Karnataka High Court
Sri. B N Rajendra vs Smt. Suma on 31 January, 2025
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2025:KHC:4461-DB
RFA No. 1120 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.1120 OF 2020 (PAR/POS)
BETWEEN:
1. SRI B. N. RAJENDRA
S/O. LATE B. NARAHARI RAO
AGED ABOUT 61 YEARS
2. SMT. GEETHA RAJENDRA
W/O. SRI B. N. RAJENDRA
AGED ABOUT 56 YEARS
BOTH ARE RESIDING AT
NO.459, 44TH CROSS
8TH BLOCK, JAYANAGAR
BENGALURU - 560 032.
...APPELLANTS
(BY SRI SHARATH N., ADVOCATE AND
SRI ARUN KUMAR B., ADVOCATE)
Digitally signed by
MOUNESHWARAPPA AND:
NAGARATHNA
Location: HIGH
COURT OF
KARNATAKA 1. SMT. SUMA
W/O. SRI V. MANJUNATHA
AGED ABOUT 60 YEARS
R/O. NO.461, 12TH CROSS
WILSON GARDEN
BENGALURU - 560 027.
2. SMT. PRABHA AMARNATH
W/O. SRI M. S. AMARNATH
AGED ABOUT 71 YEARS
R/O. NO.75, 34TH MAIN, 17TH CROSS
6TH PHASE, J. P. NAGAR
BENGALURU - 560 076.
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NC: 2025:KHC:4461-DB
RFA No. 1120 of 2020
3. SMT. SUDHA
W/O. LAKSHMAN RAO
AGED ABOUT 69 YEARS
R/O. AIF 9/3, SRHS BDA FLAT
SARASWATHIPURA NANDHINI LAYOUT
BENGALURU - 560 096.
4. SRI B. N. SUDHINDRA
S/O. LATE NARAHARI RAO
AGED ABOUT 66 YEARS
R/O. NO.P-219, 10TH SECTOR
LIC COLONY JEEVAN BHIMA NAGAR
BENGALURU - 560 075.
5. SRI B. N. RAVIKUMAR
S/O. LATE NARAHARI RAO
AGED ABOUT 64 YEARS
R/O. NO.752, 46TH CROSS
8TH BLOCK, JAYANAGAR
BENGALURU - 560 032.
6. SMT. B. N. KOWSALYAMMA
SINCE DEAD HER LR'S ARE ALREADY ON RECORD
7. SMT. B. N. JAYASHREE
SINCE DEAD HER LR'S ARE ALREADY ON RECORD
8. SRI B. N. MUKUNDA
S/O. LATE NARAHARI RAO
AGED ABOUT 55 YEARS
R/O. NO.459, 44TH CROSS
8TH BLOCK, JAYANAGAR
BENGALURU - 560 032.
...RESPONDENTS
(BY SRI RAJARAMA S., ADVOCATE FOR R-1 TO R-5 AND R-8;
VIDE ORDER DATED 6/7/2021,R-1 TO R-5 AND R-8 AND
APPELLANTS 1 AND 2 ARE TREATED AS LR's OF R-6)
VIDE ORDER DATED 1/9/2022, APPEAL AGAINST R-7
DISMISSED)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41
RULE 1 OF C.P.C., 1908 AGAINST THE JUDGMENT AND DECREE
DATED 10.02.2020 PASSED IN O.S. NO.1413/2016 ON THE FILE OF
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NC: 2025:KHC:4461-DB
RFA No. 1120 of 2020
THE XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
THIS REGULAR FIRST APPEAL, HAVING BEEN HEARD AND
RESERVED ON 16.01.2025 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, VENKATESH NAIK T., J, PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE VENKATESH NAIK T
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE VENKATESH NAIK T) This appeal is filed by the appellants challenging the judgment and decree dated 10.2.2020 passed by the learned XVII Additional City Civil and Sessions Judge, Bengaluru (CCH-16) (herein after referred to as 'the trial Court', for brevity) in O.S.No.1413/2016.
