M.R. VINODA versus M.S. SUSHEELAMMA (D) BY LRS. AND OTHERS on 13 December 2021

[2021] 12 S.C.R. 557

M.R. VINODA

v.

M.S. SUSHEELAMMA (D) BY LRS. AND OTHERS

(Civil Appeal No. 2567 of 2017)

DECEMBER 13, 2021

[L. NAGESWARA RAO AND SANJIV KHANNA, JJ.]

Hindu Law: Mitakshara law – Functions of Karta – Validityof Relinquishment Deed – In the instant case, there were threebranches of Joint Hindu Family – On 15 April 1961, the eldestmembers of the three branches executed a partition deed, dividingthe Joint Hindu family properties – On 13March 1969, the eldestsons of two branches executed a relinquishment deed in which theyrelinquished their branch’s share in favour of the head of the thirdbranch named ‘P’ – On 18 November 1994, Plaintiff No.1-4, theyounger sons of one of the branch filed suit seeking a declarationthat the relinquishment deed was null and void – Trial Court dismissedthe suit as barred by limitation and held that Defendant No.4 wasentitled to execute relinquishment deed – First appellate courtdecreed the suit inter alia holding that Defendant No. 4 was notcompetent to execute the relinquishment deed, which being void,the suit was not barred by limitation – High Court held relinquishmentdeed was not void ab initio and suit to be barred by limitation – Onappeal, held: Karta of a joint Hindu family can dispose of jointfamily property involving the undivided interest of the minor of thefamily – Therefore, contention that Plaintiff No.4 being minor on13 March 1969, his eldest brother Defendant No.4, had no right torelinquish his shares is discarded – As Plaintiff No.1-4’s father diedin 1967, Defendant No.4, as the eldest brother of the branch beingthe Karta, alone could have managed the property on behalf of thejoint Hindu family branch of which he was the head – A Karta mayalienate the joint family property for value, either for legal necessityor for the benefit of the estate, to bind the interests of all theundivided members of the family – The partition deed acknowledgesthat during the joint family status, “all properties” were mortgagedfor Rs. 32,000/- – Admittedly, the repayments were made and thejoint Hindu family properties were freed from mortgage shortlybefore the execution of the relinquishment deed– In index of lands,

A

B

C

DEF

GH

Ait was mentioned that ‘P’ got the property released and the rightswere redeemed in his favour – The relinquishment deed was anacknowledgment of the rights and interest of branchof ‘P’ – Fromthe evidence on record, it is apparent, ‘P’ had paid the larger sharein the redemption of the mortgage and had managed the legalproceedings in the redemption suit – The repayment so made by ‘P’Bserved the interest for the entire family – Thus, the relinquishmentwas made on account of the repayment of the debt made by ‘P’ –There was a legal necessity to settle the account with ‘P’ who hadmade significant payments to redeem the properties that had fallenin the share of other branches – The relinquishment deed was forClegal necessity and for the benefit of the estate belonging to hisbranch of the family – Hence, relinquishment deed cannot bedeclared as null and void – In respect of question of limitation,Art.109 of the Schedule of Limitation Act applies to a plaint forsetting aside the father’s alienation of ancestral property governedby Mitakshara law which states that suit must be filed within 12Dyears when the alienee takes possession of the property – Byapplying Art.109, the suit would be barred by limitation as it wasfiled in 1994, nearly 24 years after the relinquishment deed wasexecuted and nearly 21 years after Plaintiff No.3 attained majorityin 1973.

EDismissing the appeals, the Court,

Conclusion

EDismissing the appeals, the Court,

HELD: 1. A Karta of a joint Hindu family can dispose ofjoint family property involving the undivided interest of the minorof the family therein. This being the position, a coparcener cannotseek an injunction restraining the Karta from alienating jointFHindu family property, but has a right to challenge alienation, asthe alienation is not beyond the scope of challenge by othermembers of the joint family, and thereby scrutiny of the court.Latter right entails the right to claim a share in the joint familyestate free from unnecessary and unwanted encumbrances,Gwhereas the former embraces the right to interfere with the actof management of the joint family affairs. In the light of theaforementioned proposition of law, the Plaintiff No. 3 cannot arguethat their mother, as a natural guardian, being alive at the time ofexecution of the relinquishment deed, Defendant No. 4 beingthe eldest brother did not have the right and authority to representH

and manage their branch. Plaintiff No. 3’s father, having died in1967, Defendant No. 4, as the eldest brother of the branch beingthe Karta, alone could have managed the property on behalf ofthe joint Hindu family branch of which he was the head.[Paras 13, 17][565-F-H; 566-A; 569-C]

Sri Narayan Bal and Others v. Sridhar Sutar and Others(1996) 8 SCC 54 : [1996] 1 SCR 999; Sunil Kumarand Another v. Ram Parkash and Others (1988) 2 SCC77 : [1988] 2 SCR 623; Bhagwan Dayal (sincedeceased) and thereafter his heirs and legalrepresentatives Bansgoal Dubey and Another v. Mst.Reoti Devi (deceased) and after her death, Mst.Dayavati, her daughter [1962] 3 SCR 440; M.Arumugam v. Ammaniammal and Others (2020) 11 SCC103 : [2020] 1 SCR 41 – relied on.

