Karnataka High Court
Kavita W/O Shri Krishna Chaugale vs Smt. Vimala @ Kamal W/O Vasantrao ... on 5 July, 2022
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RSA No. 100842 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100842 OF 2022 (-)
BETWEEN:
MRS.KAVITA W/O SHRI KRISHNA CHAUGALE
AGE:.38 YEARS, OCC.HOUSEWIFE,
R/O.CTS NO.2129A AND 2130,
PANGUL GALLI, BELAGAVI.
...APPELLANT
(BY SRI. SHREEVATSA HEGDE AND SRI. SOURABH HEGDE,
ADVOCATES)
AND:
1. SMT. VIMALA @ KAMAL, W/O VASANTRAO CHAUGALE
AGE.72 YEARS, OCC.HOUSEWIFE,
R/O.SAMARTH KRUPA, HALA LAXMI NAGAR,
BADAGER ROAD, BELLAD COLONY,
GADINGLAJ, MAHARASTRA
2. SMT.LEELA D/O RAJARAM MASEKAR
AFTER MARRIAGE KNOWN AS
SMT.LEELA W/O PRAKASH KHANDEKAR,
AGE.75 YEARS, OCC.HOUSEWIFE,
R/O CTS NO.2129A AND 2130,
PANGUL GALLI, BELAGAVI
...RESPONDENTS
(BY SRI.VITTHAL S. TELI, ADVOCATE)
THIS RSA IS FILED U/SEC.100 R/W ORDER 41 RULE 1 OF
CPC, 1908, PRAYING TO SET ASIDE THE ORDER AND DECREE
DATED 11.04.2022 IN R.A.NO.347/2019 ON THE FILE OF XI
ADDITIONAL DISTRICT JUDGE, BELAGAVI, CONSEQUENTLY
REVERSING THE ORDER PASSED ON 14.12.2017 PASSED IN
E.P.NO.121/2017 BY THE II ADDITIONAL SENIOR CIVIL JUDGE,
BELAGAVI ON I.A.NO.1 AND ETC.
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RSA No. 100842 of 2022
THIS APPEAL HAVING BEEN HEARD AND COMING ON FOR
DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by the third party intervener before the Executing Court, challenging the judgment and decree dated 11.04.2022, passed in R.A.No.347/2019 on the file of the XI Addl. District Judge, Belagavi, (hereinafter referred to as 'the First Appellate Court', for brevity), dismissing the appeal and as such, confirming the order dated 14.12.2017 on I.A.No.1 in E.P.No.121/2017 passed by the II Addl. Senior Civil Judge, Belagavi (hereinafter referred to as 'the Executing Court'), dismissing I.A.No.1.
2. For the sake of convenience, the parties to this appeal shall be referred to in terms of their status and ranking before the Executing Court.
3. The relevant facts for adjudication of this appeal are that, respondent No.1 herein has filed O.S.No.306/2016 before the II Addl. Senior Civil Judge and CJM, Belagavi, against the respondent No.2 herein seeking partition in respect of the suit schedule properties. The said suit came to be decreed as per the -3- RSA No. 100842 of 2022 compromise petition accepted on 24.11.2016. Thereafter, respondent No.1 herein has filed E.P.No.121/2017 before the Executing Court, to execute the judgment and decree in O.S.No.306/2016. During the pendency of the execution proceedings, appellant herein - Smt. Kavitha, W/o. Krishna Chougale, has filed I.A.No.1 under Order 21 Rule 97 of Code of Civil Procedure, to obstruct the execution and delivery of the property in question. The said application was resisted by the plaintiff/respondent No.1 herein. The Executing Court after considering the material on record, by its order dated 14.12.2017, rejected the application filed by the appellant herein on I.A.No.1. Feeling aggrieved by the same, the said applicant has preferred R.A.No.347/2019 before the First Appellate Court and the appeal was resisted by the plaintiff/respondent No.1 herein. The First Appellate Court after considering the material on record by its judgment and decree dated 11.04.2020, dismissed the appeal, consequently, confirmed the order dated 14.12.2017, in E.P.No.121/2017 on I.A.No.1 by the II Addl. Senior Civil Judge, Belagavi. Feeling aggrieved by the same, the third party-applicant filed the instant appeal.
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4. I have heard Sri.Shreevatsa Hegde, learned counsel appearing for the appellant and Sri.Vithal S. Teli, Learned counsel appearing for the respondents/caveators.
5. Sri.Shreevatsa Hegde, learned counsel appearing for the appellant contended that, the judgment and decree passed in O.S. No.306/2016, based on the compromise petition, cannot be accepted as the judgment debtor/respondent No.2 herein has executed the gift deed in favour of the third party applicant/ appellant herein on 15.07.2015 and he further contended that, as the property in question has been gifted in favour of the third party- applicant, the said property cannot be a subject matter in E.P.No.121/2017. Therefore, he contended that, the impugned judgment and decree passed by both the Courts below requires to be interfered in this appeal.
