Commissioner of Income Tax-V, vs. M/s.Sirveen Control Systems

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2NDDAY OF AUGUST, 2021 PRESENT THE HON’BLE MRS.JUSTICE S.SUJATHA AND THE HON’BLE MR. JUSTICE RAVI V. HOSMANI R.F.A.No.48/2012 (PAR) BETWEEN: 1. SRI. M. SRINIVAS S/O. SRI. MUNIYAPPA P AGED ABOUT 45 YEARS R/AT NO.58, 1ST FLOOR CHIKKANNAMMA TEMPLE STREET JORIPET, BENGALURU - 560 002. 2. SRI. HEMANTH KUMAR S/O. SRI. MUNIYAPPA P. AGED ABOUT 40 YEARS R/AT NO.58, 4TH FLOOR CHIKKANNAMMA TEMPLE STREET JORIPET, BENGALURU - 560 002. 3. SMT. ANNAPOORNA M. W/O. SRI. SURESH D/O. MUNIYAPPA P. AGED ABOUT 37 YEARS R/AT NO.90, 8TH MAIN, 8TH CROSS SAMPANGIRAMANAGAR BENGALURU.

...APPELLANTS [BY SRI.A.G. SHIVANNA, ADVOCATE A/W SRI. G. UDAYA KUMAR, ADVOCATE (VIDEO CONFERENCE)]

2 AND: 1. SRI. P. MUNIYAPPA, DEAD BY LRS - APPELLANTS 2. SMT. ASWATHAMMA W/O. SRI. M.S. HARISH BABU AGED ABOUT 56 YEARS. 3. SRI. NANJUNDESHWARA C/O. SRI. P. MUNIYAPPA AGED ABOUT 31 YEARS

BOTH ARE R/AT NO.58,

GROUND FLOOR,

CHIKKANNAMMA TEMPLE STREET,

JORIPET, BENGALURU - 560 002. 4. SRI. M. PRAKASH, S/O. SRI. MUNIYAPPA P. AGED ABOUT 47 YEARS, R/AT NO.58, 1STFLOOR, CHIKKANNAMMA TEMPLE STREET, JORIPET, BENGALURU - 560 002. 5. SRI. M. MANJUNATHA

S/O. SRI. MUNIYAPPA P. DEAD BY LRS. 5(a) SMT. K.L. RENUKA W/O. LATE M. MANJUNATH AGED ABOUT 47 YEARS 5(b) M. ANUSHA D/O. LATE M. MANJUNATH AGED ABOUT 24 YEARS

3 5(c) RAKSHITHA M. D/O. LATE MANJUNATH AGED ABOUT 20 YEARS 5A TO 5C ARE R/AT NO.58, CHIKKANNAMMA TEMPLE STREET JORIPET, BENGALURU - 560 002. ...RESPONDENTS (BY SRI. V. SUBASH REDDY, ADVOCATE FOR R2 AND R3 (PHYSICAL HEARING) SRI. B.S. SHRIKANTH, ADVOCATE FOR R4 AND R5(a) TO R5(c) R1 DEAD] THIS RFA IS FILED UNDER SECTION 96 OF CPC,AGAINST THE JUDGMENT AND DECREE DATED: 05.08.2011 PASSED IN O.S.NO. 1838/2008 ON THE FILE OF THE XXXVIII ADDITIONAL CITY CIVIL JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS RFA COMING ON FOR HEARING THIS DAY, RAVI V. HOSMANI J.,DELIVERED THE FOLLOWING: J U D G M E N T This appeal is filed by appellants challenging impugned judgment and decree dated 05.08.2011 passed in O.S.No.1838/2008 by XXXVII Addl. City Civil Judge, Bengaluru City. 2. Appellants herein were plaintiffs no.2, 4 and 5; whereas respondents no.1 to 3 were defendants no.1 to 3 respectively. Plaintiffs no.1 and 3 are respondents no.4 and 5 herein.

