AND DECREE DTD 9.1.09 PASSED

IN

R.A.NO.152/06 ON THE FILE OF THE III ADDL. DISTRICT

JUDGE, GULBARGA, ALLOWING THE APPEAL AND DECREEING

THE JUDGEMENT AND ORDER DTD 13.10.06 PASSED IN

O.S.NO.238/2004 ON THE FILE OF THE PRL.CIVIL JUDGE,

(SR.DN), GULBARGA.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This is a second appeal by the defendants.

Mallappa, the plaintiff instituted a suit for declaration

that he was entitled for 1/5^th share in the house bearing

No.1-52 and 1-53 along with open space land bearing

Sy.No.11/A1

measuring

3

acres

36

guntas

and

Sy.No.No.11/AA2 measuring 4 acres.

- 3 -

It was his case that the suit properties were the

ancestral properties of his grand-father Malkappa who had

only one son Janappa i.e., the father of Mallappa. He

stated that his father had married one Mutamma through

whom he had a daguther Sarubai (defendant No.1 and

defendant No.2 respectively) and his father had also

married his mother Jainamma (defendant No.3), who had

three children i.e. Mallappa (plaintiff) Ramaling (defendant

No.5) and Laxmibai (defendant No.4) and thereafter had

married. He submitted that his grand-father Malkappa

had died in the year 1983 and his father had died on

11.04.2002.

He submitted that his step-mother and step-sister

had obtained thumb impressions of someone else after the

death of their grand-father and his step-sister’s husband

had also taken an active part in this act. He submitted that

a gift deed had been concocted by his step-mother and

step-sister whereby 4 acres out of 7 acres 36 guntas had

been gifted to his step sister defendant No.2. It was

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contended that this was a fraudulent document and

created by way of impersonation. The plaintiff, therefore

sought for a declaration that he was entitled for 1/5^th

share in the suit properties and also sought for possession.

In addition a declaration was sought that the gift deed

dated 12.11.1982 executed in favour of defendant No.2 by

his grand-father Malkappa was null and void and was not

binding upon him.

5.

His step-mother and step-sister (D1 and D2) entered

appearance and contested the suit by filing a written

statement.

They

denied

the

plaint

averments

and

contended that Jainamma, the mother of plaintiff was not

the legally wedded wife of Jainamma and there was no

marriage at all. It was contended that Mallappa, the

plaintiff and his siblings (D3 and D4) were not the

legitimate children of Jainamma and hence they are not

entitled for any share in the ancestral property. An

assertion was also made that a house property was

situated at Shahabad, which was not self-acquired

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property of the plaintiff, which had not been included in

one suit.

6.

The Trial Court on considering the material placed

before it, came to the conclusion that Mallappa and

established that he and the defendants i.e., his step-

mother, step-sister, his mother and siblings constituted an

undivided Hindu joint family and were in joint possession.

The Trial Court also held that the gift deed dated

12.11.1982 executed by Malkappa in favour of defendant

No.2-Sarubai in respect of Sy.No.11AA was not binding

upon him, as defendant Nos.1 and 2 had failed to establish

that it was a valid gift deed. The Trial Court accordingly

proceeded to decree the suit and granted the plaintiff 1/6^th

share and also held that defendant Nos.1 to 5 were also

entitled to 1/6^th share.

7.

The step-mother and step-sister of the plaintiff i.e.,

Mutamma and Sarubai, preferred an appeal.

- 6 -

8.

The Appellate Court on re-appreciation of evidence

held that the plaintiff’s mother was not the legally wedded

wife of Janappa and the plaintiff and his siblings were

illegitimate children. The Appellate Court also held that

defendant Nos.1 and 2 had failed to establish that the gift

deed dated 12.11.1982 executed by Malkappa in favour of

defendant No.2 was valid. It held that Malkappa had no

right to execute a gift deed and the same was void.