K.C. LAXMANA versus K.C. CHANDRAPPA GOWDA & ANR. on 19 April 2022

40

[2022] 3 S.C.R. 40

SUPREME COURT REPORTS

[2022] 3 S.C.R.

A

B

K.C. LAXMANA

v.

K.C. CHANDRAPPA GOWDA & ANR.

(Civil Appeal No. 2582 of 2010)

APRIL 19, 2022

[S. ABDUL NAZEER AND KRISHNA MURARI, JJ.]

Limitation Act, 1963: Articles 58 and 109 – Plaintiff challengedCalienation of portion of joint family property made by his father-the first defendant, under Ex.P-1, in favour of the second defendant– Defendants relying on Article 58 took plea that suit was time barred– Held: Parties to the suit are Hindus and are governed byMitkashara Law – Article 58 provides for the period of limitation tofile a suit to obtain any other declaration – It is a residuary articleDgoverning all those suits for declaration which are not specificallygoverned by any other articles in the Limitation Act – Article 109 isthe special article to apply where the alienation of the father ischallenged by the son and the property is ancestral and the partiesare governed by Mitakshara law – Generally, where a statuteEcontains both general provision as well as specific provision, thelatter must prevail – Therefore, Article 58 has no application to theinstant case – The word ‘alienation’ in Article 109 includes ‘gift’ –In order to attract Article 109, the conditions to be fulfilled are: (1)the parties must be Hindus governed by Mitakshara; (2) the suit isfor setting aside the alienation by the father at the instance of theFson; (3) the property relates to ancestral property; and (4) thealienee has taken over possession of the property alienated by thefather – This article provides that the period of limitation is twelveyears from the date the alienee takes possession of the property –In the instant case, Ex.P-1 was executed by the father of the plaintiffGin favour of the second defendant on 02.03.1980 and the seconddefendant took possession of the property on 22.03.1980 when Ex.P-1 was registered – Counting the period of twelve years from22.03.1980, the limitation for filing of the suit would have expiredon 21.03.1992 – Suit was filed on 11.10.1991 – Therefore, suit wasnot barred by time.H

Hindu law: Alienation of portion of joint family property byfather who was karta of joint family in favour of a person who wasneither coparcener nor member of family – Suit for declaration that the gift/settlement deed executedby father-first defendant in favour of second defendant was nulland void – Plaintiff was not a signatory to the said document andhas categorically averred in the plaint that he did not consent tothe gifting of the schedule property in favour of the second defendantby the said deed – Held: It is trite law that Karta/Manager of a joint familyproperty 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 – Where analienation is not made with the consent of all the coparceners, it isvoidable at the instance of the coparceners whose consent has notbeen obtained – Therefore, the alienation of the joint family propertyin favour of the second defendant was voidable at the instance ofthe plaintiff whose consent was not obtained as a coparcener beforethe said alienation – It is admitted by the second defendant that thesettlement deed was, in fact, a gift deed which was executed by thefirst defendant in favour of the second defendant ‘out of love andaffection’ and by virtue of which the second defendant was given aportion of the joint family property

Conclusion

– A Hindu father or any other managing member of a HUFhas power to make a gift of ancestral property only for a ‘piouspurpose’ and what is understood by the term ‘pious purpose’ is agift for charitable and/or religious purpose – Therefore, a deed ofgift in regard to the ancestral property executed ‘out of love andaffection’ 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 thedonor without any relationship, i.e. the second defendant – Thesettlement deed/gift deed executed by the first defendant in favourof the second defendant was rightly declared as null and void bythe courts below.

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CDE

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ADismissing the appeal, the Court

HELD: 1.1 Article 58 of the Second Schedule to theLimitation Act provides for the period of limitation to file a suitto obtain any other declaration. The period of limitation underthis article is three years from the date when the right to sue firstBaccrues. It is a residuary article governing all those suits fordeclaration which are not specifically governed by any otherarticles in the Limitation Act. Article 109 is the special Article toapply where the alienation of the father is challenged by the sonand the property is ancestral and the parties are governed byMitakshara law. Generally, where a statute contains both generalCprovision as well as specific provision, the later must prevail.Therefore, Article 58 has no application to the instant case.[Para 8][46-E-F]

1.2 The word ‘alienation’ in article 109 includes ‘gift’. Inorder to attract Article 109, the following conditions have to beDfulfilled, namely, (1) the parties must be Hindus governed byMitakshara; (2) the suit is for setting aside the alienation by thefather at the instance of the son; (3) the property relates toancestral property; and (4) the alienee has taken over possessionof the property alienated by the father. This article provides thatEthe period of limitation is twelve years from the date the alieneetakes possession of the property. [Para 9][46-H; 47-A]