4 3. For the sake of convenience parties shall be referred to as per their ranking before trial court. 4. Plaintiffs filed O.S.No.1838/2008 seeking relief of partition and separate possession of their 1/5th share each in ‘A’ schedule property and 1/6th share each in ‘B’ schedule property and also relief of declaration that registered gift deed dated 06.12.2005 executed by defendant no.1 in favour of defendants no.2 and 3 in respect of suit schedule properties as not binding on them and also for a decree of permanent injunction restraining defendants from alienating suit schedule property etc., 5. Brief facts as stated in the plaint are that plaintiffs are children of defendant no.1 and Smt. Rathnamma. Defendants no.2 and 3 are residing with defendant no.1. It was stated that Smt. Rathnamma died on 11.05.1994. Prior to her death, she was residing with defendant no.1 in the premises bearing no.58, Chikkannamma Temple Street, Joripet, Bangalore. Due to certain misunderstandings plaintiffs were staying away from defendant no.1. Defendants no.2 and 3, who have nothing to do with plaintiffs’

5 family were residing with defendant no.1 in the ground floor. Plaintiffs no.1 to 4 were residing in remaining floors. Plaintiff no.5 was married and residing with her husband. ‘A’ schedule property was self-acquired property of late Smt. Rathnamma, acquired under registered sale deed dated 26.05.1959 from Smt. N Sarojabai and N.Sathyanarayana Prasad for sale consideration of Rs.9,000/-. Plaintiffs being sons and daughters of Smt.Rathnamma were entitled to share in the same upon her death. Defendants, who have no right, title or interest in the same got revenue entries mutated in the name of defendant no.1 and later in their name. It was stated that after purchase of land by Smt.Rathnamma, revenue entries were mutated in her name. Thereafter five storied building was constructed out of their income. It was further stated that ‘B’ schedule property was joint family property of plaintiffs and defendant no.1 herein. Therefore, plaintiffs and defendant no.1 are having equal share in the property. It was further stated that defendant no.1 had invested joint family income of Rs.10,00,000/- for business under name and style “Vinayaka Silver Photo Pictures”. He was not keeping good health. Taking undue advantage of his ill health, defendants no.2, without

6 having no right, title or interest in the property and not having any relationship with defendant no.1, filed C.Misc.No.747/2007 under Section 12 of Protection of Women from Domestic Violence Act, 2005, against plaintiffs no.1 and 2. In the said matter, plaintiffs no.1 and 2 appeared and submitted a memo that they have not caused any interference to defendant no.2 and undertook not to harass her. Thereafter they came to know that defendant no.1 had executed registered gift deed on 06.12.2005 gifting ground floor of building in ‘A’ schedule property and entire ‘B’ schedule property in favour of defendants no.2 and 3. They also came to know that defendant no.2 was married to one Shri M.S. Harishbabu, on 13.03.1978 itself. Despite the same, she was meddling into joint family affairs of plaintiffs and mismanaging properties, which constrained them to file the suit. 6. Upon service of summons, defendants entered appearance and filed written statement admitting plaintiffs were children of defendant no.1 through Smt.Rathnamma. Marriage of defendant no.2 with Shri M.S. Harishbabu was denied. It was asserted that defendant no.2 was wife of defendant no.1 and

7 defendant no.3 was their son. It was further stated that Smt.Rathnamma was not keeping good health. Therefore, at the insistence of her parents, she married defendant no.1. It was stated that defendant no.2 was none other than sister of Smt. Rathnamma and was not a stranger. The plaintiffs’ assertion that suit schedule properties were joint family properties and plaintiffs had share in them were also denied. It was asserted that ‘A’ and ‘B’ schedule properties were self-acquired properties of defendant no.1 and he constructed building of five floors on ‘A’ schedule property wherein plaintiffs and defendants were residing. Defendant no.2 denied taking advantage of weakness of defendant no.1. Defendants also stated that ‘A’ schedule property was already partitioned and in terms of same, parties were in occupation and therefore, plaintiffs were not entitled for any relief in the suit. 7. Based on pleadings, trial court framed following issues: 1) Whether plaintiffs prove that suit schedule ‘A’ property is self-acquired property of their mother late Smt. Rathnamma? 2) Whether plaintiffs prove that suit schedule ‘B’ properties are joint family properties consisting of themselves and defendant no.1?

8 3) Whether plaintiffs prove that they are entitled to a share in suit schedule properties and if so, to what share and in which of the suit schedule properties? 4) Whether defendants prove that suit schedule ‘A’ and ‘B’ properties are self-acquired properties of defendant no.1? 5) Whether defendants prove that defendant no.2 is legally wedded wife of defendant no.1 and defendant no.3 is son of defendant no.2 born to defendant no.1? 6) Whether plaintiffs prove that the registered gift deed dated 6.12.2005 executed by defendant no.1 in favour of defendant Nos.2 and 3, is not binding on them? 7) Whether plaintiffs are entitled to the relief sought for? 8) What decree or order? 8. During pendency of the suit defendant no.1 died on 23.10.2008. As all legal representatives of defendant no.1 were already on record, he was deleted from array of parties. 9. In discharge of burden cast under issues, plaintiff no.1 was examined as PW1 and got marked Exs.P.1 to P.9. In rebuttal, defendants examined two witnesses viz., defendant no.2 as DW1 and defendant no.3 as DW2 and Exs.D.1 to 58 were marked.