Sudarsanam Maistriv. Narasimhulu Maistri and Another1901 SCC OnLine Mad 91 – affirmed.

2. In the present case, the partition deed, Exhibit P-1, statesthat owing to lack of harmony in the family members, the membershad decided to separate from the joint Hindu family status. Thepartition deed, Exhibit P- 1, acknowledges that during the jointfamily status, “all properties” were mortgaged to one ‘S’ for Rs.32,000/-, which outstanding loan amount stood ascertained. Fromthe evidence on record, it is apparent, ‘P’ had paid the largershare in the redemption of the mortgage and had managed thelegal proceedings in the redemption suit. The repayment so madeby ‘P’ served the interest for the entire family since, and asrecorded in the Partition Deed dated 15[th] April 1961, “allproperties” of the family were mortgaged. Thus, therelinquishment made by ‘M.R.’ and ‘M.P.’ in favour of ‘P’ was onaccount of the repayment of the debt made by ‘P’ , on basis of anunderstanding between the three branches by the partition deed15th April,1961, Exhibit P-1. Since there was a legal necessity tosettle the account with ‘P’ who had made significant payments toredeem the properties that had fallen in the share of ‘M.R.’branch, ‘M.R.’ was entitled to relinquish the share in theproperty in such exercise of his managerial power. [Paras 22,28][573-A-B; 574-F-H; 575-A-B]

A

B

C

D

E

F

G

H

560SUPREME COURT REPORTS

[2021] 12 S.C.R.

AThamma Venkata Subbamma (Dead) By LR v.ThammaRattamma and Others (1987) 3 SCC 294 :[1987] 3 SCR 236– relied on.

3. In respect of question of limitation, Article 109 appliesto a plaint for setting aside the father’s alienation of ancestralBproperty governed by Mitakshara law. As per Article 109, thesuit must be filed within 12 years when the alienee takespossession of the property. When we apply Article 109, the suitwould be barred by limitation as it was filed in 1994, nearly 24years after the relinquishment deed was executed to the fourthdefendant in favour ‘P’ branch and nearly 21 years after the PlaintiffCNo.3 attained majority in 1973. For the same reason, the suitwould be barred under Articles 58 and 59 of the Limitation Actas it had been filed post three years from the date the right tosue first accrued as per Article 58 and when the facts entitlingthe plaintiffs to have the instrument or decree cancelled or setDaside or the contract rescinded first came to the knowledge ofthe plaintiffs as per Article 59. The High Court, rightly rejectedthe specious and untrue plea of the plaintiffs that till two monthsbefore the filing of the suit, they were unaware and did not knowabout execution of the relinquishment deed by their elder brother,the fourth defendant. [Para 33][576-F-H; 577-A]EKehar Singh (Dead) Through Legal Representatives andOthers v. Nachittar Kaur and Others (2018) 14 SCC445 : [2018] 9 SCR 986 – relied on Mulla’s Hindu Law, 22[nd] Edition – referred to.

FCase Law Reference

[1996] 1 SCR 999[1988] 2 SCR 623

[1962] 3 SCR 440

relied onPara 14

G[2020] 1 SCR 41 [1987] 3 SCR 236[2018] 9 SCR 986

relied onPara 16

relied onPara 18

relied onPara 21

H

M.R. VINODA v. M.S. SUSHEELAMMA (D) BY LRS.AND OTHERS

CIVIL APPELLATE JURISDICTION : Civil Appeal No.2567of 2017.

From the Judgment and Order dated 19.11.2008 of the High Courtof Karnataka at Bangalore in RSA No.1989 of 2006.

Ms. Srishti Agnihotri, Ms. K. V. Bharathi Upadhyaya, Ms. SanjanaGrace Thomas, Advs. for the Appellant.

Yatish, E. C. Vidya Sagar, Aftab Ali Khan, Rajesh Mahale, Advs.for the Respondents.

The Judgment of the Court was delivered by SANJIV KHANNA, J.

For convenience, we begin by reproducing the genealogy table asit stood at the time of filing the suit from which the present appealarises:

We would refer to the parties before us as per the above table,albeitacknowledge many of the aforesaid parties having expired arerepresented by their legal representatives.

2. On 15[th] April 1961, M.C. Rudrappa, son of Late Chikkegowdaand Patel Mallegowda and Mogannagowda @ Puttaswamygowda, bothsons of Late Nanjegowda, being the eldest members of the respectivebranches executed a partition deed, marked Exhibit P-1,dividing the jointHindu family properties inter se the three branches. The validity andlegality of the partition deed, Exhibit P-1,is accepted and not underchallenge.

3. On 13[th] March 1969, M.R. Rajashekar, the eldest among fivesons of M.C. Rudrappa who had expired 1967, and M.P. Basavaraju,only son of Mogannagowda @ Puttaswamygowda, who it appears had A

B

C

D

E

F

G

H

Aalso expired, executed a relinquishment deed,marked Exhibit P-2, of theproperty admeasuring 6 acres 34 guntas in Survey No. 29, MadenahalliVillage (the suit property), in favour of Patel Mallegowda.