2. For the purpose of convenience, the parties are referred to as per their ranking before the trial Court. The appellants are defendant Nos.2 and 5 respectively and respondents are plaintiff Nos.1 to 5 and defendant Nos.1, 3 and 4 respectively.
3. The brief facts of the case are that, all the parties to the suit except defendant Nos.1 and 5, are the children of Late -4- NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 B. Narahari Rao. Defendant No.1 is the wife and defendant No.5 is daughter-in-law of late B. Narahari Rao. The suit for partition of the schedule property was filed by the plaintiffs on the premise that the schedule property is a joint family property, which had been allotted to their father B. Narahari Rao during his lifetime as per the lease-cum-sale agreement dated 16.11.1961 by BDA and delivered the possession of the suit schedule property to him. After his demise, with the consent of all the children, the schedule property was conveyed and registered through a sale deed dated 28.07.1990 executed by Bengaluru Development Authority, in the name of first defendant Smt. B.N. Kowsalyamma i.e., wife of B. Narahari Rao. Thereafter, defendant Nos.1 to 4 were residing in the ground floor of the suit schedule property and defendant No.4, who was employed abroad, funded for the construction of the first floor. Defendant Nos.1 to 4 along with defendant No.5 were residing in the first floor of the suit schedule property. Later, defendant No.3 left the first floor house and she was shifted to outhouse portion of the ground floor. Defendant No.4 also often visited the ground floor of schedule property, thereafter, defendant Nos.2 and 5 forced defendant No.1 to -5- NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 reside in the outhouse of ground floor along with defendant Nos.3 and 4, thereby, defendant Nos.2 and 5 being the husband and wife stayed in the first floor of the suit schedule property along with their son. Thereafter, defendant No.2 induced defendant No.1 to execute Gift deed in his favour along with his wife-defendant No.5, accordingly, defendant No.1 gifted entire first floor portion of the schedule property in favour of defendant Nos.2 and 5 under registered Gift deed dated 02.03.2005. Similarly, defendant No.1 also gifted the entire ground floor portion of the suit schedule property in favour of defendant Nos.3 and 4 under registered Gift deed dated 02.03.2005. Further, defendant No.1 also gifted the second floor right to construct a residential building by defendant Nos.3 and 4 under Rectification Deed to the Gift deed dated 31.12.2013. Thereby, defendant No.1 gifted entire property in favour of defendant Nos.2 to 5, excluding the plaintiffs. In fact, the suit schedule property is joint family property of plaintiffs and defendants, but, defendant No.1 does not have any absolute right over the schedule property to execute registered Gift deeds in favour of beneficiary under the Gift deeds, as the schedule property is not her self-acquired property. Thus, two -6- NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 Gift deeds dated 02.03.2005 and Rectification deed dated 31.12.2013 are null and void and not binding on the rights of the plaintiffs, since the plaintiffs being coparceners and legal heirs of late B. Narahari Rao, thus, they are entitled for their legitimate share at 1/9th each. Hence, the plaintiffs filed the suit for partition.
4. After institution of the suit, defendant Nos.2 and 5 appeared through their counsel and filed their written statement. Defendant Nos.1, 3 and 4 though appeared before trial Court, they did not file any written statement.
5. In their written statement, defendant Nos.2 and 5 admitted the relationship of plaintiffs and defendants with late B. Narahari Rao and his wife Smt. Kowsalyamma (Defendant No.1). They also admitted the nature and extent of the schedule property, the consideration amount paid by late Narahari Rao, who expired on 27.7.1977, while in service. Consequently, the schedule property was the self-acquired property of Narahari Rao, therefore, lease-cum-sale agreement dated 16.11.1961 was executed in favour of Narahari Rao without reference to any other person. Later, the BDA executed -7- NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 the registered sale deed in favour of defendant No.1, with the consent of the children of Narahari Rao i.e., plaintiffs and defendant Nos.2 to 4. It is contended that plaintiffs and defendant Nos.1 to 4 voluntarily and out of their own will relinquished and surrendered their right, interest and share in the schedule property and confirmed the same by filing affidavits before the BDA, stating that they have no objection to sell the schedule property in favour of defendant No.1. Hence, plaintiffs are estopped from raising contentions to the contrary and from claiming a share in the schedule property and each of the plaintiffs and defendant Nos.1 to 4 consented to transfer the title in the name of defendant No.1, by excluding all other children. Therefore, the suit filed by the plaintiffs is not maintainable and is liable to be dismissed on merits. Hence, defendant Nos.2 and 5 prayed for dismissal of the suit.
