Karnataka High Court
Smt.Gangawwa W/O Tippanna Melappagol vs Smt. Sushilawwa D/O Tippanna ... on 11 November, 2024
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NC: 2024:KHC-D:16490
RFA No. 100072 of 2015
C/W RFA.CROB No. 100002 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100072 OF 2015 (DEC/PAR)
C/W
RFA CROSS OBJ NO. 100002 OF 2016
IN RFA NO.100072/2015
BETWEEN:
SMT. SUSHILAWWA
D/O. TIPPANNA MELAPPAGOL,
AGE: 29 YEARS,
OCC: AGRICULTURE,
R/O: HALLUR VILLAGE,
TQ: GOKAK, DIST: BELAGAVI-591 312.
...APPELLANT
(BY SRI. G. B. NAIK & SMT. P. G. NAIK, ADVOCATES)
AND:
ASHPAK 1. SMT. GANGAWWA W/O. TIPPANNA MELAPPAGOL,
KASHIMSA
MALAGALADINNI AGE: 64 YEARS, OCC:AGRICULTURE,
R/O: HALLUR VILLAGE,
TQ: GOKAK, DIST: BELAGAVI.
PIN: 591 312.
Location:
HIGH 2. SMT. BHAGAWWA W/O. MAHADEV NESUR,
COURT OF AGE: 44 YEARS, OCC: AGRICULTURE,
KARNATAKA
R/O: HALLUR VILALGE,
TQ: GOKAK, DIST: BELAGAVI-591 312.
3. SHRI. BASAPPA LAXMAN MELAPPAGOL,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: HALLUR VILALGE,
TQ: GOKAK, DIST: BELAGAVI
PIN -591 312.
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NC: 2024:KHC-D:16490
RFA No. 100072 of 2015
C/W RFA.CROB No. 100002 of 2016
4. SHRI. SANGAPPA LAXMAN MELAPPAGOL,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: HALLUR VILALGE,
TQ: GOKAK,
DIST: BELAGAVI-591 312.
...RESPONDENTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE FOR C/R3 & R4;
SRI. SANTOSH B. RAWOOT, ADVOCATE FOR R1 AND R2)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE
1 & 2 OF THE CODE OF CIVIL PROCUDURE, 1908 PRAYING THAT THE
JUDGMENT AND DECREE DATED 30.01.2015 PASSED IN
O.S.NO.119/2010 BY THE PRINCIPAL SENIOR CIVIL JUDGE, GOKAK
MAY KINDLY BE SET ASIDE AND SUIT OF THE PLAINTIFF MAY
KINDLY BE DECREED, IN THE INTEREST OF JUSTICE AND EQUITY.
IN RFA CROSS OBJ NO. 100002/2016
BETWEEN:
1. SMT.GANGAWWA
W/O. TIPPANNA MELAPPAGOL
AGE: 64 YEARS
OCC: AGRICULTURE
R/O: HALLUR VILLAGE,
TQ: GOKAK
DIST: BELAGAVI-591312.
2. SMT. BHAGAWWA W/O MAHADEV NESUR
AGE: 44 YEARS
OCC: AGRICULTURE
R/O: HALLUR VILLAGE,
TQ: GOKAK
DIST: BELAGAVI-591312
...CROSS-OBJECTORS
(BY SRI SANTOSH B. RAWOOT, ADVOCATE)
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NC: 2024:KHC-D:16490
RFA No. 100072 of 2015
C/W RFA.CROB No. 100002 of 2016
AND:
1. SMT. SUSHILAWWA
D/O TIPPANNA MELAPPAGOL
AGE: 29 YEARS
OCC: AGRICULTURE
R/O: HALLUR VILLAGE,
TQ: GOKAK
DIST: BELAGAVI-591312.
2. SHRI BASAPPA LAXMAN MELAPPAGOL
AGE: 40 YEARS
OCC: AGRICULTURE
R/O: HALLUR VILLAGE,
TQ: GOKAK
DIST: BELAGAVI-591312.
3. SHRI SANGAPPA LAXMAN MELAPPAGOL
AGE: 38 YEARS
OCC: AGRICULTURE
R/O: HALLUR VILLAGE,
TQ: GOKAK
DIST: BELAGAVI-591312.