9 10. After reiterating plaint averments, PW.1 stated that on death of Smt. Rathnamma, name of defendant no.1 was mutated in revenue entries, insofar as ‘A’ schedule property, as he was elder member of family. Insofar as ‘B’ schedule property, he stated that it originally belonged to Chikkamuniappa, who had three daughters. He bequeathed said property under a registered will dated 01.02.1942 in favour of his three daughters in equal shares. The children of Smt. Subbamma, one of the daughters sold her 1/3rd share to children of 2nd daughter Smt. Narayanamma viz., P. Munichikkappa, P. Muniyappa (defendant No.1) and P. Nanjundappa under sale deed dated 10.05.1963. Prior to the same, Sri. Papaiah, father of defendant no.1 purchased 1/3rd share of other daughter Smt. Muniyamma, from her children under sale deed dated 22.11.1957, out of joint family income. Subsequently, P. Muniyappa purchased 1/3rd share of P. Nanjundappa under registered sale deed dated 05.11.1979. Thereafter, partition was effected between defendant no.1 and his brothers under partition deed dated 24.09.1981. ‘B’ schedule property fell to share of defendant no.1 and therefore, plaintiffs had share in ‘B’ schedule

10 property also. During his cross-examination, it is elicited that defendant no.1 was doing photo frame business and from said income he provided education to all children and performed their marriage. It is also elicited that defendant no.1 and his two brothers had effected partition in joint family property and that defendant no.1 purchased share allotted to his brother P. Nanjundaswamy. PW-1 further admits that old building situated in ‘A’ schedule property was demolished and new building was constructed therein. It is also elicited that a flat situated in Appuraya pet, Bengaluru Nagarth pet, standing in the name of PW-1 and his brother and a flat was also gifted to plaintiff no.2 by defendant no.1. PW-1 admits that deceased Smt.Rathnamma was earning Rs.400/- per month by sale of flowers to neighbours and was not an income tax assessee and financial position of defendant no.1 was sound and his earning was more than their mother. 11. PW.1 admits a suggestion that an amount of Rs.30,00,000/- to Rs.40,00,000/- was spent for construction of building in ‘A’ schedule property and that plaintiffs contributed

11 equally with defendant no.1 for construction of building. PW.1 further admits that plaintiffs gave no objection in writing for transfer of khata of ‘A’ schedule property in favour of defendant no.1. PW-1 also admits that he has filed O.S.No.26459/2010 against plaintiff no.2 for partition and separate possession in the property gifted by defendant no.1 to plaintiff no.2. 12. The summary of documentary evidence is as follows: Exs.P.1 and P.2 - khata extracts of respective schedule properties. Ex.P.3 - registered sale deed dated 10.05.1963 under which ‘A’ schedule property was purchased in the name of Smt. Rathnamma. Ex.P.4 - sale deed in respect of ‘B’ schedule property executed by P. Munishamappa @ P. Muniswamy in favour of P. Munichinnappa, P. Muniyappa and P. Nanjundappa. Ex.P.5 - sale deed dated 22.11.2019, whereunder Sri. S. Papaiah purchased 1/3rd share in ‘B’ schedule property from children of V.Nagappa. Ex.P.6 - sale deed dated 05.11.1979, whereunder defendant no.1 purchased share of P. Nanjundappa. Ex.P.7 - registered partition deed dated 24.09.1981 between P. Nanjundappa, P. Muniyappa and P. Munichinnappa, whereunder defendant no.1 got 1/3rd share in ‘B’

