Karnataka High Court
A Shivaprasad S/O. Late A Rudrappa vs Smt A Sheelvanthi W/O. Ramesh Patil on 12 August, 2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 12th day of August, 2014
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Regular Second Appeal 5165 / 2012
Between
A Shivaprasad S/o late A Rudrappa
70 yrs, Agriculturist, R/o Sandur Town
Bellary District - by his PA holder
A Niranjan S/o A Shivaprasad
35 yrs, Agriculturist R/o Sandur Town
Bellary District Appellant
(By Sri V M Sheelvant, Adv.)
And
1 Smt A Sheelvanthi W/o Ramesh Patil
61 yrs, R/o K J Nagara, Hospet Town
Bellary District
2 B Rajendra Kumar Jain, 47 yrs
S/o Vans Raj Jain, Cloth Merchant
R/near Old Bus-Stand, Sandur
Bellary Respondents
(By Sri Harsh Desai, Adv.)
2
Second Appeal is filed under S.100 r/w O 41, R 1, CPC praying
to set aside the judgment dated 3.11.2011 in RA 75/2009 by the Fast
Track Court III, Hospet and the judgment dated 2.3.2009 in OS
10/2006 by the Civil Judge (Sr.Dvn.), Kudligi.
Second Appeal coming on for Admission this day, the Court
delivered the following:
JUDGMENT
Second appeal is by the plaintiff against the judgment and decree passed by both the courts below Is OS 10/2006 and RA 75/2009 rejecting the preferential right of the plaintiff over the suit schedule property.
It appears defendant had been gifted with a property by her father with certain conditions that is, in the form of condition subsequent, that it was a gift making her the become absolute owner in the event of a child being born to her or else she is only a trustee for lifetime and thereafter, property has to be returned to the donor. It appears, suit property has been sold by the defendant in favour of the purchaser who is the 2nd respondent herein. It also appears, soon after the property is sold in favour of the purchaser by the defendant daughter, present suit is filed raising various grounds that there was a 3 clog in the selling of the property by 1st defendant in favour of 2nd defendant as she did not beget any child and she did not become the absolute owner as such, the property sold in favour of 2nd defendant is only a void transaction. The stand taken by the plaintiff is, property was gifted with a condition, since the condition has not happened, it has to be treated as a conditional gift and accordingly, contended that the dismissal of the suit by the trial court and confirmation of the said suit in appeal is totally against the basic tenets and against the condition stipulated and thus, prayed for allowing the appeal contending that there arises a substantial question of law under S.22 of the Hindu Succession Act as per the preferential right to acquire the property in certain cases.
Per contra, respondents' counsel submitted, prior to executing a gift deed there was a relinquishment deed by the father of the defendant as such, question of preferential right does not arise. By the time property was gifted, the joint family status was disrupted and plaintiff being the son of the original donor, when the property was donated in favour of the defendant, preferential right cannot be opted 4 or provided as per S.22 of the Hindu Succession Act as there is no joint status of the property at the time of gifting away the property by the father to the daughter.
The reasoning given by the lower appellate court is, originally the suit property was owned by the mother of the 1st defendant, the suit property was not owned by the father of the plaintiff. The mother has gifted the property and property was not inherited by the plaintiff. Having regard to the nature of the property that too the gift is by the mother in favour of the daughter, question of exercising preferential right much less when the property is not inherited by the plaintiff does not arise. The 1st defendant had acquired right over the property by virtue of the gift deed but any of the condition provided therein either happening or not happening of such an event would be of no consequence. Even assuming that such a right could have been exercised provided the property would have been inherited by the father through succession, things would have been different. The gift of property by the mother is a different aspect. In the circumstances, enforcement of the right alleged to have created to the plaintiff under 5 S.22 of the Hindu Succession Act is not arising out of succession since this property is available with the mother of the 1st defendant over which the plaintiff cannot exercise his right.
Appeal is dismissed as no substantial question of law arises for consideration.
Sd/-
Judge An