Karnataka High Court
Sharadamma vs Thimmedas, & Anr., on 14 March, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.383 OF 1993
Between:
Smt. Sharadamma
D/o Chikkappanna
Aged about 73 years
Residing at 28, II Cross
Vasanthnagar
Bangalore - 52 ... Appellant
(By Shri S.R.Krishna Kumar, Advocate)
And:
1. Thimmedas
S/o Hombaiah @
Pooranandaswamy
Aged about 64 years
No.133, Hygenic Hair Dresses
H.N.Thimmaiah Buildings
Seshadripuram Circle
Bangalore - 20
2. H.H.Poornanandaswamy
Aged about 68 years
Residing at Siddashram
6th Cross, Gayathrinagar
Srirampuram
Bangalore - 21 ... Respondents
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(Shri C.G.Gopalaswamy, Advocate for
Shri Manjunath, Advocate for respondents 1(a to f)
Appeal abated against respondent No.2 vide order
dated 11.4.2006)
*****
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 18.6.1993 in
O.S.No.5595/1980 on the file of the 16th Addl. City Civil Judge,
Bangalore, dismissing the suit for declaration and possession,
etc.
This Appeal coming on for final hearing this day, the
Court delivered the following:-
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for the respondents. The parties are referred to by their rank before the Trial Court for the sake of convenience.
2. The appellant was the plaintiff before the Trial Court. It was the case of the plaintiff that the suit property was the property originally bearing survey No.4/32 of Bandireddipalya, Kethamaranahalli Dakhale, Yeshwanthpur Hobli, presently, shown as 39/4, 6th Cross, Gayathrinagar, Srirampuram, Bangalore - 560 020, measuring East-West - 93 feet and -3- North-South - 76 feet with construction thereon. It originally belonged to Shri Karibasava Rajendraswamigalu, Jagadguru of Uravakondda, Gavimatha Samsthana. It was in his possession and enjoyment. It was said to have been leased to defendant No.1 on a monthly rent and defendant No.1 has been in possession and enjoyment as a lessee. On 17.4.1969, it was said to have been sold by Karibasava Rajendraswamigalu to the plaintiff for a consideration of Rs.4,000/- and tenancy of defendant No.1 was attorned in favour of the plaintiff. That on 3.7.1969, the plaintiff had demanded the rent, but at the instance of defendant No.2, defendant No.1 not only refused to pay the rent but also denied the title of the plaintiff. Therefore, the plaintiff filed the suit seeking the relief of declaration that the plaintiff was the owner of the suit property, for possession of the property and for mesne profits from the date of suit till the date of delivery.
3. Defendants 1 and 2 filed their common written statement and denied the plaint averments and denied the title of the -4- plaintiff. The said defendants contended that the suit property originally belonged to Shri Subramanya Mudaliar, who had executed a gift deed dated 20.4.1946 in favour of one Shri Niranjanaswamy for the purpose of instituting the idol of Shri Subramanya Swamy and to construct a shrine and an Ashrama and the property was to be utilized only for such purpose and to offer poojas at the temple and was not to be alienated to any third party for any reason and was not to be used for any materialistic purposes. Defendant No.2 was said to be a disciple of Shri Niranjanaswamy who took the initiative of collecting public donations and constructed the Ashrama and temple on the suit schedule property and he has been in possession of the suit property offering poojas at the temple, till the date of the suit. The defendants denied that Shri Niranjanaswamy had executed a gift deed in the year 1948. On the other hand, it was contended that he had no right to transfer any title. Karibasavaswamy had claimed that it was defendant No.2's efforts that enabled the carrying out of the donor's wish of the temple and an Ashrama being constructed on the suit -5- property. It was contended that Karibasavaswamy had nothing to do with the construction of the temple and Ashrama. It was defendant No.2 who had been managing and maintaining the properties as aforesaid. It is in this background that Karibasavaswamy having realized that he did not derive any title under the so called gift deed, dated 16.11.1948, executed by Niranjanaswamy, sought to execute a further gift deed dated 4.1.1957 in favour of defendant No.2 gifting the property over again to him. The said Karibasavaswamy, thereafter, in the month of July, 1960 had approached defendant No.2 and informed him that he could not have gifted the property to him as the original gift deed contained a clause imposing a restriction on