4. On 18[th] November 1994, M.R. Shivakumar (Plaintiff No. 1),M.R. Mallesha (Plaintiff No. 2), M.R. Vinoda (Plaintiff No. 3) and M.R.BChidananda (Plaintiff No. 4), all younger sons of late M.C. Rudrappa,filed a suit seeking a declaration that the relinquishment deed dated 13[th]March 1969, Exhibit P-2,executed by their eldest brother M.R.Rajashekar, Defendant No. 4, and their cousin M.P. Basavaraju,Defendant No.3 in favour of their eldest uncle Patel Mallegowda, is nulland void. Patel Mallegowda, having expired, his sons M. Shantappa and CH. M. Puttappa were impleaded as Defendant Nos. 1 and 2.

CH. M. Puttappa were impleaded as Defendant Nos. 1 and 2.

5. The plaint,in a nutshell, states that the Plaintiff No. 4 beingminor on 13[th] March 1969, their eldest brother M.R. Rajashekar, thefourth defendant, had no right to relinquish their shares.[1] Therelinquishment deed dated 13[th] March 1969, Exhibit P-2, being void, theDproperty remained the joint Hindu family property and should be partitionedequally amongst them.

6. The suit was resisted by Defendant Nos. 1 to 3 primarily on theground that the relinquishment deed is valid and the suit is barred bylimitation.

7. The trial court dismissed the suit as barred by limitation andEthat the Defendant No. 4, being the eldest male member, was entitled toexecute the relinquishment deed on behalf of his branch of the family.

8. In the regular first appeal, the Additional Sessions Judge decreedthe suit inter alia holding that Defendant No. 4 was not competent toexecute the relinquishment deed, which being void, the suit was not barredFby limitation.

9. Legal representatives of the Defendant No.1 preferredtheRegular Second Appeal No. 1989 of 2006 and have succeeded bythe judgment under challenge passed by the High Court of Karnataka atBangaloreon 19[th] November 2008 inter alia ruling that the relinquishmentGdeed is not void ab initio and the suit having been filedbeyond threeyears as stipulated under Article 58 and 59 of the Schedule to the LimitationAct, 1963 was barred by limitation. The prayer for the partition was 1As per the Plaint, all the plaintiffs had attained majority at the time of execution of therelinquishment deed except Plaintiff No. 4.It is observed that there is some discrepancywith regard to the year of birth of four Plaintiffs. However, in the context of the presentHjudgment this would not make any difference.

rejected as the property had ceased to be a joint Hindu family propertyinter se the three branches.

10. Aggrieved by the decision, Plaintiff No. 3 has preferred thisappeal. Plaintiff No. 1, who is represented by his legal representative,Plaintiff Nos. 2 and 4, having not preferred this appealare the proformaRespondent Nos. 8, 9 and 10. The Defendant No. 1, represented by hislegal representatives are Respondents No. 1 to 4, and Defendant No. 2represented by his legal representativeis Respondent No. 5, andDefendant No. 4 is Respondent No. 7 in the present appeal. TheDefendant No. 3, Respondent No. 6 herein, has been deleted from thearray of parties.

11. Before we examine the question of the validity of therelinquishment deed, we must define the right and authority of the headof the branch or the Karta to deal with a joint Hindu family property asthe Plaintiff No.4, a coparcener in the joint family, itis admitted[2] wasminor when the fourth defendant executed Exhibit P-2, the relinquishmentdeedon 13[th] March 1969.

12. The position in Hindu Law is well settled. In Sri NarayanBal and Others v. Sridhar Sutar and Others,[3 ]this Court interpretingSections 6[4 ]and 8[5 ]of the Hindu Minority and Guardianship Act, 1956

2 The Appellant in his Special Leave Petition, Ground (DD) states that the Appellantwas minor at the time of execution of the relinquishment deed. Even the rejoinderaffidavit vide paragraph 11, the Appellant states that he was not major at the time ofexecution of relin quishment deed. However, see note 1.3 (1996) 8 SCC 54.

4 6. Natural guardians of a Hindu minor.—The natural guardians of a Hindu minor, inrespect of the minor’s person as well as in respect of the minor’s property (excludinghis or her undivided interest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, themother: Provided that the custody of a minor who has not completed theage of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl—themother, and after her, the father;

(c) in the case of a married girl—the husband:

Provided that no person shall be entitled to act as the natural guardian of a minorunder the provisions of this section—

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation.—In this section, the expressions “father” and “mother” do not includea stepfather and a stepmother.

5 8. Powers of natural guardian.—(1) The natural guardian of a Hindu minor has power,subject to the provisions of this section, to do all acts which are necessary or reasonable A

B

C

D

E

F

G

H

A(“HMGAct”, for short), has held that these two Sections are not to beviewed in isolation, albeit in harmony and conjunction, andwhen readtogether the intent is manifest that HMG Act does not envisage a naturalguardian of an undivided interest of a Hindu minor in a joint Hindu familyproperty. A natural guardian of a Hindu minor in respect of the individualproperty alone is contemplated under Section 8, whereunder the powersBand duties of a natural guardian are defined. The provisions of theHMGActwith the object of saving the minor’s separate individual interestfrom being misappropriated require a natural guardian to seek permissionfrom the Court before alienating any part of the minor’s estate, do notaffect the right of the Karta or the head of the branch to manage and Cand proper for the benefit of the minor or for the realization, protection or benefit ofthe minor’s estate; but the guardian can in no case bind the minor by a personalcovenant.

