Karnataka High Court
Sri Rudrappa S/O Late Kalappa vs C N Malleshappa S/O Late Ningappa on 10 October, 2023
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NC: 2023:KHC:37670
RSA No. 2835 of 2007
C/W RSA No. 2836 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 2835 OF 2007
(DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 2836 OF 2007
IN RSA No.2835 OF 2007
BETWEEN:
1. SRI RUDRAPPA
S/O LATE KALAPPA
SINCE DECEASED BY HIS LR'S
1A. SRI. C.R. KALLESHAPPA
S/O LATE S. RUDRAPPA
AGED ABOUT 49 YEARS
1B. SRI. C.R. RAJASHEKARAPPA
Digitally signed
by R DEEPA S/O LATE S. RUDRAPPA
AGED ABOUT 46 YEARS
Location: High
Court of
Karnataka 1C. SRI. C.R. SHASHIKUMAR
S/O LATE S. RUDRAPPA
AGED ABOUT 38 YEARS
1D. SMT. C.R. PUTTAMMA
D/O LATE S. RUDRAPPA
AGED ABOUT 54 YEARS
1E. SMT. SHARADAMMA
D/O LATE S. RUDRAPPA
AGED ABOUT 52 YEARS
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NC: 2023:KHC:37670
RSA No. 2835 of 2007
C/W RSA No. 2836 of 2007
1F. SMT. LALITHA
D/O LATE S. RUDRAPPA
AGED ABOUT 45 YEARS
ALL ARE RESIDENTS OF
CHIKKANALLUR
KADUR TALUK
CHIKKAMAGALUR DISTRICT.
...APPELLANTS
(BY SRI. RAMA MOHAN & ASSOCIATES)
AND:
1. C N MALLESHAPPA
S/O LATE NINGAPPA
AGED ABOUT 51 YEARS
2. C N THIPPESH
S/O LATE NINGAPPA
AGED ABOUT 49 YEARS
3. SRI C N PARAMESHWARAPPA
S/O LATE NINGAPPA
AGED ABOUT 45 YEARS
AGRICULTURIST
ALL ARE R/O CHIKKANALLUR VILLAGE AND POST
HIRENALLUR HOBLI, KADUR TALUK
CHIKKAMAGALUR DIST.
...RESPONDENTS
(BY SRI. N.S. SHESHADRI, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 16.8.07 PASSED IN R.A.NO
3/07 ON THE FILE OF THE CIVIL JUDGE, (SR.DN), AND JMFC.,
KADUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DTD 22.12.06 PASSED IN OS
71/02 ON THE FILE OF THE PRL. CIVIL JUDGE, (JR.DN),
KADUR.
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NC: 2023:KHC:37670
RSA No. 2835 of 2007
C/W RSA No. 2836 of 2007
IN RSA No.2836 OF 2007
BETWEEN:
1. SRI RUDRAPPA
S/O LATE KALAPPA
SINCE DECEASED BY HIS LR'S
1A. SRI. C.R. KALLESHAPPA
S/O LATE S. RUDRAPPA
AGED ABOUT 49 YEARS
1B. SRI. C.R. RAJASHEKARAPPA
S/O LATE S. RUDRAPPA
AGED ABOUT 46 YEARS
1C. SRI. C.R. SHASHIKUMAR
S/O LATE S. RUDRAPPA
AGED ABOUT 38 YEARS
1D. SMT. C.R. PUTTAMMA
D/O LATE S. RUDRAPPA
AGED ABOUT 54 YEARS
1E. SMT. SHARADAMMA
D/O LATE S. RUDRAPPA
AGED ABOUT 52 YEARS
1F. SMT. LALITHA
D/O LATE S. RUDRAPPA
AGED ABOUT 45 YEARS
ALL ARE RESIDENTS OF
CHIKKANALLUR
KADUR TALUK
CHIKKAMAGALUR DISTRICT.
...APPELLANTS
(BY SRI. RAMA MOHAN & ASSOCIATES)
AND:
SRI. C N PARAMESHWARAPPA
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NC: 2023:KHC:37670
RSA No. 2835 of 2007
C/W RSA No. 2836 of 2007
S/O LATE NINGAPPA
AGED ABOUT 44 YEARS
AGRICULTURIST
R/O CHIKKANALLUR VILLAGE AND POST
HIRENALLUR HOBLI,
KADUR TALUK
CHIKKAMAGALUR DIST.
