1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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, nort