12 schedule property. Ex.P.8 - impugned gift deed dated 06.12.2005. In the recitals, it is stated that defendant no.1 intended to gift ½ share in the demise property in favour of donees. In the schedule of gift deed - Ex.P.8 entire ground floor of ‘A’ schedule property and entire ‘B’ schedule property is gifted in favour of defendants no. 2 and 3 equally. Ex.P.9 - notice of intended marriage dated 06.02.1978. 13. The defence evidence is led by examining defendant no.2 as DW.1. In her examination-in-chief DW.1 reiterated written statement averments. She further deposed that plaintiffs had admitted relationship of defendants no.2 and 3 with defendant no.1 as wife and son, in their objections filed in Crl.Misc.No.747/2007. But, she admits that she married defendant no.1 when Smt.Rathnamma was alive. In her cross-examination, DW.1 admits plaintiffs’ assertion insofar as ‘B’ schedule property as follows: “It is true to suggest that father of Defendant no.1, ie., late Sri. Papaiah had purchased 1/3rd share of Smt. Muniyamma ‘B’ schedule property (no.10) under registered sale deed dated 22.12.1957. It is true to suggest that Nanjundappa and his brothers P. Muniyappa D-1 and Munichinnappa had jointly purchased 1/3rd share of Smt. Subbamma in ‘B’ schedule property (no.10) under regd. sale deed dated

13 10.05.1963. It is false to suggest that D-1 and his brothers had purchased 1/3rd share of Smt. Subbamma in ‘A’ schedule property out of joint family income. It is true to suggest that D-1 had purchased his brothers share i.e., Nanjundappa’s entire share in ‘B’ schedule (No.10) property under regd sale deed dated 05.11.1979. It is false to suggest that ‘B’ schedule property is nothing but the share of D-1 in the property bearing No.10 which he got partition which took place between him and his brother Sri. P. Munichinnappa on 24.09.1981. It is false to suggest that ‘B’ schedule property is ancestral property of D-1 and plaintiffs.” 14. DW-1 further admits a suggestion that she had purchased a site situated at Anjanapura Village, from BDA. She denied other suggestions made by plaintiffs. 15. Defendant no.3 was examined as DW.2. His examination-in-chief is a reiteration of written statement averments. While denying suggestions during cross-examination, DW.2 made the following admission: “.... It is true to suggest that plaintiffs are also entitled to a share in suit schedule ‘B’ property.” 16. The documentary evidence on behalf of defendants is as follows: Copies of petition in C.Misc.747/2007 were marked as Exs.D.1 and Ex.D.2 is the objection statement filed by plaintiffs no.1 and 2. In paragraphs no.2 and 3, there is a specific admission

14 that defendant no.2 got married to defendant No.1 and defendant No.3 was born to them. Ex.D.3 is copy of memo filed in said petition. Copy of KVAT registration is at Exs.D.4. Exs.D.5 and D.6 are copies of EPIC cards of defendants No.2 and 3. Ex.D.5 mentions name of husband of defendant No.2 and father of defendant No.3 as defendant No.1. Ex.D.7 is birth certificate showing names of defendants no.1 and 2 as parents of defendant no.3. Exs.D.8 and D.9 are LIC policies. Exs.D.10 to D.33 are copies of photographs. Copy of bank passbook was produced as Ex.D.34. Copy of gift deed dated 15.10.2004 executed by defendant no.1 in favour of plaintiff no.2 was produced as Ex.D.35. The original passport and PAN card of defendant no.3 were produced as Exs.D.36 and D.37. Marriage invitation card and registration certificate were produced as Exs.D.38 and D.39. Copies of photographs of engagement ceremony were produced as Exs.D.40 to D.55. Ex.D.56 is registered Will dated 17.09.2005 executed by defendant no.1 in favour of defendants no.2 and 3. 17. On consideration, trial court answered issues no.1 and 2 in negative, issue no.3 partly in affirmative only insofar as ‘A’ schedule property and issue no.4 and 5 partly in affirmative and

15 partly in negative and issue no.6 and 7 as partly in affirmative and decreed suit in part, declaring that gift deed dated 06.12.2005 executed by defendant no.1 as not binding on plaintiffs and granted a decree of partition and separate possession of 1/6th share to each of plaintiffs only insofar as ‘A’ schedule property. Aggrieved by partial decree, plaintiffs are in appeal. 18. Learned counsel Shri A.G. Shivanna, appearing for appellants along with Shri G. Uday Kumar, Advocate, submitted that impugned judgment and decree passed by trial court was contrary to law and unsustainable. It was submitted that plaintiffs had filed suit for partition and separate possession of their 1/5th share in ‘A’ schedule property and 1/6th share in ‘B’ schedule property. They also sought for declaration that gift deed dated 06.12.2005 executed by defendant no.1 in favour of defendants no.2 and 3 as not binding on them and for permanent injunction against alienation of suit schedule properties. Though, trial Court granted 1/6th share in ‘A’ schedule property to each of plaintiffs, relief insofar as ‘B’ schedule property was denied despite defendant

