Karnataka High Court
N Chandrappa @ Chandra Reddy vs T Venkataswamy Reddy on 18 July, 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO.2103 OF 2007 (INJ)
C/W
REGULAR SECOND APPEAL NO.2109 OF 2007 (PAR)
IN RSA NO.2103/2007:
BETWEEN:
1. N CHANDRAPPA @ CHANDRAPPA REDDY,
S/O LATE K NARAYANAA REDDY,
AGED ABOUT 63 YEARS,
RESIDING AT KAMBALIPURA,
ATTIBELE HOBLI, ANEKAL TALUK,
BANGALORE DISTRICT.
2. K N NAGARAJA REDDY,
SINCE DEAD BY HIS LRS
2(a) SHANTHAMMA T,
WIFE OF LATE K N NAGARAJA REDDY,
AGED ABOUT 60 YEARS,
RESIDING AT KAMBALIPURA,
ATTIBELE HOBLI, ANEKAL TALUK,
BANGALORE DISTRICT.
DIED ON 03.10.2022
REPRESENTED BY 2(b) to 2(d)
2(b) MAMATHA N,
WIFE OF LATE NANJAREDDY,
AGED ABOUT 42 YEARS,
RESIDING AT NO.334/1,
GULLAREDDY LAYOUT, 2ND CROSS,
ANEKAL ROAD, CHANDAPURA,
BANGALORE - 560 099.
2
2(c) AMRUTHA N,
WIFE OF SUBRAMANI,
AGED ABOUT 32 YEARS,
RESIDING AT NO.1515,
GOVT. SCHOOL ROAD,
OPP. TO PATALAMMA TEMPLE,
ALLASANDRA VILLAGE, YELAHANKA POST,
BANGALORE - 560 065.
2(d) NAVEEN N,
SON OF LATE K N NAGARAJA REDDY,
AGED ABOUT 29 YEARS,
RESIDING AT KAMBALIPURA,
ATTIBELE HOBLI, ANEKAL TALUK,
BANGALORE DISTRICT.
...APPELLANTS
(BY SRI SREEVASTA, SENIOR COUNSEL A/W
SMT UDITA RAMESH, ADVOCATE FOR APPELLANT NO.1
AND A2(B-D),
V/O/DT 05.04.2023 A2(B-D) ARE THE LR'S OF
DECEASED A2(A))
AND:
1. T VENKATASWAMY REDDY,
SINCE DEAD BY HIS LRS
1(a) V NARAYANAA REDDY,
S/O LATE T VENKATASWAMY REDDY,
AGED ABOUT 62 YEARS
1(b) V MUNIREDDY,
S/O LATE T VENKATASWAMY REDDY,
AGED ABOUT 62 YEARS,
1(c) V THIMMA REDDY,
S/O LATE T VENKATASWAMY REDDY,
AGED ABOUT 62 YEARS
1(d) V SHANTHAMMA
S/O LATE T VENKATASWAMY REDDY,
AGED ABOUT 62 YEARS,
3
RESPONDENTS 1(a) to 1(d) ARE
RESIDENTS OF BANDAPURA, KASABA HOBLI, ANEKAL TALUK, BANGALORE DISTRICT.
(AMENDMENT CARRIED OUT VIDER ORDER DATED 05.04.2023) ...RESPONDENTS (BY SRI VARADARAJAN M S, ADVOCATE A/W SRI SANTHOSH, ADVOCATE FOR R1(A-D)) THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DT.24.03.2007 PASSED IN RA.NO.6/1993 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DT.18.12.1992 PASSED IN OS.NO.01/1987 ON THE FILE OF THE PRL.CIVIL JUDGE, BANGALORE. IN RSA NO.2109/2007:
1. N CHANDRAPPA @ CHANDRAPPA REDDY, S/O LATE K NARAYANAA REDDY, AGED ABOUT 63 YEARS, RESIDING AT KAMBALIPURA, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE DISTRICT.