6. On the basis of the pleadings, the trial Court framed the following issues.
ISSUES
1. Whether the plaintiffs prove that, the suit schedule property is joint family property of plaintiffs and defendants ?
2. Whether the defendants 2 and 5 prove that -8- NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 plaintiffs and defendants 2 to 4 have relinquished their right and interest in the suit property in favour of 1st defendant?
3. Whether the plaintiffs prove that the Gift deed and Rectification deed executed by defendant No.1 in favour of defendants 2 to 5 is null and void and not binding on the plaintiffs?
4. Whether the plaintiffs are entitled for the relief prayed in the suit?
5. What decree or order?
7. To prove the case of the plaintiffs, plaintiff No.1 Smt. Suma got examined herself as PW.1 and relied upon in all 11 documents as per Exs.P1 to P11. On behalf of the defendants, defendant No.2 -B.N. Rajendra was examined as DW.1 and relied upon in all 20 documents as per Exs.D1 to D20.
8. On the basis of the oral and documentary evidence on record, the trial Court answered issue Nos.1, 3 and 4 in the affirmative, issue No.2 in the negative and consequently decreed the suit of the plaintiffs by holding that plaintiff Nos.1 to 5 and defendant Nos.1 to 4 each are having 1/9th share and separate possession over the suit schedule property. Aggrieved by the judgment and decree passed by the trial Court, -9- NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 defendant Nos.2 and 5 have filed the present appeal.
9. Heard the learned counsel appearing for the appellants/plaintiffs and learned counsel appearing for the respondents/defendants.
10. Sri Sharath N, learned counsel appearing for the appellants contended that the impugned judgment and decree passed by the trial Court is not in accordance with law and as such, it is liable to be set aside.
11. The Trial court has wrongly concluded that the suit property is joint family property and applied wrong presumption that the suit schedule property was allotted to B. Narahari Rao and placed him in possession. After his demise, the children having consented for execution of absolute sale deed have surrendered and relinquished their rights, if any, and hence defendant No.1 becomes the absolute owner of the suit schedule property in her own right to deal with the suit schedule property. That apart from any claim over or challenge against sale deed so executed in respect of the suit schedule property shall have to be within the time prescribed by the Law of Limitation, reckoning the date of execution of sale deed as
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 the starting point of Limitation. The plaintiffs have not made any claims over the suit schedule property within time and hence on this count also the suit does not survive.
12. It is contended that the trial court erred in not appreciating and taking into consideration the position of law that the law of limitation does not prescribe period of limitation for partition except under the circumstances contemplated under Schedule 109 and 110 of the Limitation Act, 1963. The suit schedule property not being a joint family property would not come under the sweep of these provisions. Hence the suit shall have to be considered under Article 113 of the Limitation Act, wherein the time prescribed is 3 years from the date when right to sue accrues. In the circumstances, in all probabilities, the suit is hopelessly belated and barred by limitation.
13. It is contended that the plaintiffs had the knowledge of the Gift deed. These deeds, according to law, had to be challenged within the limitation of three years from the date of execution, as provided under law. This suit having been filed beyond the period of limitation is not maintainable. This aspect has not at all received any attention, discussion or
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 consideration from the trial Court. The trial court has erred in not properly appreciating facts and law applicable thereon. Hence, the impugned judgment and decree borders on perversity. It is contended that the impugned judgment and decree is erroneous, perverse and unsustainable both under law and on facts. Hence, prayed to allow the appeal.