(2) The natural guardian shall not, without the previous permission of thecourt,—

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise,Dany part of the immovable property of the minor, or (b)lease any part of such property for a term exceeding five years or fora term extending more than one year beyond the date on which theminor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in contraventionof sub-section (1) or sub-section (2), is voidable at the instance of the minor or anyperson claiming under him.E(4) No court shall grant permission to the natural guardian to do any of the acts

(4) No court shall grant permission to the natural guardian to do any of the actsmentioned in sub-section (2) except in case of necessity or for an evident advantage tothe minor.

(5) The Guardians and Wards Act, 1890, shall apply to and in respect of anapplication for obtaining the permission of the court under sub-section (2) in all respectsas if it were an application for obtaining the permission of the court under Section 29 ofthat Act, and in particular—Fa (a)proceedings in connection with the application shall be deemed to beproceedings under that Act within the meaning of Section 4-A thereof; (b)the court shall observe the procedure and have the power specified in sub-sections (2), (3) and (4) of Section 31 of that Act; and

(c) an appeal shall lie from an order of the court refusing permission to thenatural guardian to do any of the acts mentioned in sub-section (2) of thissection to the court to which appeals ordinarily lie from the decisions ofGthat court.

(6) In this section “court” means the city civil court or a district court or a courtempowered under Section 4-A of the Guardians and Wards Act, 1890, within the locallimits of whose jurisdiction the immovable property in respect of which the applicationis made is situate, and where the immovable property is situate within the jurisdictionof more than one such court, means the court within the local limits of whose jurisdictionHany portion of the property is situate.

from dealing with the joint Hindu family property. In terms of Section12[6], ordinarily no guardian shall be appointed for minor’s interest in jointHindu family. Only when there is no adult member in the managementof the joint family property in which the minor has an undivided interest-and then alone - a guardian may be appointed.Further,the adult familymember in the management of the joint family property may be a maleor female, not necessarily the Karta. Therefore, Section 8 of theHMGAct that requires a guardian of a Hindu minor to seek the permissionof the Court before he disposes of any immovable property of the minorwill have no application when a Karta or adult head of the family alienatesjoint Hindu property even if one or more coparceners are minor. Thereason is that Section 8, in view of the express terms of Sections 6 and12, would not apply where a joint Hindu family property is sold/disposedof by the Karta or head of the family even when a minor has anundivided interest in the said joint Hindu family property. Sri NarayanBal (supra) observes:

“5. With regard to the undivided interest of the Hindu minor injoint family property, the provisions afore-culled are beads of thesame string and need to be viewed in a single glimpse,simultaneously in conjunction with each other. Each provision, andin particular Section 8, cannot be viewed in isolation.....The jointHindu family by itself is a legal entity capable of acting through itsKarta and other adult members of the family in management ofthe joint Hindu family property. Thus Section 8 in view of theexpress terms of Sections 6 and 12, would not be applicable wherea joint Hindu family property is sold/disposed of by the Kartainvolving an undivided interest of the minor in the said joint Hindufamily property…”

13. Thus, a Karta of a joint Hindu family can dispose of jointfamily property involving the undivided interest of the minor of the familytherein. Therefore the proposition of the Plaintiff No.3/ theAppellant onthe limitation of the power of the Karta to manage and sell the jointHindu family property on behalf of the joint family comprising of a minor 6 12. Guardian not to be appointed for minor’s undivided interest in joint familyproperty.—Where a minor has an undivided interest in joint family property and theproperty is under the management of an adult member of the family, no guardian shallbe appointed for the minor in respect of such undivided interest:Provided that nothing in this section shall be deemed to affect the jurisdictionof a High Court to appoint a guardian in respect of such interest.

A

B

C

DE

F

G

H

Ais misplaced,as acoparcener has no right to interfere in the act ofmanagement of the joint family affairs.[7] This being the position, acoparcener cannot seek an injunction restraining the Karta fromalienating joint Hindu family property, but has a right to challengealienation, asthe alienation is not beyond the scope of challenge by othermembers of the joint family, and thereby scrutiny of the court. LatterBright entails the right to claim a share in the joint family estate free fromunnecessary and unwanted encumbrances, whereas the former embracesthe right to interfere with the act of management of the joint familyaffairs. We shall subsequently examine the grounds and circumstancesin which alienation can be challenged.C14. A Hindu family may have different branches within it. Fromthe perspective of Hindu Law, such branches of a family areseparatebodies, with the eldest of that branch representing it withinalarger joint Hindu family. Father and in the absence of the father theeldest member of the branch is entitled to act as the Karta and in thatDcapacity represent the branch. In Bhagwan Dayal (since deceased)and thereafter his heirs and legal representatives Bansgoal Dubeyand Anotherv. Mst. Reoti Devi (deceased) and after her death, Mst.Dayavati, her daughter,[8] this Court decoded the law as:

“47. In Mayne’s Hindu law, 11th Edn., the legal position has beenEneatly stated thus at p. 347:

“So long as a family remains an undivided family, two or moremembers of it, whether they be members of different branchesor of one and the same branch of the family, can have no legalexistence as a separate independent unit; but all the membersFof a branch, or of a sub-branch, can form a distinct and separatecorporate unit within the larger corporate family and holdproperty as such. Such property will be joint family property ofthe members of the branch inter se, but will be separate propertyof that branch in relation to the larger family.

