Karnataka High Court
R. Manjula vs Vijayapura Education Society on 14 January, 2020
Bench: B.V.Nagarathna, Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MS.JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL No. 692 OF 2018 (RES)
BETWEEN:
1. R.MANJULA
W/O LATE S.DEVAKUMAR
AGED ABOUT 58 YEARS
2. D.SUSHMA
D/O LATE S.DEVAKUMAR
W/O SRINATH
AGED ABOUT 38 YEARS
3. D. SUHAS
S/O LATE S.DEVAKUMAR
AGED ABOUT 35 YEARS
ALL ARE R/AT NO.1302
SRI KESHVA SWAMY TEMPLE STREET
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562 135 ... APPELLANTS
(BY SRI NARAYANA RAO FOR
SRI RAJESWARA P.N., ADVOCATES)
2
AND:
1. VIJAYAPURA EDUCATION SOCIETY
HAVING ITS REGISTERED OFFICE
AT VIJAYAPURA
VIJAYAPURA TOWN
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135
REP. BY ITS SECRETARY
2. M.SATHISH KUMAR
S/O LATE A.S.P.MALIGAPPA
AGED ABOUT 56 YEARS
PRESIDENT
VIJAYAPURA EDUCATION SOCIETY
RESIDING AT NO.86,
KALABYRESHWARA GUDI STREET
VIJAYAPURA TOWN
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135
3. M. SUDHAKAR
S/O LATE MALIGAPPA
AGED ABOUT 62 YEARS
SECRETARY
VIJAYAPURA EDUCATION SOCIETY
RESIDING AT NO.22
KESHWASWAMY GUDI STREET
VIJAYAPURA TOWN
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135
4. J.C.NANJUNDAPPA
S/O.LATE J.CHANNAVEERAPPA
AGED ABOUT 88 YEARS
MEMBER
VIJAYAPURA EDUCATION SOCIETY
RESIDING AT NO.234
KESHWASWAMY GUDI STREET
3
VIJAYAPURA TOWN
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135
5. B. SURESH
S/O LATE BHUPANNA
AGED ABOUT 62 YEARS
MEMBER
VIJAYAPURA EDUCATION SOCIETY
RESIDING AT NO.296
KESHWASWAMY GUDI STREET
VIJAYAPURA TOWN
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135
6. S.BASAVARAJ
S/O LATE K.B.SHAMANNA
AGED ABOUT 63 YEARS
MEMBER
VIJAYAPURA EDUCATION SOCIETY
RESIDING AT NO.258-B
J.C. BADAVANE
VIJAYAPURA TOWN
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135
7. B.MUNIKRISHNAPPA
S/O LATE N.BASAPPA
AGED ABOUT 67 YEARS
MEMBER
VIJAYAPURA EDUCATION SOCIETY
RESIDING AT NO.25
DEVANAHALLI RASTE LEFT SIDE
VIJAYAPURA TOWN
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135
8. SAMPATH KUMAR
S/O LATE NARAYANAPPA
4
AGED ABOUT 59 YEARS
MEMBER
VIJAYAPURA EDUCATION SOCIETY
RESIDING AT NO.122
MANDIBELE ROAD
VIJAYAPURA TOWN
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135
9. NARAYANASWAMY
S/O MUNISYAMAPPA
AGED ABOUT 57 YEARS
MEMBER
VIJAYAPURA EDUCATION SOCIETY
RESIDING AT NO.77, ARALEPETE
VIJAYAPURA TOWN
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135
10. A.N. RAMABASAPPA
S/O LATE NANJUNDAPPA
AGED ABOUT 93 YEARS
EX-MEMBER
VIJAYAPURA EDUCATION SOCIETY
RESIDING AT: NEAR NEW BUS STAND
VIJAYAPURA TOWN
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135
11. C. BASAPPA
S/O LATE CHIKKANNAPPA
AGED ABOUT 74 YEARS
EX-MEMBER
VIJAYAPURA EDUCATION SOCIETY
R/AT: DEVANAHALLI RASTE LEFT SIDE
VIJAYAPURA TOWN
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135
5
12. SRI M. RAVISH KUMAR
S/O.B.MUNIKRISHNAPPA
AGED ABOUT 40 YEARS
R/AT NO.326, J.C. EXTENSION
VIJAYAPURA TOWN
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135
13. N. SHIVAPRASAD
S/O.LATE C.NANJAPPA
AGED ABOUT 56 YEARS
R/AT D-18, GOLDEN ORCHID APARTMENTS
"AB" BLOCK, KASTURBA ROAD
BENGALURU - 560 001
14. S.RAMESH KUMAR
S/O.SAMPATH RAJ
AGED ABOUT 45 YEARS
RESIDING AT SUJNANA NAGARA
MANDIBELE ROAD
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562 135
15. SMT.DOLI BAI
W/O.LATE HEMAARAAM CHOWDARI
AGED ABOUT 64 YEARS
16. SMT.MANJU CHOWDARI
D/O.LATE HEMAARAAM CHOWDARI
AGED ABOUT 45 YEARS
17. ASHOK KUMAR CHOWDARI
S/O.LATE HEMAARAAM CHOWDARI
AGED ABOUT 30 YEARS
R15 TO R17 ARE R/AT NO.222
TIRUGAPPA LANE, COTTONPET
BENGALURU - 560 053
6
18. SMT.TARAMMA
W/O.LATE R.BASAVARAJU
AGED ABOUT 79 YEARS
19. SMT.B. JAYA BHARATHI
D/O.LATE R. BASAVARAJU
AGED ABOUT 61 YEARS
20. SMT.B.SUDHAMANI
D/O.LATE R.BASAVARAJU
AGED ABOUT 59 YEARS
21. MR.B.KIRAN KUMAR
S/O.LATE R.BASAVARAJU
AGED ABOUT 51 YEARS
22. SMT.MANJULA
W/O.B.KIRAN KUMAR
