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2013 DIGILAW 1175 (KAR)

H. M. Rudraradhya v. Uma

2013-10-01

A.S.PACHHAPURE

body2013
JUDGMENT The appellant has challenged the Judgment and Decree of the first appellate Court granting share to the 1st respondent by allowing her appeal against the judgment and Decree of the trial Court, dismissing her suit. 2. The facts relevant for the purpose of this appeal are as under : The parties are referred to as per their rank before the trial Court for the sake of convenience. The appellant is the 1st defendant, whereas respondents 2 and 3 are defendants 2 and 3 respectively in the suit instituted by the 1st respondent claiming her 1/3rd share in the suit property i.e., Sy. No. 5, measuring 2 acres with the boundaries mentioned in the schedule to the plaint. One Siddappa is the father of the plaintiff and defendants 2 and 3. Lingarajamma is the wife of Siddappa and mother of the plaintiff and defendants 2 and 3. Admittedly, the suit survey number was gifted to Lingarajamma by her father Gurusiddappa and on her death, Siddappa i.e., the father of the plaintiff and defendants 2 and 3 sold the suit property to the 1st respondent/1st defendant under a registered Sale Deed dated 4-6-1987. The plaintiff was married in the year 1986 and before her marriage, the suit property was joint family property of the plaintiff and defendants 2 and 3. After the marriage and before institution of the suit when she came to her parental home, knew about the sale transaction and as she has 1/3rd share in the suit property, claiming that the transaction is not binding on her interest, instituted the suit for declaration that the sale deed is not binding on her interest in the suit property and for partition of her share. Defendants 2 and 3 did not appear and hence they were placed ex parte. The 1st defendant has filed his written statement and contended that the suit property was of Lingarajamma, his aunt and on her death, as the father of the plaintiff was to perform the marriage of the plaintiff, it was sold for a valuable consideration. Since from the date of the sale he claims to be in possession of the suit property and contended that the plaintiff has no right to claim any share in it. On the basis of these pleadings, the trial Court framed the issues. Since from the date of the sale he claims to be in possession of the suit property and contended that the plaintiff has no right to claim any share in it. On the basis of these pleadings, the trial Court framed the issues. The plaintiff was examined herself as P. W. 1 and a witness P. W. 2. The documents Exs. P1 to 4 were marked in their evidence. The 1st defendant was examined as D. W. 1 and a witness D. W. 2 and documents Exs. D1 to 20 were marked in their evidence. After hearing learned counsel for the parties and on appreciation of the evidence on record, the trial Court dismissed the suit holding that it is barred by limitation. It was of the opinion that Article 60 of the Limitation Act is applicable to the suit and it was not filed within 3 years from the date of attaining the majority, it dismissed the suit on the said ground. Aggrieved by the Judgment and Decree, the plaintiff filed the appeal in R. A. No. 18/2007. The first appellate Court was of the opinion that it is Article 109 of the Limitation Act which is applicable and therefore, it decreed the suit of the appellant of her share, holding that the claim is in time. Aggrieved by the Judgment and Decree of the first appellate Court, the 1st defendant is in appeal. 3. At the time of admission, this Court raised the following substantial question of law for consideration: Whether the suit was governed by Article 60 or Article 109 of the Limitation Act, in the light of the respondent, who was the appellant-plaintiff before the First Appellate Court claiming that the property was Sthridhan property, which had been acquired by her mother, sold by her father during her minority? 4. I have heard learned counsel for the parties. 5. Learned counsel for the appellant would contend that the suit property was gifted to Lingarajamma i.e., the mother of the plaintiff and defendants 2 and 3 and on her death, her husband, sons and daughter have succeeded to it. 4. I have heard learned counsel for the parties. 5. Learned counsel for the appellant would contend that the suit property was gifted to Lingarajamma i.e., the mother of the plaintiff and defendants 2 and 3 and on her death, her husband, sons and daughter have succeeded to it. Therefore, he submits that as the suit property is not a joint family property, its sale to the 1st defendant is in contravention of Section 8(3) of the Hindu Minority and Guardianship Act, 1956 (hereinafter called as Å“the Act of 1956‌ for short) and the sale is voidable at the instance of the plaintiff. The suit to set aside the same and separate possession of the share has to be filed within 3 years from the date of the plaintiff attaining the age of majority. Therefore, he contends that the trial Court was right in dismissing the suit as barred by time. He further submits that the first appellate Court wrongly applied Article 109 of the Limitation Act on the ground that the suit property was ancestral property governed by Mitakshara law. He would submit that the approach of the first appellate Court is contrary to the aforesaid provisions. On the other hand, learned counsel for the 1st respondent submits that the suit property is joint family property and the first appellate Court was justified in granting the share by applying Article 109 of the Limitation Act. He would further submit that it is either Article 109 or 110 of the Limitation Act which is applicable to the facts in dispute. 