GThe principle of joint tenancy is unknown to Hindu law exceptin the case of the joint property of an undivided Hindu familygoverned by the mitakshara law.”

7Sunil Kumar and Another v. Ram Parkash and Others, (1988) 2 SCC 77.

8(1962) 3 SCR 440.

H

The legal position may be stated thus: Coparcenary is a creatureof Hindu law and cannot be created by agreement of parties exceptin the case of reunion. It is a corporate body or a family unit. Thelaw also recognizes a branch of the family as a subordinatecorporate body. The said family unit, whether the larger one orthe subordinate one, can acquire, hold and dispose of family propertysubject to the limitations laid down by law.Ordinarily, the manager,or by consent, express or implied, of the members of the family,any other member or members can carry on business or acquireproperty, subject to the limitations laid down by the said law, for oron behalf of the family. Such business or property would be thebusiness or property of the family……”

(Emphasis supplied)

In 1901, the High Court of Madras Sudarsanam Maistri v.Narasimhulu Maistri and Another,[9] had observed as follows:

“.....But so long as a family remains an undivided unit, two ormore members thereof — whether they be members of differentbranches or of one and the game branch of the family,—can haveno legal existence as a separate independent unit; but if theycomprise all the members of a branch, or of a sub-branch, theycan form a distinct and separate corporate unit within the largercorporate unit and hold property as such, Such property may bethe self-acquisition or ‘obstructed heritage’ of a paternal ancestorof that branch, as distinguished from the other branches whichproperty has come to that branch and that branch alone as‘unobstructed heritage’ or it may be the self-acquisition of one ormore individual members of that branch, which by act of partieshas been impressed with the character of joint property, ownedby that branch and that branch alone, to the exclusion of the otherbranches.”

In the light of the above position,the father or the eldest memberis the Karta of a branch of the smaller joint family within the larger jointHindu family, such branch being subordinate or separate unit within thelarger body.

15. In the partition of 1961, the three branches of the family wererepresented by the senior-most member, i.e., father as heads of the AB

C

DEF

G

H

Arespective branches, namely, Patel Mallegowda, Mogannagowda @Puttaswamygowda and M.C. Rudrappa. The partition is valid and bindingon the members/coparceners of the three branches.Similarly, the interse partition amongst Defendant No. 4, i.e., M.R. Rajashekar and fourplaintiffs, was done by their respective representatives since they werethe father or eldest in their branches.B

16. At this stage, we may refer to a recent decision of this court inM. Arumugam v. Ammaniammal and Others,[10 ]wherein afterreferring to Section 6 of the Succession Act, 1956, it was observed asunder:

C“19. A Karta is the manager of the joint family property. He is notthe guardian of the minor members of the joint family. What Section6 of the Act provides is that the natural guardian of a minor Hindushall be his guardian for all intents and purposes except so far asthe undivided interest of the minor in the joint family property isconcerned. This would mean that the natural guardian cannotDdispose of the share of the minor in the joint family property. Thereason is that the Karta of the joint family property is the managerof the property. However, this principle would not apply when afamily settlement is taking place between the members of thejoint family. When such dissolution takes place and some of theEmembers relinquish their share in favour of the Karta, it is obviousthat the Karta cannot act as the guardian of that minor whoseshare is being relinquished in favour of the Karta. There wouldbe a conflict of interest. In such an eventuality it would be themother alone who would be the natural guardian and, therefore,the document executed by her cannot be said to be a void document.FAt best, it was a voidable document in terms of Section 8 of theAct and should have been challenged within three years of theplaintiff attaining majority.”

In our view this judgment does not lay down a different law, andis not contra the ratio in Sri Narayan Bal (supra). InM.GArumugam(supra), the Court was dealing with the situation governedby pre-amended Section 6 of the Hindu Succession Act, which postulatesdeemed partition on the death of a coparcener. Under the HinduSuccession Act, inheritance to the estate of the deceased coparcener on

a deemed partition is by way of succession, and not by way of survivorship.Therefore, the property inherited is individual and not joint Hindu familyproperty. Consequent to which the plaintiff therein, who was a minor,had inherited the share on her father’s death, who was a Karta. Theinherited property belonged to the minor. In this context, the Court heldthatthe mother alone would be the natural guardian, and the relinquishmentmade by her on behalf of her minor daughter, i.e., the plaintiff therein,would not be void.

17. In the light of the aforementioned proposition of law, the PlaintiffNo. 3 cannot argue that their mother,as a natural guardian, being alive atthe time of execution of the relinquishment deed, Defendant No. 4 beingthe eldest brother did not have the right and authority to represent andmanage their branch. Plaintiff No. 3’s father,having died in 1967,Defendant No. 4, as the eldest brother of the branch being theKarta, alone could have managed the property on behalf of the jointHindu familybranch of which he was the head.

