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Judgment
R.F.A.No.743/2003 arises out of the judgment and
the Preliminary Decree dated 14.2.2003 passed by the XV
Additional City Civil Judge, Bangalore, in
O.S.No.3629/1988 .
R.F.A.No.190/2008 arises out of the order dated
20.12.2007 in FDP 49/2003 passed by XV Additional City
Civil Judge, Bangalore, in pursuance of the Preliminary
Decree in O.S.No.3629/1988.
Since the judgment in R.F.A.No.743/2003 has a
direct bearing in disposal of R.F.A.No.190/2008, both
these matters are taken up for disposal together by this
common judgment.
The appellant in both the cases is the first
defendant. The first respondent is the plaintiff and
respondent Nos. 2 to 5 are defendant Nos. 2 to 5 in the
above said proceedings before the Trial Court. For the
purpose of convenience, the parties will be referred to
hereafter with their ranks before the Trial Court.
The case of the plaintiff in brief is as follows:
The plaintiff and the first defendant are the sons of
K. Venkata Rao. Dr. K.V. Gundopanth is the elder brother
of plaintiff''s paternal grand father K.V.Kuppa Rao. In the
partition between Dr.K.V.Gundopanth and K.V.Kuppa Rao
plaint schedule item No.1 property was not partitioned.
However, they were living separately in two different parts
of the said property. K.V.Kuppu Rao executed the release
deed in favour of K. Venkata Rao releasing his half share in
plaint schedule item No.1 i.e. property No.30.
Since Dr. K.V. Gundopanth was issueless he had
adopted plaintiff''s paternal uncle K.V.Rama Chandra Rao.
K.V.Rama Chandra Rao turned unfaithful to his adopted
father and plaintiff''s father K.Venkata Rao took care of Dr.
Gundopanth. Therefore, to save the family properties Dr.
K.V.Gundopanth executed a nominal Gift Deed
dated:17.10.1969 in favour of the first defendant in respect
of his undivided half share in the plaint schedule item No.1
property and some agricultural lands. The said gift deed
was nominal one and not intended to be acted upon. To
give effect to his true intention, Dr. K.V. Gundopanth
executed a registered Will dated 20.2.1970 bequeathing all
his properties in favour of the plaintiff, first defendant and
their younger brother K.V. Gopala.
Dr. K.V. Gundopanth filed O.S.No.47/1970 before the
I Additional Civil Judge, Bangalore against his adopted son
K.Ramachandra Rao, K.Venkata Rao and his sons for
partition and separate possession of his share in all the
joint family and co-parcenary properties. The said suit
came to be compromised on 29.11.1975. By virtue of that,
compromise decree was passed declaring
Dr.K.V.Gundopanth as the absolute owner of entire half
share in house No.30, New No.31 and the lands situated in
Nanjangud and all the lands known as grazing pasture
situated at Pantharpalya. Dr. K.V. Gundopanth died on
17.3.1980. On his death, his properties have devolved on
the legatees. Therefore, the plaintiff has half share in the
suit schedule properties. Hence the suit.
The defendant filed the written statement and
contested the suit. The gist of his written statement is as
follows:
It is denied that at the time of the execution of the
Will Dr. K.V.Gundopanth was the owner of suit schedule A
item No.1 property. It is denied that the gift deed dated
17.10.1969 executed in favour of the first defendant by
Dr.K.V.Gundopanth was nominal one and not acted upon.
Plaint schedule ''A'' item No.2 lands are all lost to the
tenants by virtue of the Karnataka Land Reforms Act. He
has no objection to effect partition in the compensation
receivable from the tenants in respect of those lands.
During his life time Dr.K.V.Gundopanth transferred Plaint
schedule ''B'' items No.2 property (Motor Car) in his favour.
Plaint schedule ''B'' items No.3 (Motor Cycle) is his self
acquired and absolute property. The remaining plaint
schedule "B" properties are taken away by the plaintiff
himself. Therefore, they are not available for partition.