such alienation and it was claimed that he induced defendant No.2 to execute a document dated 27.7.1960, the nature of which was not known to him, and it subsequently, transpired that it was indicated to be a reconveyance deed and on the same day, Karibasavaswamy executed another gift deed gifting a portion of the property to defendant No.2 and it is with these mischievous acts, that were committed by -6- Karibasavaswamy, he had issued legal notice demanding the rents from the defendants on the ground that the property was leased to them, which was suitably replied. It is thereafter that the property is said to have been sold to the plaintiff. When Karibasavaswamy himself did not have title to the suit property, there was no question of any transfer of title in favour of the plaintiff. Though several transactions were set up to claim the suit property, the possession of the defendants was never disturbed and they had continued in possession for more than 25 years prior to the suit and had therefore perfected their title by adverse possession. It was further claimed that the defendants had invested more than Rs.25,000/- for the improvement of the suit property and in case the plaintiff was to be held as the owner of the suit property, the defendants claimed that they shall be paid Rs.25,000/- spent for the improvement of the suit property, which was earlier undeveloped agricultural land at the time the property was originally gifted. By way of further amendment to the written statement, it was contended that it was not true that the suit -7- property belonged to Karibasava Rajendraswamy of Uravakonda; that he was never in possession of the property and he had not put up any construction. The property was incorrectly defined with a wrong survey number. The land gifted by Shri Subramanya Mudaliar was measuring East-West
- 125 feet and North-South - 76 feet and the present value of the entire property was about Rs.8 lakh and by 1958 the entire land bearing survey No.38/4 of North Taluk Yeshwanthpur Hobli, Kethamaranahalli Dakhle and the land bearing survey No. 39/4 had been acquired and defendant No.2, who was no more, was allowed to remain in possession and compensation was due in respect of the same. The property has now been assigned a new No.3379/40 by the local authority and further changed to 3379/a, b, c and all the lands have been acquired in 1958. But on the representation made by defendant No.2, the proceedings have been kept in abeyance an account of the present suit. Defendant No.1 is said to have obtained the certified copy of the acquisition proceedings, such as Gazette Notification, etc. It was also contended that the suit was not -8- maintainable in view of the acquisition proceedings of the year 1958. It was reiterated that the property was never sold to the plaintiff in the year 1969. It was further stated that Niranjanaswamy had died in the year 1975 and with the acquisition of the property, the plaintiff could not have derived any title through his vendor.
4. It is on these pleadings that the following issues were framed by the court below.
1. Was his Holiness Sri.Karibasavarajendra Swamigalu, the owner of the suit properties and had he leased the same in favour of defendant No.1 on a monthly rent of Rs.30/-?
2. Has the plaintiff become the owner of the suit properties under a registered sale deed, dated 17.4.69 executed by the above said his Holiness Sri.Karibasavarajendra Swamigalu?
3. Have the defendants perfected their title to the suit properties by adverse possession?
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4. Is the market value of the suit properties Rs.50,000/- (fifty thousand) on the date of suit and the court fee paid is not sufficient?
5. To what reliefs are the parties entitled?
6. Whether this Court has got the territorial jurisdiction to try this suit?
7. Whether the suit of the plaintiff is barred by period of limitation?
8. Whether the suit of the plaintiff is maintainable? Additional issues:
9. What is the correct survey number and the extent of the suit property?
10. Whether the 1st defendant proves that Sy. No.38/4 and 39/4 were acquired in 1958?
11. Whether the 1st defendant proves that the suit is not maintainable in view of the acquisition in 1985 and also in view of the order dated 28.2.1972 in Misc.Appeal No.51/72?
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5. The plaintiff tendered evidence through PWs.1 to 3 and marked Exs.P1 to P4, whereas the defendants tendered evidence through DWs.1 and 2 and marked Exs.D1 to D112.
