Karnataka High Court
Sri Chennaiah vs Sri Appayya on 20 June, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:21219
RFA No. 498 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 498 OF 2007 (DEC/INJ)
BETWEEN:
SRI CHENNAIAH
S/O LATE GANGAIAH
AGED ABOUT 52 YEARS
R/O YENNEGERE VILLAGE
SOLUR HOBLI, MAGADI
BANGALORE RURAL.
...APPELLANT
(BY SRI. G. NATARAJ., ADVOCATE)
AND:
1. SRI APPAYYA
SINCE DEAD BY HIS LR'S
Digitally signed
1a. LAKSHMANNA
by S/O LATE APPAYYA
DHANALAKSHMI AGED ABOUT 50 YEARS
MURTHY
R/AT T BEGUR VILLAGE
Location: High
Court of NELAMANGALA TALUK
Karnataka BENGALURU RURAL DISTRICT.
1b. CHIKKANNA
S/O LATE APPAYYA
AGED ABOUT 45 YEARS
R/AT ENNEGERE VILLAGE
SOLUR HOBLI, MAGADI TAUK
RAMANAGARA DISTRICT.
2. SRI THAMMAIAH
MAJOR
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NC: 2023:KHC:21219
RFA No. 498 of 2007
S/O CHIKKANNA
R/O YENNEGERE VILLAGE
SOLUR HOBLI, MAGADI
BANGALORE RURAL.
3. SRI LAKKESWAMAIAH
MAJOR
S/O CHIKKANNA
R/O YENNEGERE VILLAGE
SOLUR HOBLI, MAGADI
BANGALORE RURAL.
4. SRI TAHSILDAR
MAGADI, BANGALORE RURAL.
5. THE SUB REGISTRAR
MAGADI
BANGALORE RURAL DISTRICT.
6. THE STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
REVENUE DEPARTMENT
VIDHANA SOUDHA
BANGALORE -560001.
...RESPONDENTS
(BY SRI. SHARATH S GOWDA., ADVOCATE for R2 & R3:
APPEAL AGAINST R1 IS ABATED V/O DATED:02.08.2022)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGEMENT AND DECREE DATED: 30.10.2006 PASSED
IN OS.NO.50/2002 ON THE FILE OF THE ADDL.CIVIL
JUDGE (SR.DN.) RAMANAGARAM, BANGALORE RURAL
DISTRICT, DISMISSING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCITON.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:21219
RFA No. 498 of 2007
JUDGMENT
This appeal under Section 96 of the Code of Civil Procedure, 1908, is filed by the plaintiff challenging the judgment and decree dated 30.10.2006 passed by the Senior Civil Judge, Ramanagara in O.S.No.50/2002 whereby the suit filed by the plaintiff has been dismissed.
2. For the sake of the convenience, the parties are referred to as per their ranking before the Trial Court.
3. The case of the plaintiff is that he is the absolute owner in possession and enjoyment of the suit schedule property. The suit schedule property originally belonged to one Thimmaiah, who has executed a Gift Deed in favour of the plaintiff on 23.06.1959 when the plaintiff was a minor. The parents of the plaintiff have relinquished the suit schedule property in favour of wife of the Thimmaiah Smt. Harvathamma, who is none other than the mother of defendant Nos.1 to 3.
