1. 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 the defendant 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 plaintiffs have got half share in the suit schedule property by way of succession. There is no cause of action for filing the suit. Hence prayed to dismiss the suit.

3.3. The Trial Court, on the basis of pleadings, framed the following issues:

"1. Whether the defendant proves that suit schedule property was self-acquired property of her father

2. Whether defendant proves that her father by executing a registered gift deed dated 15.03.2003 had gifted the suit property in her favour and hence she has become absolute owner of the same

3. Whether plaintiffs prove that the gift deed dated 15.03.2003 executed by late Sri. Perumal, under which he has gifted the suit property in favour of defendant is not binding on them

4. Whether defendant proves that the suit of plaintiffs is bad for non-joinder of necessary parties

5. Whether valuation of the suit made by plaintiff for the purpose of payment of Court fee is proper and Court fee paid on the plaint is proper and sufficient

6. Whether plaintiffs prove that they are entitled to 1/3rd share in the suit property

7. Whether the plaintiffs are entitled to the relief sought for

8. What decree or order"

3.4. Plaintiffs in support of their case examined plaintiff No.1 as PW-1 and examined two witnesses as PW-2 and PW-3 and got marked documents as per Ex.P1 to Ex.P9. Defendant examined herself as DW-1 and examined one witness as DW-2 and got marked documents as per Ex.D1 to Ex.D14. The Trial Court after recording the evidence and considering the material on record, held that the defendant has proved that the suit schedule property was the self- acquired property of her father and failed to prove that her father executed a registered gift deed dated 15.03.2003 in her favour and she became the absolute owner of the same and further held that the defendant has failed to prove that the suit is bad for non-joinder of necessary parties and answered issue No.5 holding that the valuation of the suit made by the plaintiffs for the purpose of payment of Court fee is proper and held that the plaintiffs are entitled for share in the suit schedule property and consequently decreed the suit of the plaintiffs declaring the gift deed dated 15.03.2003, as null and void and held that the plaintiff No.1 is entitled for partition and separate possession of her 1/3rd share in the suit schedule property by metes and bounds. Further held that the plaintiffs 1 and 2 being the legal heirs of Smt. Amuda are entitled to take 1/3rd share by way of partition and separate possession in the suit schedule property along with the other legal heirs of Smt. Amuda.

3.5. The defendant aggrieved by the preliminary decree passed by the Trial Court, has filed this appeal.

4. Heard learned counsel for the defendant and learned counsel for the plaintiffs.

5. Learned counsel for the defendant submits that when the Trial Court has answered issue No.1 in affirmative holding that the suit schedule property was the self-acquired property of father of defendant, the Trial Court ought to have answered issue No.2 in affirmative. He submits that the defendant in order to prove the execution of registered gift deed dated 15.03.2003, examined the attesting witness i.e., DW- 2. The plaintiffs failed to cross-examine DW-2. The Trial Court has taken the cross-examination of DW-2 as NIL. He further submits that the plaintiffs have not produced any records to show that the father of the defendant was drunkard and was always under intoxication. He further submits that the plaintiffs have filed an application i.e., I.A.Nos.11 and 12 for recalling DW-1, but have not filed any application for recalling DW-2. He submits that the Trial Court committed an error in discarding the evidence of DW- 2 and also committed an error in recording a finding that the defendant failed to examine the attesting witness. He submits that when the plaintiffs have made an allegation against the defendant in regard to fraud, misrepresentation, the burden is on the plaintiffs to establish the same. On the contrary, the Trial Court has placed the burden on the defendant. Hence he submits that the Trial Court has committed an error in decreeing the suit of the plaintiffs. The impugned judgment passed by the Trial Court is arbitrary and erroneous. Hence on these grounds, prays to allow the appeal.

6. Per contra, learned counsel for the plaintiffs submits that the defendant by playing fraud, misrepresentation, etc., has obtained registered gift deed in her favour. He further submits that the suit schedule property is the joint family property of the plaintiffs and defendant. He submits that the plaintiffs being the legal representatives of deceased Perumal are entitled for share in the suit schedule property. Further in order to buttress his argument, he has placed reliance on the judgment of the Hon’ble Apex Court in the case of SONAMATI DEVI & ORS. VS. MAHENDRA VISHWAKARMA & ORS., in Civil Apeal No.5717/2021, disposed on 15.09.2021 and in the case of ARUNACHALA GOUNDER (DEAD) BY LRS. VS. PONNUSAMY & ORS., in Civil Appeal No.6659/2011, disposed on 20.01.2022. Hence on these grounds, prays to dismiss the appeal.

7. Perused the records and considered the submissions made by learned counsel for the parties.

8. The following points arise for my consideration:

"(1) Whether the plaintiffs prove that the suit schedule property is the joint family property of the plaintiffs and defendant

(2) Whether the plaintiffs prove that the defendant obtained the registered gift deed dated 15.03.2003, by practicing fraud, misrepresentation and undue influence

(3) Whether the defendant proves that her father executed registered gift deed out of love and affection in her favour and she became the absolute owner of the same

(4) Whether the defendant has made out grounds to interfere with the impugned judgment and decree

(5) What order or decree"

9. Point No.1: I have gone through the records and heard learned counsel for the parties at length. So far as the legal proposition is concerned, there is no gain saying that whenever a suit for partition and determination of share and possession there of is filed, the initial burden is on the plaintiff to show that the suit property was a joint family/ancestral property and after initial discharge of the burden, it shifts on the defendant to show that the property claimed by him/her was not joint family/ancestral property. This settled preposition emerges from various decisions of the Hon’ble Apex Court right from 1954 onwards.