6. per contra, Sri. Vithal S. Teli, learned counsel appearing for the respondents sought to justify the impugned judgment and decree passed by the Courts below.
7. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully considered the facts on record, which reveals that, originally the suit schedule -5- RSA No. 100842 of 2022 properties belonged to one Sri.Rajaram Mashekar. He died on 12.12.1996 and his wife Kamalabai died on 23.10.2015. The said Rajaram Masekar had three children, namely, the respondent No.2
- herein (JDR), respondent No.1 (Decree holder) and another son Suresh, who died on 20.06.2016 without leaving behind the legal heirs. The appellant herein is the daughter of respondent No.2 herein (JDR). Respondent No.1 herein has filed O.S. No.306/2016 against the respondent No.2 herein seeking the relief of partition and separate possession in respect of the suit schedule properties. The said suit came to be disposed of in terms of the compromise entered into between the parties on 24.11.2016. In terms of the said compromise petition, the decree holder and the judgment debtor, i.e., respondent Nos. 1 and 2 herein are entitled for ½ share in the suit schedule properties. In the meanwhile, respondent No.2 herein, who is the JDR in E.P.No.121/2017, executed the gift deed dated 15.07.2015, in respect of the schedule property mentioned in the application filed under Order 21 Rule 97 of Code of Civil Procedure by the appellant herein. The Executing Court after considering the fact that the suit in O.S.No.306/2016 was for partition and the property in question of the applicant/appellant herein is with regard to subject matter in O.S.No.306/2016, -6- RSA No. 100842 of 2022 declined to accept the application filed under Order 21 Rule 97 of Code of Civil Procedure and accordingly dismissed.
8. In this regard, the core questions to be answered in this appeal is as to the right of one of the coparceners to execute the gift deed in respect of the joint family properties. At this juncture, it is relevant to cite the judgment of the Hon'ble Apex Court in the case of Thamma Venkata Subbamma (Dead) By LRs. Vs. Thamma Rattamma & Others reported in (1987) 3 SCC
294. The Hon'ble Apex Court has held that, the gift by a coparcener of his/her undivided co-parcenery interest to another coparcener without consent of other coparceners is void. It is well established principle that, the essence of coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. Therefore, the Hon'ble Supreme Court at paragraphs 12 to 14 and 17 of the judgment held as follows:
12. There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions. Instead, we may refer to the following statement of law in Mayne's Hindu Law, Eleventh Edition, Article 382:--7- RSA No. 100842 of 2022
"It is now equally well settled in all the Provinces that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid................. A coparcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts."
13. We may also refer to a passage from Mulla's Hindu Law, Fifteenth Edition, Article 258, which is as follows:--
"Gift of undivided interest.-- (1) According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which preclude the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners."
14. It is submitted by Mr. P.P. Rao, learned Counsel appearing on behalf of the respondents, that no reason has been given in any of the above decisions why a coparcener is not entitled to alienate his undivided interest in the coparcenary property by way of gift. The reason is, however, obvious. It has been already stated that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the -8- RSA No. 100842 of 2022 purpose of preventing a joint Hindu family from being disintegrated.
17. It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior con- sent of all other coparceners. Such a gift would be quite legal and valid.
9. It is also relevant to follow the dictum of the Hon'ble Apex Court in the case of Baljinder Singh Vs. Rattan Singh reported in (2008) 16 SCC 785, wherein it is held that, the execution of the gift by one of the coparceners is void or voidable much depends on the factual scenario and accordingly, affirmed the judgment rendered in Tamma Venkata Subbamma (supra). The three judges Bench of Hon'ble Apex Court in the case of Karsanbhai Dahyabhai Parmar Vs. Dahiben D/o. Dahyabhai Dabhaibhai & Ors. reported in AIR 2017 SC 3857 has held that, the gift deed made in favour of the daughter by a co-owner before partition and before ascertaining her share in the Hindu undivided family is invalid. Recently, the Hon'ble Apex Court in the case of K C. Laxmana Vs. K. C. Chandrappa Gowda and Another reported in 2022 SCC online SC 471, disposed of on 19.04.2022, -9- RSA No. 100842 of 2022 held that, the coparcener in a Hindu undivided family has power to make gift of ancestral property only for "pious purpose'.
