(BY SRI. MRUTYUNJAYA S.MATHAPATI, ADVOCATE) v. NOTICE TO R6 IS SERVED)

3. SMT. SHANTAVVA W/O. MALLESHAPPA HOSUR, AGE: 61 YEARS, OCC: HOUSEHOLD WORK, R/O: JANGALI PETH, OLD-HUBBALLI, HUBBALLI-580020.

4. BHEEMAPPA S/O. MALLESHAPPA HOSUR, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: JANGALI PETH, OLD-HUBBALLI, HUBBALLI-580020.

5. YALLAMMA W/O. MALLESHAPPA HOSUR, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: JANGALI PETH, OLD-HUBBALLI, HUBBALLI-580020.

6. MAHADEVI W/O. MALLESHAPPA HOSUR, AGE: 62 YEARS, OCC: HOUSEHOLD WORK, R/O: HAROGERI, TQ: KALAGHATAGI, DISTRICT: DHARWAD-581204. (BY SRI. UMESH C.AINAPUR, ADVOCATE FOR R1 AND R2; SRI. PRASHANT MATHAPATI, ADVOCATE FOR R6; SRI.SHIVARAJ C.BELLAKKI, ADVOCATE FOR R4 AND R5 NOTICE TO R3 IS SERVED) …RESPONDENTS THIS RFA IS FILED UNDER ORDER 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.10.2015 PASSED IN O.S.NO.373/2012 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, DECREEING THE PETITION FILED FOR DECLARATION AND PARTITION AND SEPARATE POSSESSION. THIS RFA AND RFA CROSS OBJECTION ARE COMING ON FOR HEARING, THIS DAY, RAJESH RAI K, J., DELIVERED THE FOLLOWING: - 5 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 JUDGMENT This appeal and cross objections are filed challenging the common judgment dated 14.10.2015 passed in O.S.No.10/2009 and O.S.No.373/2012 by III Additional Senior Civil Judge, Hubballi.

2. For the sake of convenience, parties are referred to as per their ranking before the trial court.

3. Appellant Nos.1 and 2 are defendant Nos.5 and 6 in O.S.No.373/2012, appellant Nos.3 and 4 were the minors in O.S.No.373/2012. Respondent Nos.1 to 4 are the defendant Nos.1 to 4 and respondent Nos.5 to 7 are the plaintiffs in O.S.No.373/2012.

4. Brief facts as to the filing of the appeals are that, defendant Nos.1 to 3 in O.S.No.373/2012 filed a suit in O.S.No.10/2009 for the relief of declaration that defendant No.1 is the legally wedded wife of late Malleshappa Hosur and defendant Nos.2 and 3 are the children and to declare that defendants are the owners of - 6 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 the suit properties, in the alternative to declare that the gift deed dated 15.09.2006 in respect of item Nos.1 and 2 of Schedule-B property executed by late Malleshappa Hosur in favour of defendant No.6 is illegal and not binding on the share of the defendant Nos.1 to 3 in the suit schedule properties, and further consequential relief of permanent injunction restricting the plaintiffs in OS No.10/2009 and the plaintiffs in O.S.No.373/2012 and others from interfering with the lawful possession of defendant Nos.1 to 3 over the suit properties.

5. Defendant Nos.5 to 8 in OS No.10/2009, got impleaded in said suit as defendant Nos.5 to 8 during the course of trial. The plaintiffs in O.S.No.373/2012 filed suit for partition and separate possession of their 1/3rd share by metes and bound by declaring the gift deed dated

11.09.2006 executed in favour of Hanmanthappa i.e., defendant No.6 in the said suit, as null and void and not binding on the share of the plaintiffs. The subject matter of the suit is landed properties bearing Sy.No.222 - 7 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 measuring 4 acres 25 guntas, land bearing Sy.No.217/2 measuring 1 acre 25 guntas situated Gabbur village and agricultural bearing Sy.No.34/3B+4A, 34/4B+5A+9A and Sy.No.34/10A and the residential house bearing CTS Nos.2194 and 2193 and residential house and open site bearing CTS No.2120 situated at Old Hubballi, house property bearing VPC No.55 situated at Harogeri village and tractor trailer bearing Reg.No.KA- 25/P-3814.

