K.C. LAXMANA VS K.C. CHANDRAPPA GOWDA & ANR

K.C. LAXMANA VS K.C. CHANDRAPPA GOWDA & ANR

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2582 OF 2010

K.C. LAXMANA … APPELLANT(S) 

VERSUS

K.C. CHANDRAPPA GOWDA & ANR. … RESPONDENT(S)

J U D G M E N T

S. ABDUL NAZEER, J.

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.

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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

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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

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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

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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

limitation. 

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,

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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

property.

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

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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

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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

Anr.1

).   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

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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

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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

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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.

…….……………………………J.

    (S. ABDUL NAZEER)

…….……………………………J.

    (KRISHNA MURARI)

New Delhi;

April 19, 2022.

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