...RESPONDENT
(BY SRI. N.S. SHESHADRI, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 16.8.07 PASSED IN R.A.NO
4/07 ON THE FILE OF THE CIVIL JUDGE, (SR.DN), AND JMFC.,
KADUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DATED 22.12.06 PASSED IN OS
89/02 ON THE FILE OF THE PRL. CIVIL JUDGE, (JR.DN),
KADUR.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These second appeals are filed by the appellant challenging the common judgment and decree dated 16.08.2007, passed in R.A.No.3/2007 and R.A.No.4/2007 by the Civil Judge (Sr.Dn.) and JMFC, Kadur, confirming the common judgment and decree dated 22.12.2006 passed in O.S.Nos.71/2002 and 89/2002 by the Principal Civil Judge (Jr.Dn.) and JMFC, Kadur.
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff and respondents are the defendants.
3. In O.S.No.71/2002, plaintiff filed the suit for the reliefs of declaration, permanent injunction and alternatively for possession. It is the case of the plaintiff that one Sri.Sannakallanna @ Sannakallappa was the original propositus of the plaintiff's family. He died about 60 years back leaving behind his three sons namely Kallappa, Ningappa and Rudrappa. During the life time of Sannakallanna there was no partition effected between him and his three sons. They constituted a joint Hindu undivided family under Mitakshara. Kallanna had three sons namely Rudrappa (Plaintiff), Nanjapppa and Basvarajappa. Nanjappa and Basavarajappa are no more. Ningappa had a son by name Marulasiddappa. Rudrappa s/o Sannakallappa died unmarried. It is the case of the plaintiff that the suit schedule properties are the ancestral -6- NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 properties of the plaintiff. After the death of plaintiff's grandfather namely Sannakallappa and his father and two brothers, the plaintiff and Marulasiddappa are in joint peaceful possession and enjoyment over the suit schedule properties. The plaintiff is cultivating the suit schedule properties without any interference from anybody. The defendants have no concern over the suit schedule properties. Even then, the defendants are trespassing and disturbing the plaintiff's peaceful possession. The defendants are making hurried attempts to dispossess the plaintiff from the suit schedule properties. It is contended that the plaintiff's father executed the registered gift deed in favour of defendants' father viz., Ningappa. The plaintiff's father has no right to execute the gift deed in respect of suit schedule properties in favour of Ningappa, as the suit schedule properties are the ancestral and undivided joint family properties of the plaintiff. The gift deed executed by his father is not binding on the plaintiff. It is contended that there is no provision under the Hindu -7- NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 law that the father can transfer the ancestral properties. Hence, prays to decree the suit.
4. The defendant No.3 filed written statement, denying the plaint averments, but admitted the relationship between the parties. It is contended that the propositus had begotten daughter namely Kallamma, the plaintiff has not arrayed her as a party in the suit. Hence, the suit is not maintainable for non-joinder of necessary party. It is denied that there is no partition effected between the propositus and his sons. It is contended that during the lifetime of propositus, Sri. Sannakallappa effected the partition among his sons and performed the marriage of his daughter with one Bommanna. In the year 1940, the father of plaintiff was unmarried. Before his marriage he had gifted his property in favour of Ningappa s/o Bommanna under the registered gift deed dated 10.07.1940 and delivered the possession of the suit schedule properties. Brothers of plaintiff's father namely Ningappa and Rudrappa are also signatory to the -8- NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 registered gift deed. Khata was changed in the name of Ningappa, Ningappa died leaving behind his legal heirs i.e., defendants. Defendants got partitioned their father's property among themselves on 15.03.1985 under "Jubani" partition. The plaintiff was not born as on the date of execution of registered gift deed.
5. It is contended that the defendants are the absolute owners in lawful possession and enjoyment of the suit schedule properties. There is no cause of action to file the suit. Further it is contended that the suit filed by the plaintiff is barred by the limitation as the registered gift deed was executed in the year 1940 and suit was filed in the year 2002. Further contended that the plaintiff has no locus-standi to challenge the gift deed executed by his father prior to his birth. The defendants have also filed additional written statement contending that the plaintiff has no right, title or interest over the suit schedule property and pray to dismiss the suit. The defendant -9- NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 Nos.1 and 2 have filed a memo adopting the written statement of defendant No.3.