2. K N NAGARAJA REDDY, SINCE DEAD BY HIS LRS 2(a) SHANTHAMMA T, WIFE OF LATE K N NAGARAJA REDDY, AGED ABOUT 60 YEARS, RESIDING AT KAMBALIPURA, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE DISTRICT.
DIED ON 03.10.2022 REPRESENTED BY 2(b) to 2(d) 2(b) MAMATHA N, WIFE OF LATE NANJAREDDY, AGED ABOUT 42 YEARS, RESIDING AT NO.334/1, 4 GULLAREDDY LAYOUT, 2ND CROSS, ANEKAL ROAD, CHANDAPURA, BANGALORE - 560 099.
2(c) AMRUTHA N, WIFE OF SUBRAMANI, AGED ABOUT 32 YEARS, RESIDING AT NO.1515, GOVT. SCHOOL ROAD, OPP. TO PATALAMMA TEMPLE, ALLASANDRA VILLAGE, YELAHANKA POST, BANGALORE - 560 065.
2(d) NAVEEN N, SON OF LATE K N NAGARAJA REDDY AGED ABOUT 29 YEARS, RESIDING AT KAMBALIPURA, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE DISTRICT.
(AMENDMENT CARRIED OUT VIDE ORDER DATED 05.04.2023) ...APPELLANTS (BY SRI SREEVASTA, SENIOR COUNSEL A/W SMT UDITA RAMESH, ADVOCATE FOR APPELLANT NO.1 AND A2(B-D), V/O/DT 05.04.2023 A2(B-D) ARE THE LR'S OF DECEASED A2(A)) AND:
1. T VENKATASWAMY REDDY, SINCE DEAD BY HIS LR'S 1(a) V NARAYANAA REDDY, S/O LATE T VENKATASWAMY REDDY, AGED ABOUT 62 YEARS 1(b) V MUNIREDDY, S/O LATE T VENKATASWAMY REDDY, AGED ABOUT 62 YEARS, 1(c) V THIMMA REDDY, S/O LATE T VENKATASWAMY REDDY, 5 AGED ABOUT 62 YEARS 1(d) V SHANTHAMMA S/O LATE T VENKATASWAMY REDDY, AGED ABOUT 62 YEARS, RESPONDENTS 1(a) to 1(d) ARE RESIDENTS OF BANDAPURA, KASABA HOBLI, ANEKAL TALUK, BANGALORE DISTRICT.
...RESPONDENTS (BY SRI VARADARAJAN M S, ADVOCATE A/W SRI SANTHOSH, ADVOCATE FOR R1(A to D)) THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DT.24.03.2007 PASSED IN RA.NO.5/1993 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, BANGALOE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DT.18.12.1992 PASSED IN OS.NO.40/1981 ON THE FILE OF THE PRL.CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27TH JUNE, 2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE CAV ORDER RSA No.2103/2007 is filed against the judgment and decree in O.S.No.1/1987 on the file of the Principal Civil Judge, Bangalore and the judgment and decree in R.A.No.6/1993 on the file of Fast Track -II, Bangalore Rural District, Bangalore.6
2. The said suit is one for bare injunction in respect of the properties bearing Sy.Nos.165/2 and 197 of Madiwala village, Taluk:Anekal. Suit is decreed. Defendants' First Appeal is dismissed. Hence, defendants are before this Court in this RSA No.2103/2007.
3. RSA No.2109/2007 is filed against the judgment and decree passed in O.S.No.40/1981 on the file of Principal Civil Judge, Bangalore and judgment and decree passed in R.A.No.5/1993 on the file of Fast Track Court - II, Bangalore Rural District, Bangalore.
4. The said suit is for declaration and partition. The plaintiffs sought a declaration that they are entitled to half share and prayed for partition and separate possession of half share. The said suit is dismissed and First Appeal filed by the plaintiffs is also dismissed. Hence, the present RSA No.2109/2007.