In a factual partition between Dr.K.V.Gundopanth and the
branch of K.V.Kuppa Rao in house No.30, northern half
portion was allotted to the share of Dr.K.V.Gundopanth
and southern half was allotted to K.Venkata Rao. In the
partition between K. Venkata Rao and his sons, the
southern half is divided into six portions amongst the K.
Venkata Rao and his sons. In the partition between the K.
Venkata Rao and his sons, an area of 7'' 6"x 100'' 6" has
been given to the first defendant and an area of 35''6"x23''8"
is given to each of the four brothers amongst the sons of
K.Venakta Rao and K. Venkata Rao. The plaintiff has been
given the south eastern corner portion and he has put up
construction on that with the approved building plan. The
wife of K. Venkata Rao is a necessary party to the suit. By
virtue of the registered gift deed executed by Dr.K.V.
Gundopant in favour of the first defendant, he has become
the absolute owner of plaint schedule A item No.1 property.
Dr. K.V.Gundopanth executed the registered Will dated
20.2.1970 in favour of sons of K. Venkata Rao, only in
respect of the movable and immovable properties,
excluding the property gifted to the first defendant. If at
all, plaintiff contends that Dr.K.V.Gundopanth and others
were in joint family status, the suit is bad for non joinder of
other properties which are disposed of Dr. K.V.
Gundopanth. He is in possession of the property gifted to
him by Dr. K.V.Gundopanth as absolute owner thereof.
There was a partition between the family of the plaintiff
and the first defendant where under the earlier partition
between Dr.K.V. Gundopanth, the father of the plaintiff
and first defendant is recorded. Thus, he seeks dismissal of
the suit.
Having regard to the pleadings of the parties, the
Trial Court framed the following:
Issues:
Whether the plaintiff proves that Gift Deed
dated 17.10.1969 executed by Dr. K.V.
Gundopanth in favour of the defendant was only a
sham transaction, not intended to be acted upon
and that it was not acted upon?
Whether the plaintiff proves that
Dr.K.V.Gundopanth duly executed a Will on
20.2.1970 and that plaintiff and defendant are
entitled to the northern half of the undivided share
in the entire property bearing No.30, Kanakapura
Road and that plaintiff and defendant continued to
be in joint possession of the same?
Whether the plaintiff proves that he is
entitled to separate possession of half share in the
suit schedule properties?
Whether the defendant proves that Item
No.2 in ''A'' Schedule lands were tenanted and
tenants are proper and necessary parties to the
suit?
Whether the defendant proves that ''B''
schedule properties were not available at the time
of death of the testator and most of them had been
taken away by the plaintiff himself when he left the
house?
Whether the defendant proves that plaintiff
is not entitled to any relief as he has not sought for
a declaration that the Gift deed is a nullity and for
consequential reliefs?
Whether the defendant proves that suit
properties have not been properly valued and that
plaintiff has to pay court fee under Section 35(1) of
the Karnataka Court Fees and Suits Valuation Act?
What decree or order?
The Trial Court recasted the issue No.2 as follows:
Recasted Issue No.2:
Whether the plaintiff proves that he and
the defendant are entitled to the northern half
of undivided share in the entire property
bearing No.30, Kanakapura Road?
The parties led evidence before the Trial Court. The
plaintiff got himself examined as PW1 and got marked
Exhibits P.1 and P.2. The first defendant got himself
examined as DW1 and got marked Exhibits D.1 to D.12.
The Trial Court, after hearing the parties, by the
impugned judgment partly decreed the suit, allotting half
share in half portion of the property No.30 situated at
Kanakapura Road and half share in compensation payable
in respect of item No.2 of ''A'' schedule properties and
dismissed the suit in respect of plaint schedule ''B''
properties.
The first defendant challenged the said
judgment and decree in R.F.A.No.743/2003 before this
Court. Pending R.F.A.No.743/2003 the successful plaintiff
filed FDP No.49/2003 before the Trial Court. The Trial
Court, by the order dated 20.12.2007, partly allowed the
petition, demarcating the shares of the plaintiff and the
first defendant in plaint schedule "A" item No.1 property
and rejecting the claim for mesne profits. The Trial Court,
in FDP 49/2003 further directed to draw the Final decree
in accordance with the shares allotted in the said order.