6. The court below considering the issues 1 and 2 in finding whether the plaintiff had derived any title to the property, has concluded thus:
The sale deed in favour of the plaintiff was produced and marked as Ex.P2. The execution of the same is not disputed by the defendants. However, the defendants have disputed the transferable right of Karibasavarajendra Swamigalu and that Subramanya Mudaliar had gifted the property in favour of Niranjana Swamy under a registered gift deed dated 20.4.1946. The copy of which is marked as Ex.D9, which is also an admitted document and the court has observed that the contents of Ex.D9 indicate that it was gifted for a religious purpose and that the donee was required to construct a temple in dedication to Lord Subramanya Swamy and could be used only for the purpose of rendering poojas to the deity Subramanyaswamy
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and it was not to be used for any materialistic purposes nor could be sold to any third parties and the court has observed that there was no proprietary right granted to Niranjanaswamy under the said gift deed. There was no personal right conferred on Niranjanaswamy and he had no right of alienation and he could not deviate the property for any other purpose except to establish a temple and perform pooja and religious activities and build an Ashrama. Therefore, the court had concluded that it was not open for the plaintiff to contend that Niranjanaswamy had a transferrable right over the suit property and that he would not have transferred the same to Karibasavarajendra Swamy from whom the plaintiff claims to have derived the title to the suit property. The Court has also observed that Karibasavarajendra Swamy had executed a registered gift deed dated 4.1.1957 in favour of defendant No.2, which is marked as Ex.D11, wherein the Trial Court has observed that it was again indicated that the suit property shall not be used for any purpose other than the religious purpose as aforesaid. However, during the year 1960, the circumstance that Karibasavarajendra Swamy
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had sought to execute a reconveyance deed dated 27.7.1960 and simultaneously a gift deed in his favour dated 27.7.1960 marked as Exs.P3 and P4, respectively, having come into existence, were not capable of being enforced as the contents of Ex.D9 and the subsequent gift deed did not confer any proprietary right on Karibasavarajendra Swamy over the suit property and hence, he could not have conveyed the same in favour of the plaintiff under the registered sale deed dated 17.4.1969. Since the very nature of the property and the purpose for which, it was set apart did not permit lease of the property and since the plaintiff had not produced any documentary evidence that Karibasavarajendra Swamy had leased the suit property to defendant No.1, the court below has answered issues 1 and 2 in the negative.
7. The core dispute is this aspect of the matter, namely, "Whether the plaintiff's vendor had any proprietary right over the suit property which
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could have been conveyed under the sale deed under which the plaintiff claims?"
8. In this regard, the learned counsel for the appellant would point out that Ex.D9 is not disputed by the plaintiff or the defendants. In Ex.D9 executed by Subramanya Mudaliar in favour of Niranjanaswamy, the same is indicated as being a absolute gift of the entire property executed of his free will and volition. The donor had declared and divested of all right claimed by himself or his children of any right in the property and the property was free from all encumbrances and the possession of the same was handed over to the donee as well as the original sale deeds in respect of the same, while imposing condition that the donee shall use the property to construct a temple and an Ashrama in the name of Lord Subramanyaswamy and that he shall use the property only for the said purpose and he shall not alienate to any third party, while also indicating that there was an absolute gift made by the donor. This would be repugnant to and void in terms of
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Sections 10 and 11 of the Transfer of Property Act, 1982 (hereinafter referred to as 'the TP Act' for brevity). Therefore, it was possible for Niranjanaswamy, the donee to execute a gift deed in favour of Karibasavarajendra Swamy as referred to in Ex.D10. Insofar as Ex.D10 is concerned, it is a registered gift deed executed by Karibasavarajendra Swamy in favour of Poornanandaswamy - defendant No.2 herein. The said document Ex.D10 is again an unconditional gift deed, wherein in the gift deed there is no restriction on the alienation. It is reiterated that the property shall be used for the purpose of temple and Ashrama. However, Ex.P3, which is a registered deed executed by Poornanandaswamy of his free will and volition and Ex.P10 in favour of Karibasavarajendra Swamy and simultaneously a gift deed executed by Karibasavarajendra Swamy in favour of Poornanandaswamy - defendant No.2 in respect of the western half portion of the property as Ex.P4. It is pursuant to the same that Karibasavarajendra Swamy has executed the sale deed in favour of the plaintiff, dated 17.4.1969 marked as Ex.P2. Therefore, by operation of law,
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even though there was a condition imposed that the property shall be utilized only for the purposes of temple and Ashrama as afore stated and that it shall not be alienated, the restriction as to the alienation is void in law. In this regard, the learned counsel would draw attention of this Court to Sections 10, 11 and 12 of the TP Act, which are reproduced hereunder for ready reference.