...RESPONDENTS
(BY SRI. G. B. NAIK AND SMT. P. G. NAIK, ADVOCATES FOR R1;
SRI. DINESH M. KULKARNI, ADVOCATE FOR R2 & R3)
THIS CROSS OBJECTION IS FILED UNDER ORDER 41 RULE 22
OF C.P.C., PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE OF THE COURT OF PRL. SENIOR CIVIL
JUDGE, GOKAK PASSED IN O.S.NO. 119/2010 DATED 30.01.2015 BY
REMANDING THE MATTER FOR FRESH HEARING TO TRIAL COURT, IN
THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEAL AND CROSS-OBJECTION COMING ON FOR
FURTHER HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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NC: 2024:KHC-D:16490
RFA No. 100072 of 2015
C/W RFA.CROB No. 100002 of 2016
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
RFA No.100072/2015 is filed challenging dismissal of the suit for declaration and partition. The suit was filed against the mother-defendant No.1, sister- defendant No.2, and defendants No.3 and 4, who are the beneficiaries under the gift deed dated 19.11.1986, said to have been executed by defendant No.1.
2. Defendants No.3 and 4 contested the suit and claimed rights over the properties under the registered gift deed executed by defendant No.1. Mother of the plaintiff /Defendant No.1 supported the plaintiff's case. Defendant No.2 did not file any written statement.
3. Admittedly, when the gift deed was executed, the plaintiff was minor and aged 3 years. Minor had 1/3rd undivided share in the suit properties. The plaintiff and defendant No.2 along with their mother defendant No.1 inherited the said property after the demise of the father of plaintiff and defendant No.2 and husband of defendant No.1. -5-
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4. The Trial Court framed the following issues:
i. Whether the plaintiff proves that the suit properties jointly belong to the plaintiff and defendants No.1 and 2?
ii. Whether the plaintiff proves that she is having 1/3rd share in the suit property?
iii. Whether the plaintiff proves that the gift
deed dated 19.11.1986 executed by
defendant No.1 in favour of defendants No.3 and 4 is illegal and not binding on the share of the plaintiff?
iv. Whether the suit is barred by limitation? v. Whether the plaintiff is entitled to partition and separate possession of 1/3rd share in the suit properties?
vi. What decree or order?
5. The suit is dismissed on the premise that the suit is time-barred. The Trial Court held that the suit properties jointly belonged to the plaintiff and defendants No.1 and 2.
However, the relief of partition is declined on the premise that the suit is time-barred under Article 60 of the Limitation Act, 1963 (for short 'the Act of 1963') -6- NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016
6. Aggrieved by the aforementioned judgment and decree, the plaintiff is in appeal.
7. Smt.P.G.Naik, learned counsel appearing for the appellant/plaintiff would urge that, the properties admittedly belonged to Tammanna the father of plaintiff and defendant No.2 and husband of defendant No.1. After his death, his two daughters, plaintiff and defendant No.2 acquired joint right along with defendant No.1 their mother. Thus, the property being the joint family property, the mother has no right to execute the gift deed of the undivided share. The said transaction is void, as such the suit is essentially one for partition and separate possession and relief of declaration is ancillary. The Trial Court could not have dismissed the suit as time-barred, as the cause of action arose a week before filing the suit where the defendants refused to part with 1/3rd share of the plaintiff.
8. It is also urged that Article 60 of the Act of 1963 does not apply to the facts of the case as the properties in question were not the separate properties of the plaintiff when the gift deed was executed by the plaintiff's mother in -7- NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 the year 1986. When the plaintiff's mother executed the gift deed in the year 1986, the plaintiff had an undivided 1/3rd share in the said properties and the plaintiff was aged 3 years. Article 60 of the Act of 1963 would apply only in a situation where the guardian transfers the separate property of the minor. The suit is governed by Article 110 of the Act of 1963 and the Trial Court failed to appreciate said aspect.
9. It is also her further contention that when the transfer took place through a registered gift deed in the name of defendants No.3 and 4, the plaintiff was just 3 years old and she could not have instituted a suit challenging the gift deed because of the disability. The disability ceased after she attained the age of 18 years, and the cause of action arose when the defendants refused to part with the share of the plaintiff.