14. Sri Rajaram S, learned counsel for respondents/plaintiffs contended that the suit schedule property is joint family property of plaintiffs and defendants. Earlier, the schedule property was allotted to Late B. Narahari Rao, after his demise, plaintiffs and defendant Nos.2 to 4 orally consented to get executed sale deed in the name of defendant.No1 by the BDA, thereafter, they constructed house and started residing there as joint owner of the suit schedule property. But, defendant No.1, though not possessed absolute right, but, gifted entire schedule property in favour of defendant Nos.2 to
5. Hence, such Gift deeds and Rectification deed are null and void and not binding on the share of the plaintiffs. The trial court considering oral and documentary evidence on record and presumptions of law in respect of the partition suit, rightly
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 appreciated the facts and evidence and decreed the suit of the plaintiffs and has granted 1/9th share each to the plaintiffs and defendants, which requires no interference by this Court. Thus, prayed for dismissal of the appeal.
15. We have heard, perused the records and considered the arguments of learned counsel for both the parties. The points that arise for our consideration are:
1. Whether the plaintiffs proved that the suit schedule property is the joint family property of plaintiffs and defendants, as such, defendant No.1 did not have any absolute right over suit schedule property to execute Gift deeds in favour of defendant Nos.2 to 4?
2. Whether the suit of the plaintiffs stated to be barred by law of limitation?
3. Whether judgment and decree passed by the trial Court is in accordance with law, or requires interference by this Court?
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 Point No.1:
16. On perusal of the entire material available on record, it is admitted fact that plaintiff Nos.1 to 5 and defendant Nos.2 to 4 are the children of defendant No.1 Smt. B.N. Kowsalyamma and Late B. Narahari Rao. The suit schedule property was allotted by the BDA in the name of B. Narahari Rao under Lease-cum-Sale agreement dated 16.11.1961 and possession was delivered to Mr. B. Narahari Rao, who died intestate on 27.07.1977, leaving behind the plaintiffs and defendants 1 to 4 as his legal heirs. Later, the BDA executed sale deed in favour of defendant No.1 B.N. Kowsalyamma on 28.07.1990 and plaintiffs and defendant Nos.2 to 4 being the sons and daughters of Smt. Kowsalyamma and B. Narahari Rao consented to get the sale deed executed in the name of defendant No.1 i.e., in the name of their mother. Thus, the case of the plaintiffs is that the suit schedule property is the self-acquired property of their father and since their father died intestate, they and defendant Nos.1 to 4 are entitled for share equally. In the instant case, defendant No.1 executed registered two Gift deeds dated
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 02.03.2005 and Rectification deed dated 31.12.2013, wherein she gifted entire suit schedule property in favour of defendant Nos.2 to 5.
17. In order to prove this aspect, plaintiff No.1 Smt. Suma was examined on oath as PW.1 and she reiterated the averments made in the plaint. She relied upon Ex-P1 death certificate of B. Narahari Rao, Ex-P2-certified copy of the sale deed dated 28.07.1990, wherein the BDA executed registered sale deed in favour of defendant No.1, Exs-P3 and P4 are the copies of two Gift deeds dated 02.03.2005, wherein, defendant No.1 gifted entire suit schedule property in favour of defendant Nos.2 to 5. Ex-P5 is the certified copy of Rectification deed dated 31.12.2013 confirming the Gift Deed in favour of defendant Nos.2 to 5, Exs-P6 and P7 are the khatha certificate and khatha extract in respect of suit schedule property, Ex-P8 is the tax paid receipt, Exs-P9 and 10 are the two encumbrance certificates in respect of suit schedule property. PW.1 had undergone intensive cross examination by counsel for defendants, however, nothing worthwhile has been elicited from her mouth, to discredit the contention of the plaintiffs.
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020
18. On the other hand, to rebut the claim of the plaintiffs, defendant No.2 B.N. Rajendra, was examined on oath as DW.1, he reiterates the contents of written statement in his chief examination. In support of his oral evidence, he relied upon Exs-D1 to D20. Exs-D1 to D6 are the copies of judgment and decree, plaint, written statement and deposition of defendants in O.S.No.6233/2015, Ex-D7 is the letter issued by BBMP, Ex-D8 is the copy of LIC housing loan offer letter, Ex-D10 is the receipt and Ex-D11 is the certified copy of statement, Exs-D12 and 13 are the khatha certificate and khatha extract. Exs-D14 to D20 are the tax paid receipts in respect of suit schedule property. DW-1 was cross examined by the counsel for the plaintiffs. In the cross examination, he categorically admitted that, initially, suit schedule property was allotted in favour of his father Narahari Rao by the BDA under Lease-cum-sale agreement, after his demise, the BDA executed registered sale deed in favour of defendant No.1. He also admitted that entire sale consideration was paid by his father during his life time. However, he denied the suggestions that schedule property was not the separate property of defendant No.1 and since, she is not absolute owner of the schedule property, she had no right
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 to execute Gift deeds and Rectification deed in respect of suit schedule property.