Challenging the said order, the first defendant
has preferred R.F.A.No.190/2008. This court, after
hearing both the parties by judgment dated 13.11.2008
allowed the appeals. The plaintiff challenged the said
judgment before the Hon''ble Supreme Court in Civil Appeal
Nos. 5875-5876/2010. The Apex Court, by the judgment
dated: 07.1.2016 allowed the appeals and remanded the
matters to this Court holding that this court has not
recorded the specific finding on the compromise decree
dated 29.11.1975 in O.S.No.47/70 (Ex.D8) and
memorandum recording oral partition dated 10.11.1985
(Ex.D3).
After such remand, both the parties are heard in
both the matters. On hearing the parties and on perusal of
the records, the points that arise for the consideration of
this Court are:-
(i) Whether the impugned judgment and
decree of the Trial court in O.S.No.3629/1988 is
sustainable?
(ii) Whether the impugned order in FDP
No.49/2003 is sustainable?
Reg. The sustainability of the impugned
judgment of the trial Court in O.S. No.3629/1988: The
plaintiff claims partition and possession of half share in
suit schedule ''A'' item No.1 and 2 and suit schedule ''B''
properties. Suit schedule ''A'' item No1 is northern half
portion of property bearing No. 30 Kanakapura Road,
Bengaluru-4 measuring 42''6"x 118''6"and item No.2 are 11
Agricultural lands situated at Panthara palya, Kengeri,
Bengaluru South Taluk. Suit schedule ''B'' properties are
the movable properties. Plaintiff is the younger brother of
the defendant. Apart from plaintiff and defendant their
father Venkatarao has three more sons by names K.V.
Krishna, K.V. Gopal and K.V Ashok.
Plaintiff claims that the suit properties are the
absolute properties of Dr. K.V. Gundopanth the elder
brother of his paternal grand father K.V. Kuppu Rao. He
admits that Dr. K.V. Gundopanth had executed the gift
deed Ex.D.2 dated 17.10.1969 donating plaint schedule ''A''
item No.1 property in favour of the defendant. But he
claims that the said document was nominal and sham
document executed in order to save the properties from
K.V. Ramachandra Rao the adopted son of Dr. K.V.
Gundopanth and that was not intended to be acted upon
and that was not acted upon. He claims that subsequently
Dr.K.V. Gundopanth executed the Will Ex.D1 dated
20.02.1970 bequeathing all the suit properties in favour of
himself, defendant and their brother K.V. Gopal.
The defendant denies that Ex.D.2-gift deed is
nominal, not intended to be acted upon and not acted
upon etc. He claims that under the said document the
property is conveyed to him absolutely and he is put in
exclusive possession of the said property. He contends
that the same is acknowledged in Ex.D.3 the memorandum
of partition dated 10.11.1985 executed by the plaintiff and
his other brothers. He denies that plaint schedule ''A'' item
No.1 property is bequeathed to him and his brothers under
Ex.D.1. He contends that under Ex.D.1 the testator
Dr.K.V.Gundopanth has bequeathed only the properties
available to him as on the date of the Will and plaint
schedule ''A'' item No.1 property and plaint schedule ''B''
item No.2 motor car were not available to the testator as on
the date of the Will. He claimed that plaint schedule ''B''
item No.3 motor cycle is purchased by him and that is his
absolute property.
The trial Court decreed the suit only in respect
of plaint schedule ''A'' item Nos. 1 and 2 properties and
dismissed the suit in respect of plaint schedule ''B''
properties. The plaintiff has not filed any appeal or cross
objections against the dismissal of his claim in respect of
plaint schedule ''B'' properties. Therefore, that part of the
decree has attained finality. So far as plaint schedule item
No.2 the lands, the trial Court holds that by operation of
Karnataka Land Reforms Act, all those lands are lost to the
tenants and the matters are pending before the competent
authorities for awarding compensation to the land lords
and plaintiff and defendants are entitled to half share in
the compensation that may be awarded in future. Both the
parties have no grievance against that part of the decree
also. Therefore, the challenge is limited only against the
decree in respect of plaint schedule ''A'' item No.1 property.
