Karnataka High Court
C N Leelavathi W/O N Kempaiah vs M Narayanappa S/O Muniyappa on 9 December, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
R
IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO.1905 OF 2005 (INJ)
BETWEEN:
C.N.LEELAVATHI,
W/O N.KEMPAIAH,
AGED 64 YEARS,
#281, 16TH CROSS, II BLOCK,
R.T.NAGAR, BANGALORE - 560 032.
REPRESENTED BY GPA HOLDER ... APPELLANT
(BY SRI N.SUKUMAR JAIN, ADVOCATE)
AND:
1. M.NARAYANAPPA,
S/O MUNIYAPPA,
AGED 52 YEARS,
2. M.KRISHNAMURTHY,
S/O LATE MUNIYAPPA,
AGED 47 YEARS,
BOTH ARE AT # NAGASHETTYHALLI,
KASABA HOBLI, BANGALORE - 560 094.
3. MUNIYAPPA
DEAD BY LRs.
3a. SMT.PAPAMMA,
W/O LATE MUNIYAPPA,
AGED 86 YEARS,
NAGASHETTYHALLI,
BANGALORE - 94.
2
3b. M.RAMACHANDRA,
S/O LATE MUNIYAPPA,
AGED 56 YEARS,
NO.131, NAGASHETTYHALLI,
BANGALORE - 560 094.
3c. SMT.LAKSHMAMMA,
W/O V.KRISHNPRASAD,
AGED 67 YEARS,
THINDLU VILLAGE,
KODIGEHALLI P.O.
BANGALORE - 572 127.
3d. SMT.GOWRAMMA,
W/O GOPALAPPA,
AGED 65 YEARS,
NERALAGHATTA VILLAGE,
DODABALLAPURA TALUK - 561 203.
3e. SMT.RAJAMMA,
W/O RAMAIAH,
AGED 63 YEARS,
KESTHURU,
DODABALLAPURA TALUK - 561 203.
3f. SMT.ASWATHAMMA,
W/O KRISHNAPPA,
AGED 59 YEARS,
NERALAGHATTA VILLAGE,
DODABALLAPURA TALUK - 561 203.
3g. SMT.SHANTHAMMA,
W/O NARAYANASWAMY,
MERASEE DODABALLAPURA - 561 203.
... RESPONDENTS
[(BY SRI K.S.NAGARAJA RAO, ADVOCATE FOR C/R1 & R2;
SMT.M.V.HYMAVATHI, ADVOCATE FOR R3(a, c to g);
R3(b) -SERVED]
3
THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE, 1908, CHALLENGING THE JUDGMENT AND
DECREE DATED 10.08.2005 PASSED BY THE XXIV ADDITIONAL
CITY CIVIL JUDGE, BANGALORE CITY (CCH.NO.6) IN
O.S.NO.3122/1993.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
JUDGMENT
Unsuccessful defendant No.2 has appealed this appeal challenging the judgment and decree passed in O.S.No.3122/1993.
2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court.
3. The short facts are these: Defendant No.1 and Plaintiffs are the members of the Joint Hindu Undivided Family. Defendant No.1 is the father of plaintiffs 1 and 2. The land bearing Sy.No.63/5 of Nagashettyhalli village, Kasaba Hobli, Bangalore North Taluk, Bangalore is a Joint 4 Hindu Undivided property and the said property is the ancestral property of defendant No.1 and plaintiffs. The katha of the said property stands in the name of Late Munichannaiah, who was the father of defendant No.1 and grand father of plaintiffs.
Suffice it to mention that defendant No.1 and plaintiffs are the absolute owners of the land bearing Sy.No.63/5 of Nagashettyhalli Village, Kasaba Hobli, Bangalore North Taluk, Bangalore, and they are in joint possession and enjoyment of same. It is averred that revenue sites are formed by defendant No.1 as well as plaintiffs 1 and 2, in the said land. One of such sites is Site No.26. Plaintiffs stated that defendant No.1 is not the absolute owner of the said land and also the sites formed in the land much less the site bearing No.26, which is more fully described in the schedule to the plaint.
