JUDGMENT :

The appellant aggrieved by the judgment and decree dated 07.02.2011, passed in O.S. No. 3206/2004 by the XLIII Addl. City Civil & Sessions Judge, Bangalore (CCH-44), has filed this appeal.

2. Parties are referred to as per their ranking before the Trial Court. The appellant is the defendant and respondents are the plaintiffs before the Trial Court.

3. Brief facts leading rise to filing of this appeal are as under:

3.1. Plaintiffs filed a suit for declaration, partition and separate possession. It is the case of the plaintiffs that Late Sri. Perumal and Smt. Seethamma had three children i.e., 2 daughters and 1 son, by name Smt. Amuda, Smt. Subhadra and Sri. Rukmangathan. Plaintiff No.1 and 2 are the children of Smt. Amuda. Plaintiff No.1 was married to Sri. Rukmangathan, S/o Perumal and Seethamma. During the year 1956, Seethamma had purchased a vacant plot out of her own earnings and the said plot was sold during February 1970. The suit property was purchased by Seethamma in the name of Late Perumal. The suit schedule property was sold by A. Shanmugham through S.V. Rajendra in favour of Perumal and Seethamma. Late Perumal was an employee and served at Karnataka Appellate Tribunal as a peon and retired on 29.10.1998. Late Perumal and Seethamma were living in a common house in the suit schedule property. The husband of plaintiff No.1, i.e., Rukmangathan died on 21.07.1999 without issues. After the demise of her husband, the defendant intentionally created problems and started to harass plaintiff No.1 mentally and physically and forcibly sent her out of the suit schedule property. The plaintiffs have lodged a complaint before the Civil Organization. It is pleaded that Late Perumal was addicted to alcohol and was under the influence of alcohol and he was not having sound mind due to his old age and intoxication. Defendant, by taking undue advantage, took Late Perumal to sub-registrar office on 15.03.2003 and out of fraud and misrepresentation, got executed a gift deed in her favour. After lapse of one month, Perumal died on 16.04.2003. The gift deed is not binding on the plaintiffs. The plaintiffs are entitled for share in the suit schedule property. The plaintiffs requested the defendant to effect partition, but the defendant refused to effect the partition. Hence cause of action arose for the plaintiffs to file the suit for declaration, partition and separate possession.

3.2. The defendant filed written statement denying that Smt. Seethamma had purchased the plot in the year 1956 out of her own earnings. It is admitted that the said plot was sold for valuable consideration and also admitted that the suit schedule property was purchased by Late Perumal under registered sale deed. From the date of purchase, the father of the defendant was in possession and enjoyment of the suit schedule property. It is pleaded that the husband of plaintiff No.1 was in the habit of buzzing ever since the date of his attaining majority. It is further contended that plaintiff No.1 had deserted her husband during his lifetime. After his death, plaintiff No.1 did not attend the cremation of her husband. Defendant had performed the funeral ceremony of her husband. The father of the defendant was aged and defendant was looking after her father. Her father, out of love and affection, executed a gift deed in favour of the defendant on 15.03.2003, and handed over the vacant physical possession of the suit schedule property to the defendant. Since th e def endant is in possession and enjoyment of the suit schedule property as an absolute owner, khatha was transferred in the name of the defendant. Defendant’s father was the absolute owner of the suit schedule property and it was his self-acquired property and not ancestral property of the plaintiffs and defendant. It is denied that the defendant by taking undue advantage of intoxication condition of her father, by playing fraud and misrepresentation, got executed the gift deed. It is denied that the plai