10. It is also her contention that the properties being the ancestral properties, the gift of undivided share is void and the transaction being void there is no limitation to challenge the said transaction and unless the defendants can -8- NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 establish ouster and adverse possession, the suit could not have been dismissed as time-barred.
11. In support of the contention the learned counsel for the appellant has placed reliance on the judgments of in Babu Mother Savavva Navalgund & others vs. Gopinath1, Ganapati Santaram Bhosale and Ors. Vs. Ramachandra Subbarao Kulkarni and Ors.2 and Shankarayya Balayya Pujari vs Champabai3 and Thamma Venkata Subbamma (Dead) by LR vs Thamma Rattamma and others4
12. Learned counsel for defendant No.1 would support the case of the plaintiff and would urge that, after having held that the suit properties are the joint family properties of the plaintiff and defendants No.1 and 2, the Trial Court could not have invoked Article 60 of the Act of 1963, to dismiss the plaintiff's case. 1 ILR 1999 KAR 3129 2 ILR 1985 KAR 1115 3 ILR 1988 KAR 2348 4 (1987) 3 SCC 294 -9- NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016
13. Sri.Dinesh M. Kulkarni, the learned counsel appearing for the contesting respondents would submit that the judgments relied upon by the learned counsel in the case of Babu Mother Savavva Navalgund & others vs. Gopinath5 and Shankarayya Balayya Pujari vs Champabai6 and Thamma Venkata Subbamma (Dead) by LR vs Thamma Rattamma and others7 do not apply to the case on hand, as in those cases the alienation is made by the coparceners whereas in this case alienation is made by the guardian.
14. It is his further submission that the properties are not coparcenary properties as such the properties should be treated as separate properties of the minor, though undivided, and the provisions of the Act of 1956 would apply and the mother being the natural guardian has transferred the properties for the benefit of the minor. Even if the transaction is held to be not for the benefit of the minor, such transfer is voidable under Section 8(3) of the Act of 5 ILR 1999 KAR 3129 6 ILR 1988 KAR 2348 7 (1987) 3 SCC 294
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NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 1956. When the Act itself says that the transaction is voidable, at the instance of the minor, the contention that the transaction is void cannot be accepted. When the transaction is voidable, then the transaction remains valid as long as it is not questioned and the transaction is not questioned within three years prescribed under Article 60, the suit is time-barred.
15. It is also urged by Sri. Dinesh M. Kulkarni, the learned counsel, that Article 110 of the Act of 1963 has no application and even if it is held to be applicable the suit is time-barred as the appellant will have only three years to file the suit after attaining majority as the limitation of 12 years under Article 110 of the Act of 1963 would expire during the minority of the plaintiff and the plaintiff will have only three years to file the suit after attaining majority. Since the suit is filed 9 years after attaining majority same is time barred. Learned Counsel would rely on Section 8 of the Act of 1963
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NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 and the judgment of the Apex Court in Darshan Singh vs. Gurudev Singh8.
16. It is also his submission that the suit itself is defective since all the suit properties were not included when the suit was filed and the suit is filed only in respect of the properties transferred in favour of defendants No.3 and 4 under the registered gift deed and the suit being collusive, the application filed before this Court, by the appellant, to include the properties is not maintainable and the suit has to be dismissed for not including all the family properties.
17. This Court has considered the contentions raised at the Bar and perused the records. The following points arise for consideration:
i. Whether the provisions of the Hindu Minority and Guardianship Act, 1956 apply to the joint family properties and the mother can act as a guardian of a minor under the said Act and deal with the joint family properties of a minor? ii. Whether the suit of the plaintiff is barred by limitation?8
(1994) 6 SCC 585
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NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 iii. Whether the suit is not maintainable for not including all the joint family properties?
18. As can be noticed from the records, admittedly, the suit properties originally belonged to the father of the plaintiff, namely Tippanna, who died on 10.03.1986. When he died in the year 1986, the plaintiff was a minor and one of daughters, namely Bhagawwa was married. After the death of Tippanna name of his wife/defendant No.1 was recorded in the property records as successor.
19. It is also forthcoming from the records that, on 19.11.1986 the gift deed is executed by defendant No.1 in the name of defendants No.3 and 4, who are the brothers of the deceased husband of defendant No.1. Defendant No.2 is a signatory to the said gift deed as a consenting witness. Admittedly, the plaintiff was three years old when the gift deed was executed. Pursuant to the gift deed, names of defendants No.3 and 4 were entered in the property records.
