his legal representative steps into his shoes and is - 10 - HC-KAR NC: 2026:KHC:31256 RFA No. 1512 of 2011 entitled to prosecute the proceedings, provided the right to sue survives. The plaintiff had filed a suit declaring that the registered gift deed executed by him is not binding on him. It is pivotal to note that the plaintiff being the executant of the gift deed could not have maintained the suit in view of the Section 31 of the Specific Relief Act. Furthermore, the relief sought by the plaintiff was personal in nature, namely, that the gift deed executed by him was not binding upon him. Such a relief is inseparably linked to the person and does not extend to proprietary or inheritable rights of his heirs. On the death of the plaintiff, the cause of action ceases to exist, as the declaration sought was confined to his personal status vis-à-vis the gift deed. Consequently, the right to sue does not survive to the legal representatives, and they cannot continue the appeal. In the present case, the relief sought by the plaintiff was personal in nature; therefore, upon his death, the right to sue does not survive to the legal representatives. Needless to observe, since the appellant has - 11 - HC-KAR NC: 2026:KHC:31256 RFA No. 1512 of 2011 already instituted a separate suit and the present appeal is pending, he may agitate his rights in the said pending appeal. It is well-settled that Section 31 of the Specific Relief Act provides the remedy of cancellation of instruments where a person apprehends serious injury from a document executed by him. When the executant himself challenges the validity of a deed executed by him, a mere declaration under Section 34 of the Act is insufficient, for the instrument continues to remain on record and may affect third parties unless it is annulled. Declaratory relief is appropriate where the plaintiff is not the executant but is affected by the instrument; however, in the case of the executant, cancellation is the proper relief. Courts have consistently held that a suit confined to a declaration of non-binding effect, without seeking cancellation, is not maintainable at the instance of the executant. This Court holds that a suit instituted by the plaintiff/ executant of a gift deed, seeking only a declaration that the deed is not binding on him, is not maintainable in law unless accompanied by a prayer for cancellation under Section 31 of the Specific Relief Act, 1963. Therefore, it can be safely - 12 - HC-KAR NC: 2026:KHC:31256 RFA No. 1512 of 2011 concluded that upon the death of the sole plaintiff, the right to continue the appeal and prosecute the suit does not survive. The points are answered accordingly. Counsel for the respective parties placed reliance on several decisions, but I do not think the law is in doubt. Each decision turns on its own facts. The present case is also examined in light of the decisions referred to above. 8. Resultantly, the appeal is dismissed. Because of disposal of the appeal, interim order granted if any stands discharged and pending interlocutory applications if any are disposed of. SD/- (JYOTI M) JUDGE SS List No.: 1 Sl No.: 1