6. Defendant No.3 in O.S.No.71/2002 filed a suit for relief of permanent injunction against the plaintiff in O.S.No.89/2002. It is the case of the plaintiff in O.S.No.89/2002 that the plaintiff is the absolute owner and in lawful possession and enjoyment over the suit schedule properties. Khata stands in his name and he is paying tax to the government regularly. There was a ORAL partition between the plaintiff and his brother in the year 1985. In the said partition, suit schedule properties are allotted to his share. At the time of partition, khata of suit properties stood in the name of Ningappa. Ningappa died in the year 1987. After the death of Ningappa and with the consent of mother of the plaintiff i.e., Sakamma, khata of the suit properties were changed in the name of plaintiff as per palu parikath vide M.R.No.7/01/02. The defendants have no manner of right, title or interest over the suit schedule properties, but they are making hurried
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 attempts to trespass into the suit schedule properties and trying to obstruct and interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule properties. Defendant No.1 filed a suit in O.S.No.71/2002 against the plaintiff and two other brothers. It is contended that the defendant No.1 has no locus standi to file the suit. Plaintiff requested the defendants not to trespass into the suit schedule properties , but the defendants have not given any heed to the request made by the plaintiff. Hence, the cause of action arose for the plaintiff to file the suit and prays to decree the suit.
7. Defendant No.1 in O.S.No.89/2002 filed written statement denying the averments made in the plaint in said suit and further reiterated the plaint averments in O.S.No.71/2002 in the written statement and prays to dismiss the suit.
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007
8. The Trial Court clubbed both the suits and on the basis of pleadings of the parties, framed the following issues and additional issues in O.S.No.71/2002:
1. Whether plaintiff proves that the suit schedule properties are the joint family properties of himself and the defendants?
2. Whether the plaintiff proves that the suit schedule properties are in possession of the plaintiff as on the date of filing of the suit?
3. Whether the plaintiff proves that the defendants are interfering in the peaceful possession and enjoyment of the suit schedule properties?
4. Whether the plaintiff is entitled to the relief of possession?
5. Whether this Court has pecuniary jurisdiction to try the suit?
6. Whether the court fee paid by the plaintiff is sufficient?
7. Whether the plaintiff is entitled to the reliefs sought for?
8. What order?
Additional Issues
1. Whether the plaintiff proves that the suit is maintainable either in law or on facts?
2. Whether the plaintiff proves that the suit is within the limitation?
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3. Whether the plaintiff prove that the registered Gift Deed dated 10.07.1940 executed by the father of the plaintiff in favour of the father of the defendant is not binding on the plaintiff? Issues in O.S.No.89/2002:
1. Whether plaintiff proves that he is in peaceful possession and enjoyment over suit property?
2. Whether plaintiff proves that the defendants are causing obstruction to their peaceful possession and enjoyment of suit property?
3. Whether plaintiff is entitled for the reliefs sought for?
4. What order or decree?
9. The plaintiff in order to substantiate his case examined himself as PW.1 and examined 1 witness Marulasiddappa as PW.2 and got marked 10 documents as Ex.P.1 to P.10. The defendant No.3 got examined as DW.1 and examined 2 witnesses as DW.2 and DW.3 and got marked 28 documents Ex.D.1 to Ex.D.28. The Trial Court considering the oral and documentary evidence answered issue Nos.1 to 4, 6 and additional issue No.3 in the affirmative and issue Nos.5 was deleted, issue No.7 and 8, additional issue Nos.1 and 2 in the negative in
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 O.S.No.71/2002 and issue Nos.1 to 3 in the affirmative and issue No.4 as per final order in O.S.No.89/2002.
10. The Trial Court vide common judgment dated 22.12.2006 dismissed the suit in O.S.No.71/2002 and decreed the suit in O.S.No.89/2002. The plaintiff i.e., Rudrappa aggrieved by the common judgment passed in the O.S.Nos.71/2002 and 89/2002 preferred the appeals in R.A.No.3/2007 and R.A.No.4/2007.
11. The First Appellate Court clubbed both the appeals and after hearing the parties, has framed the following points for consideration in R.A.No.3/2007:
1. Whether the plaintiff in OS.No.71/2002 viz, Rudrappa proves that the suit schedule properties are his ancestral joint family properties and that he is in possession of the same as on the date of filing of the suit?
2. Whether the plaintiff proves that the registered gift deed dated 10.07.1940 executed by his father is not binding upon him?
3. Whether the plaintiff proves that the suit is filed within the limitation period?
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4. Whether the plaintiff is entitled to reliefs claimed?
5. Whether the appellant proves that the judgment and decree passed by the lower court is capricious and perverse and it should be interfered with?
