The court affirmed that unregistered gift deeds executed in favor of a family member, when substantiated by evidence, supersede claims of joint ownership based on ancestral property if no partition was formally established.

JUDGMENT :

ASHOK S.KINAGI, J.

This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 16.07.2014, passed in R.A.No.182/2011 by the learned IV Additional District and Sessions Court, Doddaballapur, Bangalore Rural District, Bangalore.

2. For convenience, the parties are referred to based on their ranking before the trial Court. The appellant was the plaintiff, and the respondents were the defendants.

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

The plaintiff filed a suit against the defendants for partition and separate possession regarding the suit schedule properties. It is the case of the plaintiff that defendant No.1 is the mother, defendant No.2 is the uncle and defendant No.3 is the brother of the plaintiff. The suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants. The grandparents of the plaintiff i.e., late Gangappa and late Giriyamma had two sons and four daughters, namely late Hanumantharayappa, i.e., the father of the plaintiff, Chandrashekar, i.e., defendant No.2, Smt.Byramma, Smt.Lakshmamma, Smt.Jayamma and Smt.Channamma. The plaintiff’s father had two sons, i.e., the plaintiff and defendant No.3 and all the sisters of the plaintiff’s father were married long back and are settled in their respective husband’s house and they were given cash and gold by the plaintiff’s grandfather during their marriage. Hence, they are not made parties to the suit. It is contended that the plaintiff and defendants are coparceners and are governed by the Mitakshara school of Hindu law. There is no partition effected between the plaintiff and the defendants. The plaintiff demanded partition and separate possession. The defendant did not heed to the plaintiff’s demand. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession.Accordingly, prays to decree the suit.

3.1. Defendant No.1 filed a written statement admitted the plaint averments, and she has contended that she has not executed any gift deeds in favour of defendant No.3. Accordingly, prays to decree the suit.

3.2. Defendant No.2 filed a written statement contending that defendant No.3 had fraudulently created the gift deeds alleged to have been executed by defendant No.1 and the grandmother of defendant No.3 and also created a partition deed as per his convenience by inserting some of the other properties which are not at all the joint family properties. Hence, prays to decree the suit.

3.3. Defendant No.3 filed a written statement denying the averments made in the plaint and contended that the suit filed by the plaintiff is not maintainable. It is contended that the suit schedule properties are neither the ancestral nor joint family properties of the plaintiff and the defendants. It is contended that the suit is bad for non- joinder of necessary parties and the properties. It is contended that defendant No.3 had acquired the suit properties under the registered gift deeds dated 30.09.2006, 01.08.2006 and 30.09.2006 and the plaintiff and other defendants have no right whatsoever over the suit schedule properties. It is contended that defendant No.2 has been living separately for several years and performed his daughter’s marriage independently out of his own income and further, the plaintiff is having own house and residing separately. It is further contended that defendant No.3 has not taken any share in the joint family properties for which the partition was effected on 26.12.2006 during the lifetime of his father. It is also contended that the plaintiff is in possession of 34 guntas in Sy.No.144/6 and a house No.36/2 measuring 40 X 30 ft situated at Doddaballapura, and he has not included the said properties in the suit. Hence, the suit for partial partition is not maintainable. Accordingly, he prays to dismiss the suit.

3.4. The Trial Court, based on the above said pleadings, framed the following issues, and additional i