Plaintiffs averred that, defendant No.1 without having absolute right, title and interest over the schedule property has executed a registered gift deed in favor of 5 one Smt.C.N. Leelavathi, W/o.N.Kempanna on 02.01.1981 and she alleged to have been put in possession of the property. It is also averred that in the gift deed there is no recital with regard to the acceptance of the possession by the donee.
A further contention was put forth to the effect that plaintiffs and defendant No.1 belong to Vokkaliga community, whereas, defendant No.2 belongs to Kuruba community as such, they contended that defendant No.2 is an utter stranger to their family. Muniyappa being a member of undivided Hindu Joint family could not have gifted his undivided interest in favor of a stranger.
It is the specific case of plaintiffs that they are in peaceful possession and enjoyment of the suit schedule property as members of Undivided Hindu Joint Family.
The cause of action arose in the 1st week of April 1993, and also on 13.4.1993 when they came to know about the alleged gift deed obtained the certified copy from the Sub Registrar concerned and contending that 6 defendant No.2 tried to dispossess them from the suit schedule property. On these averments' plaintiffs sought the aid of the Court by filing the suit for a declaration, declaring that the gift deed bearing registration No.13680/1980-81 registered in the Office of the Sub- Registrar, Bangalore North Taluk dated 13.02.1981 executed by defendant No.1 in favor of defendant No.2 as invalid and not binding on them and also for consequential relief of injunction, restraining defendant No.2 or her agents, servant and anybody working under her directions from interfering with plaintiffs possession and enjoyment of the suit schedule property in any manner.
Defendant No.2 filed written statement and denied the plaint averments. She has stated that defendant No.1 being the absolute owner in possession of the suit schedule property and being the Kartha of the Hindu Joint Family, has executed gift deed in her favor on 02.01.1981. She stated that plaintiffs 1 and 2 have no legal right to challenge the gift deed.
7
It was specifically pleaded that the Muniyappa has executed gift deed in her favor and he has parted with possession of the property in her favor and she has been enjoying the same ever since the date of gift in her favor. It is further stated that in pursuance of the gift deed the katha was transferred in her name in the records as per the mutation entry No.109/1980-81 and she has also paid the requisite property tax. Further, she has obtained electricity connection to the shed which was built by her in the suit schedule property. She denied that the plaintiffs are in peaceful possession and enjoyment over the suit schedule property.
Defendant No.2 further stated that few other sites formed in survey No.63 /5 have been sold by Muniyappa in favor of other persons and those transactions have not been questioned by plaintiffs. It was also pleaded that the attack of the gift deed is barred by limitation. Among other grounds, she has prayed for dismissal of the suit. 8
On the basis of the above said pleadings, the trial Court framed the following issues: -
"(1) Whether the plaintiff proves that the plaint schedule property is an ancestral property?
(2) Whether the plaintiffs prove that they are in possession of the plaint schedule property as member of Hindu Joint family?
(3) Whether the plaintiff proves that defendant No.1 has no absolute right over the plaint schedule property?
(4) What decree or Order?"
In order to substantiate the claim, one Krishnamurthy was examined as PW-1 and produced five documents which were marked as Exs.P1 to P5. When the case was posted for defendant's evidence, Kempaiah - GPA Holder of defendant No.2 was examined as DW-1, one - A.C.Nagaraj and B.S.Nataraj were examined as DW.2 and 3 respectively, and produced twenty-three documents which were marked as Exs.D1 to D23.
9
On trial of the action, the suit came to decreed (O.S.No.3122/1993) and defendants were restrained by means of permanent injunction from dispossessing the plaintiffs from the respective suit schedule properties.
Aggrieved by the said judgment and decree, defendant No.2 has preferred this appeal under Section 96 of the Code of Civil Procedure, 1908.
4. Sri.N.Sukumar Jain, learned counsel for appellant submitted that the judgment and decree of the Court below is opposed to the law, facts and circumstances of the case.
Next, he submitted that the learned Judge erred in decreeing the suit, even though the suit is filed after 12 years from the date of registration of the gift deed.
A further submission was made that plaintiffs 1 and 2 have not given valid reasons for the delay in filing the suit.
10
Counsel submitted that the trial Court has not properly appreciated the oral evidence on record. In the cross -examination, plaintiffs have specifically admitted that they have no documentary evidence to show that they are in possession of the suit schedule property. Despite the clear admission, the Court below has erroneously proceeded to grant the relief of injunction as against defendants.
