A non-heir lacks locus standi to challenge a gift deed during the lifetime of a legal heir.

JUDGMENT

The unsuccessful plaintiff in O.S. No. 263/2015 on the file of the Civil Judge & JMFC, Hukkeri has filed this appeal challenging the judgment and decree dated 06.12.2019 passed therein as well as the confirming judgment and decree passed by the first appellate court in R.A. No. 9/2020 vide judgment and decree dated 28.09.2021.

2. The suit in O.S. No. 263/2015 was filed for a declaration that the gift deed set up by the defendant was null and void and for consequential relief of injunction restraining the defendants from interfering with the possession of the plaintiff. The suit property was an agricultural land bearing R.S. No. 21/3 measuring 29 guntas situated at Bastawad village, Hukkeri taluk. This property was owned and possessed by the brother of the plaintiff Sri Kempayya Pavadayya Pujari. The plaintiff claimed that the defendant claimed that Sri Pujari had executed a gift deed dated 29.01.2007 which was registered on 29.01.2008, by which he bequeathed the suit property to her. The plaintiff claimed that the said gift deed was fraudulent and a bogus document which was created by the defendant with the support of her husband and some strangers. He claimed that the deceased Pujari was residing with him and during his last days, the defendant came to the house of the plaintiff along with her husband and took him outside under the pretext of taking him to a temple. The plaintiff claimed that he and his family members believed the words of the defendant and sent Sri.Pujari along with the defendant and her husband. The plaintiff claimed that he and deceased Pujari were handicapped as Pujari was suffering physical disability to an extent of 75% and the plaintiff was suffering disability to an extent of 50- 60%. He claimed that Pujari could not have executed any deed in favour of the defendant and the one propounded by the defendant was fraudulent. He alleged that his brother had never affixed his thumb impression on the gift deed. When the defendant attempted to get her name entered in the revenue records, the plaintiff objected to it. The plaintiff was thereafter directed to approach the civil court which was challenged before the Assistant Commissioner which was rejected.Consequently, the plaintiff has filed the present suit.

3. The defendant contested the suit and claimed that she had financially helped Pujari and as such out of love and affection he had executed gift deed out of his own free will and volition. She claimed that execution of the gift deed was within the knowledge of the plaintiff and that it was duly executed and registered before the competent jurisdictional Sub Registrar. She also claimed that apart from the gift deed in her favour, the deceased Pujari had executed another gift deed in favour of his another sister Shantavva in respect of another property which was neither disputed nor challenged by the plaintiff. She contended that deceased Pujari had a wife and children and that his wife Smt. Shantavva had filed a petition for maintenance and that she helped Pujari in paying the maintenance to Smt. Shantavva. She contended that it was due to this goodwill that Pujari executed the gift deed in her favour. She did not dispute the revenue proceedings regarding the entry of her name in the revenue records. She therefore contended that the suit filed was not maintainable and that the gift deed dated 29.01.2007 registered on 29.01.2008 was just and valid.

4. Based on these contentions, the trial court framed the following issues.

“1) Whether the plaintiff proves that he is in possession of the suit schedule property as on the date of filing of the suit?

2) Whether the plaintiff proves that his brother by name Kempayya Pavadayya Pujeri was under his care and custody till his death?

3) Whether the