6. What order?
Points in R.A.No.4/2007.
1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit property and defendant had obstructed him?
2. Whether the plaintiff proves that the judgment and decree of the lower court is carpricious and perverse and it should be interfered with?
3. What Order?
12. In R.A.No.3/2007, the First Appellate Court, on re-appreciating the oral and documentary evidence, answered point Nos.1 to 5 in the negative and in R.A.No.4/2007 answered point Nos.1 and 2 in the negative. The First Appellate Court consequently dismissed the appeals filed by the plaintiff-Rudrappa vide common judgment dated 16.08.2007.
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007
13. The said Rudrappa i.e., plaintiff aggrieved by the judgments and decrees passed by the Courts below, preferred these second appeals.
14. This Court vide order dated 08.01.2010 framed the following substantial question of law in RSA No.2836/2007:
"Whether the father of the deceased appellant was competent to gift the ancestral property in favour of his nephew and whether the First Appellate Court could have held that the respondent herein was entitled to an order of injunction merely on the basis of the revenue entries pursuant to the gift deed, which according to the appellant was void."
15. Due to typographical error instead of typing as nephew it is wrongly typed as brother-in-law in the substantial question.
16. Heard the learned counsel for the parties.
17. Learned counsel for the appellant submits that the father of the appellant had no right to execute the gift
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 deed in favour of father of defendant No.1. He submits that the suit schedule properties are the ancestral properties of the plaintiff and he further submits that as per Article 258 of Mulla's Hindu Law, 16th Edition, if at all if the father wants to alienate the property he should make a gift of his interest with the consent of the other coparceners and he submits that in the instant case, without obtaining the consent of other coparceners, father of the plaintiff gifted the suit schedule properties in favour of the father of defendants. The father of the defendants has not acquired any right, title or interest over the suit schedule properties.
18. Further in order to buttress his arguments, he has placed reliance on the judgment of this Court in the case of SMT.PILLA AKKAYYAMMA AND ANOTHER VS. CHENNAPPA SINCE DECEASED THOUGH LRS rendered in RSA.No.1015/2011 disposed of on 22.07.2015 and also placed reliance on the judgment passed in RFA No.1906/2015 in the case of N.NARAYANASWAMY
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NC: 2023:KHC:37670
RSA No. 2835 of 2007
C/W RSA No. 2836 of 2007
SINCE DECEASED THROUGH LRS Vs.
M.NARAYANAPPA disposed of on 09.12.2020 and also judgment of the Hon'ble Apex Court in the case of K. BALAKRISHNAN Vs. K. KAMALAM AND OTHERS, reported in AIR 2004 SC 1257. He submits that the courts below have committed an error in passing the impugned judgments. Hence, on these grounds, he prays to allow the appeals.
19. Per contra, the learned counsel for the respondents submits that as on the date of execution of registered gift deed the father of the plaintiff/appellant was unmarried and there were no other coparceners. Hence, question of obtaining the consent from the other coparceners would not arise. He submits that the plaintiff was not born on the date of execution of registered gift deed. Hence, plaintiff has no locus standi to challenge the gift deed executed by his father, in favour of father of the defendants/respondents in the year 1940 and he further contends that though the registered gift deed was
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 executed in the year 1940, the plaintiff had filed the suit in the year 2002. Hence, the suit filed by the plaintiff is barred under Article 109 and also Article 60 of the Limitation Act. In order to substantiate his arguments he has placed reliance on the judgment of the Hon'ble Apex Court in the case of UTTAM Vs. SAUBHAG SINGH & ORS reported in CIVIL APPEAL No.2360/2016. Hence, on these grounds, prays to dismiss the appeal.
20. Perused the records and considered the submissions of learned counsel for the parties.
21. It is the case of plaintiff i.e., Rudrappa in O.S.No.71/2002 that the suit schedule properties are the ancestral properties of the plaintiff and further it is contended that the father of the plaintiff had no right to gift the suit schedule properties in favour of the father of defendants as the suit schedule properties are the ancestral properties. The registered gift deed executed by father of the plaintiff in favour of father of defendant is
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 null and void. In support of his case, the plaintiff was examined as PW-1 and reiterated the plaint averments in the examination-in-chief and produced Ex.P1 is the Genealogical tree; Ex.P.2 is the RTC extract in respect of land bearing survey No.61/1B stands in the name of Ningappa S/o Bommanna; Ex.P.3 is the RTC extract in respect of land bearing survey No.72/3P stands in the name of Ningappa; Ex.P.4 is the copy of index of lands in respect of survey No.79/2, 79/2A, 79/2B stands in the name of Sannakallappa. From the perusal of Ex.P.4, the said lands are the ancestral properties, which stood in the name of Sannakallappa. Sannakallappa died leaving behind his 3 children namely, Kallappa @ Kallanna, Ningappa and Rudrappa. Kallappa had 3 sons i.e., plaintiff- Rudrappa, Nanjappa and Basavarajappa. Nanjappa and Basavarajappa are no more.