It has been contended that the Court below has failed to appreciate the documentary evidence such as registered gift deed, khata extract produced by defendant No.2 in support of her possession over the suit schedule property.
It has been contended that the trial Court has not appreciated the fact that plaintiff's father late Muniyappa has executed several gift deeds and sale deeds. Those transactions have not been challenged by plaintiffs. Therefore, plaintiffs are estopped from challenging the gift deed.
11
Learned counsel vehemently urged that the Court below has failed to take note of the fact that non- examination of plaintiff's elder brother is vital to the suit. He further submitted that the Court below failed to appreciate several admissions made by PW-1 indicating the awareness of the execution of the gift deed.
Lastly, he submitted that viewed from any angle, the judgment and finding of the Court below is arbitrary, illegal, erroneous, capricious, perverse and opposed to law and the same is liable to be set aside.
5. To substantiate the contentions, learned counsel for the appellant relied upon the following decisions: -
1) AIR 1984 NOC 226 (CAL.) - KRITTIBUS BHATTACHARYA AND OTHERS v. STATE OF WEST BENGAL AND OTHERS.
2) ILR 2004 KAR 2928 - U.G. SRINIVASA RAO v.
VINAYKUMAR AND OTHERS.
3) AIR 2000 KARNATAKA 27 - BABU MOTHER
SAVAVVA NAVELGUND AND OTHERS v.
GOPINATH
12
4) AIR 2007 SC 1324 - SUBODHKUMAR AND ORS v. BHAGWANT NAMDEO RAO MEHETRE AND ORS.
5) AIR 1996 KARNATAKA 321 - MUNIYAPPA v. RAMAIAH.
6) (2005) 6 SCC 614 - NARNE RAMA MURTHY v. RAVULA SOMASUNDARAM AND OTHERS.
7) AIR 2007 SC 641 - STATE OF PUNJAB AND ANR. v. BALKARAN SINGH.
8) AIR 1999 SC 1441 - VIDHYADHAR v.
MANKIKRAO AND ANOTHER.
9) ILR 2012 KAR 4958 - HULLAPPA v. THE STATE OF KARNATAKA, THROUGH DEPUTY COMMISSIONER, BIDAR AND OTHERS.
10) (2015) 9 SCC 755 - NANDKISHORE LALBHAI MEHTA v. NEW ERA FABRICS PRIVATE LIMITED AND OTHERS.
11) AIR 1982 ALLAHABAD 218 - SUDARSHAN
PRASAD & OTHERS v. RADHA KISHUN RAM
(DECEASED BY LRs.)
Accordingly, counsel submitted that judgment and decree of the Court below may be set aside and the appeal may be allowed.13
6. Per contra, Sri.K.S.Nagaraja Rao, justified the judgment and decree passed by the trial Court.
He submitted that plaintiffs and defendant No.1 are members of Hindu Undivided Joint family and admittedly the suit schedule property is the joint family property. Defendant No.1 had only un-divided interest in the suit schedule property as such, he had no absolute right to execute the gift deed.
A further submission was made that the law is well settled that a Hindu coparcener cannot gift his undivided coparcenary interest.
Next, he submitted that a gift by a coparcener of his undivided interest in the coparcenary is void. It has been contended that a manager cannot gift even his interest to any member of the family or to a stranger.
Counsel submitted that the trial Court has rightly appreciated the oral and documentary evidence on record and has decreed the suit as prayed for. Hence, he 14 submitted that appellants have not made out any good ground to interfere with the judgment and decree of the trial Court. Accordingly, he submitted that the appeal may be dismissed.
7. To substantiate the contentions, learned counsel relied upon the following decisions: -
1) ILR 1988 KARNATAKA 2348 -
SHANKARAYYA BALAYYA PUJARI v. CHAMPABAI.
2) (1987) 3 SCC 294 - THAMMA VENKATA SUBBAMMA (DEAD) BY LR v. THAMMA RATTAMMA AND OTHERS.
3) 1971 (2) SCC 438 - INDRANARAYAN v.
ROOP NARAYAN AND ANOTHER.
4) 1967 (1) MYS.L.J. 71 - RUDRAWWA v.