19. From the perusal of oral and documentary evidence on record, it clearly establishes that initially, BDA allotted the suit schedule property in favour of Late Narahari Rao under Lease-cum-Sale Agreement, who died in the year 1977. Hence, the BDA executed sale deed in favour of his wife-defendant No.1 herein under sale deed dated 28.07.1990, but, defendant No.1 gifted suit schedule property in favour of defendant Nos.2 to 5 vide Gift Deeds dated 02.03.2005 and confirmed the same under Rectification deed dated 31.12.2013. Now the khatha has been changed in the name of defendant Nos.2 to 5 in respect of suit schedule property and they have paid taxes to the concerned authorities.
20. At this juncture, it is relevant to mention that, plaintiffs orally consented to execute sale deed in favour of their mother, but, from perusal of the material available on record, it appears that defendant Nos.2 to 5 have not produced any affidavit of the plaintiffs to establish that they have relinquished their rights, title and interest in respect of the suit schedule
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 property in favour of defendant No.1. Defendant Nos.2 to 5 have not placed any material to prove that the plaintiffs and defendant Nos.2 to 4 have consented for vesting of absolute title of the schedule property in favour of defendant No.1. Further, on perusal of the evidence of PW.1, learned counsel for defendant Nos.2 to 5 have suggested that plaintiffs and defendant Nos.2 to 4 have given no objection to get the sale deed registered in respect of suit schedule property in favour of defendant No.1 and the same was denied by PW.1. Further, learned counsel for defendant Nos.2 and 5 also suggested that the entire sale consideration was paid by defendant No.1 alone and the same is denied by PW.1. On the contrary, in order to establish this aspect, the appellants/defendant Nos.2 and 5 have not placed any material to show that plaintiffs and defendant Nos.2 to 4 have given no objection to get sale deed registered in favour of defendant No.1 and entire sale consideration was paid by defendant No.1 alone. No documents are forthcoming on record. Thus, in the absence of such material particulars, it can be inferred that the suit schedule property was granted in favour of father of plaintiffs and defendant No.2 to 4 and after his demise, BDA executed sale
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 deed in favour of their mother defendant No.1. Thus, it is the self-acquired property of Late B. Narahari Rao. After his death, plaintiffs and defendant Nos.2 to 4 orally consented to get the sale deed executed in the name of their mother-defendant No.1. Thereafter, defendant No.1 acquired the suit schedule property from the BDA with the consent of her children i.e., plaintiffs and defendant Nos.2 to 4. But, the appellants have taken up the contention that soon after execution of sale deed by BDA in favour of defendant No.1, she became absolute owner of the suit schedule property and it is her separate property. Hence, it is just and necessary to analyse Section 14 of Hindu Succession Act, 1956, which reads thus:-
14. Property of a female Hindu to be her absolute property.-
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.-In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribed a restricted estate in such property.
21. Section 113 of Mulla's Hindu Law reads as under:-
113. Stridhana according to the Smritis-the sacred writings of Rishis or sages of antiquity. Manu enumerates six kinds of stridhana:
(1) gifts made before the nuptial fire, explained by Katyayana to mean gifts made at the time of marriage before the fire, which is the witness of the nuptial (adhyagni);
(2) gifts made at the bridal procession, that is, says Katyana, while the bride is being led from the residence of her parents to that of her husband (ad- hyabahanika);
(3) gifts made in token of love, that is, says Katyayana, those made through affection by her father-in-law and mother-in-law (pritidatta), and those made at the time of her making obeisance at the feet of the elders(padavandaika);
(4) gifts made by the father;
(5) gifts made by the mother; and (6) Gifts made by the brother (Manu, IX, 194).