16 no.3 examined as DW.2 clearly admitting in his cross-examination that plaintiffs also had share in ‘B’ schedule property. It was also contended that ‘A’ schedule property was exclusive property of Smt.Rathnamma, mother of plaintiffs and defendants no.2 and 3 did not have any right in the same. But trial court granted share to defendant no.3 also, though defendant no.3 was not born to Smt.Rathnamma. It was submitted that plaintiffs were in fact entitled for 1/5th share in ‘A’ schedule property, which was not considered by the trial court. It was submitted that in their written statement defendants admitted ‘B’ schedule property was ancestral property of defendant no.1. Such being the case, trial court erred in concluding that ‘B’ schedule property was self- acquired property of deft.no.1 and denying share to plaintiffs in ‘B’ schedule property. It was also contended that defendant no.3, at best would be an illegitimate son of defendant no.1, in view of finding by trial court that marriage of defendant no.1 with defendant no.2 was void, but granting equal share to defendant no.3 in ‘A’ schedule property along with plaintiffs would be perverse and contrary to

17 law. It was alternatively contended that ‘B’ schedule property was voluntarily put into common hotch-pot by defendant no.1 and therefore, plaintiffs were also entitled for a share in it. It was submitted that, while giving a finding on issues no. 1, 2 and 4, trial court held that ‘A’ schedule property was acquired by defendant no.1 in the name of his wife Smt.Rathnamma and she was benamidar, was contrary to Section 4 of Prohibition of Benami Transactions Act, 1988 and settled legal position that property acquired by a Hindu woman could not be blended into common stock of family. Therefore, said finding was capricious. In support of his submissions, learned counsel relied upon the decision in Maribasappa (dead) by LRs and others Vs. Ningappa (dead) by LRs and others reported in (2011) 9 SCC 451 for the proposition that property of a Hindu woman would be her personal property and cannot be treated as part of joint family property, by referring to sub-section (1) of Section 14 of Hindu Succession Act. He also relied upon the decision in Gangamma etc., Vs. G. Nagarathnamma and others reported in AIR 2009 SC 2561, wherein similar view was expressed.

18 Learned counsel cited the decision of the Hon’ble Supreme Court in the case of Rosammal Issetheenammal Fernandez (dead) by LRs and others Vs. Joosa Mariyan Fernandez & others reported in (2007) 7 SCC 189, for the proposition that where a gift deed was challenged, it was required to be proved in compliance with Section 68 of Indian Evidence Act. It was submitted that as defendants did not examine attesting witnesses, gift deed was liable to be held not proved and trial court erred in holding that it was binding upon plaintiffs insofar as ‘B’ schedule properties. 19. On the other hand, Shri B.S. Srikanth & Shri V Subhash Reddy, learned counsel for respondents supported judgment and decree. It was firstly contended that though appellants were claiming rights over suit schedule properties, none of appellants stepped into witness box. It was specifically submitted that defendant no.2 was not a stranger to the family, as she was sister of Smt. Rathnamma. As Smt.Rathnamma was ill and plaintiffs were very young, Rathnamma persuaded defendant no.1 to marry defendant no.2 and with consent of elders, celebrated their

19 marriage. It was submitted that after their marriage, defendant no.3 was born and they were living with defendant no.1 in the very same building constructed upon ‘A’ schedule property. It was submitted that said building was constructed by defendant no.1 and ‘A’ schedule property was never treated as exclusive property by Smt.Rathnamma. It was further submitted that after death of Smt.Rathnamma, khata of ‘A’ schedule property was transferred in the name of defendant no.1 on consent of plaintiffs. It was lastly contended that there was yet another property in respect of which plaintiffs no.4 and 5 along with wife of plaintiff no.3 had filed O.S.No.5259/2020 against plaintiffs no.1, 2 and defendants no.2 and 3 seeking for relief of partition. 20. We have heard learned counsel on both sides, perused impugned judgment and decree and the record. 21. From the above, it is seen that plaintiffs filed suit for partition and declaration etc., against defendants in respect of two schedule properties, of which they claimed ‘A’ schedule property as absolute property of their mother and ‘B’ schedule property as ancestral property of defendant no.1, in which they were entitled