20. Admittedly, when the gift deed was executed, plaintiff No.1 who was aged three years and had a disability to file a suit. The disability expired in the year 2001 when
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NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 she attained majority. The Trial Court has held that the suit is time-barred, the Trial Court referred to Article 60 of the Act of 1963.
21. Article 60 of the Act of 1963 reads as under:
Article Description of suit Period of Time from limitation which period begins to run 60 To set aside a transfer of property made by the guardian of a ward-
(a) by the ward who has Three years When the ward attains majority attained majority;
(b) by the war's legal representative-
(i) when the ward Three years When the ward attains
dies within three majority
years from the
date of attaining
majority;
Three years When the ward attains
(ii) When the ward majority
des before
attaining majority
22. From reading the above Article, it is evident that, in case the alienation made by the guardian of a ward is to be questioned, then the said challenge has to be within 3 years from the date of the alienation by the guardian of the ward.
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23. The next question is whether the plaintiff's mother can be termed as guardian of the plaintiff when the properties were transferred by way of gift in the year 1986. At this juncture, it is necessary to refer to the relevant portion of Section 6 of the Act of The Hindu Minority and Guardianship Act, 1956, (for short 'Act 1956') which reads as under:
6. Natural guardians of a Hindu minor.- The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his 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, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father;
(c) in the case of a married girl - the husband.
(Emphasis supplied)
24. On a reading of Section 6 of the Act of 1956, it is explicitly clear that the Act of 1956 has no application in
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NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 respect of a minor's undivided interest in a joint family property when it comes to a guardian of a minor. There is no dispute that the suit properties once belonged to Tippanna, the father of the plaintiff and defendants No.1 and 2, and they jointly inherited the properties in the year 1986 after the demise of Tippanna. Admittedly, plaintiff and defendant No.1 were the joint family members as the plaintiff was aged 3 years and was living with her mother. Defendant No.2, the daughter of defendant No.1 was married at the time of the gift in the year 1986, technically may not be a joint family member. Nevertheless, the properties inherited by plaintiff and defendants No.1 and 2 would be joint family properties as far as defendants 1 to 3 are concerned. Thus, the Act of 1956 does not apply to the properties in question and the mother cannot act as a guardian within the meaning of the 'guardian' as defined in the Act of 1956.
25. Article 60 of the Act of 1963, as already noticed, would apply to a case where the separate property of the minor is involved and alienation is made by the guardian.
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26. It is also relevant to refer to Section 12 of the Act of 1956, which reads as under:
12. Guardian not to be appointed for minors undivided interest in joint family property.-- Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest: Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.
27. On a reading of Section 12 of the Act of 1956, it is also evident that no guardian can be appointed to the minor in respect of undivided interest. This is the bar contained under Section 12 of the Act of 1956. However, the High Court has the power to appoint a guardian in respect of the undivided interest in the appropriate cases. It is nobody's case that defendant No.1 was appointed as guardian of the plaintiff's properties and guardian of the plaintiff by the order of the High Court.
28. Thus, on a combined reading of Sections 6 and 12 of the Act of 1956, this Court is of the view that the transfer
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NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 made by defendant No.1 in the year 1986 cannot be construed as a transfer by the 'guardian' of the plaintiff. Hence, Article 60 of the Act of 1963 has no application. The Trial Court did not notice the implications of Sections 6 and 12 of the Act of 1956 which would make it very clear that Article 60 of the Act of 1963 does not apply to the case.
29. If Article 60 of the Act of 1963 does not apply then the question is which is the article that governs the limitation in this suit. The suit is one for the relief of declaration and injunction. The plaintiff seeks a declaration that the gift deed dated 19.11.1986 executed by defendant No.1 in favour of defendants No.3 and 4 is illegal and not binding. As already noticed the Act of the Act of 1956 has no application. Thus Section 8(3) of the Act of 1956, does not apply. Section 8(3) of the Act of 1956 makes the transaction voidable. Since the Act does not apply to the suit properties, the transaction does not become voidable. In that event, the question is whether the mother had the right to gift the minor's undivided share. Mother cannot act Karta. Such power is not recognized under Shastric law. No statute law is
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NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 pointed out conferring such power on the mother. Thus, the transaction of 1986 where defendant No.1 purports to transfer the minor's undivided share is one without the authority of law and the same is void. Thus, the relief of declaration ration is superfluous. Even without the relief of declaration simple suit for partition is maintainable. Thus, this Court is of the view that Article 110 of the Limitation Act applies.