The above facts make it clear that both the
parties admit the title of the Dr.K.V. Gundopanth to the
suit schedule ''A'' item No. 1 property. The plaintiff also
admits that Dr. K.V. Gundopanth executed Ex.D2-the gift
deed in favour of the defendant. Therefore, the burden lies
upon him to prove that Ex.D2 is a nominal document, not
intended to be acted upon and not acted upon.
To substantiate his contention the plaintiff
relies on Exs.D.7 and D.8. Exs.D.7 and Exs.D.8 are the
certified copies of the decree and the compromise petition
filed by the parties in O.S. No.47/1970 before the
Additional Civil Judge, Bengaluru City. The defendant also
admits the said documents. K. Ramachandra Rao the
adopted son of Dr. K.V. Gundopanth is defendant No.1, his
wife and son are defendant Nos.2 and 3, plaintiff''s father,
mother, plaintiff and the defendant are the other
defendants in the said suit.
Exs.D.7 and Exs.D.8 show that
Dr.K.V. Gundopanth filed the said suit against the
defendants therein for partition and possession of his half
share in suit schedule ''A'' and ''B'' properties and they
compromised the matter. Ex.D.7 the compromise decree
further shows that while filing O.S. No.47/1970
Dr.K.V.Gundopanth had not included present plaint
schedule ''A'' item No.1 in the suit. Ex.D.8 shows that only
in the said compromise petition the parties included the
present plaint schedule A(1) property and agreed that Dr.
K.V. Gundopanth is the absolute owner of the said
property. The gift deed Ex.D.2 or its validity was not at all
in issue in the said suit. In Ex.D 7 and 8 no where parties
contended that the gift deed in favour of the present
defendant is revoked.
As per the plaintiff himself, Dr.
K.V.Gundopanth filed that suit to save the properties from
the hands of his adopted son Ramachandra Rao who
turned unfaithful to the adoptive father. Therefore, the
question of Dr. K.V. Gundopanth disowning the gift deed
executed by him or cancelling the same did not arise at all.
Since Dr. K.V. Gundopanth was the original
owner and the defendant could get the title under the gift
deed only if he admits the title of Dr.K.V. Gundopanth,
nothing much can be attributed to the present defendant
admitting the ownership of the Dr.K.V. Gundopanth in the
compromise petition.
In the compromise petition or the decree parties
did not seek annulment of gift deed Ex.D.2 nor did the
decree annul the same. Those documents do not even
reveal that any of the parties to the decree more
particularly Dr.K.V. Gundopanth stated that there is a gift
deed and that is a nominal document and the same is not
intended to be acted upon or not acted upon.
Exs.D.7 and D.8 show that under those
documents the partition is effected between the branch of
plaintiff''s father Venkata Rao and Dr.K.V. Gundopanth on
one hand and between Dr. K.V. Gundopanth and his
adopted son K.Ramachandra Rao and his branch. Ex.D.7
and 8 nowhere indicate that Dr.K.V.Gundopanth or any
other party to those proceedings expressly or impliedly got
annulled the gift deed Ex.D.2 contending that the same is
nominal one or not acted upon.
To find out whether the gift deed was intended
to be acted upon and whether that was acted upon or not,
the over all conduct of the parties all along has to be
appreciated. Plaintiff himself admits in the plaint that Dr.
K.V. Gundopanth died on 17.03.1980. PW1 himself admits
that in 1985 himself and his brothers partitioned their
ancestral properties and the said partition was recorded
vide Ex.D3 the memorandum of partition and Ex.D.3 (a)
and (b) the sketch annexed to the same. He further admits
that after such partition they gave application to the
Municipal authorities enclosing the sketch exhibiting D.5
and on that basis the property bearing No. 30 was sub
divided and Ex.D4 is the Special notice issued by the
corporation authorities in that regard.
In Ex.D.3 the plaintiff and his other brothers
have confirmed and admitted that the present defendant
has an independent right to the extent of 50% of property
No.30 of Kanakapura Road, shown in the annexed sketch
by letters ABCD and they never had or have any rights over
the same. They have declared in Ex.D3 that the present
defendant is the absolute owner of the said property.