6. It is not in dispute that the suit property was gifted to Lingarajamma i.e., the mother of the plaintiff and defendants 2 and 3. The father of Lingarajamma by name Gurusiddappa had gifted the suit property under the Gift Deed dated 1-4-1975. Therefore, Lingarajamma was the absolute owner of the suit property on the basis of the gift. It is for this reason, it could be safely concluded that the suit land was not a joint family property. Hence the provisions of Sections 6 and 8 of the Hindu Succession Act, 1956 are not applicable as the said provisions either deal with a joint family property or succession to the property of a male. It is for this reason, it could be safely concluded that the suit land was not a joint family property. Hence the provisions of Sections 6 and 8 of the Hindu Succession Act, 1956 are not applicable as the said provisions either deal with a joint family property or succession to the property of a male. As Lingarajamma was the exclusive owner of the suit property on the basis of the gift by her father, it is general rule of succession in the case of female, Hindu, apply, wherein on the death of Lingarajamma it is her husband, the sons and the daughters are entitled to succeed to her interest in the suit land. 7. The validity of a sale transaction in respect of the joint family property by Kartha or adult member of a joint Hindu Family depends upon the existence of the legal necessity. At the time of its alienation, though a minor in the joint family has an undivided interest in the property alienated, if a suit is instituted challenging such alienation of a joint family property by a Karta or an adult member of the joint Hindu family and if it is proved that the same was not for legal necessity, the plaintiff who is not a party to the sale transaction could ignore the alienation and claim her share even in the property alienated. In such circumstances, it is the provisions of Article 109 of the Limitation Act which are attracted and the plaintiff can institute the suit within 12 years from date of alienee takes possession of the property. 8. Reliance is placed on the decision of the Apex Court, reported in 2002 (1) Supreme Court Cases 178 : ( AIR 2002 SC 215 ) (Madhegowda (Dead) by L.Rs. v. Ankegowda (dead) by L. Rs. and others), by the counsel for the respondents wherein a de facto manager/guardian has sold the property inclusive of undivided interest of a minor. The Apex Court held it is Section 11 of the Act of 1956, which is applicable, which provides that a de facto manager /guardian has no authority to deal with the minor’s property on the ground that he is the de facto manager/guardian. The Apex Court held it is Section 11 of the Act of 1956, which is applicable, which provides that a de facto manager /guardian has no authority to deal with the minor’s property on the ground that he is the de facto manager/guardian. In the aforesaid case, the elder sister, who was de facto manager/guardian had sold the interest of her minor sister and the Apex Court held that in view of Section 11 of the Act of 1956 the sale is void. The aforesaid principle does not apply to the facts on hand as the father of the plaintiff who executed the Sale Deed along with defendants 2 and 3 to the 1st defendant was not a de facto manager/guardian. He was a natural guardian of the plaintiff. 9. In fact, the provisions of Section 12 of the Act of 1956 specially provide that a guardian not to be appointed for minor’s undivided interest in joint family property. This provision is incorporated with the purpose to protect the rights of a manager of the Hindu joint family, who has authority to sell the joint family properties in case of legal necessity. Therefore, the provisions of Sections 11 and 12 of the Act of 1956 do not apply to the facts on hand. 10. The question as to whether Article 60 or 109 of the Limitation Act apply to an alienation by a Karta or guardian of the Hindu Joint family property came up for consideration by this Court and in the decision reported in AIR 1985 Karnataka 143 (Ganpati Santaram Bhosale and another v. Ramchandra Subbarao Kulkarni and others) this Court held that a suit for setting aside alienation by Kartha in relation to the undivided interest of a minor is governed by Article 109 and not Article 60(i) of the Limitation Act. Therefore, the decisions aforesaid relied upon by learned counsel for the respondents are of no assistance. 11. Therefore, the decisions aforesaid relied upon by learned counsel for the respondents are of no assistance. 