30. Sri Dinesh M.Kulkarni, the learned counsel would urge that even under Article 110 of the Act of 1963, the suit is time-barred. It is urged that on a reading of evidence in its entirety, it is evident that the plaintiff was aware that she has been excluded from the joint possession of the properties under the registered gift deed of 1986. Thus, he would contend that the suit ought to have been filed within 12 years from the date of dispossession in 1986.
31. Article 110 of the Limitation Act, 1963 reads as under:
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RFA No. 100072 of 2015
C/W RFA.CROB No. 100002 of 2016
Article Description of suit Period of Time from
limitation which period
begins to run
110 By a person excluded Twelve When the exclusion
from a joint family years becomes known to
property to enforce a the plaintiff.
right to share therein.
32. On a reading of Column No.3 of Section 110 of the Act of 1963, it is noticed that in a suit for partition to enforce rights in the joint family properties, 12 years would begin to run from the date when exclusion becomes known to the plaintiff. It is to be noted that the exclusion by itself is not a reason. The exclusion should be known to the plaintiff. In a suit for partition, the person claiming exclusive possession by way of exclusion, should prove ouster and adverse possession to warrant dismissal of the suit. Even if it is construed that Article 110 applies only to suit to enforce the family partition and the plaintiff is not the joint family member of defendants 3 and 4, what is required to be noticed is defendant No.1 claims to have parted joint family property.
33. After going through the evidence placed on record, it is noticed that the plaintiff has pleaded that she is
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NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 in joint possession of the suit properties along with defendants No.1 and 2. Though defendants No.3 and 4 have cross-examined the plaintiff at length to contend that the plaintiff was very much aware of the exclusion because of the registered gift deed of 1986, the evidence does not support such contention. It is not the case of defendants No.3 and 4 that the plaintiff was aware of exclusion because of the gift deed and the plaintiff knew the gift deed 12 years before the suit. There is no such pleading and evidence. Defendants 3 and 4 to successfully urge the defence of limitation under Article 110 must urge that the plaintiff was aware of the exclusion of the properties under a device i.e., gift deed. Knowledge of the gift deed to the plaintiff is not established at all. The plaintiff was three years old when the gift deed was executed. Thus, even if defendants 3 and 4 are presumed to be in exclusive possession of the properties to the exclusion of the plaintiff, such exclusion should be made known to the plaintiff as a total exclusion in denial of the title of the plaintiff. Mere exclusive possession of the property by a person who is the
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NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 uncle of the plaintiff does not amount to exclusion within the meaning of Article 110 of the Limitation Act.
34. Learned counsel appearing for the appellant would also contend that, in case a minor is not given due share in the properties and if the suit for partition is filed on the premise that the minor's interest is not safeguarded in the said partition, to reopen the said partition there is no limitation prescribed. In support of her contention learned counsel for the appellant would rely upon the following judgments of Hon'ble Apex Court:
(a) Sukhrani (Dead) By L.R.s & others vs. Hari Shanker & others9
(b) Ratnam Chettiar & Others vs. S.M.Kuppuswami Chettiar & others10
35. Learned counsel appearing for the respondents would contend that the aforementioned judgments do not come to the aid of the respondents as the said judgments are delivered in the context where there was a partition in favour of minors and minors if wanted to reopen the partition 9 AIR 1979 SCC 1436 10 AIR 1976 SC 1
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NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 after attaining majority on the premise that the partition was inequitable, the Court held that limitation does not apply in such cases. Thus it is urged the judgments cited are distinguishable.
36. This Court has considered the rival contentions.
37. In the aforementioned case the Apex Court has held that in a situation where a minor is given a lesser and inadequate share, the suit to reopen the partition is maintainable. As can be noticed, the document which is sought to be used against the plaintiff is the registered gift deed of 1986. Admittedly, the gift deed is not for any consideration other than love and affection in favour of the donor's deceased husband's brothers. Admittedly, as can be seen from the recitals in the gift deed, no benefit whatsoever is conferred on the minor. Thus, the principle laid down in the case can be applied to the case, as the plaintiff's undivided share is with defendants 2 and 3.