5. Both suits were clubbed together and disposed by a common judgment and both appeals before First Appellate Court were disposed of by a common judgment. 7
6. This Court vide order dated 03.07.2012 has admitted the appeals to consider the following substantial questions of law:
(i) Whether the father can release the right of his sons (coparceners) in favour of another coparcener?
(ii) Whether the plea of 'Adverse possession' is available in respect of coparcenary property?
7. The appellants in RSA No.2103/2007 are sons of Narayana Reddy. Venkataswamy Reddy (defendant in the suit for partition) is the brother of appellants' father Narayana Reddy.
8. The appellants in RSA No.2103/2007 who are plaintiffs in O.S.No.40/1981 have claimed partition on the premise that the registered release deed dated 05.10.1948 is got executed by defendant - Venkataswamy Reddy is outcome of fraud and does not bind them and does not affect their share. The plaintiffs contend their father, defendant and the plaintiffs constituted a joint family.
9. Defendant - Venkataswamy denied the joint family status with the plaintiffs. Defendant contended that 8 the plaintiffs' father Narayana Reddy was fostered from the age of 4 by uncle Nanja Reddy, and since then Narayana Reddy never lived with his father. Defendant also urged that registered release deed dated 05.10.1948 is executed for a valid consideration of Rs.4,000/-. The plaintiffs' father who executed the deed in 1948 died on 01.09.1979 did not question the said release deed dated 05.10.1948 and his right to question the release deed had extinguished by the time he died in the year 1979 and the plaintiffs did not inherit the right to assail the said registered deed dated 05.10.1948.
10. The plaintiffs also contended that there was a partition in the family on 16.08.1967 between Naga Reddy and other family members comprising plaintiffs' father and defendant - Venkataswamy. The plaintiffs contend that only Naga Reddy separated from the family and the plaintiffs, their father and defendant - Venkataswamy lived together.
11. O.S.No.1/1987 is filed by the Venkataswamy, the defendant in O.S.No.40/1981, for injunction in respect of two properties. In the said suit, Venkataswamy contended that ever since execution of release deed dated 05.10.1948, he is 9 in possession of the properties covered under the said release deed. And the defendants in the said suit, (plaintiffs in O.S.No.40/1981) disputed the validity of the release deed dated 05.10.1948 and prayed for dismissal of the suit.
12. Both suits were clubbed together and the Trial Court dismissed O.S.No.40/1981 and decreed O.S.No.1/ 1987.
13. As already noticed, two appeals are filed against aforementioned judgments and decrees and both the appeals are dismissed.
14. Heard Sri Srivatsa, the learned Senior counsel appearing for the appellants and Sri Varadarajan, learned counsel appearing for the respondents.
15. Learned Senior counsel appearing for the appellants raised the following contentions:
The properties in question are said to have been transferred under registered release deed dated 05.10.1948 marked at Ex.D.1. The properties are the coparcenary properties. When the deed was executed in 1948, the plaintiffs were born. They being the 10 coparceners, had acquired right in the properties by birth in the family. Thus, Narayana Reddy, their father had no right to alienate or release the plaintiffs' undivided share.
Even if it is considered as a valid release, then also the release has to be for the benefit of the remaining coparceners viz., the plaintiffs and Venkataswamy alone cannot claim exclusive right over the properties covered under the release deed as the plaintiffs had already acquired right in the properties by reason of the birth in the family.
The release is permissible only in favour of person who does possess a joint right or interest in the property covered by release deed. The release has the effect of augmenting the share of remaining co-owners when one co-owner releases the property in favour of another. Thus, even if release deed is executed in favour of one coparcener by another coparcener, the benefit of release would be to all other coparceners who have a joint right in the property even before the release deed is executed.