11. Reliance is placed on the decision of the Apex Court reported in (1996) 8 Supreme Court Cases 54 : ( AIR 1996 SC 2371 ) (Narayan Bal and others v. Sridhar Sutar and others); wherein a karta of a joint Hindu family in which there were minor sons sold the joint family property as guardian of their minor sons, the Apex Court held that the provisions of Section 8 of the Act of 1956 are to be read co-jointly by Sections 6 and 12 of the Act of 1956 and it held that in the absence of legal necessity, the same is void. Therefore, in case if an interest of a minor in the family property, other than the property of a joint family, it is the provisions of Section 8 of the Act of 1956 which is applicable to the alienation. Under the provisions of the Act of 1956, a natural guardian of a Hindu Minor has power to do all acts which are necessary or reasonable and proper for the benefit of the minor subject to the exception that in case if he is to effect a transfer of an interest of a minor by way of mortgage, sale, gifts, etc., it could be only with the previous permission of the Court. If no such permission is obtained by the guardian, then the disposal of immovable property by such a natural guardian is voidable at the instance of the minor or any person claiming under him. Herein the case on hand, it is the father of the plaintiff, who executed the Sale Deed and he falls within the purview of Section 4(b) and also Section 6 of the Act of 1956 and when the Sale Deed was executed in favour of the 1st defendant without previous permission of the Court, as the property sold is not the joint family property, he was bound to obtain the previous permission of the Court under sub-section (2) of Section 8 of the Act of 1956. As he had not obtained the permission, the sale is in contravention of sub-section (2) of Section 8 of the Act and hence voidable at the instance of the plaintiff as provided under sub-section (3) of Section 8 of the Act of 1956. 12. As he had not obtained the permission, the sale is in contravention of sub-section (2) of Section 8 of the Act and hence voidable at the instance of the plaintiff as provided under sub-section (3) of Section 8 of the Act of 1956. 12. Reliance could be placed on the decision of the Apex Court reported in 2001 AIR SCW 2616 : ( AIR 2001 SC 2607 ) (Vishwambhhar and others v. Laxminarayana (Dead) through L. Rs. and another). The facts in this case reveal that mother/guardian of the plaintiff had executed the Sale Deed without legal necessity and without sanction of the Court, the Apex Court held that the sale by the guardian without prior permission of the Court is voidable and not void ab initio. Hence it held that the suit for recovery of possession from the purchaser filed by minor on attaining the age of majority in the absence of a relief to set aside the Sale Deed, wherein the prayer was subsequently added, the limitation was 3 years from the date of attaining the age of majority. Therefore, in respect of such transactions, it is Section 8 (2) of the Act of 1956, which is applicable and the suit has to be filed within 3 years from the date of attaining the age of majority. A similar question rose before the High Court of Punjab and Haryana in a decision reported in AIR 1983 Punjab and Haryana 114 (Surta Singh v. Pritam Singh). In the aforesaid Full Bench Judgment, the High Court held that the transfer of minor’s property by a natural guardian in contravention of Clauses (2) and (3) of Section 8 of the Act of 1956 is a voidable transaction and suit to set aside the sale and for possession has to be within 3 years under Article 60 of the Limitation Act. 13. The Apex Court also in a decision reported in 2004(8) Supreme Court Cases 785 (Nangaliamma Bhavaniamma v. Gopalkrishnan Nair and others) held that in such transaction, it is Article 60 of the Limitation Act and the suit has to be filed within 3 years from the date of the minor attaining the age of majority. Admittedly, the sale of the suit property in favour of the 1st defendant was on 4-6-1987. The suit instituted by the plaintiff is not within 3 years of her attaining the age of majority. Admittedly, the sale of the suit property in favour of the 1st defendant was on 4-6-1987. The suit instituted by the plaintiff is not within 3 years of her attaining the age of majority. Therefore, in view of the provisions of Article 60 of the Limitation Act, the suit was barred by time. Though a contention is taken up by learned counsel for the respondents that the plaintiff has not prayed for the relief of setting aside the sale transaction and he contends that on this ground that Article 60 of the Limitation Act provides for 3 years to set aside the sale, he would submit that in the absence of the relief for setting aside the sale, this Article itself is not applicable. When the sale transaction is voidable transaction and it is for the plaintiff, to sue for possession of the property and it is incumbent upon him to pray for such a relief. Even otherwise, the plaintiff has prayed for a declaration that the Sale Deed is not binding on her interest in the suit property and this relief is similar to setting aside the sale, which is contemplated under Article 60 of the Limitation Act and in the absence of the said relief, the suit itself cannot be maintained. So, from whatsoever angle, if the facts and circumstances are looked into, it is Article 60 of the Limitation Act, which is applicable to the dispute and not Article 109 or 110 of the Limitation Act. In the result, it has to be held that Article 60 of the Limitation Act applies to the suit and the substantial question of law raised is answered accordingly. Consequently, the appeal is allowed. The Judgment and Decree of the first appellate Court granting share to the 1st respondent/plaintiff is set aside and that of the trial Court is restored. Appeal allowed.