22. As per Section 115 of Mulla's Hindu Law,
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 according to Mitakashara:
115. Stridhana, according to Mitakshara,-The following as given by Vijnaneshwara in Mitakshara:
That which was given by the father, by the mother, by the husband, or by a brother: and that which was presented by the maternal uncles and the rest at the time of wedding before the nuptial fire; and a gift on a second marriage or gratuity on account of supersession; and, as indicated by the word 'adya' (and rest), property obtained by:
(1) inheritance;
(2) purchase;
(3) partition;
(4) seizure, e.g, adverse possession; and (5) finding;
and this is stridhana according to Manu and the rest.
23. Whereas, in this case, the suit schedule property was allotted to B. Narahari Rao, who paid entire sale consideration to the BDA and died subsequently. In this regard, the plaintiffs and defendants 2 to 4 consented their mother -defendant No.1 to get sale deed in her name by the BDA. Hence, the BDA executed sale deed in her name under registered sale deed dated 28.07.1990. As per Section 125 of the Mulla's Hindu
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 Law:
A Hindu female may acquire property from diverse sources. Several descriptions of property that may be lawfully acquired by a Hindu female are:
1. Gift and bequests from relations(Section 126),
2. Gifts and bequests from strangers(section 127),
3. Property obtained on partition(section 128)
4. Property given in lieu of maintenance(Section
129)
5. Property acquired by inheritance(Section 130)
6. Property acquired by mechanical arts(Section
131)
7. Property obtained by compromise(section 132)
8. Property acquired by adverse possession(Section
133)
9. Property purchased with Stridhana or with savings of income of Stridhana (Section 134); and
10. Property acquired from sources other than those mentioned above(Section 135). Bequests stand on the same footing as gifts.
Whereas in this case, defendant No.1 did not acquire suit
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 schedule property in the manner as mentioned hereinabove. The entire consideration amount in respect of schedule property was paid by her husband and simply she got executed sale deed in her name with the oral consent of her children, it does not mean that her children must be excluded from right and title in respect of the schedule property. Therefore, they also equally have right, interest and share in respect of the schedule property. However, defendant No.1 though not being absolute owner of the suit schedule property gifted the same in favour of defendant Nos.2 to 5 excluding the rights of the plaintiffs. The execution of registered Gift deeds by defendant No.1 in respect of suit schedule property to defendant Nos.2 to 5 in which, she takes limited interest and does not have absolute right.
24. As per Section 355 of Mulla's Hindu Law, the term 'Gift' means and includes the relinquishment(without consideration) of one's own right (in property) and the creation of right of another and the creation of another man's right is completed, on that other's acceptance of the gift, but not otherwise.
25. As per Section 356 of Mulla's Hindu Law, a Hindu
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 may dispose his separate or self-acquired property. Whereas in this case, suit schedule property is not separate or self-acquired property of defendant No.1 to bequeath the same to defendant Nos.2 to 5 and two Gift deeds dated 02.03.2005 and Rectification deed dated 31.12.2013.
26. Further more, as per Section 122 of The Transfer of Property Act, 1882, if any person executes Gift deed in respect of an immovable property, he must be absolute owner of the property or it must be his separate or self-acquired property.
27. From perusal of the material available on record and the above proposition of law, it clearly establishes that defendant No.1 has acquired only limited extent in respect of the suit schedule property. Infact, after death of B. Narahari Rao, the plaintiffs and defendant Nos.2 to 4 acquired right of inheritance in respect of the suit schedule property. Admittedly, defendant Nos.2 to 5 who are beneficiaries under the Gift deeds have not placed any material on record to establish that plaintiffs and defendant Nos.2 to 4 have relinquished their rights under registered instrument as required under Section 17 of the Registration Act, 1908. Further, defendant Nos.2 to 5
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 have not placed any material to show that plaintiffs and defendant Nos.2 to 4 have consented to execute registered sale deed in favour of defendant No.1 and defendant No.1 alone paid entire sale consideration to BDA. In the absence of such material, it is to be presumed that suit schedule property is the self-acquired property of Late B. Narahari Rao. After his death, the property shall devolve upon plaintiffs and defendant Nos.1 to 4 and therefore, defendant No.1 had no right to execute Gift deeds and Rectification deed, defendant Nos.2 to 5 do not acquire any absolute rights over the suit schedule property. The allotment of suit schedule property by the BDA was for and on behalf of entire family of plaintiffs and defendant Nos.1 to 4, the benefit shall enure to the family members. As defendant No.1 has not established her independent right and there is no partition in the family of plaintiffs and defendants, obviously, plaintiffs being the daughters are also entitled for equal share as that of a son, in view of the ratio laid in the case of Vineeta Sharma v Rakesh Sharma and others reported in (2020) 9 SCC 1.