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The Apex Court in Arshnoor Singh vs Harpal Kaur and Others1 has held that in case the property is inherited by a male Hindu from his father before 1956, such property would acquire the characteristic of a coparcenary property. The properties in the hands of Narayana Reddy were coparcenary properties and when he executed a release deed, his two sons were already born and those two sons had acquired right in the property being coparceners in the family. Plaintiffs' right is not released in favour of defendant. Narayana Reddy could not have transferred the share of his two minors (plaintiffs) as there was no legal necessity as such the plaintiffs' right in the properties remained with the plaintiffs and defendant did not acquire the plaintiffs' share under the release deed properties and the plaintiffs' right over the properties covered under the release deed is not extinguished. Even if the release deed is said to be valid and confers exclusive right in favour of defendant, said right can only be in respect of the share held by plaintiffs' father 1 (2020) 14 SCC 436 12 Narayana Reddy and not the share of the plaintiffs as the release deed does not indicate that the plaintiffs' share is also conveyed by Narayana Reddy acting as family manager.
The Trial Court and First Appellate Court have committed an error in not appreciating the ratio laid down in Krishan Chander Vs Board Of Revenue For Rajasthan2 and the judgment of co-ordinate bench of this Court in Halappa & Others Vs Ranganna & Others3.
16. Learned Senior counsel for the appellants placed reliance on the following judgments:
(i) Thamma Venkata Subbamma vs Thamma Rattamma & Others4
(ii) Kuppuswami Chettiar vs A.S.P.A. Arumugam Chettiar and Another5
(iii) Tripta Kaushik vs Sub Registrar VI-A and Another6
(iv) Smt.Balwant Kaur and Others vs State of U.P. 7 2 1972 RLW 473 3 1968 (2) Mys.L.J.,597 4 (1987)3 SCC 294 5 1966 SCC Online SC 125 6 2020 SCC Online Del 2748 7 1983 SCC Online All 700 13
(v) Nathuni Mishra and Others vs Mahesh Misra and Others 8
(vi) Balbir Singh vs State of U.P. & Others 9
(vii) Govind Das and Others vs Board Of Revenue, U.P., Lucknow 10
17. Learned counsel appearing for the respondents raised the following contentions:
There is no pleading and evidence that the properties in the hands of Narayana Reddy are coparcenary properties;
Two properties were transferred by Narayana Reddy in favour of his brother-defendant under a registered released deed dated 05.10.1948 for a valid consideration of Rs.4000/-. Since, the properties are released for a consideration, it is nothing but a sale in favour of defendant.
Assuming that the properties were coparcenary properties, the transfer is for the benefit of the 8 1962 SCC Online Pat 58 9 2012 SCC Online All 478 10 1971 SCC Online All 90 14 Narayana Reddy's family comprising the plaintiffs and same is permissible as Narayana Reddy as a kartha/guardian can transfer the properties of his minor children. There is no pleading in the plaint that the properties are transferred without legal necessity. The contention in this regard cannot be raised without pleading.
The plaintiffs cannot question the release deed of 1948, which was not questioned by their father-the executant who died in 1979.
The suit of the plaintiffs is barred by limitation even assuming that the properties are the ancestral properties, as the suit is filed beyond 12 years from the date of attaining majority.
18. Learned counsel for the respondents placed reliance on the following judgments:
(i) Thayyil Mammo and Another vs Kottiath Ramunni and Others11
(ii) Pandurang Mahadeo Kabade and Others vs Annaji Balwant Bokil and Others12 11 AIR 1966 SC 337 15
(iii) Sukhbiri Devi and Ors. vs Union Of India and Ors. 13
19. Certain facts need to be stated are as under:
The father of the appellants - Narayana Reddy was fostered by his uncle when he was aged 4 years and he was staying with his uncle in Kambalipura. The fostered parents executed registered Gift Deed in favour Narayana Reddy prior to the execution of the release deed dated 05.10.1948. Even Narayana Reddy has executed a Gift Deed describing himself as the son of his fostered father and not as a son of his biological father.
20. There is a vague reference in the plaint that the release deed dated 05.10.1948 is the outcome of fraud. The necessary plea relating to fraud as required under Order VI Rule 4 of Code of Civil Procedure is not forthcoming. It is also relevant to notice that Narayana Reddy who died in the year 1979 did not question the validity of the release deed dated 05.10.1948. Thus, the said plea cannot be considered. Moreover, there is no evidence to hold the plea of fraud. 12
AIR 1971 SC 2228 13 2022 SCC Online SC 1322 16
21. The registered release deed dated 05.10.1948 is not questioned for want of legal necessity for Narayana Reddy to transfer the undivided shares of his children. There is no plea or evidence in this behalf.