20 for share. Plaintiffs denied relationship of defendants no.2 and 3 with defendant no.1. 22. On the other hand, defendants opposed the suit on the ground that defendant no.2 was legally wedded wife of defendant no.1 and defendant no.3 was their son and relationship was admitted by plaintiffs in their objections in Crl.Misc.No.747/2007 filed by defendant no.2 against plaintiffs no.1 and 2. As regards schedule properties, it was contended that defendant no.1 was doing silver photo frame business and out of his own earnings, purchased schedule properties and his wife Smt.Rathnamma did not have any independent source of income. It is also their case that defendant no.1 had made arrangement for separate residence of plaintiffs and defendants, with defendants taking the ground floor due to their old age and plaintiffs taking upper floors by lottery. In view of partition of ‘A’ schedule property, plaintiffs were not entitled for any relief. ‘B’ schedule property was claimed to be purchased by defendant no.1 from his brother and was his exclusive property. He executed gift deed dated 06.12.2004 in favour of defendants no.1 and 2 gifting entire ‘B’ schedule property and ground floor of ‘A’ schedule property.

21 23. From the above, the fact that ‘A’ schedule property was purchased in the name of Smt.Rathnamma, mother of plaintiff is not in dispute. In view of Section 14 of the Hindu Succession Act, 1956, a presumption would arise that it would be her absolute property. But, defendants have contended that she did not have any independent source of income to purchase the same. Trial court has given a finding that plaintiffs failed to establish her independent income and held it to be purchased by defendant no.1 in her name. Said finding is assailed herein. 24. It is also not in dispute that some portion of ‘B’ schedule property was purchased by defendant no.1. While plaintiffs claim that it had fallen to share of defendant no.1 during partition with his brothers and remaining portion of ‘B’ schedule property was purchased by defendant no.1 in exchange to another property given to his brother. Thus, atleast some portion of it is ancestral property. 25. In view of the above, following points would arise for our consideration:

22 i) Whether the trial court is justified in giving a finding that the defendant no.3 was also having equal share in ‘A’ schedule property? ii) Whether the trial court was justified in denying any share to plaintiffs in ‘B’ schedule property? 26. The trial court while answering issue no.5 regarding status of defendants no.2 and 3 vis-à-vis defendant no.1 referred to admission of relationship in Ex. D.2 - objections filed by plaintiffs no.1 and 2 in Crl.Misc.No.747/2007 and referring to birth certificate of defendant no.3, voter IDs of defendants no.1, 2 and 3 and admitted cohabitation between defendants no.1 and 2 for a long time, answered the issue partly in affirmative and relationship was held proved, but marriage between defendant no.1 and 2 was held as void. 27. While answering issues no.1, 2 and 4, trial Court referred to sale deed dated 26.05.1969 (Ex.P.3) whereunder ‘A’ schedule property was purchased in the name of Smt.Rathnamma - plaintiff’s mother. It held that plaintiffs failed to establish source of income of Smt.Rathnamma to purchase it and held that she was benamidar of defendant no.1. As it would be prohibited in view of

23 Section 3 of Benami Transactions (Prohibition) Act, 1988, she would not become its owner. Trial court taking note of unequivocal consent by plaintiffs for mutation of name of defendant no.1 over ‘A’ schedule property after death of Smt. Rathnamma and admitting that old building was demolished and a new building constructed with five floors wherein defendant no.1 was residing in ground floor with defendant nos.2 & 3 without objection by plaintiffs, held that it was joint family property of plaintiffs and defendants. 28. While giving its finding on issue no.6, trial court refers to its finding on issue no.5 that plaintiffs had failed to prove ‘A’ schedule property as self-acquired property of their mother Smt. Rathnamma. Thereafter, referring to decisions of this Court in Smt.Lingamma and others Vs. Gangadharaiah and others reported in ILR 2008 KAR 2450 and in Smt. Sarojamma Vs. Smt. Neelamma reported in (2005) 5 Kant LJ 66 held that even an illegitimate son can be equated with natural son and treated as coparcener and proceeded to answer issue no.6 by holding that defendant no.3 is also entitled for a share in ‘A’ schedule property and that plaintiffs no.1 to 5 and defendants no.1 and 3 were