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 Point No.2:
28. Learned counsel for the appellants have taken contention that, defendant No.1 executed Gift deeds dated 02.03.2005 and Rectification deed dated 31.12.2013 in favour of defendant Nos.2 to 5 and same have been challenged in the year 2016, thus, the suit is barred by law of limitation.
Schedule 109 of The Limitation Act, 1963, states as under:-
Schedule Description of Period of Time from suit limitation which period begins to run 109 By a Hindu Twelve years When the governed by alienee takes Mitakshara law possession of to set aside his the property father's alienation of ancestral property In the present case, there is no alienation of ancestral property by defendant No.1 and the alienee has not taken possession of the property and hence, the period of limitation does not arise.
Schedule 110 of The Limitation Act, 1963, states as
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 under:-
Schedule Description of Period of Time from suit limitation which period begins to run 110 By a person Twelve years When the excluded from a exclusion joint family becomes known property to to the plaintiff enforce a right to share therein In the present case, there is no exclusion of any person from the joint family property to enforce a right to share therein and hence, the period of limitation in this case does not come to the aid of the defendants.
Schedule 113 of The Limitation Act, 1963, states as under:-
Schedule Description of Period of Time from suit limitation which period begins to run 113 Any suit for Three years When the right which no period to sue accrues of limitation is provided elsewhere in this Schedule
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 In the present case, the plaintiffs being the daughters of Narahari Rao and Koushalyamma, are enforcing their rights, title and interest in respect of the schedule property as co- sharers. In this case, no alienation has taken place. However, defendant No1 gifted entire schedule property in favour of defendant Nos.2 to 5 and we have already observed that she had no absolute right to execute Gift deeds in their favour. Accordingly, the contentions raised by defendant Nos.2 and 5 regarding point of limitation, has no merit consideration.
29. Admittedly, plaintiffs and defendants are the successors of Late B. Narahari Rao and infact, they are not aware of Gift deeds and Rectification deed inter se executed between defendant No.1 and defendant Nos. 2 to 5 and hence, the question of limitation to partition suit inter se between brothers and sisters would not arise. In this case, defendant No.1 not filed any written statement and objected the claim of plaintiffs. She never contended that, she was absolute owner of suit schedule property, and out of love and affection, she gifted suit schedule property to defendant Nos.2 to 5. Hence, we find no merit in the contentions of the appellants. Accordingly, this
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020 point is answered in the negative.
Point No.3:-
30. In view of our findings on Point Nos.1 and 2, we are of the opinion that, the trial court has properly appreciated the evidence on record, with reference to the facts, evidence and the decision cited supra and has rightly granted share in favour of the plaintiffs and rejected the claim of defendants. Accordingly, the impugned judgment and decree passed by the trial court requires no interference and hence point No.3 is answered in the negative.
31. In view of the above, we proceed to pass the following:
ORDER
1. The appeal is hereby dismissed.
2. The judgment and decree dated 10.02.2020 passed by the XVII Addl. City Civil and Sessions Judge, Bengaluru (CCH-16), in O.S.No.1413/2016, is hereby confirmed.
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NC: 2025:KHC:4461-DB RFA No. 1120 of 2020
3. No order as to costs.
4. Pending IAs, if any, stands disposed of.
Sd/-
(K.SOMASHEKAR) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE MN List No.: 1 Sl No.: 1