C. N. LEELAVATHI Vs. M. NARAYANAPPA

JUDGEMENT

(1.) Unsuccessful defendant No.2 has appealed this appeal challenging the judgment and decree passed in O.S.No.3122/1993.

(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 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 sites is Site No.26. 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.26, 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 favor of one Smt.C.N. Leelavathi, W/o.N.Kempanna on 02.01.1981 and she alleged to have been put 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, defendant No.2 belongs to Kuruba community as such, they contended that defendant No.2 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 a 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.13680/1980-81 registered in the Office of the Sub- Registrar, Bangalore North Taluk dated 13.02.1981 executed by defendant No.1 in favor of defendant No.2 as invalid and not binding on them and also for consequential relief of injunction, restraining defendant No.2 or her agents, servant and anybody working under her directions from interfering with plaintiffs possession and enjoyment of the suit schedule property in any manner. Defendant No.2 filed written statement and denied the plaint averments. She has stated that defendant No.1 being the absolute owner in possession of the suit schedule property and being the Kartha of the Hindu Joint Family, has executed gift deed in her favor on 02.01.1981. She stated that plaintiffs 1 and 2 have no legal right to challenge the gift deed. It was specifically pleaded that the Muniyappa has executed gift deed in her favor and he has parted with possession of the property in her favor and she has been enjoying the same ever since the date of gift in her favor. It is further stated that in pursuance of the gift deed the katha was transferred in her name in the records as per the mutation entry No.109/1980-81 and she has also paid the requisite property tax. Further, she has obtained electricity connection to the shed which was built by her in the suit schedule property. She denied that the plaintiffs are in peaceful possession and enjoyment over the suit schedule property. Defendant No.2 further stated that few other sites formed in survey No.63 /5 have been sold by Muniyappa in favor of other persons and those transactions have not been questioned by plaintiffs. It was also pleaded that the attack of the gift deed is barred by limitation. Among other grounds, she has prayed for dismissal of the suit. On the basis of the above said pleadings, the trial Court framed the following issues: -