BALAWWA & ANOTHER.
8. I have heard the contentions urged on behalf of respective parties and perused the records with care.
The points that arise for consideration are: -
1. Whether a gift by a coparcener of his undivided interest in the coparcenary property is valid?15
2. Whether Sri.Muniyappa - defendant No.1 had absolute right to execute the gift in favour of defendant No.2 -a stranger?
Before, I answer the points for consideration, I would propose to say a few words as to the early law of gifts.
Early law of gifts: - The early law of gifts is stated by Sanskrit writers somewhat curiously under the title "Resumption of gifts", one of the eighteen titles of law. Narada says, "An anvahita deposit, yachita, a pledge, joint property, a deposit, a son, a wife, the whole property of one who has offspring, and what has been promised to another man; these have been declared by the spiritual guides to be inalienable by one in the worst plight even. What is left (of the property) after the expense of maintaining the family has been defrayed, may be given. But by giving away anything besides, a householder will incur censure". According to Brihaspati, "Self- acquired property may be given away at pleasure by its owner". In other countries, gifts try to clothe themselves with the semblance of a sale. Under Hindu Law, sales claimed 16 protection by assuming the appearance of a gift. The Mitakshara says: "Since donation is praised, if sale must be made, it should be conducted, for the transfer of immovable property, in the form of a gift, delivering with it gold and water (to ratify the donation). Narada mentions sixteen kinds of invalid gifts which embrace a variety of circumstances such as want of capacity of the donor, either permanent or temporary, absence of real intention to make a gift, influence of fear, fraud, misrepresentation, or mistake, many of which would invalidate a gift in modern law.
It would be relevant to observe where property is absolutely at the disposal of its owner, he may give it away as freely as he may sell or mortgage it, subject to a certain extent to the claims of those who are entitled to be maintained by him. A Hindu whether governed by the Mitakshara or the Dayabhaga, can dispose of his separate or self-acquired property. So too, a woman can make a gift of her stridhana. A coparcener in a joint family 17 governed by the Mitakshara law cannot make a gift of his coparcenary interest even in State where he can alienate it for value, except after a division in status. Where the property is not absolutely at the disposal of a person, a transaction can only be supported on the ground of necessity and as a general rule, a gift of it could never be valid. Exceptions, however, are recognized by Hindu law where gifts can be made either for pious, religious or charitable purposes or on occassions, when, according to the common notions of Hindu, gifts are usually made. This exceptional power can only be exercised properly and within reasonable limits.
The modern law of gifts consists in part of case law and in part of the provisions of Chapters II and VII of the Transfer of Property Act, 1882. Even in the areas where the provisions of the Transfer of Property Act are not applicable, its principles apart from the technical rules are applied as rules of justice and equity.
18
Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person called the donor, to another called the donee, and accepted by or on behalf of the donee.
9. Reverting back to the facts of the case, they have been sufficiently stated. The parties to the lis are Hindus and are governed by the Mithakshara School of Hindu law. The essence of a coparcenary under the Mithakshara school of Hindu law is community of interest and unity of possession. A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father.
19
There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary is void. It is not necessary to refer to all the decisions. Instead, I may refer to the following statement of law in Mayne's Hindu Law, sixteenth edition., para 406:
It is now equally well settled in all the states that a gift or devise by a coparcener in a Mithakshara family of his undivided interest is wholly invalid... A coparcener cannot make a gift of his undivided interest in the family property, movable, either to a stranger or to a relative except for purposes warranted by special texts.
I may also refer to a passage from Mulla's Hindu Law twentieth edition., Article 256 which is as follows:
GIFT OF UNDIVIDED INTEREST; - According to Mithakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether, there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a 20 gift of his undivided interest with the consent of other coparceners.
Bearing these principles in mind, let me see whether a Hindu coparcener can gift his undivided coparcenary interest in favor of a stranger and the gift deed executed by Muniyappa, the father of plaintiffs in favor of Smt.C.N.Leelavathi a stranger - is valid.