22. Both Courts have concurrently held that the execution of release deed dated 05.10.1948 is proved. This Court is also of the view that the question as to the proof of execution of release deed dated 05.10.1948 does not arise in these Second Appeals as there is no plea and evidence to hold that the release deed dated 05.10.1948 was not executed by Narayana Reddy. Thus, the Court has to proceed on the premise that the release deed dated 05.10.1948 is executed for a consideration of Rs.4,000/-.
23. It is also relevant to notice that the plaintiffs/appellants have not raised a contention that consideration of Rs.4,000/- paid under the release deed dated 05.10.1948 does not represent adequate consideration for transfer of the interest in the two properties covered by the release deed.
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24. Since the release is for valuable consideration, the Court has to consider whether the release deed dated 05.10.1948 is a sale for consideration in favour of defendant.
25. The Hon'ble Apex Court in Thayyil Mammo And Anr. supra, has held that the proposition that, the release cannot be treated as a conveyance is not a proposition having universal application. It has been also held that a registered instrument styled as a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance if the document clearly discloses the intention to effect a transfer.
26. Thus, the Court has to consider whether there was any intention on the part of a releasor to release the entire property in favour of the releasee.
27. As already noticed, the Court has to proceed on the premise that two properties are released or conveyed for a consideration of Rs.4,000/-. The Trial Court has extracted the relevant portion of the release deed in its judgment at paragraph No.20. The said portion of the release deed 18 reveals that the father of the appellants Narayana Reddy transferred his entire right in favour of his brother and the recital would also indicate that his successors also will not have any right over the said property.
28. The initial part of the release deed would also recite the fact that Narayana Reddy was residing with his fostered parents away from his brother Venkataswamy Reddy. It has also come in the evidence that Narayana Reddy was fostered when he was aged 4 to 5 years and his marriage was performed by his fostered parents and it is not the case of the plaintiffs that the plaintiffs were residing with defendant Venkataswamy Reddy -their uncle.
29. There is no recital in the deed dated 05.101948 that plaintiffs father Narayana Reddy is releasing only his undivided share and the undivided share of his minor children is not part of the transaction. As already noticed, Narayana Reddy had stayed with his fostered parents since he was aged four or five years. It is nobody's case that his children continued to live with their uncle Venkataswamy. These circumstances suggest that the transfer of the properties covered under the deed dated 05.10.1948 is in 19 respect of half share and remaining half share was with releasee/transferee - Venkataswamy. Thus, the intention is very much apparent from the circumstances, that Narayana Reddy wanted to convey his entire interest in the property in favour of his brother with whom he did not live jointly as he was raised by his fostered parents.
30. It is also relevant to notice that the High Court of Delhi in case of Tripta Kaushik supra, has summarised the law on the point and in paragraph No.30(f) of the said judgment, held as under:
"Where the relinquishment of the right by the co-owner is only in favour of one of the co-owner and not against all, the document would be one of Gift/Conveyance and not of "release".
31. As can be noticed from the recital in the release deed dated 05.10.1948, it can be safely concluded that the release deed was executed in favour of Venkataswamy Reddy and not in favour of the plaintiffs who are the children of executant Narayana Reddy. As already noticed, the registered release deed of 1948 is for a consideration of Rs.4,000/- which itself is a huge amount in those days. The 20 properties conveyed under the said deed are only two properties bearing Sy.No.165/2 measuring 5 acres in Madiwala village, Taluk:Anekal and Sy.No.197 measuring 2 acres 20 guntas in Madiwala village, Taluk:Anekal. As already noticed, it is not the case of the plaintiffs that the consideration amount is inadequate. The suit was filed only on the premise that deed was outcome of fraud committed on their father.
