Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

1.  This appeal by special leave is directed against the judgment
and   decree   in   Regular   Second   Appeal   No.372   of   2003   dated
03.10.2008, whereby the High Court of Karnataka at Bangalore has
dismissed the appeal.
2. K.C. Chandrappa Gowda filed a suit against his father­K.S.
Chinne Gowda and one K.C. Laxmana for partition and separate
possession of his one­third share in the suit­schedule property and
for a declaration that the gift/settlement deed dated 22.03.1980
(Ex. P­1) executed by the first defendant­K.S. Chinne Gowda in
favour of the second defendant­K.C. Laxmana as null and void.
According to the plaintiff, the schedule property belongs to the joint
family   consisting   of   himself,   the   first   defendant   and   one   K.C.
Subraya Gowda.  It was further contended that the first defendant
had no right to transfer the schedule property in favour of the
second defendant as he is not a coparcener or a member of their
family. Consequently, it was contended that the alienation made
without the plaintiff’s consent is null and void and thus not binding
on him.
3. The   first   defendant   opposed   the   suit   by   filing   his   written
statement.   It was admitted that the suit schedule property is a
joint family property. It was contended that the second defendant
was brought up by the first defendant and out of love and affection
he settled the suit property under Ex.P­1 in favour of the second
defendant. It was further contended that the joint family property
was already partitioned between himself, the plaintiff and the other
son­Subbraya Gowda on 23.03.1990.   The plaintiff, having taken
his share without any demur is not entitled to maintain the suit. It
was also contended that the suit was barred by limitation. The
second defendant had adopted the written statement filed by the
first defendant.   
4. The   parties   led   evidence   in   support   of   their   respective
contentions and have produced the documents thereof.  The Trial
Court, on appreciation of the materials on record, dismissed the
suit.     Feeling   aggrieved,   the   plaintiff   filed   a   first   appeal.     The
Appellate Court, after reconsideration of the entire materials on
record and re­assessment of evidence, set aside the judgment of the
Trial Court.  It was held that the Settlement Deed at Exhibit P­1 is a
void document.   The plaintiff was granted one­third share in the
suit property.  This judgment of the Appellate Court was challenged
by K.C. Laxmana, the second defendant in the High Court. The
High Court, after hearing the learned counsel for the parties and on
consideration of the materials on record, dismissed the appeal by
the impugned order.
5. Mr. Anand Sanjay M. Nuli, learned counsel appearing for the
appellant/second defendant, first contended that the High Court
was   not   justified   in   holding   that   the   suit   was   not   barred   by
limitation.  According to him, Article 58 of the Limitation Act, 1963
is applicable to  the facts of the present case. Secondly, it was
argued that the transfer of property by way of settlement was for
pious purpose which is permissible in law.  Therefore, he submitted
that the High Court was not justified in upholding the judgment of
the Appellate Court. 
6. On the other hand, Mr. Arvind Varma, learned senior counsel
appearing   for   the   respondent/plaintiff,   while   supporting   the
judgment of the High Court, has submitted that the alienation by
way of gift of joint family property made by the first defendant in
favour of the second defendant was void.  The period of limitation
for challenging such an alienation is twelve years from the date the
alienee takes possession of the property under Article 109 of the
Second Schedule to the Limitation Act. Therefore, he submitted that
the suit was not barred by time.
7. Having regard to the contentions urged, the first question for
consideration is whether the suit filed by the plaintiff was barred by
There is no dispute that the parties to the suit are Hindus and
are governed by Mitkashara Law.  The plaintiff has challenged the
alienation  made by  his father­the  first  defendant, under Ex.P­1
which is a joint family property, in favour of the second defendant.
8. Article   58   of   the   Second   Schedule   to   the   Limitation   Act
provides for the period of limitation to file a suit to obtain any other
declaration.   The period of limitation under this article is three
years from the date when the right to sue first accrues.   It is a
residuary article governing all those suits for declaration which are
not specifically governed by any other articles in the Limitation Act.