Ex.D.3(a) and (b) show that the said ABCD portion is the
northern half portion of property No.30 (present schedule
''A'' item No.1 property).
Exs.D3 and D.3 (a) and (b), D.4 and D.5 show
that plaintiff, defendant and their other brothers divided
the southern portion of property No.30 (their father''s share)
as per the sketch Ex.D.3 (a) and (b) and reported the
partition to the Municipal authorities, sought sub-division
of the property enclosing Ex.D.5 the copy of the sketch.
The said documents further show that, accordingly the
properties fallen to the share of the brothers are assessed
separately for payment of the tax.
Exs.D.3 to D.5, D.3(a) and (b) coupled with the
sweeping and unequivocal admissions of PW.1 on Exs.D.3
to D.5 and D.3(a) and (b) show that plaintiff and other
brothers admitted that the defendant is in possession of
plaint schedule ''A'' item No.1 property in his independent
right. That itself shows that under the gift deed Ex.D.2 the
defendant was put in possession of the property and
Ex.D.2 was acted upon.
It is also to be seen that in the Will Ex.D.1, the
particulars of the properties bequeathed are not
forthcoming. It is only said all the properties of the
testator are bequeathed. At the time of execution of the
Will the property gifted was not available to the testator to
convey the same.
Further the other brothers of the plaintiff who
are the legatees under the Will do not set up any claim to
plaint schedule ''A'' item No.1 property. The plaintiff does
not implead them in the present suit. He does not examine
either the attesting witnesses to Ex.D.1 the Will or the
other beneficiaries under the Will to prove that Dr. K.V.
Gundopanth intended to bequeath or bequeathed the
plaint schedule ''A'' item No.1 property.
PW.1 admits that Dr. K.V.Gundopanth owned
agricultural lands at Nanjangud. Under the Will though all
the properties of Dr.K.V.Gundopanth are bequeathed, as
admitted by PW.1 himself, he does not bring them for
partition in this suit.
He does not implead K.V.Gopal another
beneficiary (his own brother) under the Will as a party to
this suit. As per the Will K.V.Gopal is also entitled to equal
share in the bequest. If that be so, the plaintiff''s share will
be only 1/3 rd. All these facts go to show that the suit lacks
bonafides and only with an intention to grab the property
gifted to the defendant the suit is filed. The trial Court
without appreciating the overall evidence only on the basis
of the Ex.D.7 and D.8 decreed the suit in respect of plaint
schedule ''A'' item No.1 property also which is
unsustainable.
Reg. sustainability of order in FDP
No.49/2003: The final decree order in F.D.P No.49/2003
which is challenged in R.F.A No.190/2008 is passed in
respect of plaint schedule ''A'' item No.1 property based on
the preliminary decree passed in O.S. No.3628/1988 which
is the subject matter of R.F.No. 743/2003. So far as the
rejection of mesne profits, the plaintiff has not filed any
appeal or corss objections. Therefore that part of the order
in FDP No.49/2003 has become final. The final decree
order in respect of plaint schedule ''A'' item No.1 property
sustains based on the sustainability of the preliminary
decree in O.S.No.3628/1988.
This Court by the above discussion already held
that the preliminary decree in O.S.No.3628/1988 in
respect of plaint schedule ''A'' item No.1 property is
unsustainable. Therefore, the final decree order in FDP
No.49/2003 to that extent has no legs to stand. Therefore,
unsustainable and needs to be reversed.
For the aforesaid reasons R.F.A. No.743/2003 and
R.F.A. No.190/2008 are hereby partly allowed with costs.
The judgment and decree of the trial Court in O.S.
No.3628/1988 is hereby partly set aside. The suit is
dismissed in respect of plaint schedule ''A'' item No.1
property. The rest of the decree is maintained.
The impugned order dated 20.10.2007 in FDP
No.49/2003 passed by the Trial Court in respect of plaint
schedule A item No.1 property is hereby set aside.