Karnataka High Court
K.R. Subbakrishna vs Ningiah And Ors. on 4 September, 1987
Equivalent citations: AIR1989KANT31, AIR 1989 KARNATAKA 31
ORDER
1. This appeal is directed against the judgment and decree of the Court of the Additional Civil Judge & Chief Judicial Magistrate, Mandya, in R.A . No. 175/75 allowing the appeal of the legal representatives of the first defendant in O.S. No. 82/74 before the Munsiff Court, Malavalli, challenging the judgment and decree of the trial Court decreeing the suit of the plaintiff for possession of the suit property.
2. Briefly stated the facts are that Ramanna the father of the present appellant was the owner of the schedule property measuring 0-20 guntas of wet land bearing Survey No. 356 of Kirugavalu village, Malavalli Taluk, Mandya District, under a release deed dt. 6-5-1953. The said Ramanna released all his right, title and interest in favour of the present appellant and his wife Smt. Jayamma, who was also one of the, defendants in the original suit. In the original suit, the plaintiff in whose favour also there was a release jointly with his mother contended that the sale of the property on 26-4-1965 (under Ext. P-5) by his mother Jayamma was invalid. and not binding on him. She was also aware that the property is alienated to the first defendant Basavegowda, who died during the pendency of the suit under a sale deed for Rs. 4,000/-. At that time the plaintiff was admittedly a minor he having born on 6-2-1951 perhaps he was about 14 years of age then. The challenge was on two grounds, namely, that no permission was obtained by Smt. Jayamma from the District Court under S. 8 of the Hindu Minority and Guardianship Act, 1956, when she was selling a portion of the property or more; there was interest of the minor in this entire property sold in favour of Basavegowda. He claimed that it is the ancestral property and Jayamma was asked to look after not only of her interest, but also that of her minor son Subbakrishna in respect of the property. Ramanna died on 3-10-1966. At that time he had no subsisting title or interest in the schedule property. He further contended that his mother Jayamma did not get any title or interest in the suit property as he became the sole coparcener and absolute owner of the schedule property even if there was a release or relinquishment of coparcenary interest of Ramanna in this property. First defendant resisted the suit contending that 2nd defendant sold away this property for legal necessity and to discharge the debts. Defendant-1 who was in possession of the same by virtue of the sale deed, it is not mandatory to Jayamma to get any sanction from any Court and that the plaintiff cannot challenge the sale. He also contended that defendant-2 along with the plaintiff had become the owner of the schedule property and other properties under this deed. The trial Court among other issues framed also an issue whether the property was the ancestral and joint family property of the plaintiff and his father, whether the sale deed executed by Jayamma was not valid and not binding on the plaintiff and whether the sale was for legal necessities. Considering first two issues are material and on assessment of the evidence, he found that alienation by Jayamma was invalid in view of the fact that she could not derive any interest under a release deed and also for the fact that no permission was obtained from the District Court as required under S. 8 of the Hindu Minority and Guardianship Act, 1956. He also held that the question of legal necessity would not survive and decreed the suit.
3. The first Appellate Court however found that though the first defendant did not become the absolute owner of the suit property and that the sale deed dt. 26-4-1965 does not bind the plaintiff found that it is valid as far as the share of the mother is concerned and that the sale by her was legal, and valid and dismissed the suit of the plaintiff by allowing the appeal.
4. Presently in this second appeal, it is contended that it was not the case of the 1st defendant that the release deed was a gift deed, but it was his case that it was a release deed out and out and as such in spite of it the first Appellate Court did not realise that it is invalid and not binding on the plaintiff. Defendant 2 - Jayamma, who was a coparcener had no right, title or interest and the plaintiff's father executed the release deed as she was only 4 member of the joint family. There was no joint family property as such recognising her interest in the suit property and she could not have had any share during the lifetime of her husband. The plaintiff became the exclusive and absolute owner of the property released by his father and therefore defendant-2 could not have valid title or interest in the suit properties. The approach of the trial Court was correct. The finding of the first Appellate Court that no such permission was necessary was also erroneous and therefore the judgement and decree of the lower Appellate Court deserves to be set aside.
5. During the admission, the following two points have been set down as substantial questions of Law :
(1) Whether during the lifetime of the plaintiff's father, the second defendant was entitled to a share in the joint Hindu family property?
(2) Whether the second defendant had any right, title and interest in the joint family property when her husband had executed the release deed in her favour and in favour of the plaintiff?
6. Sri. Padubidri Raghavendra Rao, learned Counsel appearing for the appellant has urged that during the lifetime of her husband jayamma had no right or interest whatsoever in this admitted coparcenary property. He has taken me through S. 8 of the Hindu Law Women's Rights Act, 1933 and the relevant section and sub-section are as follows :
8(1)(a) At a partition of joint family property between a person and his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issue shall be entitled to share with them.
(b) At a partition of joint family property among brother, their mother, their unmarried sisters and the widows and unmarried daughters of their predeceased undivided brothers who have left no male issue shall be entitled to share with them.