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NC: 2023:KHC:21219 RFA No. 498 of 2007
4. Further case of the plaintiff is that in the month of August 1998, when the defendant Nos.1 to 3 made an attempts to dispossess the plaintiff from the suit schedule property, the plaintiff came to know that there was a Relinquishment Deed executed by his parents in favour of Harvathamma on 27.05.1960. Immediately, the plaintiff has filed the suit seeking following reliefs:
"a) Declaring that the plaintiff is the absolute owner in peaceful possession, enjoyment and cultivation of the schedule property by virtue of the registered Gift Deed dated 23-6-1959;
b) Declare that the alleged Relinquishment Deed dated: 25-7-1960 is concocted, fabricated document and it is illegal, null, void and not binding on the plaintiff and direct the 5th defendant Sub-Registrar, Magadi, to cancel the said registered Relinquishment Deed, which is registered as No.2662, Book-I, Volume 1193, pages 13 to 15;
c) Direct the 4th defendant - Tahasildar, Magadi Taluk, to cancel the mutation entries in M.R.No.2/98-99 (IHC) made in favour of the -5- NC: 2023:KHC:21219 RFA No. 498 of 2007 defendant No.1 to 3 and to change the mutation entries in favour of the plaintiff;
d) Granting Permanent Injunction restraining the defendant No.1 to 3, their agents, representatives, power of attorney holders and anybody acting on his behalf from alienating, transferring or creating any charge or encumbrance on the schedule property to anybody else;
e) Granting permanent injunction, restraining the defendants No.1 to 3 their agents, representatives, power of attorney holders, henchmen, supporters and anybody acting on their behalf, form trespassing, interfering, meddling or otherwise disturbing the plaintiff's peaceful possession, enjoyment and cultivation of the schedule property of dispossessing him:
f) Grant such other relief/s as this Hon'ble Court deems fit in the Circumstances of the case, including costs of this suit, in the interest of justice and equity."5. On service of summons, defendant Nos.1 to 3
appeared through their counsel and filed the written -6- NC: 2023:KHC:21219 RFA No. 498 of 2007 statement and contended that the suit filed by the plaintiff is not maintainable. He has approached the Court after inordinate delay of 35 years. In view of Article 60 of the Indian Limitation Act, 1963 ('the Act' for short), he has to file a suit within a period of three years from the date of he attains the age of majority. The plaintiff became major in the year 1965 and the suit has been filed in the year 2002. Therefore, the suit is barred by limitation. Further he contended that the plaintiff's parents have executed Relinquishment Deed in favour of Harvathamma for the legal necessity of the plaintiff. After the property has been relinquished in favour of the mother of defendant Nos.1 to 3, they have made a lot of investments in the property and they are in the possession of the property. He further contended that from the sale consideration amount, the plaintiff's father has purchased the property for the benefit of the family. He further contended that immediately after the Relinquishment Deed, the khatha has been changed in the name of Harvathamma. Even though, the plaintiff was -7- NC: 2023:KHC:21219 RFA No. 498 of 2007 aware of the same, he has not approached the Court immediately. Hence, they sought for dismissal of the suit.
6. On the basis of the pleadings of the parties, the trial Court has framed the following issues:
"1. ªÁ¢ ¢£ÁAPÀ: 23.06.1959 gÀAzÀÄ zÁªÁ¸ÀéwÛ£À §UÉÎ £ÉÆÃAzÁ¬ÄvÀ zÁ£À¥ÀvÀÛªÁVzÀÄÝ CzÀgÀ DzsÁgÀzÀ ªÉÄÃ¯É vÁ£ÀÄ zÁªÁ¸ÀéwÛUÉ ¥ÀÆtð ¥ÀæªÀiÁtzÀ ªÀiÁ°ÃPÀ£ÁVzÀÄÝ PÁ£ÀÆ£ÀÄ §zÀÝ ±ÁAwAiÀÄÄvÀ ¸Áé¢üãÀvÉ ºÉÆA¢gÀÄvÉÛÃ£É JA§ÄzÀ£ÀÄß ¸Á©üÃvÀÄ¥Àr¹gÀÄvÁÛ£ÉAiÉÄÃ?.
2. ªÁ¢ 1 jAzÀ 3£Éà ¥ÀæwªÁ¢UÀ¼ÀÄ ¢£ÁAPÀ:
29.08.1998 gÀAzÀÄ vÀ£Àß w¼ÀĪÀ½PɬĮèzÉ zÁªÁ¸ÀéwÛ£À §UÉÎ SÁvÉ AiÀÄ£ÀÄß CªÀgÀ ºÉ¸ÀjUÉ PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁV ªÀiÁr PÉÆArzÀÄÝ CzÀgÀ DzsÁgÀzÀ ªÉÄÃ¯É vÀ£Àß ±ÁAwAiÀÄÄvÀ ¸Áé¢üãÁ£ÀĨsÀªÀPÉÌ ºÀ¸ÀÛPÉëÃ¥ÀªÀ£ÀÄßAlÄ ªÀiÁqÀÄwÛzÁÝgÉ JA§ÄzÀ£ÀÄß ¸Á©üÃvÀÄ ¥Àr¹gÀÄvÁÛ£ÉAiÉÄÃ?.