10. The Hon’ble Apex Court in the case of APPASAHEB PEERAPPA CHANDGADE VS. DEVENDRA PEERAPPA CHANDGADE reported in AIR 2007 SC 218, held that “proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint”. Let me consider the present case in hand. It is the case of the plaintiffs that they are entitled for share in the suit schedule property. In order to prove the case of the plaintiffs, plaintiff No.1 was examined as PW-1. She has reiterated the averments made in the plaint in her examination-in-chief. In the course of cross- examination, she has admitted that during the lifetime of father of defendant, himself, his wife Seethamma, his son and PW-1 were all residing in a common house in the schedule property. The husband of plaintiff No.1 died on 21.07.1999, without any issues and the suit schedule property is the joint family property of plaintiffs and defendant. She has deposed that she is residing near Thanisandra Bus Stop in a rented house and her mother died in the year 1986 when PW-1 was about 10 years old. She has denied that her father was looking after his children i.e., Smt.Amuda, the husband of PW-1 and also the present defendant. She admits that her grandfather was working in KAT. She admits the execution of registered gift deed by her grandfather in favour of defendant and she also admits that one Erachappa and Elumalai have signed on the gift deed as attesting witnesses.

11. Plaintiff No.2 examined himself as PW-2 and he has reiterated the examination-in-chief of PW-1. In the course of cross-examination, he admits that his mother Smt. Amuda was the first wife of his father and second wife of his father is Smt. Koteshwari. Smt. Amuda has got 4 children i.e., plaintiffs 1 and 2 and Smt. Vasanthi and Tenmani are the other daughters and they are still alive. He has deposed that he has no documents to show that his maternal grandmother had purchased the property and sold the same. He admits that his maternal grandmother was not doing any business in manufacturing bricks.

12. The plaintiffs have produced registered gift deed marked as Ex.P1. Ex.P1 discloses that the father of defendant purchased the suit schedule property out of his income derived from the service. Plaintiffs, except pleading that the suit schedule property is a joint family property, have not produced any other documents to establish that it was purchased out of joint family fund and further failed to establish that prior to purchase of the suit property, there was a nucleus. The plaintiffs have failed to prove that the suit schedule property is the joint family property of the plaintiffs and defendant. After a careful perusal of the records, this Court is of the opinion that suit property is the self acquired property of late Perumal. In view of the above discussion, I answer point No.1 in negative.

13. Point No.2: It is the case of the plaintiffs that the defendant got the registered gift deed executed in her favour by playing fraud, misrepresentation and undue influence on her father. When the plaintiffs have taken a specific contention regarding undue influence, the burden to prove the same, lies on the plaintiffs. It is necessary to consider Order VI Rule 4 of CPC which reads as under:

“4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”

14. From the perusal of Order VI Rule 4 of CPC, when the party pleads on misrepresentation, fraud or breach of trust, willful default or undue influence, etc., in such cases, particulars are necessary in the plaint. In the present case, the plaintiffs except pleading that deceased Perumal was addicted to alcohol, the plaint did not contain full particulars of alleged fraud, misrepresentation and undue influence. The plaint cannot be said to be the averments of fraud, etc., in the eye of law within the meaning of Order VI Rule 4 of CPC. Further no evidence has been adduced by the plaintiffs in order to establish that the defendant by giving him liquor and during intoxication she got registered the said document. The plaintiffs are admitting about the execution of registered gift deed in favour of the defendant, but their contention is only that defendant by providing liquor to her father, got executed a registered gift deed.

15. It is necessary to consider Sec.16 of the Indian Contract Act, 1872, onus to prove undue influence, fraud and misrepresentation is on the plaintiffs. ‘Undue influence’, ‘fraud’ and ‘misrepresentation’ are defined under Sections 16, 17 and 18 of the Act of 1872, as under:

16. “Undue influence” defined.—(1) A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another—

(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or

(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.

Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872).”

“17. “Fraud” defined.—“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:—

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

18. “Misrepresentation” defined.— “Misrepresentation” means and includes—

(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him; by misleading another to his prejudice, or to the prejudice of any one claiming under him;

(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.”

The allegations made by the plaintiffs in the plaint does not fall within the definition of undue influence, fraud and misrepresentation, as per Sections 16, 17 and 18 of the Act of 1872.

16. The plaintiffs have not lead any independent evidence to establish that late Perumal was addicted to alcohol. The plaintiffs have failed to establish that defendant got executed registered gift deed by playing fraud, misrepresentation and undue influence. As observed above, the plaintiffs have failed to establish that the registered gift deed was executed in favour of defendant during intoxication. In view of the above discussion, I answer point No.2 in negative.