6. It is the case of the plaintiffs in OS NO.10/2009 that plaintiff No.1 legally wedded wife of Malleshappa Hosur and plaintiff Nos.2 and 3 are their children. Malleshappa Hosur expired on 23.03.2008 and the suit schedule properties are in possession and enjoyment of the plaintiffs. Defendant Nos.1 and 2 of the said suit started claiming that they are the wives of late Malleshappa Hosur and defendant Nos.3 and 4 are claiming that they are the children of late Malleshappa Hosur through defendant No.2. In fact defendant Nos.1 - 8 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 and 4 have no right over the suit schedule properties. The properties described in Schedule-A and B are the ancestral properties, in spite that, late Malleshappa Hosur executed gift deed dated 15.09.2006 in favour of defendant No.3 as if it is his self-acquired property. It is contended that the said gift deed is not binding on the plaintiffs. Defendant Nos.2 and 3 got entered their names in the revenue records and trying to alienate the suit schedule properties Plaintiffs in O.S.No.10/2009 requested the defendants not to alienate the suit schedule properties, but defendants did not heed to the request made by the plaintiffs. Hence, cause of action arose for the plaintiffs to file suit for declaration. Further, defendant No.1 supported the case of the plaintiffs and taken up the plea that she is the second wife of late Malleshappa of Hosur and defendant Nos.2 to 4 are not related to Malleshappa Hosur in any manner.

7. Defendant Nos.2 to 4 filed written statement denying the averments made in the plaint and it is - 9 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 contended that plaintiffs and defendant No.1 are not related to Malleshappa Hosur and defendant No.2 is the legally wedded wife of Malleshapa Hosur and defendant Nos.3, 4 and 8 are the legitimate children. Defendant No.1 colluded with each other filed the suit to knock of the suit properties. The late Malleshappa Hosur during his lifetime gave property in favour of defendant Nos.2 and 3 under registered gift deed dated 15.09.2006 and they became the absolute owners by virtue of registered gift deed.

8. Defendant Nos.2 and 3 filed additional written statement contending that even if plaintiffs succeeds in proving that they are the wife and children of Malleshappa Hosur, they are not entitled for share in the suit properties. It is contended that suit properties possession of defendant Nos.2 and 3. Malleshappa Hosur executed Will in favour of defendant Nos.2 and 3 bequeathing the land bearing Sy.No.34 measuring 2 acres 17 guntas situated at Harogeri village. - 10 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017

9. Defendant Nos.4 and 5 filed a memo adopting the written statement filed by defendant No.3. Defendant No.8 filed written statement in the same line taken by defendant Nos.2 and 4 in their written statement. Defendant filed the written statement by denying the case of plaintiffs. Defendant Nos.5 and 6 filed a memo adopting the written statement of defendant No.7. Plaintiffs in O.S.No.10/2009 filed rejoinder by denying the assertions of defendant Nos2 to 4 with Malleshappa had executed a Will bequeathing land bearing Sy.No.34.

10. It the plaintiffs O.S.No.373/2012 that they are children of defendant No.4 and late Malleshappa Hosur. Schedule-A properties are the ancestral joint family properties and Schedule-B and C properties are the self-acquired properties out of the income of ancestral joint family properties. It is contended that the defendant No.6 by colluding with late Malleshappa created a gift deed dated 11.09.2006 with an intention to deprive the legitimate share of the plaintiffs. It is further - 11 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 contended that plaintiffs have purchased the land bearing Sy.No.29/1+2+3+4 in the name of defendant No.5 and consideration amount was paid out of the joint family funds. Hence, it is a joint family property.

11. Defendant No.2 filed written statement reiterating the plaint averments made in O.S.No.10/2009 and the rejoinder filed therein and prayed to allot their share in the suit schedule properties. Defendant Nos.1 and 3 filed memo adopting the written statement of defendant No.2. Defendant Nos.5 and 6 filed written statement denying the averments made in the plaint and prayed to dismiss the suit.

12. The trial Court clubbed both the suits and framed issues and additional issues. ISSUES IN O.S NO.10/2009

1. Whether the plaintiff No.1 proves that she is the legally wedded wife of late Malleshappa Hosur and the plaintiff No.2 and 3 are born out of their wedlock?

2. Whether the plaintiffs prove that they are the absolute owners and in peaceful possession and enjoyment of the suit schedule properties? - 12 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017

3. Whether the plaintiffs prove that the alleged gift deed dated: 15-09-2006 alleged to be executed by late Malleshappa Hosur in favour of the defendant No.3 in respect of item No.1 and 2 of ‘B’ schedule properties is null and void ab-initio and not binding on their share?