24 entitled to 1/7th share each. The trial court further proceeded to hold that defendant no.1 was not absolute owner of ‘A’ schedule property and had no right to gift the ground floor of building in ‘A’ schedule property in favour of defendants no.2 and 3. It also proceeded to hold that defendants though contended that there was partition amongst plaintiff and defendants, but it holds that defendants failed to establish the same and therefore as defendant no.1 did not have right to gift a portion of ‘A’ schedule property to defendants, gift deed was not binding on plaintiffs insofar as ‘A’ schedule property. 29. The reason assigned is that plaintiffs did not challenge validity of gift deed and admitted its due execution. Therefore compliance with Section 68 of Evidence Act was not necessitated. The trial court answered issue no.6 partly in affirmative and partly in negative. 30. Insofar as issue no.3, trial Court held that by virtue of gift deed, defendants no.2 and 3 had become absolute owners of ‘B’ schedule property. Therefore, plaintiffs did not have share in the same. Trial court proceeded to answer issue no.3 partly in

25 affirmative to the extent that plaintiffs were entitled to 1/6th share each in ‘A’ schedule property, but in view of its finding on other issues, they were not entitled to any share in ‘B’ schedule properties. On the same reasoning, trial court answered issue no.7 as partly in the affirmative. Re. Point No.1: 31. The thrust of plaintiffs’ case in this appeal is challenge to Ex.P.8 - impugned gift deed. It is assailed on two grounds viz., failure of defendants to establish due execution by examining attesting witnesses as required under Section 68 of Evidence Act and on the ground that it was exclusive property of Smt.Rathnamma in view of Section 14 of Hindu Succession Act. Reliance was placed on decision in Maribasappa’s and Gangamma’s case. But in the said decision, though Hon’ble Supreme Court held that intestate property of Hindu women would not available for partition of a joint family property and there cannot be any presumption of joint family property in the absence of strong evidence for the same. The ratio laid down is undisputable, however in the instant case, defendants have

26 asserted that it was purchased by defendant no.1 in the name of Smt.Rathnamma. They have also led evidence to establish his financial capacity. But, except making mere claim, plaintiffs failed to establish that their mother Smt.Rathnamma had independent source of income sufficient to purchase the same. In view of same, trial court rightly held said claim as not established. There is no justification for this court to differ from said finding. Therefore, neither of two decisions avail to plaintiffs. 32. Even as regards the other contention, the ratio of decision in Rosammal’s case would apply only when validity of gift deed is challenged. In the said decision, Hon’ble Supreme Court held that findings of Courts on documents should be clear and not be vague. In the instant case, trial Court has given a specific and clear finding that plaintiffs did not challenge validity of gift deed as prayer sought was to declare it as not binding on plaintiffs. Therefore, there was no burden on defendants to prove the gift deed. Hence non-compliance with Section 68 would not be fatal to their case. Even otherwise, Section 68 of Evidence Act would not be attracted to question validity of a gift deed. Hence, there are no

27 good or sufficient reasons to interfere with finding of trial Court insofar as Ex.P.8 - gift deed. 33. At the same time, plaintiffs also sought to deny relationship between defendant no.1 and defendants no.2 and 3 by specific pleadings. But, defendants confronted PW.1 with Ex.D.2, wherein their relationship as wife and son of defendant no.1 was admitted. 34. The pleading in para-5 of written statement is as follows: “It is submitted that as far as relationship between 1st defendant and plaintiff and plaintiff’s mother Smt. Rathnamma is an admitted fact and it is true and correct that Smt. Rathnamma expired on 11.05.1994. It is further submitted that Smt. Rathnamma is none other than the sister of 2nd defendant and during her life time Smt. Rathnamma was suffering from health problem and she was not in a possession to take care of plaintiffs and manage affairs of the household chores. In the said circumstances at the instance of Smt. Rathnamma and her parents, 2nd defendant was given in marriage to 1st defendant in order to safeguard interest of plaintiffs who were small children and in order to manage affairs of the house and to take care of ailing Smt. Rathnamma. “ (Emphasis supplied by us)