3. ªÁ¢ ¢£ÁAPÀ: 25.07.1960gÀAzÀÄ vÀ£Àß vÀAzÉ-
vÁ¬ÄAiÀÄgÀÄ ¥ÀæwªÁ¢AiÀÄgÀ vÁ¬ÄUÉ §gÉzÀÄPÉÆnÖgÀĪÀ ºÀPÀÄ̤ªÀÈw¥ÀvÀæ C¥Áæ¥ÀÛ ªÀAiÀĸÀÌ£À¸ÀéwÛUÉ ¸ÀA¨sÀAzÀ¥ÀnÖzÀÄÝ CzÀÄ PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁVzÉ JA§ÄzÀ£ÀÄß ¸Á©üÃvÀÄ¥Àr¹gÀÄvÁÛ£ÉAiÉÄÃ?.
4. ªÁ¢ F zÁªÉAiÀÄ°è PÉýzÀAvÉ WÉÆõÀuÁvÀäPÀ ¥ÀjºÁgÀªÀ£ÀÄß ¥ÀqÉzÀÄPÉƼÀî®Ä CºÀð£É?. -8-
NC: 2023:KHC:21219 RFA No. 498 of 2007
5. ªÁ¢ F zÁªÉAiÀÄ°è PÉýgÀĪÀ PÀAzÁAiÀÄ zÁR¯ÉUÀ¼À£ÀÄß DvÀ£À ºÉ¸ÀjUÉ §zÀ¯Á¬Ä¸ÀĪÀÅzÀPÉÌ ¤ÃzÉð±À£À ¤ÃqÀĪÀ ¥ÀjºÁgÀ ¥ÀqÉzÀÄPÉƼÀÄîªÀ ºÀPÀÄÌ, SÁAiÀÄA ¤¨sÀðAzsÀPÁeÉÕ ¥ÀjºÁgÀ ¥ÀqÉzÀÄPÉƼÀî®Ä CºÀð£?.
6. ªÁ¢AiÀÄ F zÁªÉ PÁ®«Äw C¢ü¤AiÀĪÀÄ¢AzÀ ¤µÉâ¸À®àqÀÄvÀÛzÉAiÉÄÃ?.
7. ªÁ¢ F zÁªÉAiÀÄ£ÀÄß ¸ÀjAiÀiÁV ªÀiË®åªÀiÁ¥À£À ªÀiÁr®èªÉÃ, ¸ÀAzÁAiÀÄ ªÀiÁrgÀĪÀ £ÁåAiÀiÁ®AiÀÄzÀ ±ÀÄ®Ì ¸Àj¬Ä®èªÉÃ?.
8. ªÁ¢ F zÁªÉAiÀÄ£ÀÄß PÀ®A.80 ¹¦¹ CrAiÀÄ°è £ÉÆÃnøï PÉÆqÀzÉ zÁR®Ä ªÀiÁrgÀĪÀÅzÀjAzÀ F zÁªÉ HfðvÀ ªÁUÀvÀPÀÌzÀ®èªÉÃ?.
9. ¥ÀæwªÁ¢AiÀÄgÀÄ ¢£ÁAPÀ: 23.06.1959 gÀAzÀÄ zÁ£À¥ÀvÀæ §gÉzÀÄ PÉÆqÀĪÀÅzÀPÉÌ zÁ¤UÀ½UÉ ¥ÀÆtð ¥ÀæªÀiÁtzÀ ºÀPÀÄÌ EgÀ°®è, DzÀÝjAzÀ zÁ£À¥ÀvÀæ PÁ£ÀÆ£ÀÄ ¨Á»gÀ, zÁ£À¥ÀvÀæzÀ DzsÁgÀzÀ ªÉÄÃ¯É ªÁ¢ PÀæªÀÄPÉÊUÉÆAr®è JA§ÄzÀ£ÀÄß ¸Á©üÃvÀÄ¥Àr¹gÀÄvÁÛgÉAiÉÄÃ?.