It is not in dispute the original propositus by name Iyanna had purchased the land bearing Sy.No.63/5 for Rs.40/- about 40 years back. As per Ex.P2 the total extent of survey No.63/5 was 3 acres 20 guntas inclusive of kharab 2 guntas. Out of this, an extent of 1 acre 30 guntas appears to have been sold in favor of one Subbaiah son of Doddaiah as per mutation entry No.MT 4/44-45 under a registered sale deed dated 22-05-1944 by Ramakka wife of Munichannappa. Ex.P4 is the certified copy of the RTC extract of survey No 63/5 and in the said document, the name of khatedar is entered as Munichannaiah son of Iyanna. In the cultivator's column, the names of 21 defendant No.1 and his brothers have been entered as cultivators from 1975-76 to 1978-79.
PW -1 Krishnamurthy has deposed that his father Muniyappa, himself and his brothers constituted a joint family and that the land bearing Survey No.63/5 is joint family property and in the said land sites have been formed. The index of lands and the record of rights pertaining to survey number clearly discloses that the said land was ancestral property of Munichannaiah- the grant father of plaintiffs. The donee has not produced any material to rebut the evidence of PW-1 - Krishnamurthy. In fact, he had even denied the suggestion that there is a division in the family.
Defendant No.2 contended that there is a partition in the family. It is relevant to note that defendant No.2 has not laid down any foundation that there is a division in the family of Muniyappa.22
Ex.P-1 is the certified copy of the registered gift deed dated 02.01.1981 executed by Muniyappa in favor of one - Smt.C.N.Leelavathi. The recitals in the gift reveals that the land in question was the ancestral property of Muniyappa - defendant No.1.
The trial Court in extenso referred to the oral and documentary evidence on record and held that the gift deed executed by Muniyappa- defendant No.1 in favor of Smt.C.N.Leelavathi- defendant No.2 was void.
As already noticed above, parties are Hindus and they are governed by Mithakshara School of Hindu Law. Under Hindu law, coparcener / manager has no absolute power of disposal over joint Hindu family property. The law is well settled that a coparcener / manager cannot gift even his interest to any member of the family or to a stranger unless it is for the pious purposes to a small extent recognized by law. In the present case, Muniyappa has made gift in favor of Smt.C.N.Leelavathi - a stranger. 23
In view of the settled position of law that the gift by a coparcener of his undivided interest cannot be considered as valid. I am of opinion, therefore, that the transfer is not permitted by law and hence, it becomes void.
While arguing the case, learned counsel Sri.Sukumar Jain submitted that plaintiffs have not substantiated why a coparcener is not entitled to alienate or gift the coparcenary property. He submitted that a Hindu coparcener has every right and authority to make a gift coparcenary property.
This Court is not inclined to accept the said contention. The reason is, however, obvious. It has been already stated that an individual member of the Joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object 24 of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property.
There is long series of decisions laying down the proposition of law that a gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to his relation without the consent of the other coparcener is void. In the circumstances, it is very difficult to accept the contention that coparcener can make a gift. Therefore, the argument fails.
I am of the opinion that the law is thus well settled that the manager has not absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so only within strict limits. The scope of the power cannot be extended on the basis of the wide interpretation given to the words "pious purposes" in Hindu Law in a different context. Therefore, a gift to a stranger or relative of a joint family out of love and affection by the manager of the family is void.25
It is perhaps well to observe further that a manager cannot gift even his interest to any member of the family or to a stranger unless it is for the pious purposes to a small extent recognized by law. In the instant case, Muniyappa has made gift of substantial properties to Smt. C.N.Leelavathi - defendant No.2 a stranger. The law is well settled that gift by a coparcener of his undivided coparcenary interest to another coparcener or to stranger without the consent of other coparcener is void. Accordingly, point Nos.1 and 2 are answered.
The claim with regard to possession is concerned, it is admitted fact that defendant No.2 - Smt.C.N Leelavathi- a stranger. By virtue of the gift deed, she is alleged to have been put in possession of undivided interest in the coparcenary property. It is perhaps well to observe that undivided share of a member in the joint family property, stranger has no right to remain in exclusive or joint possession along with coparceners. Therefore, defendant No.2 -Smt.C.N.Leelavathi cannot claim joint possession 26 with non-alienating (plaintiffs) members of the joint family. A stray act of one of the donee in being successful in getting the power supply to one of the sites in question does not mean that the non-alienating members have been dispossessed from the joint family property.