17. Point No.3: It is the case of the defendant that her father executed a registered gift deed in her favour. The burden of proving the execution of registered gift deed by late Perumal in favour of defendant is on the defendant. In order to prove the execution, the defendant was examined herself as DW-1. She has stated in her examination-in-chief that the suit property is the self acquired property of late Perumal and he was aged and was looked after by the defendant and out of love and affection, her father late Perumal executed registered gift deed on 15.03.2003. The defendant accepted the gift. On the strength of the registered gift deed, defendant submitted an application for change of Khata. Accordingly, the authorities after due procedure, transferred the property in the name of defendant. In the cross-examination of this witness, except denial, nothing has been elicited.

18. Defendant examined one Erachappa who is the attesting witness to Ex.D1 i.e., registered gift deed. He was examined on behalf of the plaintiffs as PW-3, but he did not turn up for cross-examination, hence the evidence of PW-3 was discarded by the trial Court. He was again examined by the defendant as DW-2. He has stated in his examination-in-chief that defendant’s father is intending to execute a registered gift deed and requested him to join at sub-registrar office. The defendant along with two ladies and their father had come to Sub-Registrar Office. Thereafter gift deed was prepared and the document was got registered.

19. Ex.D1 was confronted to DW-2 and he has identified his signature on Ex.D1 and his signature was marked as Ex.D1(c), he also identified the signature of another attesting witness on Ex.D1. He has stated that deceased Perumal signed on Ex.D1 in his presence and further stated that at the time of the registration of the document, the Sub-Registrar asked the father of defendant whether she accepts the gift deed and defendant has accepted the gift deed. Learned counsel for the plaintiff was absent as on the date of evidence of DW-2. The trial Court has taken the cross-examination as ‘NIL’. The evidence of DW-2 is not challenged by the plaintiffs by cross-examining DW-2. Hence the defendant has taken all the steps to prove the execution and registration of gift deed i.e., Ex.D1 by examining the attesting witness. The plaintiffs have filed applications in I.A.Nos.11 and 12 to recall DW-1 for further cross-examination. The said applications came to be allowed with cost of Rs.100/- on 12.11.2010. Though an application was filed for recalling DW-1, but due to inadvertence, it is mentioned as DW-2 in the order sheet dated 12.11.2010, and matter was adjourned to 01.12.2010. On 01.12.2010 DW-1 was present, learned counsel for the plaintiffs further cross- examined DW-1. On 12.01.2011 defendant and her counsel were absent and hence the trial Court has taken further evidence as closed and posted the matter for argument.

20. From the perusal of the records, the plaintiffs have not filed any application for recalling DW-2 for the purpose of cross-examination. The trial Court committed an error in discarding the evidence of DW-2. The trial Court has disbelieved Ex.D1 solely on the ground of disinheritance of other legal heirs . The defendant has explained the reasons for execution of registered gift deed in her favour. As the defendant had taken care of her father during his old age, he had gifted the said property in her favour out of love and affection and further during the course of cross- examination of DW-1, she has stated that she was looking after her father during his old age. It is not the case of plaintiffs that plaintiffs were looking after deceased Perumal during his old age.

21. The execution and registration of gift deed in favour of defendant is not disputed. There is a presumption that a registered document is validly executed. A registered document, therefore, prima- facie would be valid in law. The onus of proof thus would be on a person who leads evidence to rebut the presumption. In the instant case, plaintiffs have not been able to rebut the said presumption. The said view is supported by the decision of the Hon’ble Apex Court in the case RATTAN SINGH AND OTHERS V. NIRMAL GILL AND OTHERS in Civil Appeal No.3681- 3682 of 2020, dated 16.11.2020 held that “Registered document is presumed to be genuine. Onus to prove otherwise is on the person who challenges it.” In the present case, the plaintiffs are challenging the registered gift deed executed in favour of the defendant. The Trial Court without considering the reasons assigned by the defendant for execution of registered gift deed Ex.D1 only in favour of the defendant, has disbelieved Ex.D1. Thus, considering the evidence of DW-1 and DW-2, the defendant has proved the execution and registration of gift deed in her favour. In view of the above discussion, I answer point No.3 is affirmative.

22. Points No.4 & 5: The Trial Court has recorded a finding that the suit schedule property is not the joint family property of the plaintiffs and defendant. The said finding has not been challenged by the plaintiffs. The said finding has attained finality. The Trial Court has failed to consider the evidence of DW-1 and DW-2 and wrongly recorded a finding that the defendant has failed to prove the execution of the registered gift deed. As discussed above, the defendant has proved the execution of registered gift deed. The Trial Court has committed an error in decreeing the suit of the plaintiffs. Thus, the judgment and decree passed by the Trial Court is arbitrary and erroneous and same is liable to be interfered by this Court. The judgment relied on by the plaintiffs is not applicable to the case in hand. In view of the above discussion, I answer point No.4 in affirmative and proceed to pass the following:

ORDER

The appeal is allowed.

The judgment and decree passed by the Trial Court dated 07.02.2011 in O.S.3206/2004 is set aside. Consequently, the suit filed by the plaintiffs is dismissed.

No order as to costs.