10. ¥ÀæwªÁ¢AiÀÄgÀÄ ºÀPÀÄÌ ¤ªÀÈwÛ ¥ÀvÀæªÀ£ÀÄß priniciples of estoppel CrAiÀÄ°è ¥Àæ²ß¸ÀĪÀ ºÀPÀÄÌ ªÁ¢UÉ E¯Áè JA§ÄzÀ£ÀÄß ¸Á©üÃvÀÄ ¥Àr¹gÀÄvÁÛgÉAiÉÄÃ?.
11. ªÁ¢ F zÁªÉUÉ CªÀ±ÀåPÀ ¥ÀPÀëUÁgÀgÀ£ÀÄß ¥ÀPÀëUÁgÀgÀ£ÁßV ªÀiÁqÀzÉ EgÀĪÀÅzÀjAzÀ ªÀÄvÀÄÛ C£ÀªÀ±ÀåPÀ ¥ÀPÀëUÁgÀgÀ£ÀÄß ¥ÀPÀëUÁgÀgÀ£ÁßV ªÀiÁrgÀĪÀÅzÀjAzÀ F zÁªÉ HfðvÀªÁUÀvÀPÀÌzÀÝ®è JA§ÄzÀ£ÀÄß ¸Á©üÃvÀÄ¥Àr¹gÀÄvÁÛgÉAiÉÄÃ?. -9-
NC: 2023:KHC:21219 RFA No. 498 of 2007
12. ¥ÀæwªÁ¢AiÀÄgÀÄ zÁªÁ¸ÀéwÛ£À°è ¥ÀæwPÀÆ® ¸Áé¢üãÀvÉ ªÀÄÆ®PÀ ºÀPÀÌ£ÀÄß ¹ÜÃjPÀj¹PÉÆArzÉÝÃªÉ JA§ÄzÀ£ÀÄß ¸Á©üÃvÀÄ¥Àr¸ÀÄgÀÄvÁÛgÉAiÉÄÃ?."
7. To prove the case, the plaintiff examined one Rangamma as PW-1 and produced 16 documents. The respondents examined one Appaiah as DW-1 and produced 17 documents. On appreciation of oral and documentary evidence, the trial Court has answered Issue Nos.3, 6, 7, 9, 10, 11 and 12 are in the affirmative and Issue Nos.1, 2, 4, 5 and 8 are in the negative and dismissed the suit. Being aggrieved by the judgment and decree passed by the trial Court, the plaintiff is before this Court in this appeal.
8. Sri G. Nataraj, learned counsel appearing for the plaintiff has contended that Thimmaiah has executed the Gift Deed in favour of the plaintiff on 23.06.1959 when the plaintiff was a minor. The plaintiff's parents without authority of law and without any right or title over the suit schedule property have executed the Relinquishment Deed
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NC: 2023:KHC:21219 RFA No. 498 of 2007 in favour of one Harvathamma in respect of suit schedule property on 27.05.1960. The plaintiff came to know regarding Relinquishment Deed only in the month of August 1998. Within three years from the date of knowledge, the plaintiff has filed the suit. He contended that even though the plaintiff attained majority in the year 1965, he was not aware of the Relinquishment Deed executed by his parents on 27.05.1960 in favour of the Harvathamma. Therefore, three years of limitation for filing the suit has to be considered from the date of knowledge of the plaintiff. But the trial Court has erred in dismissing the suit on the ground that the suit is barred by limitation.