32. It is already held by this Court that Narayana Reddy has received Rs.4,000/- in 1948. It is not the case of the plaintiffs that the said amount is not utilized by Narayana Reddy for the benefit of the family. That contention is not available to them as they filed the suit on the premise that the transaction is outcome of fraud. This Court has recorded a finding that the transaction is valid and consideration is passed in favour of Narayana Reddy. The Court has to presume, in the absence of any other allegation that amount is not utilized for the benefit of minors, that amount of Rs.4,000/- received in 1948, which is a substantial amount for two properties covered under the said transaction also represented the value of 21 plaintiff's share in the properties, and must have been utilized for the benefit of the family.
33. This being the position, applying the ratio laid down in the aforementioned judgment of the Hon'ble Apex Court as well as the Delhi High Court, it can be safely concluded that the plaintiffs' father Narayana Reddy executed a document as conveyance though it is styled as released deed.
34. It is also well-settled position of law that the nomenclature of the document is not necessarily a guide to the nature of the transaction covered under the document. The nature of the transaction has to be gathered from the recital in the document and other attending circumstances.
35. At this juncture, it is necessary to refer to the judgments referred by the learned Senior counsel for the appellants:
(i) In Thamma Venkata Subbamma supra, the Hon'ble Apex Court has laid down a law that gift of an undivided share without the consent of co-owners is impermissible and void. In the said judgment referring to 22 the document in question, the Court concluded that the document in question in the said case was a relinquishment deed and not a gift deed. In the said case, it was relinquishment in favour of a family member without any consideration. In the instant case, this Court has concluded that the transaction is a conveyance for consideration.
Hence, the judgment in Thamma Venkata Subbamma supra does not assist the appellants.
(ii) In Krishan Chander supra, the Court has considered the case of one co-parcener renunciating the right of another coparcener.
(iii) In Tripta Kaushik supra, the Court has considered the question relating to the stamp duty payable on a relinquishment deed executed by son in favour of the father.
(iv) In Balawant Kaur supra, the Court has held the relinquishment or renouncement of claim by one co-owner in favour of another co-owner results in remaining co-owners' rights augmented.
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(v) In Halappa supra, the Court dealt with a question as to whether a person who was not born when his father executed a release deed could question the release deed on the premise that the release deed was not executed at all by his father.
(vi) In Nathuni Mishra supra, the Court was dealing with the question of sale of the property by the father of minor children.
(vii) In Govind Das and Balbir Singh supra, the Court was dealing with the interpretation of a transaction between the partners of a partnership firm.
36. Above cited judgments by the learned Senior counsel do not support the appellants' contention inasmuch as the Court has come to the conclusion that the transaction dated 05.10.1948 is a conveyance for consideration and not a simple release by one coparcener in favour of another coparcener or in co-owner in favour of another co-owner.
37. The fact that the father of the plaintiffs received Rs.4,000/- from his brother, the fact that he was fostered by his uncle and that he was residing away from his brother in 24 unmistakable terms would lead to the conclusion that the transaction was a conveyance and not mere release.
38. Though learned Senior Counsel appearing for the appellants would place reliance on the judgment of High Court of Allahabad in Smt.Balavant Kaur supra and referring to paragraph No.9 of the judgment would urge that merely because the intention of the executant can be better achieved by executing an instrument of a different nature, the instrument executed should not be construed differently from what emerges from the plain reading. This Court has perused the said judgment.
39. The said observation by the High Court of Allahabad cannot be construed as having laid down a law having universal application. The said observation is, or may be apt, in the facts and circumstances obtained in the said case.
40. From the very same judgment, it is also possible to hold that merely because Narayana Reddy could have executed a sale deed in favour of his brother defendant for having received Rs.4,000/- as a consideration for 25 transferring the properties in favour of defendant, to achieve his objective of transferring the properties, the transferor's act of not executing a sale deed and executing a release deed does not by itself mean that the transaction is not a sale, if other circumstances suggest that the transaction is a sale.