4. Whether the plaintiffs are entitled for the consequential relief of the permanent injunction against the defendants?

5. Whether the defendant No.1 proves that she is the legally wedded second wife of late Malleshappa Hosur?

6. Whether the defendant No.2 proves that she is the only legally wedded wife of late Malleshappa Hosur and out of their wedlock the defendant No.3,4 and Manjula are born?

7. Whether the defendant No.3 proves that the late Malleshappa Hosur gifted item No.1 and 2 of ‘B’ schedule properties in his favour through the registered gift deed dated 15-9-2006?

8. Whether the court fee paid is sufficient?

9. Whether order or decree? ISSUES IN O.S NO.373/2012

1. Whether the plaintiffs prove that 4th and 5th defendants are 2nd and 3rd wives of deceased Malleshappa Hosur?

2. Whether the plaintiffs prove that schedule properties are the ancestral and joint family properties of the plaintiffs and defendants?

3. Whether the plaintiffs prove that ‘B’ and ‘C’ schedule properties acquired out of joint family income? - 13 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017

4. Whether the plaintiffs prove that they are having 1/3rd share in the schedule property?

5. Whether the defendant No.1 to 3 prove that they having the share in the schedule property?

6. Whether the defendants No.1 to 3 prove that gift deed dated 11-9-2006 and the will executed in favour of defendants No.5 and 6 are not binding of their share in the schedule property?

7. Whether the defendants No.5 and 6 prove that defendant No.2 is not entitled for the assets of deceased Malleshappa for the reasons stated in para 7 of their written statement?

8. Whether defendants No.5 and 6 prove that the suit is barred by limitation?

9. Whether defendants No.5 and 6 prove that schedule property is not properly valued for the purpose of court fee and the court fee paid is insufficient?

10. Whether the plaintiffs are entitled for the reliefs claimed in the suit?

11. What order or decree?

13. Plaintiff No.2 in O.S.No.10/2009 was examined as P.W.1 and examined five witnesses as P.Ws.2, 3 to 6 and got marked 46 documents as Exs.P1 to P46. Plaintiff No.3 in O.S.No.373/2012 was examined as D.W.1, also examined defendant No.6 as D.W.2 and one attesting - 14 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 witness as D.W.3 and got marked 70 documents marked as Exs.D1 to D70.

14. On assessment of oral and documentary evidence, the trial court in O.S.No.10/2009 answered issue Nos.1, 3, 5, 7 in the affirmative, issue Nos.2, 4, 6, 8 and additional issue Nos.1 and 2 in the negative. In O.S.No.373/2012, issue Nos.1, 3, 7 to 9 and additional issue No.1 in the negative and issue Nos.2, 4, 5, 6 and 10 partly in the affirmative. Issue No.9 in O.S.No.10/2009 and issue No.11 in O.S.No.373/2012 as per the final order. The suit in O.S.No.10/2009 is decreed in part. It is ordered and decreed that plaintiff No.1 is the legally wedded wife and plaintiff Nos.2 and 3 are the legitimate children of late Malleshappa Hosur. The suit O.S.No.373/2012 and counter claim of defendant Nos.1 to 3 therein is decreed in part. It is ordered and decreed that plaintiffs and defendant No.1 in O.S.No.373/2012 are having 1/27th share each in item Nos.1 and 2 of schedule-A, 1/9th share in item Nos.3 to 5 of schedule-A - 15 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 and in properties described in schedule-B. It is further ordered that defendant Nos.2 and 3 in O.S.No.373/2012 are entitled for 10/27th share each in item Nos.1 an 2 of schedule-A and B and 1/9th share each in item Nos.3 to 5 of schedule-A and B properties. The properties are to be construed as described in schedule-A and B of plaint in O.S.No.10/2009. Defendant Nos.5 6 O.S.No.373/2012 aggrieved by the common judgment and decree passed in the suits, filed this appeal. Plaintiffs in OS No.373/2012 filed the Cross-Objections.

15. Heard the learned counsel for defendant Nos.5 and 6 in O.S.No.10/2009 appellants and plaintiffs in O.S.No.373/2012 and the learned counsel for the Cross- Objections.