9. Secondly he contended that it is very clear from the Gift Deed that the parents of the plaintiff have no right or title to transfer the same in favour of any person much less in favour of Harvathamma. They have transferred the property contrary to the provisions of law. The trial Court has rightly held that the transaction of relinquishment on
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NC: 2023:KHC:21219 RFA No. 498 of 2007 27.05.1960 is void. Since the trial Court has declared the Relinquishment Deed on 27.05.1960 as void, has erred in dismissing the suit. Hence, he sought for allowing the appeal.
10. Per contra, Sri Sharath S. Gowda, learned counsel appearing for the respondent Nos.2 and 3 has contended that the plaintiff's parents relinquished the property by a registered Relinquishment Deed on 27.05.1960 in favour of Harvathamma, who is the mother of defendant Nos.1 to 3. The Relinquishment Deed has been executed for the benefit of plaintiff. The plaintiff's parents have purchased some other property from the consideration amount for the benefit of the family. Further he contended that immediately after the Relinquishment Deed, the khatha has been changed in the name of Harvathamma. The plaintiff was aware of the change of revenue entry. Even after attaining majority, he has not filed any suit challenging that the Relinquishment Deed executed in favour of Harvathamma on 27.05.1960. He
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NC: 2023:KHC:21219 RFA No. 498 of 2007 further contended that as per Article 60 of the Act, any suit by the ward for setting aside the sale made by the guardian has to file a suit within a period of three years from the ward attaining the majority. The suit has been filed after 30 years from the date of attaining the majority. The suit is barred by limitation. The trial Court has rightly rejected the suit. He further contended that even the plaintiff was aware of change of revenue entry in the name of Harvathamma and he himself had approached the Revenue Authority in the year 1998 and also approached this Court by filing the writ petition, he has not filed any suit.
11. Lastly he has contended that even though the finding of the trial Court in respect of issue No.3 is against the defendants, since the suit is dismissed, the defendants can urge the same under Order XLI Rule 22 of CPC. He further contended that the suit is filed for declaration and the plaintiff has failed to prove that he is in the possession of the property and there is no amendment filed seeking
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NC: 2023:KHC:21219 RFA No. 498 of 2007 possession, therefore, the suit filed for declaration itself is not maintainable under Section 34 of the Specific Relief Act, 1963. Hence, he sought for dismissal of the appeal.
12. Heard the learned counsel for the parties. Perused the judgment and decree and also original record.
13. The point that arises for consideration in this appeal before this Court is as follows:
"Whether the suit filed by the plaintiff is barred by limitation under Article 60 of the Limitation Act, 1963"
14. It is not in dispute that Thimmaiah was the original owner of the suit schedule property. He has executed Gift Deed in favour of the plaintiff on 23.06.1959. When the plaintiff was minor, the parents of the plaintiff have executed the registered Relinquishment Deed in favour of the Harvathamma, who is the mother of the defendant Nos.1 to 3 on 27.05.1960. Immediately after the Relinquishment Deed, revenue entry has been changed in the name of Harvathamma. As pleaded in the
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NC: 2023:KHC:21219 RFA No. 498 of 2007 plaint at paragraph No.14, the cause of action for filing of the suit arose in the month of August 1998 when the defendants No.1 to 3 attempted to trespass, interfere and to dispossess the plaintiff from the schedule property; on 7-7-2000 when the Assistant Commissioner Ramanagaram Sub-Division, Ramanagaram dismissed the appeal of the plaintiff; on 03.01.2002 when the Hon'ble High Court dismissed the W.P. No.31604/2000 (KLR)(RES) granting liberty to the plaintiff to approach the Civil Court and from past one month since the defendants No.1 to 3 were trying to trespass and interfere with the schedule property and making attempts to alienate the schedule land to others and on all other dates subsequently within the jurisdiction of this Hon'ble Court.
15. Admittedly, the suit has been filed on 01.03.2002. As per Article 60 of the Limitation Act, the suit has to be filed within a period of three years from the ward attaining the majority. For better understanding, Article 60 of the Act is extracted below:
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NC: 2023:KHC:21219 RFA No. 498 of 2007 "Description of suit Period of Time from which Limitation 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 attained majority; Three years When the ward attains majority.