41. This Court has already noticed the circumstances which suggest that the transaction was a sale. In addition, it is also to be noticed that if the transaction was not a sale or a conveyance conveying entire right, title and interest in favour of his brother, then the transferor could not have executed the release deed by incorporating a recital that none of his successors will have any right over the properties covered under the said deed.
42. Under these circumstances, this Court is of the view that the release deed dated 05.10.1948 should be construed as a conveyance transferring the entire 1/2 share in the two properties in favour of Venkataswamy Reddy who had already possessed the remaining share. 26
43. The contention whether the transaction was for legal necessity or not, whether the transaction binds the plaintiffs who were minors when the transaction took place in the year 1948 do not arise for consideration as the plaintiffs have not raised contention in the plaint pleading want of legal necessity to transfer the properties, which essentially prevented the defendant from raising a defence that said transfer was for legal necessity. This being the position, the reliance on the judgment of the Apex Court in Arshnoor Singh supra, which lays down a law that burden of proving family necessity is on alienee is misplaced as the plaintiffs have not raised a contention that the transaction is not for legal necessity.
44. At this juncture, it is also necessary to refer the judgment of the Apex Court in Pandurang Mahdeo Kabade supra, wherein the Apex Court has held that in the absence of a plea that the sale transaction is not for legal necessity, it is not necessary for the purchaser to establish that the transaction was for legal necessity.
45. Assuming that the plaintiffs could have raised the plea challenging the alienation on the premise that it is not 27 for legal necessity, or assuming that such a plea is raised in the plaint, then also the suit is time barred under Article 108 of the Limitation Act, 1963, as the records would reveal that defendant has taken possession in 1948. The plaintiffs' then were required to file a suit within three years after attaining majority. Even if it is taken as twelve years after attaining majority, then also the suit is time barred.
46. Plaintiffs' father Narayana Reddy died in the year 1979 and he did not challenge the deed of 1948. Two years after the demise of executant Narayana Reddy-the plaintiffs' father, suit is filed on the premise that the transaction is invalid.
47. The contention of the learned Senior counsel that the release by one co-owner or coparcener in favour of another co-owner or coparcener, will not confer absolute right in favour of the person to whom it is released and it would also enure to the benefit of remaining co-owners or coparceners, cannot be accepted with reference to the release deed dated 05.10.1948 as the said document when viewed from the attending circumstances, has all the trappings of a conveyance for consideration. 28
48. Since, the plaintiffs have not raised a contention that the transfer of right, title and interest under the registered release deed dated 05.10.1948 is for the benefit of remaining coparceners namely the plaintiffs, the defendant was prevented from raising a defence that the release deed dated 05.10.1948 is also representing the interest of the plaintiffs or for the benefit of the plaintiffs.
49. Nevertheless the defendant has led evidence narrating the circumstances under the which the release deed came to be executed. From the facts already noticed, Narayana Reddy was fostered when he was aged about 4 to 5 years and he stayed away from his brother Venkataswamy Reddy (defendant) and later after attaining majority, he transferred the property in the year 1948 when he had two children aged around 3 and 5 years.
50. Under these circumstances, first substantial question of law, "whether the father can release the right of his sons (coparceners) in favour of another coparcener?" has to be answered by holding that in the present case, the transaction dated 05.10.1948 is a conveyance and Narayana Reddy being the plaintiffs' father and kartha was competent 29 to transfer the properties. The sale by a coparcener representing his sons' share who are also coparceners is well recognised subject to fulfilling the conditions of legal necessity. The validity of the transaction for want of legal necessity is not raised before the Trial Court. Thus, the Court would presume that the transaction is for legal necessity.
51. Second substantial question of law "Whether the plea of 'Adverse possession' is available in respect of coparcenary property?" need not be answered as the suit is not decided based on the said plea.
52. For the aforementioned reasons, this Court is of the view that no grounds are made out to interfere in the concurrent finding recorded by the Trial Court and First Appellate Court.
53. Accordingly, the appeals are dismissed.
54. No order as to costs.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE brn