Article 109 is the special Article to apply where the alienation of the
father is challenged by the son and the property is ancestral and
the parties are governed by Mitakshara law. Generally, where a
statute contains both general provision as well as specific provision,
the later must prevail. Therefore, Article 58 has no application to
the instant case.  Article 109 is as under:
Description of suit Period of limitation Time   from   which
period begins to run
109.By   a   Hindu
governed   by
Mitakshara law to
set   aside   his
father’s   alienation
of   ancestral
Twelve years When   the   alienee
takes   possession   of
the property.
9. The word ‘alienation’ in this article includes ‘gift’. In order to
attract   Article   109,   the   following   conditions   have   to   be   fulfilled,
namely, (1) the parties must be Hindus governed by Mitakshara; (2)
the   suit   is   for   setting   aside   the  alienation   by   the  father   at  the
instance of the son; (3) the property relates to ancestral property;
and   (4)   the   alienee   has   taken   over   possession   of   the   property
alienated by the father.   This article provides that the period of
limitation is twelve years from the date the alienee takes possession
of the property.  
10. In the instant case, Ex.P­1 was executed by the father of the
plaintiff in favour of the second defendant on 02.03.1980 and the
second   defendant   has   taken   possession   of   the   property   on
22.03.1980   when   Ex.P­1   was   registered.   Counting   the   period   of
twelve years from 22.03.1980, the limitation for filing of the suit in
the present case would have expired on 21.03.1992.  The suit was
filed on 11.10.1991.  Therefore, the suit was not barred by time.   
11. The second question for consideration is whether the transfer
of property made by the first defendant in favour of the second
defendant under Ex.P­1 was for a pious purpose. 
As   noticed   above,   the   second   defendant   has   adopted   the
written statement filed by the first defendant before the trial court
wherein it was admitted that the schedule property was a joint
family property belonging to the HUF consisting of the plaintiff, his
father the second defendant and his brother one K.C. Subbaraya
Gowda, all three of whom were coparceners in the HUF. The second
defendant is not a coparcener or a member of this family. It was also
admitted   that   the   schedule   property   was   gifted   to   him   by   the
settlement/gift   deed   dated   22.03.1980   (Ex.P­1)   by   the   first
defendant who was the Karta of the HUF.  The plaintiff was not a
signatory   to   the   said   document.     In   fact,   the   plaintiff   has
categorically averred in the plaint that he did not consent to the
gifting of the schedule property in favour of the second defendant
vide the said deed.  
12. It is trite law that Karta/Manager of a joint family property
may alienate joint family property only in three situations, namely,
(i) legal necessity (ii) for the benefit of the estate and (iii) with the
consent of all the coparceners of the family. In the instant case, the
alienation of the joint family property under Ex.P­1 was not with the
consent of all the coparceners.   It is settled law that where an
alienation is not made with the consent of all the coparceners, it is
voidable at the instance of the coparceners whose consent has not
been obtained (See :  Thimmaiah   and   Ors.   Vs.   Ningamma   and
).   Therefore,   the   alienation   of   the   joint   family   property   in
favour of the second defendant was voidable at the instance of the
plaintiff whose consent had not been obtained as a coparcener
before the said alienation. 
13. In the instant case, it is admitted by the second defendant
that the settlement deed dated 22.03.1980 (Ex.P­1) is, in fact, a gift
deed which was executed by the first defendant in favour of the
1 (2000) 7 SCC409
second defendant ‘out of love and affection’ and by virtue of which
the   second   defendant   was   given   a   portion   of   the   joint   family
property.     It   is   well­settled   that   a   Hindu   father   or   any   other
managing member of a HUF has power to make a gift of ancestral
property only for a ‘pious purpose’ and what is understood by the
term   ‘pious   purpose’   is   a   gift   for   charitable   and/or   religious
purpose. Therefore, a deed of gift in regard to the ancestral property
executed ‘out of love and affection’ does not come within the scope
of the term ‘pious purpose’.  It is irrelevant if such gift or settlement
was made by a donor, i.e. the first defendant, in favour of a donee
who was raised by the donor without any relationship, i.e. the
second defendant.  The gift deed in the instant case is not for any
charitable or religious purpose.