1.3 In the instant case, Ex.P-1 was executed by the fatherof the plaintiff in favour of the second defendant on 02.03.1980and the second defendant has taken possession of the propertyFon 22.03.1980 when Ex.P-1 was registered. Counting the periodof twelve years from 22.03.1980, the limitation for filing of thesuit in the present case would have expired on 21.03.1992. Thesuit was filed on 11.10.1991. Therefore, the suit was not barredby time. [Para 10][47-B-C]

G2.1 The second defendant has adopted the written statementfiled by the first defendant before the trial court wherein it wasadmitted that the schedule property was a joint family propertybelonging to the HUF consisting of the plaintiff, his father and hisbrother, all three of whom were coparceners in the HUF. The H

second defendant is not a coparcener or a member of this family.It was also admitted that the schedule property was gifted to himby the settlement/gift deed (Ex.P-1) by the first defendant whowas the Karta of the HUF. The plaintiff was not a signatory to thesaid document. In fact, the plaintiff has categorically averred inthe plaint that he did not consent to the gifting of the scheduleproperty in favour of the second defendant vide the said deed.[Para 11][47-D-F]

2.2 It is trite law that Karta/Manager of a joint familyproperty 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 instantcase, the alienation of the joint family property under Ex.P-1 wasnot with the consent of all the coparceners. It is settled law thatwhere an alienation is not made with the consent of all thecoparceners, it is voidable at the instance of the coparcenerswhose consent has not been obtained Therefore, the alienationof the joint family property in favour of the second defendant wasvoidable at the instance of the plaintiff whose consent had notbeen obtained as a coparcener before the said alienation.[Para 12][47-F-H; 48-A]

2.3 In the instant case, it is admitted by the second defendantthat the settlement deed (Ex.P-1) is, in fact, a gift deed whichwas executed by the first defendant in favour of the seconddefendant ‘out of love and affection’ and by virtue of which thesecond defendant was given a portion of the joint family property.It is well-settled that a Hindu father or any other managingmember of a HUF has power to make a gift of ancestral propertyonly 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 propertyexecuted ‘out of love and affection’ does not come within thescope of the term ‘pious purpose’. It is irrelevant if such gift orsettlement was made by a donor, i.e. the first defendant, in favourof a donee who was raised by the donor without any relationship,i.e. the second defendant. The gift deed in the instant case is notfor any charitable or religious purpose. The settlement deed/gift AB

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D

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Adeed (Ex.P-1) executed by the first defendant in favour of thesecond defendant was rightly declared as null and void by thefirst Appellate Court and the High Court. [Paras 13, 16][48-B-D;50-B]

Thimmaiah and Ors. v. Ningamma and Anr. (2000) 7BSCC409 : [2000] 2 Suppl. SCR 653; Guramma BhratarChanbasappa Deshmukh and Ors. v. MallappaChanbasappa and Anr. AIR 1964 SC 510 : [1964] 4SCR 497; Ammathayi @ Perumalakkal and Anr. v.Kumaresan @ Balakrishnan and Ors. AIR 1967 SC569 : [1967] 1 SCR 353 – relied on.C

Case Law Reference

From the Judgment and Order dated 03.10.2008 of the High Courtof Karnataka at Bangalore in R.S.A. No.372 of 2003.

E

Anand Sanjay M. Nuli, Suraj Kaushik, Agam Sharma, DharamSingh for M/s Nuli & Nuli, Advs. for the Appellant.

Arvind Varma, Sr. Adv., Sharan Thakur, Mahesh Thakur, SandivKalia, Ms. Reena Rao, Dr. Sushil Balwada, Advs. for the Respondents.

FThe Judgment of the Court was delivered by

S. ABDUL NAZEER, J.

1. This appeal by special leave is directed against the judgmentand decree in Regular Second Appeal No.372 of 2003 dated 03.10.2008,whereby the High Court of Karnataka at Bangalore has dismissed theGappeal.

2. K.C. Chandrappa Gowda filed a suit against his father-K.S.Chinne Gowda and one K.C. Laxmana for partition and separatepossession of his one-third share in the suit-schedule property and for adeclaration that the gift/settlement deed dated 22.03.1980 (Ex. P-1)

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executed by the first defendant-K.S. Chinne Gowda in favour of thesecond defendant-K.C. Laxmana as null and void. According to theplaintiff, the schedule property belongs to the joint family consisting ofhimself, the first defendant and one K.C. Subraya Gowda. It was furthercontended that the first defendant had no right to transfer the scheduleproperty in favour of the second defendant as he is not a coparcener ora member of their family. Consequently, it was contended that thealienation made without the plaintiff’s consent is null and void and thusnot binding on him.