28 35. Thus, it was admitted that marriage of defendant no.2 with defendant no.1 took place during subsistence of his marriage with plaintiffs’ mother Smt.Rathnamma, which rendered it void as per Section 11 of Hindu Marriage Act, 1955. The resultant conclusion would be that defendant no.3 would not be a legitimate son of defendant no.1. 36. As held above ‘A’ schedule property was purchased by defendant no.1, therefore, trial Court rightly held that ‘A’ schedule property was joint family property of plaintiffs and defendant no.3 and granted them equal share in it. Said finding has not been challenged by defendants. Grant of equal share would be justified in terms of decision of Hon’ble Supreme Court in case of Revanasiddappa and another Vs. Mallikarjuna and others reported in (2011) 11 SCC 1. Point no.1 is accordingly answered in affirmative. Re.Point No.2 37. Insofar as ‘B’ schedule property, the defendants have pleaded as follows in the written statement: “It is submitted that, as far as description of schedule ‘B’ property i.e., bearing new No.10, old

29 No.39, thereafter 48 and 49 which is situated at Chikkannamma Temple Street, Joripet, Bengaluru is an ancestral property to an extent of the share that fell to the 1st defendant, pursuant to the partition affected between the brothers of first defendant namely Munichinnappa and Nanjundaswamy. The 1st defendant purchased the share of Nanjundaswamy which was abutting to the share of the 1st defendant. Thus, the above said property is the self-acquired property of the 1st defendant. The said property is in absolute possession and enjoyment of the 1st defendant and the 1st defendant is the only person having absolute right, interest, claims etc., over the said property to deal with the above said property in the manner he likes.” 38. Even DW-1, during her cross-examination has admitted above position. While giving its finding on issues no.1, 2 and 4, trial court also observed that father of defendant no.1 late Sri.Papaiah had got portion of ‘B’ schedule property and after his death, same devolved upon defendant no.1 and his brothers. A portion of ‘B’ schedule property was purchased by defendant no.1. However, trial court without assigning any reasons concludes that it cannot be treated as coparcenary property and plaintiffs did not have any interest therein. Admittedly, a portion of ‘B’ schedule property devolved upon defendant no.1 from his father. Even if remaining portion of ‘B’ schedule property was purchased by defendant no.1,

30 entire ‘B’ schedule property could not be self-acquired property of defendant no.1. The conclusion would be same even if the contention of defendants that defendant no.1 got ‘B’ schedule property in exchange for another property from his brother, after partition. It is not in dispute that ‘B schedule property was purchased by defendant no.1 and as per above evidence, some portion of it was inherited by defendant no.1. Therefore, all his children would have share in it. At the same time, defendant no.3 examined as DW-2 has unequivocally admitted during cross- examination that plaintiffs are also having share in ‘B’ schedule property. Hence, denial of any share in ‘B’ schedule property suffers from material irregularity calling for interference. Therefore, it would be appropriate to remand the matter back to trial court for determination of the same. 39. Yet another reason for remanding the matter back to trial court would be the fact that at the time of hearing, learned counsel for respondents submitted that during pendency of above appeal, plaintiff no.4, 5 and wife of plaintiff no.3 have filed suit for partition against plaintiffs no.1 and 2, defendants no.2 and 3 and purchasers, in respect of yet another property than that of suit

31 schedule properties herein. He placed on record certified copy of entire order sheet and plaint in O.S.No.5259/2020 presently pending on the file of XLIV, Additional City Civil Judge and Sessions Judge, Bengaluru. Further, it is elicited from PW-1 that O.S.No.26459/2010 filed by him against plaintiff no.2 challenging the gift deed executed by defendant no.1 in favour of plaintiff no.2 was pending, wherein relief claimed is that of partition and separate possession. Therefore, it is evident that there is no consolidation of all the joint family properties for the purposes of the relief claimed. The decree cannot be sustained. Accordingly point no.2 is answered in the negative. 40. At the time of passing the judgment, trial court has not made a correct note of the witnesses examined and exhibits marked in the Annexures column, which would be indicative of non- application of mind by trial court. This would also justify remand. 41. Hence, in view of pendency of suits with regard to other properties and to enable parties to lead any further evidence, we deem it fit to set aside impugned judgment and decree and remand

32 the matter to trial court for fresh consideration after giving adequate opportunity to all the parties concerned. Hence, the following: ORDER Appeal is partly allowed. The impugned judgment and decree dated 05.08.2011 passed in O.S.1838/2008 by XXXVIII Addl. City Civil Judge, Bangalore City, is set aside and matter is remanded to re-consider the matter in the light of the observations made herein above keeping open all the rights and contentions of parties. Since parties are represented by their learned counsel, are directed to appear before trial court on 26.09.2021 without waiting for any notice and shall take further orders. Registry shall forward original records to trial court forthwith. Sd/- JUDGE Sd/- JUDGE Psg*/BVK