16. The learned counsel for defendant Nos.5 and 6/ appellants submits that the impugned judgment is wholly illegal, arbitrary, capricious and not sustainable in the facts and circumstances of the case. He further submits that deceased Malleshappa gifted the property in the year - 16 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 2006 and the same is challenged in the year 2009. He submits that the suit ought to have been filed within three years from the date of execution of the registered gift deed and the gift deed is not binding on the plaintiff. He further submits that the Court below having decided issue No.7 in O.S.No.373/2012 held that defendant Nos.2 to 4 and 8 have murdered Malleshappa Hosur and a criminal case is registered against them and they are not entitled for shares in the properties left by the deceased and the trial court has distributed the share in the suit schedule properties. He further submits that the trial Court has not framed the issues properly and further submits that the original propositus had acquired the suit schedule properties under registered Will Deed dated

03.09.1964 and he submits that the defendants could not produce the said document as they were not aware about the execution of the registered Will Deed bequeathing the suit schedule properties in favour of Malleshappa Hosur. Hence, defendant Nos.5 and 6 filed two applications for production of additional documents. In support of the said - 17 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 applications, appellant No.2/ defendant No.6 has filed an affidavit contending that the suit is one for declaration that the plaintiff No.1 in O.S. No.10/2009 is the legally wedded wife of late Malleshappa Hosur and plaintiff Nos.2 and 3 are the children contending that insofar as illegitimate children are concerned, the matter is referred to the larger Bench of Hon’ble Apex Court and it is contended that open plot bearing CTS No.2120-56(46.9 sq. mts.) belongs to deceased Malleshappa but the suit property was purchased by Smt. Parvatevva from one Yellappa and it is the self acquired property and in order to establish that it is the self acquired property of Parvatevva, the appellants have produced the registered Sale Deed dated 06.09.1995 executed in favour of Smt. Parvatevva, wife of deceased Malleshappa Hosur and further also filed another application for production of Additional evidence along with an affidavit enclosed to I.A.1/2023 and contended that Malleshappa had acquired suit properties by virtue of Will which was registered on 03.09.1964 and during the course of trial, the defendants were unaware of the fact regarding - 18 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 execution of the said Will till the month of July 2023. Hence, the defendants could not produce the registered Will. He submits that the said proposed document goes to the root of the case. Hence, on these grounds he prays to allow the appeal.

17. Per contra, learned counsel for the cross objector submit that illegitimate children are to be treated as legitimate children and the status of the legitimacy was conferred on the children born out of the void marriage. Hence, on these grounds he prays to allow the cross objection.

18. Per contra, learned counsel for the plaintiffs in O.S. No.10/2009 submit that the plaintiff No.1 in O.S. No.10/2009 is the legally wedded wife of Malleshappa Hosur and plaintiff Nos.2 and 3 are the children born to plaintiff No.1 and Malleshappa Hosur and defendant No.1 is the second wife and defendant No.2 is the third wife of the deceased. He further submits that the children born out of void marriage are not entitled for share in the - 19 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 ancestral property. He further submits that the trial Court considering relationship of the plaintiffs with Malleshappa was justified in passing the impugned judgment. Hence, on these grounds he prays to dismiss the appeal as well as cross objection.

19. We have perused the records and considered the submission of the learned counsel for the parties.

20. The Points that would arise for our consideration are as under: i) Whether Shantavva proved that she is the legally wedded wife of deceased Malleshappa Hosur and Bhimappa and Yallamma are the children born out of their wedlock? ii) Whether Shantavva, Bhimappa and Yallamma proved that the gift deed dated 15.09.2006 executed by Malleshappa Hosur in favour of Hanumantappa in respect of Item Nos.1 and 2 of ‘B’ schedule properties is null and void and not binding on their shares? iii) Whether Mahadevi proved that she is the legally wedded wife of late Malleshappa Hosur and - 20 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 Hanumantappa, Kumari Nijaguni and Manjula are born out of their wedlock? iv) Whether the plaintiffs in O.S.No.373/2012 proved that the suit schedule properties are the ancestral and joint family properties of the parties to the suit and ‘B’ and ‘C’ schedule properties are acquired out of the joint family income? v) Whether the appellants proved that the judgment and decree passed by the Court below are arbitrary and perverse and calls for interference?