14. This principle of law has been laid down by this Court in
Guramma   Bhratar   Chanbasappa   Deshmukh   and   Ors.   vs.
Mallappa Chanbasappa and Anr.2
, wherein it was held as follows:
“It   may,   therefore,   be   conceded   that   the   expression   “pious
purposes” is wide enough, under certain circumstances, to take in
charitable purposes though the scope of the latter purposes has
2 AIR 1964 SC 510
nowhere been precisely drawn. But what we are concerned with in
this case is the power of a manager to make a gift to an outsider of
a joint family property. The scope of the limitations on that power
has   been   fairly   well   settled   by   the   decisions   interpreting   the
relevant texts of Hindu law. The decisions of Hindu law sanctioned
gifts to strangers by a manager of a joint Hindu family of a small
extent of property for pious purposes. But no authority went so far,
and none has been placed before us, to sustain such a gift to a
stranger however much the donor was beholden to him on the
ground that it was made out of charity. It must be remembered
that the manager has no absolute power of disposal over joint
Hindu family property. The Hindu law permits him to do so only
within strict limits. We cannot extend the scope of the power on
the   basis   of   the   wide   interpretation   give   to   the   words   “pious
purposes”   in   Hindu   law   in   a   different   context.   In   the
circumstances, we hold that a gift to a stranger of a joint family
property by the manager of the family is void.”
15. In Ammathayi @ Perumalakkal and Anr. Vs. Kumaresan @
Balakrishnan   and   Ors.3
,  this   Court   has   reiterated   the   above
position as under:
“10.  As to the contention that Rangaswami Chettiar was merely
carrying his father’s wishes when he made this gift in favour of his
wife and that act of his was a matter of pious obligation laid on
him  by  his   father,  we  are  of  opinion  that   no  gift   of   ancestral
immovable property can be made on such a ground. Even the
father­in­law, if he had desired to make a gift at the time of the
marriage of his daughter­in­law, would not be competent to do so
insofar as immovable ancestral property is concerned. No case in
support of the proposition that a father­in­law can make a gift of
ancestral immovable property in favour of his daughter­in­law at
the time of her marriage has been cited. There is in our opinion no
authority to support such a proposition in Hindu law. As already
observed,   a   Hindu   father   or   any   other   managing   member   has
power   to   make   a   gift   within   reasonable   limits   of   ancestral
immovable property for pious purposes, and we cannot see how a
3 AIR 1967 SC 569
gift   by   the   father­in­law   to   the   daughter­in­law   at   the   time   of
marriage   can   by   any   stretch   of   reasoning   be   called   a   pious
purpose, whatever may be the position of a gift by the father or his
representation to a daughter at the time of her marriage. One can
understand such a gift being made to a daughter when she is
leaving the family of her father. As it is the duty of the father or his
representative to marry the daughter, such a gift may be and has
been held by this Court to be for a pious purpose. But we see no
pious purpose for such a gift by a father­in­law in favour of his
daughter­in­law at the time of marriage. As a matter of fact the
daughter­in­law becomes a member of the family of her father­inlaw after marriage and she would be entitled after marriage in her
own   right   to   the   ancestral   immovable   property   in   certain
circumstances, and clearly therefore her case stands on a very
different footing from the case of a daughter who is being married
and to whom a reasonable gift of ancestral immovable property can
be made as held by this Court.”
16. In view of the above, we are of the view that the settlement
deed/gift   deed   dated   22.03.1980   (Ex.P­1)   executed   by   the   first
defendant in favour of the second defendant was rightly declared as
null and void by the first Appellate Court and the High Court.   
17. Resultantly, the appeal fails and it is accordingly dismissed.
There shall be no order as to costs.
New Delhi;
April 19, 2022.


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