18. The second question for consideration is whether as aKartaor the head of the branch, M.R. Rajashekar, i.e., Defendant No. 4, couldhave validly executed the relinquishment deed, marked Exhibit P-2, onbehalf of his branch? The answerto this issue is well settled, and for thatreference is to be made to Thamma Venkata Subbamma (Dead)By LR v. Thamma Rattamma and Others,[11 ]which decision refers tothe legal position in theHindu law in great depth and detail. After advertingto Mayne’s Treatise on Hindu Law & Usage, Eleventh Edition, Article382[12] and Mulla’s Hindu Law, Fifteenth Edition, Article 258,[13] it hasbeen held thus:

11 (1987) 3 SCC 294.

12 Relevant part of the Mayne’s Treatise on Hindu Law& Usage, Eleventh Edition,Article 382 reads: “It is now equally well settled in all the Provinces that a gift or deviseby a coparcener in a Mitakshara family of his undivided interest is wholly invalid.... Acoparcener cannot make a gift of his undivided interest in the family property, movableor immovable, either to a stranger or to a relative except for purposes warranted byspecial texts.”

13 Relevant part of the Mulla’s Hindu Law, Fifteenth Edition, Article 258 reads as:“Gift of undivided interest.—(1) According to the Mitakshara law as applied in all theStates, no coparcener can dispose of his undivided interest in coparcenary property bygift. Such transaction being void altogether there is no estoppel or other kind of personalbar which precludes the donor from asserting his right to recover the transferredproperty. He may, however, make a gift of his interest with the consent of the othercoparceners.”

A

B

C

D

E

F

G

H

A“17. It is, however, a settled law that a coparcener can make agift of his undivided interest in the coparcenary property to anothercoparcener or to a stranger with the prior consent of all othercoparceners. Such a gift would be quite legal and valid.”

This judgment draws a distinction between gifts and relinquishmentBby a coparcener of his share; and the head of the branch or Karta as therepresentative or eldest member of the branch. Former is valid and legal,provided the relinquishment is in favour of all other coparceners. Thegift or relinquishment would also be valid if it is with the prior consent ofanother coparcener. Equally, a coparcener may make a gift of hisundivided interest in the coparcenary property to another coparcenaryCwith the prior consent of other coparceners.

19. Mulla’s Hindu Law, 22[nd] Edition vide Article 262, states thata coparcener may renounce his interest in favour of the other coparcenersas a body, but not in favour of one or more of them. When he renouncesin favour of one or more of them, the renunciation enures for the benefitDof all other coparceners and not for the sole benefit of the coparcener orcoparceners in whose favour the renunciation is made. A similarexpositionvide Article 407 in Mayne’s Treatise on Hindu Law& Usage,17[th] Edition, states that a gift by a coparcener of his entire undividedinterest in favour of the other coparcener or coparceners is valid whetherEit is regarded as one made with the consent of the other or others or asa renunciation of his interest in favour of all. Referring to the judgmentin Thamma Venkata Subbamma (supra), Mayne’s Treatise on HinduLaw & Usage observes that renunciation in the form of ostensible giftmay have the effect of relinquishment and if it enures for the benefit ofall the coparceners, such gift would be construed as valid. In addition,FMulla’s Hindu Law, 22[nd] Edition recognises that a father or othermanaging member of the ancestral immovable property can make giftswithin reasonable limits for “pious purposes”.[14]

20. Read in this light, it can be validly argued that the relinquishmentdeed dated 13[th] March 1969, Exhibit P-2, executed by the fourthGdefendant would be invalid. However, in the present case, other aspectshave to be noticed to decide the relinquishment deed’s validity. First, wemust again refer to the superior power that theKarta enjoys and,consequently, his greater rights and duties than other members. A Kartacan alienate the property when other coparceners have given consent.

H14 See Articles 223 and 224 at pages 332 and 333, Mulla’s Hindu Law, 22nd Edition.

It is also settled that a Karta may alienate the joint family property forvalue, either for legal necessity or for the benefit of the estate, to bindthe interests of all the undivided members of the family, whether theyare adults or minors or widows.[15] There are no specific grounds to provethe existence of legal necessity, and it must therefore depend on thefacts of each case. A Karta has wide discretion in the decision over theexistence of legal necessity and as to in what way such legal necessitycan be fulfilled.[16] However, it is observed this exercise of power andrights by Karta is not beyond challenge on the limited ground of lack ofexistence of legal necessity or absence of benefit to the estate.

21. This Court in Kehar Singh (Dead) Through LegalRepresentatives and Others v. Nachittar Kaur and Others,[17] analysingthe concept of legal necessity had relied on Mulla’s Hindu Law to observe:

“20. Mulla in his classic work Hindu Law while dealing with theright of a father to alienate any ancestral property said in Article254, which reads as under:

“Article 254

254. Alienation by father.— A Hindu father as such has specialpowers of alienating coparcenary property, which no othercoparcener has. In the exercise of these powers he may:

(1) make a gift of ancestral movable property to the extentmentioned in Article 223, and even of ancestral immovableproperty to the extent mentioned in Article 224;

(2) sell or mortgage ancestral property, whether movable orimmovable, including the interest of his sons, grandsons andgreat-grandsons therein, for the payment of his own debt,provided the debt was an antecedent debt, and was not incurredfor immoral or illegal purposes (Article 294).”