21. Point Nos. (i) and (iii): Since, both these Points are interlinked with each other, they are taken up together for common discussion in order to avoid the repetition of laws and facts. On perusal of the evidence made available before this Court, plaintiffs in O.S.No.10/2009 in support of their case, have got examined 1st plaintiff as PW.4, who has deposed that, she is the legally wedded wife of deceased Malleshappa Hosur and the other plaintiff Nos.2 and 3 in O.S.No. 10/2009 are the children borne out of their said wed-lock. In order to substantiate this evidence, plaintiffs - 21 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 have also produced Ex.P35-ration card before this Court and the same contains that deceased Malleshappa Hosur and plaintiff No.1 are husband and wife. Further, the plaintiffs have also got marked Ex.P36-Voter ID of the 1st plaintiff wherein, in the husband name column, the name of the deceased Malleshappa Hosur is being reflected, Ex.P38, Certificate issued by the school authorities in which plaintiff Nos.2 and 3 have studied and the certificate issued by the school depicts in the father column the name of the deceased Malleshappa Hosur is mentioned, Ex.P39 is marriage invitation card, in which it is printed as, plaintiff No.3 is the daughter of deceased Malleshappa Hosur, Ex.P40, marriage invitation card of plaintiff No.2, wherein, it is stated that he is the son of deceased Malleshappa Hosur. Further, PW.4 has been intensively cross examined by the defendant counsels and nothing contrary has been elicited from her mouth to discard her version. In support of their case the plaintiffs have also got examined the brothers of Malleshappa Hosur that is PW.5 and 6 who have deposed in support of the - 22 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 case of the plaitnffs and have stated in their evidences that, Plaintiff No.1 is the wife of deceased Malleshappa Hosur and the plaintiff Nos. 2 and 3 are the children born out of their wed-lock. Further, when these evidences are seen along with the evidence of the defendants; then, defendant No.1 in O.S.No.10/2009, in her pleadings has admitted that she is the second wife of the deceased Malleshappa Hosur and she has begotten 3 children that is defendant Nos. 5 to 7 out of the said wed-lock. On the other hand, defendant No. 2 in O.S.No.10/2009, in her pleadings has taken up the contention that neither plaintiffs nor defendant Nos.1, 3 to 5 in O.S.No.10/2009, are related to deceased Malleshappa Hosur. She further in her pleadings has also stated that, there exist a property dispute between the brothers of deceased Malleshappa Hosur and defendant Nos.2 to 4 in O.S.No.10/2009 and as such, the brothers have supported the case of the plaintiff. Further, defendant No.2 who claims herself as the legally wedded wife of the deceased Malleshappa Hosur but has not ventured into stepping into the witness box as a - 23 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 witness and also on careful examination of their entire evidence produced, we find no evidences, by the defendant No.2 in support of her version pleaded in the written statement. Further PW.5 and PW.6 have also deposed in their evidence that, defendant Nos.1 and 2 are the illegitimate wives of deceased Malleshappa Hosur and though they have been intensively cross-examined nothing worthwhile have been elicited from them. When these evidences are seen along with the evidences of the children of defendant No.2 in O.S.No.10/2009, i.e., defendant Nos. 3, 4 and 8, who have produced school certificates, voter IDs as per Ex. D47 to Ex. D56 in support of their case; but, in the absence of defendant No.2 being examined as witness and in the presence of her acceptance in the pleadings (i.e., in her written statement) that, she is the 2nd wife of deceased Malleshappa Hosur, the averment of the defendant Nos. 3,4 and 8 that, defendant No.2 is the legally wedded wife and they are the legitimate children of the deceased Malleshappa Hosur, cannot be believed with. - 24 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017

22. Further, the written statement of defendant No.1 in O.S.No.10/2009, is seen along with the evidences, the defendant No.1 in her written statement has accepted the fact that, she is not the first wife of the deceased Malleshappa Hosur and she is the illegitimate wife of the deceased and as such, the contention of the defendant Nos.5 to 9 that their mother defendant No.1 is the legally wedded wife, cannot be sustainable and accordingly we answer the above raised Point Nos.(i) and (iii) in the affirmative and negative respectively.