22. In the course of cross examination, PW.1 admits that his grandfather had 3 sons and 2 daughters. The said daughters are Kallamma and Mallamma.
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 Kallamma married to one Bommanna, father of the defendants i.e., Ningappa is the only son of the Kallamma and Bommanna. PW.1 stated that he do not know, when Bommanna died and he further stated that at the time of filing of the suit he was aged about 60 years. He admits that every year he used to verify the documents and the said documents are in the names of Bommanna. He admits that his father had gifted the suit properties to Ningappa and delivered the possession of the suit schedule properties. He has denied that Ningappa was in possession of the suit schedule properties and after his death, his legal representatives are in possession of the suit schedule properties. He has denied that the records stands in the name of defendants and defendants are paying the land revenue in respect of suit schedule properties. Further, the plaintiff has examined Marulasiddppa as PW.2, he has deposed that after the death of his father Ningappa, there is no partition in the family and the suit schedule properties are in possession of himself and the plaintiff and they are the ancestral
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 properties. During the course of cross examination, PW.2 has admitted that Kallamma's husband Bommanna died at the young age and Ningappa was the son of Kallamma and Bommanna. He denied that Kallappa had executed the registered gift deed in favour of said Ningappa i.e., s/o Kallamma.
23. From the perusal of the records, the plaintiff was not born when Kallappa executed registered gift deed as per Ex.P.11. Further, as per Article 254 of Mulla on Hindu Law, which reads as under:
254: Alienation by father: A Hindu father as such has special powers of alienating coparcener property, which no other coparcener has. In the exercise of these powers in may
(i) make a gift of ancestral movable property to the extent mentioned in article 223 of Mulla on Hindu Law, and even the ancestral immovable property to the extent mentioned in article 224 Mulla on Hindu Law.
24. Admittedly, the suit schedule properties are the ancestral properties, but as on the date of execution of
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 registered gift deed, the father of plaintiff was unmarried and further as per the Hindu law, if at all father wants to gift ancestral properties, he has to seek the consent of other coparceners. In the instant case as observed above, the plaintiff was not born as on the date of execution of registered gift deed and there were no coparceners. Further, brothers of father of the plaintiff i.e., Ningappa and Rudrappa were alive, but they did not raised any objections. Further Ningapa and Rudrappa also signed as a witness to the registered gift deed. Father of the plaintiff has taken the consent of his brothers i.e., Ningappa and Rudrappa , who have fixed their signature on Ex.P.11 i.e., registered gift deed and further Ningappa and Rudrappa have not challenged the registered gift deed executed by Kallappa in favour of the father of defendants. Question of taking the consent from the coparceners to execute the registered sale deed would not arise.
25. Article 258 of Mulla's Hindu Law, 16th Edition states that "According to Mitakshara Law, as applied in all
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 the States, except West Bengal, no coparcener can dispose of his undivided interest in coparcenary property by gift, such transaction being void altogether there is no estoppel of other kind which precludes the donor from asserting his right to recover the transferred property. A gift may be made of his own share with consent of other coparceners".
26. If at all, the father wants to dispose of the property by gift he should make a gift of his own share with the consent of other coparceners. In the instant case, as the father of the plaintiff was unmarried and his brothers Ningappa and Rudrappa have signed on Ex.P.11 and there were no coparceners as on the date of execution of the registered gift deed by Kallappa. Hence, question of taking consent from the other coparceners would not arise.
27. The said registered gift deed was registered. As per Section 3 of the Transfer of property Act, 1882, envisage that a notice is an information letter that be expressed or implied for the communication related to the
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 transfer of properties. Admittedly as observed above, the said document was registered in the year 1940, i.e., prior to the birth of the plaintiff. Further, the plaintiff in the course of cross examination have admitted that he used to verify the records every year. Further if the said contention is accepted, on the basis of the registered gift deed, the name of the father of defendants was entered in the revenue records. After his death, names of the defendants were entered in the revenue records. The plaintiff did not challenge the registered gift deed within three years.