21. What is legal necessity was also succinctly said by Mulla inArticle 241, which reads as under:

“Article 241

241. What is legal necessity. —The following have been held tobe family necessities within the meaning of Article 240:

15 Mayne’s Treatise on Hindu Law and Usage, 17th Edition, Article 385.

16 Mulla’s Hindu Law, 22nd Edition, Article 242A.

17 (2018) 14 SCC 445.

A

B

C

D

E

F

G

H

572SUPREME COURT REPORTS

A(a) payment of government revenue and of debts which arepayable out of the family property; (b) maintenance of coparceners and of the members of theirfamilies;

(c) marriage expenses of male coparceners, and of the daughtersBof coparceners; (d) performance of the necessary funeral or family ceremonies;(e) costs of necessary litigation in recovering or preserving theestate; C(f) costs of defending the head of the joint family or any othermember against a serious criminal charge; (g) payment of debts incurred for family business or othernecessary purpose. In the case of a manager other than a father,it is not enough to show merely that the debt is a pre-existingDdebt; The above are not the only indices for concluding as to whetherthe alienation was indeed for legal necessity, nor can theenumeration of criterion for establishing legal necessity be copiousor even predictable. It must therefore depend on the facts of eachEcase. When, therefore, property is sold in order to fulfil taxobligations incurred by a family business, such alienation can beclassified as constituting legal necessity.”

(See Hindu Law by Mulla “22nd Edition”)

XXXX

XX

F

26. Once the factum of existence of legal necessity stood proved,then, in our view, no co-coparcener (son) has a right to challengethe sale made by the karta of his family. The plaintiff being a sonwas one of the co-coparceners along with his father Pritam Singh.He had no right to challenge such sale in the light of findings ofGlegal necessity being recorded against him. It was more so whenthe plaintiff failed to prove by any evidence that there was nolegal necessity for sale of the suit land or that the evidence adducedby the defendants to prove the factum of existence of legalnecessity was either insufficient or irrelevant or no evidence atall.”

H

22. In the present case, the partition deed, Exhibit P-1, states thatowing to lack of harmony in the family members, the members haddecided to separate from the joint Hindu family status. The joint Hinduproperties were divided amongst the three groups represented by thethree brothers, Patel Mallegowda, Mogannagowda @ Puttaswamygowdaand M.C. Rudrappa. The partition deed, Exhibit P-1, acknowledges thatduring the joint family status, “all properties” were mortgaged to oneSuranashetty for Rs. 32,000/-, which outstanding loan amount stoodascertained. The loan would be paid by Mallegowda to the extent ofapproximately 10 annas and by M.C. Rudrappa to the extent ofapproximately 6 annas, whereas Mogannagowda had no responsibility.

23. It is an accepted position that the repayments were made, andthe joint Hindu family properties mortgaged were freed shortly beforethe execution of the relinquishment deed on 13[th] March 1969, Exhibit P-2. We would now refer to the evidence and material on record to showthe circumstances and reason for the execution of the relinquishmentdeed on 13[th] March 1969, Exhibit P-2.

24. The trial court judgment refers to the cross-examination ofM.R. Vinoda, PW-1, who affirmed that when the joint Hindu propertieswere partitioned in 1961, Patel Mallegowda had retained the property inhis share. Further as Patel Mallegowda had got the property when thepartition took place in 1961, after his death the same came to the shareof his son Shantappa, i.e. Defendant No.1 in the suit. The court of regularfirst appeal appraised the evidence of Shanthappa (DW-1) on repaymentof the loan to Suranashetty. As per DW-1, his father, Patel Mallegowda,had filed a suit before the Mysore Court for the redemption of mortgage,which was compromised for Rs. 33,000/-. Patel Mallegowdahad paidRs. 25,000/- and Rs.8,000/- was paid by M.C. Rudrappa to redeem themortgage.[18 ]Thus, Patel Mallegowda had paidsubstantial amount, muchmore than the stipulation in the partition deed (Exhibit P-1).

25. Defendant Nos. 2[19] and 3 in their examination-in-chief acceptedthat at the time of partition in 1961, a suit was pending regarding the loan 18 During the arguments before the Trial Court, Defendant Nos. 1 and 3 have arguedthat Patel Mallegowda looked after the court proceedings for redemption. Further, itwas argued that whoever looked after the court affairs was to be given the suit land.19Although Defendant No. 2, i.e., H.M. Puttappa, corroborated the plaintiff’scontentions before the court of first regular appeal, it will bear no consequences on hisstatement before the trial court and hence, no ramifications for the present appeal.

A

B

C

D

E

F

G

H

Ataken from Suranashetty, which was later decided in the Mysore court.Further, the Plaintiffs did not have any right over the suit property becausethe same belonged to those who borne the court expenses for theredemption suit. To repay the amount, Defendant No.1’s father, PatelMallegowda, had paid the entire expense, except for Rs. 8,000/- thatBwas paid by M.C. Rudrappa. Thereafter to clarify the position and doubtsthe relinquishment deed, Exhibit P-2, was executed in 1969.