10. Following the dictum of the Hon'ble Apex Court in the aforementioned decisions, it is a trite law that the coparcener in a Hindu undivided family is barred from executing the gift deed in respect of the joint family property in favour of any one of the coparceners or stranger without the consent of the other coparceners. Applying the aforementioned principles to the facts on record, the subject matter of the suit has been compromised in O.S.No.306/2016 between respondent No.1 and respondent No.2 herein, schedule property is the co-parcener property of respondents 1 and 2 herein. However, respondent No.2 herein by a registered gift deed dated 15.07.2015, conveyed the same to her daughter - appellant herein. In that view of the matter, as the respondent No.2 herein being a coparcener along with respondent No.1, ought not to have gifted the schedule property in favour of her daughter (appellant herein) by way of gift deed dated 15.07.2015, without the consent of the respondent herein. Therefore, the said gift dated 15.07.2015 is not binding on the plaintiff / decree holder in E.P.No.121/2017 and accordingly, the
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RSA No. 100842 of 2022 Executing Court rightly dismissed I.A.1 filed by the third party applicant / appellant herein. At this juncture, it is relevant to cite the judgment of this Court in the case of S.S.M. & Sons Vs. Nanjamma & Ors. Reported in 2009 (3) AIR Kar R 107. At paragraph 16 of the judgment, this Court held as follows:
"16. On a conspectus reading of these provisions, it becomes clear that an application under Rule 97 of Order XXI can be maintained only by a person who claims an independent right and not a right either under the judgment debtor or a decree-holder. This is the settled position of law. But, in the instant cases, strangely. the application has been filed by a person who claims to be a joint decree-holder in one breath and an independent person who has let out possession of the scheduled premises to tenants in another breath. As already noticed, an application was filed by Prema Kumari contending that she is a joint decree-holder along with Rajanna claiming right, title and interest through her mother Nanjamma. Such being the position, she could not have maintained an application under Rules 97 to 99 of Order XXI of C. P. C. by contending that she was a stranger and had an independent right by virtue of being in possession of a portion of the property. Hence, in my opinion, the application itself was not maintainable and ought to have been dismissed in limine by the Court below. Similarly, the applications filed by the petitioners in HRRP Nos. 39/2002 and 40/2002 were also not maintainable since they claim right, title and interest through Prema Kumari who
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RSA No. 100842 of 2022 did not have the locus standi or an independent right to maintain such an application. Therefore, the said applications also ought to have been rejected at the threshold. Therefore, point No. 1 is held against the petitioners for the aforesaid reasons and the applications filed by them under O. XXI, Rr. 97 to 99, C. P. C. are dismissed as not maintainable. Though it is held that the applications filed by the petitioners in these revision petitions are held to be not maintainable, but nevertheless, the Executing Court did not go into the maintainability of the said applications in great detail, but after hearing both sides, has passed an order dismissing the said applications."
11. The Division Bench of this Court in the case of Babu Mother Savavva Navalgund & Others Vs. Gopinath reported in ILR 1999 KAR 3129, at paragraphs 5 to 7 held as follows:
"5. In Article 258 of Mulla's Hindu Law, 16th Edition, it has been said that:
258. Gift of undivided interest:
According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.
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6. Again in Article 267 of the above text it has been said at page 309 that:
"267. Setting aside gifts. A coparcener, according to the Mitakshara law, cannot make a gift of the coparcenary property, not even of his own interest in the property. Therefore, where such a gift is made, and it is objected to by the other coparceners, the Court will set aside the gift in its entirety. The gift is not valid even to the extent of the donor's interest in the property."
7. For the above reasons we affirm the view taken by the Trial Court and hold that the above two gifts made by Sri Shivamurthappa after the adoption of the plaintiff were ab- initio void and null in its entirety. This being the position there was no occasion for seeking cancellation or setting aside of all the instruments of gifts attracting any period of limitation. The transactions were null and void since their inception has to be ignored by the Court while entertaining the prayer for recovery of the possession of the properties covered by such instruments of gifts."
12. Applying the aforementioned judgments to the facts on record, it is trite law that the undivided interest of the joint family cannot be gifted by the members of the joint family as the demarcation and extent of the property was not identified/determined. In the present case, execution of the gift deed was made on 15.07.2015 much earlier to the death of mother
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RSA No. 100842 of 2022 of the plaintiff, who died on 23.10.2015 and therefore, in terms of Section 8 of the Hindu Succession Act, 1/3rd property ought to have been allotted to the share of the Judgment Debtor (mother of the applicant/appellant herein) and as such, I find force in the submission made by Sri. Vitthal S. Teli, learned counsel appearing for the respondents.
13. I have also noticed that the First Appellate Court after re-appreciating the material on record rightly dismissed the appeal preferred by the appellant herein on the ground that the gift that may be made by the coparceners in Mitakshara of his undivided interest is invalid and therefore, I do not find any acceptable ground to interfere with the well reasoned judgment and decree passed by the First Appellate Court confirming the order passed by the Executing Court in I.A.No.I in E.P.No.121/2017. The appellants herein have not made out a case for formulation of substantial question of law as required under Section 100 of the Code of Civil Procedure. In the result, appeal fails and accordingly, dismissed.
Sd/-
JUDGE gab