28. Article 109 of the Limitation Act, 1963 (for short 'the Act of 1963') provides for limitation to file a suit to set aside the alienation of ancestral properties made by father which reads as under:
109 Description of suit Period of Time from which limitation period begins to run By a Hindu governed Twelve When the alienee by Mitakshara law to years takes possession of set aside his father's the property alienation of ancestral property.
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29. The period of limitation is 12 years to file a suit by a Hindu governed by Mitakshara law to set aside his father's alienation of ancestral property and time from which the limitation period begins to run is when the alienee takes possession of the property.
30. Admittedly, the gift deed was executed on 10.07.1940 and the possession was delivered in favour of father of the defendants. The plaintiff has filed a suit in the year 2002. As on the date of filing a suit, the plaintiff was aged about 60 years. The plaintiff did not choose to file a suit within 12 years from the date of alienee takes possession of the suit schedule properties. The suit filed by the plaintiff is barred by limitation.
31. Further, as per Article 60 of the Act, 1963, which reads as under:
Description of suit Period of Time from which 60 limitation period begins to run To set aside a transfer of property made by the guardian of a ward-
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(a) by the ward who Three years When the ward has attained attains majority.
majority.
(b) by the ward's legal representative-
Three years
(i) When the ward When the ward
dies within three attains majority.
years from the date
of attaining
majority.
Three years
(ii) When the ward When the ward dies.
dies before attaining
majority.
32. Admittedly, the plaintiff has filed a suit when he was aged about 60 years. He has not filed the suit within 3 years after attaining the age of majority. Further, on the date of execution of the registered gift deed, he was unborn and hence, the plaintiff has no locus standi to challenge the registered gift deed executed by his father infavour of the father of the defendants.
33. The plaintiff in O.S.No.89/2002 filed a suit for permanent injunction contending that on the strength of the registered gift deed, the father of the plaintiff was in possession of the suit properties and after his death, the
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 plaintiff is in possession of the suit schedule properties. Further, the plaintiff in O.S.No.89/2002, in order to prove the possession of the suit properties, examined himself as DW.1 and also examined two witnesses as DW.2 and DW.3 and further, produced the records in respect of the suit schedule properties. From the perusal of the RTC extracts, it discloses that the name of the plaintiff in O.S.No.89/2022 is appearing in revenue records in column Nos.9 and 12. The plaintiff in O.S.No.71/2002 has not challenged the revenue entries in the name of the defendants in O.S.No.71/2002. There is a presumption in regard to the entries in the revenue records under Section 133 of the Karnataka Land Revenue Act, 1954. The plaintiff in O.S.No.71/2002 has not rebutted the presumption. From the perusal of the record it discloses that the defendants in O.S.No.71/2002 are in possession and enjoyment of the suit schedule properties. The defendants are also produced the registered gift deed executed by the father of the plaintiff in favour of the father of the defendants marked as Ex.D8 and on the
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 strength of Ex.D8, the defendants' father's name was entered in the revenue records and after the death of Ningappa, i.e., father of defendants, the properties were transferred in the name of the defendants in O.S.No.71/2002.
34. As observed above, the father of the plaintiff in O.S.No.71/2002 gifted the ancestral properties in favour of his nephew i.e., Ningappa and further, the First Appellate Court placing a reliance on the Ex.D8 and also revenue records, stood in the name of the defendants in O.S.No.71/2002 has rightly granted the decree for permanent injunction in O.S.No.89/2002.
35. In the instant case, the plaintiff was unborn as on the date of execution of the registered gift deed. Hence, gift deed executed by father of plaintiff in favour of the father of defendants is valid and not void. The father of plaintiff was competent to execute registered gift deed in favour of father of defendants in respect of properties fallen to his share. The Revenue records are in the name
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NC: 2023:KHC:37670 RSA No. 2835 of 2007 C/W RSA No. 2836 of 2007 of respondents/defendants. The respondents/defendants produced records to establish possession over suit schedule properties. In view of above discussion, I answer substantial question in the affirmative.
36. Both the Courts below have properly considered the material on record and rightly passed the impugned judgments and decrees. Hence, I do not find any grounds to interfere with the impugned judgments and decrees. Accordingly I proceed to passing following:
ORDER The appeals filed by the appellant are dismissed.
Consequently, the judgments and decrees passed by both the Courts below are confirmed.
No order as to the costs.
Sd/-
JUDGE sks, ssb