Insofar as limitation is concerned, learned counsel for appellant vehemently urged that the suit is time barred as the gift is executed in the year 1981 and plaintiffs have filed the suit in the year 1993. On behalf of defendant No.2 it has been suggested that Article 109 of the Limitation Act should apply as it is a suit by Hindu to set aside his father alienation of ancestral property and if that Article applies, undoubtedly, defendant No.2 would have a good answer to the objection on the score of limitation, as he would have 12 years under that Article when the exclusion become known to the plaintiffs. But I am of opinion that Article 109 cannot apply. Plaintiffs have pleaded that they came to know about the alleged gift deed only in the year 1993. The cause of action according 27 to them arose then. A suit for declaration is to be filed within three years from the date of the accrual of the cause of action, since the suit is filed within three years from the date of accrual of the cause of action. Hence, the contention that the suit is barred by time is baseless. The argument fails.
Lastly, I would deal with the decisions relied upon by counsel for appellant and respondents.
Learned counsel for appellant placed reliance on the decisions referred to supra.
1) Decision at Sl.No.1 - To contend that plaintiffs have not disputed the various gifts and sale deeds which have been made by Muniyappa -
the father of plaintiffs. Therefore, they are estopped from challenging the gift executed by Muniyappa - defendant No.1 in favor of Smt.C.N.Leelavathi - defendant No.2. In my opinion, the said decision is not applicable to the facts and circumstances of the present case for the simple reason that the Muniyappa -
defendant No.1 being a member / coparcener of 28 a Hindu Undivided Joint Family has no absolute power to dispose of his undivided interest in the coparcenary property. The gift is void in law and therefore, question of estoppel does not arise.
2) Decisions referred to at Serial Nos.2 ,3, 4 and 5 pertains to sale transaction and not gift. Hence, they are not applicable to the facts and circumstances of the present case.
3) Decisions at Serial Nos.6, 7 and 11 pertains to limitation. But it is relevant to note that in O.S.No.3122/93 there is no issue with regard to limitation. Hence, relying on the decisions would not serve any useful purpose. Learned counsel has urged the point of limitation. I have already expressed my view holding that the suit is brought well within the time.
4) Decision at Serial No.8 pertains to Section 114 of the Evidence Act. Learned counsel contended that the plaintiff No.1 has stated his own case on oath and has not entered the witness box. Hence, a presumption would arise that the case set up by him is not correct.
In my opinion, the said decision is not applicable to the facts and circumstances of the 29 present case because even assuming that he had tendered evidence, it is well settled that under Hindu Law a gift by a coparcener of the undivided interest in favor of a stranger is void.
5) The decision at Serial No.9 is also not applicable to the facts and circumstances of the case since in the present case there is not dispute with regard to the title.
6) The decision at Serial No.10 - to contend that father - Muniyappa had dealt with joint family properties and had alienated several other joint family properties by way of gifts and sale deeds. The same has not been questioned by plaintiffs. Sri.Nagaraja, learned counsel vehemently opposed the said contention on the ground that there is no plea to that effect. Therefore, in the absence of pleadings, appellant is estopped from contending the same.
Assuming for a while, defendant No.2 -
appellant had taken the plea, it would not serve any useful purpose since, the gift itself is void. Hence, the said decision is not applicable to the facts and circumstances of the case.
30On the other hand, the decisions relied upon by learned counsel for plaintiffs are in relation to the proposition of the law that gift by a coparcener of his undivided coparcenary interest to another coparcener or to a stranger without the consent of other coparcener is void. In my opinion, these decisions are squarely applicable to the facts and circumstances of the case.
In applying the law, as I have endeavored to summarize it, to the case that - gift by a coparcener of his undivided coparcenary interest to another coparcener or to stranger without the consent of other coparcener is void.
In the last resort, counsel for appellant urged that operative portion of the judgment is not proper. In my opinion, there is nothing in the facts proved to justify the interference by this Court. It is perhaps well to observe that plaintiffs have accepted the judgment and decree as decreed by the trial Court. The contention that the operative portion of the judgment and decree is not proper 31 cannot be accepted on behalf of defendant No.2 - appellant.
The appeal fails and is dismissed. Parties, however, to bear their respective costs in this appeal.
Sd/-
JUDGE VMB