(c) Sub-sections(a) and (b)shall also apply mutates mutandis to a partition among other coparceners in a joint family.
(d) Where joint family property passes to a single coparcener by surviviorship, it shall so pass subject to the right to shares of the classes of females enumerated in the above sub-sections.
7. This only supports his contention that till there is actual partition in the joint family the wife does not get any share and therefore the wife of Ramanna, second defendant - Jayamma had no subsisting interest at all in this coparcenary property. Even under para 258 of Mulla's Principles of Hindu Law (Fourteenth Edition), it is clearly laid down that according to the Mitakshara 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 assert in his right to recover the transferred property. Under para 264 the flowing observations of the learned Author are quite material. A Coparcener may renounce his interest in the coparcenary property in favour of the other coparceners as a body but not in favour of one or more of them. If he renounces in favor of one or more of them, there renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose favour the renunciation is made. Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towords maintenance. Under para 267 relating to setting aside gifts, a coparcener, according to the Mitakshara law cannot make a gift of the coparcenary property not even of his own interest in the property. Therefore, where such a gift is made and it is objected to by the other coparceners the Court will set aside the gift in its entirely. The gift is not valid even to the extent of the donor's interest in the property. These are the salient propositions that are attracted in the instant case. The question of legal necessity which perhaps looms large on the mind of the Court below is out of place for the simple reason that such a question could arise only when the alienation is by either the Manager or one of the coparceners in a coparcenary. Such a concept is not attracted in the case of woman member of the family and much less if she does not derive an6 interest in the property of the family. Therefore the question of legal necessity or otherwise need not detain us.
8. As stated above the father who was one of the coparceners along with his son at the time he executed the release deed in the year1953 could not have released his interest in favour of his wife because admittedly she had no interest in any of the properties as a coparcener and any such release in favour of any coparcener is not recognised by the Hindu Law. This is the basic aspect which the trial Court bore in mind, but the first Appellate Court did not very much realise. The first Appellate Court while referring to the recitals in the release deed made erroneous observation as follows :
"The above said extracts are crystal clear to the effect that Ramanna executed a release deed in favour of co-sharers and that he did not in any way transfer his share in the joint family properties or gift it. Ext. P-1 discloses that it is a release deed out and out and nothing less than that."
9. It is here that the learned Appellate Judge fell into an error recognising the wife as a co-sharer along with his son the present plaintiff not realising much less that S. 8 did not clothe the wife with any rights. Perhaps this erroneous presumption lead the first Appellate Court to a further erroneous conclusion that the release by him in favour of his wife is quite legal. The trial Court referred to the decision of the Kerala High Court in the case of Santha v. Cherukutty, in which the decision was that transfer of a minors property by his natural guardian without sanction of the Court is voidable at the instance of the minor and the minor can avoid it by his conduct without a suit. In the case of S. Rajanna, v. S. M. Dhondusa, AIR 1970 Mys 270, it was held that where the brothers who are members of a joint Hindu family transfer their interest in the joint family property and the transferors have at least one son each, the transfer is of undivided interest by coparcener in the property belonging to coparcenary. Such a transfer if made without consideration is totally void.
10. Sri M. S. Gopal, learned counsel appearing for the respondents does not dispute the proposition that Ramanna could not have released his interest in the, coparcenary property in favour of his wife during his lifetime as she had no subsisting interest in the properties. But according to him because of S. 6 of the Hindu Succession Act, when Ramanna died in the year 1966 a notional partition comes into effect and she, is entitled to succeed to the properties in which Ramanna had interest. Therefore, it is for the appellant-plaintiff to file a suit for general partition and seek his remedy.
11. Sri. Padubidri Raghavendra Rao, in reply submitted that because Ramanna had released his interest in all the coparcenery properties or in other words he had renounced his interest and there was nothing left that this widow could succeed to after the death of Ramanna. Therefore, this proposition of Mr. Gopal has no merit at all. In my view the arguments of the learned counsel for the appellant has to prevail for the reason that Smt. Jayamma had sold away the property when the father of the plaintiff was alive that is when her husband was alive and she had no interest whatsoever in the suit properties at all. When the law is clear and unambiguous that there could not be any release in favour of the female member during the lifetime of Ramanna she had only right of maintenance and alienation by her cannot under any circumstances to be considered as valid. It is for the first defendant-respondent 1 to seek his own remedy that is open to him instead of driving the plaintiff to a partition suit. In that view of the matter the first Appellate Court proceeded on wrong premises and dismissed the suit of the plaintiff. On the other hand the trial Court was right in granting relief to the plaintiff-appellant Therefore the judgment and decree of the first Appellate Court cannot be sustained.
12. In the result, the appeal has to be allowed and the same is allowed, setting aside the judgment and decree of the first Appellate Court. It is ordered that the judgment and decree passed by the trial Court are restored. The parties to bear their own costs.
13. Appeal allowed.