"Section 10. Condition restraining alienation. - Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing off his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him:
provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.
Section 11. Restriction repugnant to interest created. - Where, on a transfer of property, an
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interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose off such interest as if there was no such direction.
Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.
Section 12. Condition making interest determinable on insolvency or attempted
alienation. - Where property is transferred subject to a condition or limitation making any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or endeavoring to transfer or dispose off the same, such condition or limitation is void.
Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him."
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He would also draw attention to Sections 31 and 126 of the TP Act, which are also extracted hereunder for ready reference.
"Section 31. Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen. - Subject to the provisions of Section 12, on a transfer of property an interest therein may be created with the condition superadded that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen. Section 126.- When gift may be suspended or revoked. - The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
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Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice."
9. By a conjoint reading of these provisions, it is contended that the condition of non-alienation imposed on the plaintiff's vendor, having been ignored in the light of the several transactions that have intervened between Ex.D9 and Ex.P2 - the sale deed in favour of the plaintiff, would reinforce the circumstance that it was consistent with the law as spelt out by the provisions as afore said. He would also submit that this is the consistent view that has been taken in similar circumstances with reference to the case law. He would emphasise that no doubt it was open for the donor to superadd a defeasance clause which would have taken care of any such violation of the condition by the donee, in the absence of which, in law, it was possible for the donee to alienate the property in the absence of a defeasance clause. The other clauses which are relevant would afford a right to the donee to alienate the property and therefore, the court below having held that there was an
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absolute restraint of alienation, is contrary to the legal position and inconsistent with the law as laid down in the several decisions relied upon. The learned counsel would seek to place reliance on the following authorities in support of his case.
(i) SMT.GOVINDAMMA AND ANOTHER vs. SECRETARY OF THE MUNICIPAL FIRST GRADE COLLEGE, CHINTAMANI AND ANOTHER, AIR 1987 KARNATAKA 227
(ii) JAGDEO SHARMA vs. NANDAN MAHTO AND OTHERS, AIR 1982 PATNA 32
(iii) MT.BRIJ DEVI vs. SHIVA NANDA PRASAD AND OTHERS, AIR 1939 ALLAHABAD 221
(iv) GIANI RAM NARSINGH vs. BHALMAK AND ANOTHER, 1956 PUNJAB 255 (AIR V 4 009 DEC)
(v) GORACHAND MUKHERJEE vs. SMT. MALABIKA DUTTA, AIR 2002 CALCUTTA 26
(vi) BHAVANI AMMA KANAKADEVI & ORS. vs. C.S.I DEKSHINA KERALA MAHA IDAVAKA, AIR 2008 KERALA 38
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(vii) SMT. LILAWATI AND OTHERS vs. FIRM RAM DHARI SURAJ BHAN AND ANOTHER, AIR 1971 PUNJAB & HARYANA 87
(viii) KANDHA DAS vs. INDUMATI DEVI, AIR 1970 ORISSA 215 (V 57 C 71)
10. Incidentally, the present appeal was disposed of by a judgment of this Court, dated 30.3.1999, whereby the appeal was allowed. However, the respondents having challenged before the Apex Court and decided in Civil Appeal No.3376/2001. By a judgment dated 22.1.2009, the Apex Court has opined that this Court had not examined the case in its proper perspective and has remanded the appeal with a direction to decide the same afresh after hearing the parties. It is also to be noticed that during the pendency of the appeal before the Supreme court, the plaintiff had died and the legal representatives have been brought on record. Similarly, defendant No.2 had also died and his legal representatives have been brought on record, which is again inexplicable in the light
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of the stand taken by defendant No.2 as to the nature of the property and the nature of right under which he was in possession of the property.
