M. NARAYANASWAMY Vs. M. NARAYANAPPA

JUDGEMENT

(1.) Unsuccessful legal representatives of defendant No.2 have appealed this appeal challenging the judgment and decree passed in O.S.No.3119/1993.

(2.) For the sake of convenience, the parties are referred to as per their rankings before the trial Court.

(3.) The short facts are these: Defendant No.1 and Plaintiffs and are the members of the Joint Hindu Undivided Family. Defendant No.1 is the father of plaintiffs 1 and 2. The land bearing Sy.No.63/5 of Nagashettyhalli village, Kasaba Hobli, Bangalore North Taluk, Bangalore is a Joint Hindu Undivided property and the said property is the ancestral property of defendant No.1 and plaintiffs. The katha of the said property stands in the name of Late Munichannaiah, who was the father of defendant No.1 and grand father of plaintiffs. Suffice it to mention that defendant No.1 and plaintiffs are the absolute owners of the land bearing Sy.No.63/5 of Nagashettyhalli Village, Kasaba Hobli, Bangalore North Taluk, Bangalore, and they are in joint possession and enjoyment of same. It is averred that revenue sites are formed by defendant No.1 as well as plaintiffs 1 and 2, in the said land. One of such site is Site No.25. Plaintiffs stated that defendant No.1 is not the absolute owner of the said land and also the sites formed in the land much less the site bearing No.25, which is more fully described in the schedule to the plaint. Plaintiffs averred that, defendant No.1 without having absolute right, title and interest over the schedule property has executed a registered gift deed in favour of one Smt.B.C.Jayamma, W/o.M.Narayanaswamy on 02.01.1981 and she alleged to have been in possession of the property. It is also averred that in the gift deed there is no recital with regard to the acceptance of the possession by the donee. A further contention was put forth to the effect that plaintiffs and defendant No.1 belong to Vokkaliga community, whereas, Smt.B.C.Jayamma belong to Kuruba community as such, they contended that Smt.B.C.Jayamma is an utter stranger to their family. Muniyappa being a member of undivided Hindu Joint family could not have gifted his undivided interest in favor of stranger. It is the specific case of plaintiffs that they are in peaceful possession and enjoyment of the suit schedule property as members of Undivided Hindu Joint Family. The cause of action arose in the 1st week of April 1993, and also on 13.4.1993 when they came to know about the alleged gift deed obtained the certified copy from the Sub Registrar concerned and contending that defendant No.2 tried to dispossess them from the suit schedule property. On these averments plaintiffs sought the aid of the Court by filing the suit for a declaration, declaring that the gift deed bearing registration No.13681/1980-81 registered in the Office of the Sub- Registrar, Bangalore North Taluk dated 13.02.1981 executed by defendant No.1 in favor of Smt.Jayamma W/o.M.Narayanaswamy - defendant No.2 as invalid and not binding on them and also for consequential relief of injunction, restraining defendant No.2 or his agents, servant and anybody working under her directions from interfering with plaintiffs possession and enjoyment of the suit schedule property in any manner. Smt.Jayamma died in the year 1985. The legal representatives of deceased - defendant No.2 (a) to (c) and (e) to (i) have filed the written statement and they denied the plaint averments. However, they admitted that plaintiffs and defendant No.1 are the members of Joint Hindu Undivided Family and that the suit schedule property is the joint family property. They pleaded that defendant No.1 had all the right, title, interest over the suit schedule and defendant No.1 being the Kartha of the Hindu Joint Family, has executed gift deed on 02.01.1981 and plaintiffs 1 and 2 have no legal right to challenge the gift deed. It is stated that Smt.Jayamma died prior to the filing of the suit. It is further contended that in pursuance of the gift deed, the katha was transferred in the name of Smt.Jayamma in the records of Geddalahalli Group Panchayath. In pursuance of the gift deed, she has also paid the property tax. They denied that the plaintiffs are in peaceful possession and enjoyment over the suit schedule property. Among other grounds, they prayed for dismissal of the suit.