23. Point Nos.(iv): Before expressing our opinion on issue No. ii, this Court would first examine issue No. iv to ascertain and to come to a conclusion as to the nature of suit schedule properties are concerned. Plaintiffs in O.S.No.10/2019 have contended that, they are the absolute owners of the suit schedule properties and they are in peaceful possession of the same. In order to substantiate the same, they, in their evidence, has got marked Ex.P.20-Mutation records which depicts that, item - 25 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 No.1 of suit schedule ‘A’ property has been allotted to the name of deceased Malleshappa Hosur after 02.11.1993. Further, Ex.P18 and Ex.P19 are the Mutation Register Extracts of the item No.4 of the suit schedule ‘A’ property and also of the property bearing No.2194 and the same depicts that after 24.11.1997, item Nos.1 and 2 of the Schedule ‘B’ property has also been allotted to deceased Malleshappa Hosur. Further, the plaintiffs have also produced Ex.P26, Ex.P.27 –RTCs of item Nos. 4 and 5 of the suit schedule properties which indicates that, after

01.01.1997, the properties have fallen to the name of deceased Malleshappa Hosur. Further, the plaintiffs have also got marked Ex.P31 to Ex.P34 to show that, the deceased Malleshappa Hosur has purchased certain of the properties in the suit schedule ‘A’, ‘B’ and ‘C’ properties.

24. On careful perusal of the all the documents and also the evidences tendered by the plaintiff and also defendant witnesses, in our examined view, all the witnesses have unilaterally accepted the fact that, these - 26 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 properties were joint family properties and the same fell into the name of the deceased Malleshappa Hosur by transfer of names in the mutation records. On careful examination of these evidences, apart from the mutation records and the record of rights so also the subsequent purchases, we find no other documents that is pertaining to either registered partition agreement or decree in the Court has been forthcoming from the records so also the mutations. Additionally, the plaintiffs and defendants have neither pleaded nor placed any documents to prove that, the deceased Malleshappa Hosur had separate income from any other sources, apart from the suit schedule properties that are in his name. Hence, in the absence of sufficient evidences to prove the same, the properties purchased as per Ex.P31 to Ex.P34 was purchased with income separately earned from the income of deceased Malleshappa Hosur, the suit schedule properties cannot be considered to be the separate properties of the deceased. For the reason that, the income of the said properties were, generated from the properties mentioned - 27 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 in the suit schedules properrties. Hence, in view of the above discussion, we are of the opinion that, all the suit schedule properties are the ancestral properties and the same has been succeeded by the plaintiffs and defendants after the death of the deceased Malleshappa Hosur. Accordingly, we answer the Point No.(iv) raised above, in the affirmative.

25. Point No.(ii): In view of the findings recorded in the previous paragraph, it is clear from the evidences made available on record that, all the suit schedule ‘A’ ‘B’ and ‘C’ properties are the ancestral properties of the deceased Malleshappa Hosur, and hence, the gift deed executed by him with respect to the item Nos.1 and 2 of suit schedule ‘B’ property is not binding on the plaintiffs in O.S. No. 10/2009, for the reason that, the said properties have not been subjected to partition as per metes and bounds among the coparceners before executing the gift deed and deceased Malleshappa Hosur has transferred these properties before specifying his undivided interest in - 28 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 the said suit schedule properties. Such being the scenario, as rightly appreciated by the learned trial Judge, the decision of the Co-ordinate Bench of this Court in K.C. Laxmana v. K.C. Chandrappa Gowda, reported in 2008 SCC OnLine Kar 453, is squarely applicable to the case on hand and as such, we are of the opinion that, the gift deed dated 15.09.2006 executed by the deceased Malleshappa Hosur in respect of Item Nos.1 and 2 of the suit schedule ‘B’ properties is void abinitio and not binding on the plaintiffs in O.S.No.10/2009. Accordingly, we hold the above raised point No. (ii) in the affirmative.

26. Point No.(v): For the discussions made hereinabove, we are of the considered opinion that, the learned trial judge has rightly appreciated the documents and evidences placed before him so also the laws prevailing on the subject suit and has rightly decreed the suit as per the metes and bounds. Accordingly, by answering the above raised point No. (v) in the affirmative, proceed to pass the following – - 29 - NC: 2024:KHC-D:923-DB RFA No. 100072 of 2016 C/W RFA.CROB No. 100004 of 2017 ORDER i. First Appeal and cross objections are dismissed. ii. Consequently, the common Judgment and preliminary decree dated 14.10.2015 passed by the II Addl. Senior Civil Judge, Hubballi in O.S. No. 10/2009 and O.S.No. 373/2012 is upheld. No order as to costs. Sd/- JUDGE Sd/- JUDGE MBS/KMV/SVH Ct: vh List No.: 1 Sl No.: 3