38. In addition, defendants No.3 and 4 cannot contend that the transfer of the properties of the minor's
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NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 undivided share is for the benefit of the minor. At any stretch of the imagination, the gift of the minor's undivided share without any consideration benefiting the minor, cannot be construed as an alienation authorized by law. Such a transaction is void.
39. This being the position, on reappreciation of the evidence, this Court does not find any such evidence to support the contention that the plaintiff was aware of 'exclusion' within the meaning of 'exclusion' in Article 110 of the Act of 1963 to hold that such exclusion was 12 years prior to the suit.
40. In so far as the suit being defective said contention is not available to defendants No.2 and 3 as defendants No.2 and 3 do not have any share in the remaining properties of defendants No.1 and 2 and the plaintiff.
41. It is noticed that the plaintiff has filed an application to include other properties standing in the name of defendants No.1 and 2 which according to her are the joint
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NC: 2024:KHC-D:16490 RFA No. 100072 of 2015 C/W RFA.CROB No. 100002 of 2016 family properties of plaintiff and defendants No.1 and 2. This Court is of the view that the said application cannot be considered at this stage, however, liberty is granted to the plaintiff to seek partition in respect of those properties by filing an appropriate proceeding, if so advised.
42. In such an event, the plea under Order II Rule 2 shall not be raised as this suit is mainly against defendants No.3 and 4. Since the application for amendment is rejected, the application filed for production of additional documents in support of the amendment is also rejected.
43. Learned counsel Sri.Dinesh M. Kulkarni would contend that the suit is one for relief of declaration and partition and relief of declaration is time barred.
44. This Court has to hold that in a suit of this nature, the relief of declaration is superfluous and relief of partition can be granted if it is established that the mother has acted without any power to alienate the minor's interest. The transfer of the property is without any legal necessity or for the benefit of the minor.
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45. Hence, even though there is a prayer for a declaration to set-aside the gift deed on the premise that it is not binding, this Court is of the view that the plea of limitation is to be considered with reference to plea of partition which in the opinion of this Court is main relief and relief of declaration is superfluous in this case.
46. For the reasons recorded the Court has to hold that the suit of the plaintiff is in time.
47. For the aforementioned reasons, the judgment and decree passed by the Trial Court are liable to be set- aside.
Discussion on Cross objection RFA Crob No.100002/2016:
It is noticed that defendants No.1 and 2 have filed cross-objection challenging the judgment and decree denying the share to defendants No.1 and 2. Before the Trial Court, they did not claim any share in the suit properties. It is noticed that defendant No.1 did file written statement before the Trial Court disputing the gift deed and defendant No.2 did not make any claim over the suit properties.
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2. As already noticed, defendant No.1 has executed a gift deed in favour of defendants No.3 and 4 and she has not chosen to question the gift deed for more than 3 years after the execution of the gift deed. Hence, defendant No.1 cannot claim any share in the properties.
3. Defendant No.3 has not filed any written statement, and has not claimed any share. Though she is not the executant to the gift deed, she has consented to the gift executed by the mother where the mother has executed the gift in respect of entire properties which also included 1/3rd share of defendant No.2. Hence, defendant No.2 is also precluded from claiming any share over the properties.
4. For these reasons, the claim made in the cross-
examination is not maintainable.
5. Hence, the following:
ORDER
(i) Appeal is allowed and Cross objection is dismissed.
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(ii) The judgment dated 30.01.2015 in O.S.No.119/2010 on the file of Principal Senior Civil Judge, Gokak are set aside.
(iii) The suit of the plaintiff is decreed. Plaintiff is entitled to 1/3rd share in the suit properties.
(iv) It is made clear that the gift deed made by defendants No.1 and 2 to the extent of transfer of alienation of the property in favour of defendants No.3 and 4 is valid as defendants No.2 and 3 are both major when the gift deed was executed.
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(ANANT RAMANATH HEGDE) JUDGE gab - up to para 8 GVP - para 9 till end CT:ANB List No.: 1 Sl No.: 16