11. While, the learned counsel for the defendants/ respondents would seek to justify the judgment of the court below and would submit that the condition imposed that the suit property would be utilized for the sole purpose of establishing a temple for Lord Subramanyaswamy and to build an Ashrama, as well as, maintaining the same and performing poojas at the temple and not to utilise the property for any purpose or to alienate the same, was an absolute condition imposed. It was implied that there was no authority to alienate the property at all. The defeasance clause which the learned counsel for the plaintiff insists was absent, is to be read into the very condition and if there is a violation on the part of the donee to maintain the property as such, it would mean any other competent person would in that event, would be competent to carry on such duties. Since the donee failed to carry out the condition
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imposed and the duty cast on him, it was for his disciples or such other competent person to carry on the same and this is the spirit and object, which has weighed on the court below in accepting the case of the defendants that there was an absolute restraint on alienation and there was no proprietary right available to Karibasavarajendra Swamy to either gift or sell the suit property and the several transactions engineered in terms of Exs.D10, P2, P3 and P4, would be a nullity, void ab initio and nonest in law and would convey no right whatsoever for the plaintiff to claim any right under Ex.P2 and would therefore seek to justify the judgment of the court below.
12. In the light of the above contentions, Ex.D9 which is the original gift deed in respect of the suit property by the donor or the original owner of the property in favour of Niranjanaswamy, on a plain reading, would indicate that it certainly has imposed a condition that the donee should establish a temple and an Ashrama to utilise the property for the sole purpose of the temple and an Ashrama. However this is
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not followed with a clause, that in the event of such failure as to what is the consequence that should follow. Therefore, if the document on a plain reading is to be treated as an absolute gift deed with a condition imposed, as rightly contended by the learned counsel for the appellant on a strict interpretation of law, the condition would be void and would have to be ignored. The temple or the Ashrama were not in existence in order to conclude that the property was endowed in favour of the temple and Ashrama and could be utilized only for the said purpose and could not be alienated in favour of any third party. Therefore, the gift deed having been executed by Niranjanaswamy in favour of Karibasavarajendra Swamy, which is in the year 1948, it is referred to in Ex.D10 executed in the year 1957 by Karibasavaswamy in favour of Poornanandaswamy and the subsequent execution of Exs.P3 and P4 and finally Ex.P2 in favour of the plaintiff are all transactions which are not hit by any such restraint of alienation. This would be the position that would emanate from the decided cases which are relied upon by the learned counsel
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for the appellant. Insofar as the pleadings are concerned, the same are found wanting insofar as the defendants are concerned. The defendants have gone to the extent of contending that the defendants have perfected their title by adverse possession. This would defeat their claim as such a plea is only possible if they admit the ownership of the plaintiff to set up a plea of adverse possession against the plaintiff or his vendor. Further the defendants also pleading that in the event the plaintiff should succeeded, thereby indicating that they were not definite about their case as to the plaintiff having right or title have even claimed a quantified amount as damages payable to them in a sum of Rs.25,000/-. Therefore, the pleadings would be self-defeating. The learned counsel for the defendants claiming that the plea is only in the alternative, is again not tenable. Though the defendants are entitled to take inconsistent pleadings, the same should not cancel out each other. The inconsistent pleadings should be mutually exclusive and should be capable of being sustained, notwithstanding that they are inconsistent with each other. This was not forthcoming insofar
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as defendants' stand is concerned. Therefore, though the Supreme Court has directed that this Court should examine the entire evidence and thereafter arrive at its findings, having regard to the facts and circumstances of the case, this is not warranted as the entire case turns on the findings on issues 1 and 2 which have been sufficiently addressed in the opinion of this Court. Therefore, the appeal succeeds. The judgment of the court below is set aside. The suit is decreed as prayed for.
13. The learned counsel for the appellant would submit that to give a quietus of the proceedings, he would give up his right for the mesne profit. He would file a memo in this regard and the same is placed on record.
Sd/-
JUDGE AHB