3. The first defendant opposed the suit by filing his writtenstatement. It was admitted that the suit schedule property is a joint familyproperty. It was contended that the second defendant was brought upby the first defendant and out of love and affection he settled the suitproperty under Ex.P-1 in favour of the second defendant. It was furthercontended that the joint family property was already partitioned betweenhimself, the plaintiff and the other son-Subbraya Gowda on 23.03.1990.The plaintiff, having taken his share without any demur is not entitled tomaintain the suit. It was also contended that the suit was barred bylimitation. The second defendant had adopted the written statement filedby the first defendant.

4. The parties led evidence in support of their respectivecontentions and have produced the documents thereof. The Trial Court,on appreciation of the materials on record, dismissed the suit. Feelingaggrieved, the plaintiff filed a first appeal. The Appellate Court, afterreconsideration of the entire materials on record and re-assessment ofevidence, set aside the judgment of the Trial Court. It was held that theSettlement Deed at Exhibit P-1 is a void document. The plaintiff wasgranted one-third share in the suit property. This judgment of the AppellateCourt was challenged by K.C. Laxmana, the second defendant in theHigh Court. The High Court, after hearing the learned counsel for theparties and on consideration of the materials on record, dismissed theappeal by the impugned order.

5. Mr. Anand Sanjay M. Nuli, learned counsel appearing for theappellant/second defendant, first contended that the High Court was notjustified in holding that the suit was not barred by limitation. Accordingto him, Article 58 of the Limitation Act, 1963 is applicable to the facts ofthe present case. Secondly, it was argued that the transfer of propertyby way of settlement was for pious purpose which is permissible in law.

AB

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D

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ATherefore, he submitted that the High Court was not justified in upholdingthe judgment of the Appellate Court.

6. On the other hand, Mr. Arvind Varma, learned senior counselappearing for the respondent/plaintiff, while supporting the judgment ofthe High Court, has submitted that the alienation by way of gift of jointBfamily property made by the first defendant in favour of the seconddefendant was void. The period of limitation for challenging such analienation is twelve years from the date the alienee takes possession ofthe property under Article 109 of the Second Schedule to the LimitationAct. Therefore, he submitted that the suit was not barred by time.

C7. Having regard to the contentions urged, the first question forconsideration is whether the suit filed by the plaintiff was barred bylimitation.

There is no dispute that the parties to the suit are Hindus and aregoverned by Mitkashara Law. The plaintiff has challenged the alienationDmade by his father-the first defendant, under Ex.P-1 which is a jointfamily property, in favour of the second defendant.

8. Article 58 of the Second Schedule to the Limitation Act providesfor 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 dateEwhen the right to sue first accrues. It is a residuary article governing allthose suits for declaration which are not specifically governed by anyother articles in the Limitation Act. Article 109 is the special Article toapply where the alienation of the father is challenged by the son and theproperty is ancestral and the parties are governed by Mitakshara law.Generally, where a statute contains both general provision as well asFspecific provision, the later must prevail. Therefore, Article 58 has noapplication to the instant case. Article 109 is as under:

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9. The word ‘alienation’ in this article includes ‘gift’. In order toattract Article 109, the following conditions have to be fulfilled, namely,(1) the parties must be Hindus governed by Mitakshara; (2) the suit isfor setting aside the alienation by the father at the instance of the son;H

(3) the property relates to ancestral property; and (4) the alienee hastaken over possession of the property alienated by the father. This articleprovides that the period of limitation is twelve years from the date thealienee takes possession of the property.

10. In the instant case, Ex.P-1 was executed by the father of theplaintiff in favour of the second defendant on 02.03.1980 and the seconddefendant has taken possession of the property on 22.03.1980 whenEx.P-1 was registered. Counting the period of twelve years from22.03.1980, the limitation for filing of the suit in the present case wouldhave 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 transferof property made by the first defendant in favour of the second defendantunder Ex.P-1 was for a pious purpose.

As noticed above, the second defendant has adopted the writtenstatement filed by the first defendant before the trial court wherein itwas admitted that the schedule property was a joint family propertybelonging to the HUF consisting of the plaintiff, his father the seconddefendant and his brother one K.C. Subbaraya Gowda, all three of whomwere coparceners in the HUF. The second defendant is not a coparceneror a member of this family. It was also admitted that the schedule propertywas gifted to him by the settlement/gift deed dated 22.03.1980 (Ex.P-1)by the first defendant who was the Karta of the HUF. The plaintiff wasnot a signatory to the said document. In fact, the plaintiff has categoricallyaverred in the plaint that he did not consent to the gifting of the scheduleproperty in favour of the second defendant vide the said deed.