(b) by the ward's legal
representative
(i) when the ward dies
within three years Three years When the ward
from the date of attains majority.
attaining majority.
(ii) when the ward dies Three years. When the ward
before attaining dies."
majority
16. The Hon'ble Apex Court in the case MURUGAN AND OTHERS vs. KESAVA GOUNDER (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2019) 20 SSC 633 has held that the suit for setting aside for voidable transfer has to be filed within a period of three years from the date of attaining the majority. The relevant paragraph Nos.29, 30, 31 and 32 are extracted as follows:
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NC: 2023:KHC:21219 RFA No. 498 of 2007 "29. The Limitation Act, 1963 has been enacted by the Parliament after the enactment of Hindu Minority and Guardianship Act, 1956. Article 60 of the Limitation Act, 1963 which provides for limitation "suits relating to decrees and instruments". The Limitation Act contemplates suit to set aside a transfer of property made by the guardian of a ward for which limitation is contemplated as three years. Article 60 of the Limitation Act although provides for a limitation of a suit but also clearly indicates that to set aside a transfer of property made by the guardian of a ward a suit is contemplated.
30. We may notice a judgment of this Court reported in Madhegowda (Dead) by LRs. vs. Ankegowda (Dead) by LRs. and others, (2002) 1 SCC 178. This Court in the above case had occasion to consider Section 11 of the Hindu Minority and Guardianship Act, 1956. In the above case sister of a minor acting as guardian sold immovable property by registered sale deed. In the above reference this Court had made following observations:
"25.........Undoubtedly Smt Madamma, sister of the minor, is not a "guardian" as
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NC: 2023:KHC:21219
RFA No. 498 of 2007
defined in Section 4(b) of the Act.
Therefore, she can only be taken to be a "de facto guardian" or more appropriately "de facto manager". To a transfer in such a case Section 11 of the Act squarely applies. Therefore, there is little scope for doubt that the transfer of the minor's interest by a de facto guardian/manager having been made in violation of the express bar provided under the section is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the "de facto guardian/manager"."
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NC: 2023:KHC:21219 RFA No. 498 of 2007
31. The above observations were made by this Court in the context of Section 11 of the Act, 1956. Section 11 of the Act contains a statutory prohibition on "de facto guardian" of the minor from disposing of the property of the minor. The transfer made by de facto guardian is, thus, void and can be repudiated in any manner. It is well settled that it is not necessary for a minor or any person claiming under him to file a suit for setting aside a void deed. A void deed can be ignored. The above observations cannot be held to be applicable to transfer made by a natural guardian under Section 8(3) of the Act.
32. We may notice one more judgment of this Court relied on by the learned counsel for the appellants that is G. Annamalai Pillai vs. District Revenue Officer and others, (1993) 2 SCC 402. The question which arose for consideration in the said case has been noticed in paragraph 1 of the judgment in following words:
"1. The short question for consideration in this appeal is whether lease deed in dispute, which was voidable in terms of Section 8(3) of the Hindu Minority and Guardianship Act, 1956 (the Act) when
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NC: 2023:KHC:21219 RFA No. 498 of 2007 validly avoided, was effective from the date of the lease deed so as to make the transaction void and unenforceable from the very inception."
17. From reading the provisions of Article 60 of the Act and the judgment of Apex Court stated supra, it is very clear that the plaintiff has to file the suit within three years from the date of attaining the majority. In the present case, the Relinquishment Deed has been executed on 27.05.1960, the plaintiff has attained majority in the year 1965 and the suit has been filed in the year 2002. Therefore, the trial Court has rightly rejected the suit on the ground of limitation. There is no error in the judgment and decree passed by the trial Court.
18. Accordingly, the appeal is dismissed. The judgment and decree passed by the trial Court is hereby confirmed.
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NC: 2023:KHC:21219 RFA No. 498 of 2007
19. In view of disposal of the main appeal, all pending applications do not survive for consideration. Hence, the same are also disposed of.
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JUDGE HA List No.: 1 Sl No.: 37