26. The trial court also relied upon Exhibit D-2, the record ofrights, which mentions that M.R. No.1: 62-63, the mortgage was releasedin 1968 and Patel Mallegowda, father of M. Shanthappa, had got theCrights in the property since 1962-63 itself. In Exhibit D-3, Index of lands,in column number 18, it is mentioned that Patel Mallegowda andMogannagowda, son of Nanjegowda, had got the property released fromSuranashetty, and the rights were redeemed in favour of PatelMallegowda as per the terms agreed between them. The trial court, onDfurther perusal of the said documents, in Exhibits D-2 and D-3, themortgage release letters, observed that the property had come to theshare of Patel Mallegowda.

27. The relinquishment deed, Exhibit P-2, states thatM.P.Basavaraju and M.R. Rajashekarwere paid Rs. 1,000/- for leaving anyEright or interest to which they had consented and accepted, and thateven before the relinquishment, they and their family had no right orinterest in the suit property. The relinquishment deed, Exhibit P-2, wasan acknowledgment of the rights and interest of the Patel Mallegowdabranch.F

28. From the evidence on record, it is apparent, Patel Mallegowdahad paid the larger share in the redemption of the mortgage and hadmanaged the legal proceedings in the redemption suit. The repaymentso made by Patel Mallegowda served the interest for the entire familysince, and as recorded in the Partition Deed dated 15[th] April 1961, “allGproperties” of the family were mortgaged. Thus, the relinquishment madeby M.R. Rajashekar and M.P. Basavaraju in favour of Patel Mallegowdawas on account of the repayment of the debt made by Patel Mallegowda,on basis of an understanding between the three branches vide the partitiondeed 15[th] April, 1961, Exhibit P-1. The relinquishment made by M.R.HRajashekar, as the eldest of the family, enured benefit for all the members of that branch as it settled accounts inter se three branches of the family.Since there was a legal necessity to settle the account with PatelMallegowda who had made significant payments to redeem the propertiesthat had fallen in the share of M.R. Rajashekar branch, M.R. Rajashekarwas entitled to relinquish the share in the property in such exercise of hismanagerial power. The relinquishment deed dated 13[th] March 1969,Exhibit P-2, having been executed by the fourth defendant being thehead of his branch of the joint family was for legal necessity and for thebenefit of the estate belonging to his branch of the family.

29. The question of a transaction being void or, for that matter, thevalidity of the relinquishment in this case, much depends on the facts. Itis an inquiry into the determination of relevant facts bought onto therecord for the perusal of the court. The nature of transaction is requiredto be determined based on the substance and not the nomenclature ofthe deed. Documents are to be construed having regard to the contextthereof whereof labels given to them will not be of much relevance. Inthe light of the factual position of this case as discussed above, we donot think that the relinquishment deed,even if there be a debate as to thelegal necessity or lack of benefit, can be declared and treated as null andvoid.

30. The Plaintiffs, including the present appellant, in the plaint, didnot predicate their case on the ground of inheritance of the share on thedeath of their father, M.C. Rudrappa in 1967. Plaintiff No. 3 has notraised the plea of deemed partition in the present appeal. Even otherwise,we would not allow Plaintiff No. 3 to raise this contention before us forthe first time, as it would deprive and deny the contesting defendantsfrom raising defences founded on facts in nature of estoppel,acquiescence and right to restitution; apart from the plea that the suit isbarred by limitation, which aspect has been considered below.

31. This brings us to the question of limitation.The validity of therelinquishment deed dated 13[th] March 1969,Exhibit P-2, was challengedvide the suit filed on 18[th] November 1994.

32. On the said aspect we would like to reproduce and refer toArticles 58, 59, 60 and 109 of the Schedule of the Limitation Act, whichread:

AB

C

D

E

F

G

H

ABCDE

33. In our opinion, Article 60 would not apply as this is not a caseof transfer of property made by a guardian of a ward. Article 109 appliesFto a plaint for setting aside the father’s alienation of ancestral propertygoverned by Mitakshara law. As per Article 109, the suit must be filedwithin 12 years when the alienee takes possession of the property. Whenwe apply Article 109, the suit would be barred by limitation as it wasfiled in 1994, nearly 24 years after the relinquishment deed (Exhibit P-2)Gwas executed to the fourth defendant in favour Patel Mallegowda branchand nearly 21 years after the Plaintiff No.3 attained majority in 1973.Forthe same reason, the suit would be barred under Articles 58 and 59 ofthe Limitation Act as it had been filed post three years from the date theright to sue first accrued as per Article 58 and when the facts entitlingthe plaintiffs to have the instrument or decree cancelled or set aside orH

the contract rescinded first came to the knowledge of the plaintiffs asper Article 59. The High Court, in our opinion, rightly rejected the speciousand untrue plea of the plaintiffs that till two months before the filing ofthe suit, they were unaware and did not know about execution of therelinquishment deed by their elder brother, the fourth defendant.

34. For the aforesaid reasons we dismiss this appeal, and upholdthe judgment of the High Courtdismissing the suit as barred by limitation.Decree will be drawn up accordingly. There would be no order as tocosts.

Devika Gujral

Appeals dismissed.

A

B

C

D

E

F

G

H