12. It is trite law that Karta/Manager of a joint family propertymay alienate joint family property only in three situations, namely, (i)legal necessity (ii) for the benefit of the estate and (iii) with the consentof all the coparceners of the family. In the instant case, the alienation ofthe joint family property under Ex.P-1 was not with the consent of allthe coparceners. It is settled law that where an alienation is not madewith the consent of all the coparceners, it is voidable at the instance ofthe coparceners whose consent has not been obtained (See : Thimmaiahand Ors. Vs. Ningamma and Anr.[1]). Therefore, the alienation of thejoint family property in favour of the second defendant was voidable at A

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Athe instance of the plaintiff whose consent had not been obtained as acoparcener before the said alienation.

13. In the instant case, it is admitted by the second defendant thatthe settlement deed dated 22.03.1980 (Ex.P-1) is, in fact, a gift deedwhich was executed by the first defendant in favour of the secondBdefendant ‘out of love and affection’ and by virtue of which the seconddefendant was given a portion of the joint family property. It is well-settled that a Hindu father or any other managing member of a HUF haspower 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 charitableand/or religious purpose. Therefore, a deed of gift in regard to the ancestralCproperty executed ‘out of love and affection’ does not come within thescope of the term ‘pious purpose’. It is irrelevant if such gift or settlementwas made by a donor, i.e. the first defendant, in favour of a donee whowas 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 religiousDpurpose.

14. This principle of law has been laid down by this Court inGuramma Bhratar Chanbasappa Deshmukh and Ors. vs. MallappaChanbasappa and Anr.[2], wherein it was held as follows:

“It may, therefore, be conceded that the expression “piousEpurposes” is wide enough, under certain circumstances, to take incharitable purposes though the scope of the latter purposes hasnowhere been precisely drawn. But what we are concerned within this case is the power of a manager to make a gift to an outsiderof a joint family property. The scope of the limitations on thatFpower has been fairly well settled by the decisions interpretingthe relevant texts of Hindu law. The decisions of Hindu lawsanctioned gifts to strangers by a manager of a joint Hindu familyof a small extent of property for pious purposes. But no authoritywent so far, and none has been placed before us, to sustain sucha gift to a stranger however much the donor was beholden to himGon the ground that it was made out of charity. It must beremembered that the manager has no absolute power of disposalover joint Hindu family property. The Hindu law permits him to doso 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 thecircumstances, we hold that a gift to a stranger of a joint familyproperty 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 positionas under:

“10. As to the contention that Rangaswami Chettiar was merelycarrying his father’s wishes when he made this gift in favour ofhis wife and that act of his was a matter of pious obligation laid onhim by his father, we are of opinion that no gift of ancestralimmovable property can be made on such a ground. Even thefather-in-law, if he had desired to make a gift at the time of themarriage of his daughter-in-law, would not be competent to do soinsofar as immovable ancestral property is concerned. No case insupport of the proposition that a father-in-law can make a gift ofancestral immovable property in favour of his daughter-in-law atthe time of her marriage has been cited. There is in our opinion noauthority to support such a proposition in Hindu law. As alreadyobserved, a Hindu father or any other managing member haspower to make a gift within reasonable limits of ancestral immovableproperty for pious purposes, and we cannot see how a gift by thefather-in-law to the daughter-in-law at the time of marriage canby any stretch of reasoning be called a pious purpose, whatevermay be the position of a gift by the father or his representation toa daughter at the time of her marriage. One can understand sucha gift being made to a daughter when she is leaving the family ofher father. As it is the duty of the father or his representative tomarry the daughter, such a gift may be and has been held by thisCourt to be for a pious purpose. But we see no pious purpose forsuch a gift by a father-in-law in favour of his daughter-in-law atthe time of marriage. As a matter of fact the daughter-in-lawbecomes a member of the family of her father-in-law aftermarriage and she would be entitled after marriage in her ownright to the ancestral immovable property in certain circumstances,and clearly therefore her case stands on a very different footingfrom the case of a daughter who is being married and to whom a ABC

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50SUPREME COURT REPORTS

Areasonable gift of ancestral immovable property can be made asheld by this Court.”

16. In view of the above, we are of the view that the settlementdeed/gift deed dated 22.03.1980 (Ex.P-1) executed by the first defendantin favour of the second defendant was rightly declared as null and voidBby 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.

C

Devika Gujral

Appeal dismissed.

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