AGED ABOUT 44 YEARS
R18 TO R22 ARE R/AT FORT STREET
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562 135
23. SMT.VIDYAVATI
W/O.LATE R.CHANDRAPPA
MAJOR
R/AT SOMESWARA GUDI STREET
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562 135 ...RESPONDENTS
(BY SRI V.F.KUMBAR, ADVOCATE FOR C/R18 AND R21;
SRI RUDRABHUSHAN C. AND
SRI SHARANA DEEP, ADVOCATES FOR R14 TO R17;
NOTICE TO R4 AND R9 IS DISPENSED WITH;
RESPONDENT NOS.1, 2, 3, 5 TO 8, 10 TO 13, 19,
20 AND 22 ARE SERVED AND UNREPRESENTED;
SERVICE OF NOTICE TO R23 IS HELD SUFFICIENT
V/O DATED 08.01.2020)
7
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF THE CODE OF CIVIL PROCEDURE 1908
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 03.04.2018 PASSED IN O.S.NO.96/2012 BY THE
SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI.
THIS REGULAR FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, NAGARATHNA J., DELIVERED
THE FOLLOWING:
JUDGMENT
The plaintiffs in OS.No.96/2012 have preferred this appeal being aggrieved by the order and decree passed on IA.No.10 by the Senior Civil Judge and JMFC at Devanahalli dated 03.04.2018.
2. Briefly stated the facts are that the plaintiffs had filed OS.No.96/2012 seeking the following reliefs:
"WHEREFORE, the plaintiffs humbly prays that, this Hon'ble Court be pleased to pass a judgment and Decree
1. Cancelling the Sale deed dated 29/09/2011 registered as document No.DNH-1-03928-
2011-12 stored in CD No.DNHD 242 on 15/10/2011 in favour of Defendants 12 and 13 in respect of suit schedule Item 1 property and send a copy of the decree to the Sub-8
Registrar, Devanahalli to note on the copy of the instrument contained in his book the fact of its cancellation;
2. Cancelling the Sale deed dated 04/08/2008 registered as document No.DNH-1-02434-
2008-09 stored in CD No.DNHD 159 on 06/08/2008 in favour of Defendant No.12 in respect of the suit schedule Item 2 & 3 properties and send a copy of the decree to the Sub-Registrar, Devanahalli to note on the copy of the instrument contained in his book the fact of its cancellation;
3. Directing the Defendants 12 and 13 to forthwith deliver possession of the suit schedule properties back to the 1st Defendant Society;
4. directing the 1st Defendant Society to utilize within a reasonable time as may be fixed by this Hon'ble Court the suit schedule properties for the charitable purpose for which they were donated under Gift deed dated 4/5/67 read with Rectification Deed dated 19/02/1968 and display the name plate as "gifted by Mrs.Basamma, M.G. Maligappa's Charities"
failing which to handover the possession of the suit schedule properties back to the Plaintiffs; 9 Amended as per 4A). Declare that the defendants No.14 to 23 orders of this Hon'ble Court have no right whatsoever over the Item No.2 & 3 dated 4/4/14 of the suit schedule properties;
5. permanently restraining the Defendants or any one claiming through or under them from dealing with the suit schedule properties in any manner contrary to the charitable purpose for which they were donated under Gift deed dated 4/5/67 read with Rectification Deed dated 19/02/1968; and
6. pass such other reliefs as this Hon'ble Court deems fit to grant under the facts and circumstances of the case, together with court costs in the interest of justice and equity." The aforesaid prayers were sought in respect of the following three items of the suit schedule properties:
"SCHEDULE PROPERTIES"
Item No: 1:
All that piece and parcel of agricultural land bearing Survey Number 201/3 measuring 3 Acres 06 guntas Revenue Assessment of Rs.5-50.
bounded by:
10
East by : Power and Light Office.
West by : Main drain connecting to
Vijayapura Tank.
North by : Power and light office.
South by : Municipal sites and Road.
Item No:2:
All that piece and parcel of agricultural land bearing Survey Number 46 measuring 1 Acres 25 guntas of Ranganathapura Village, Vijayapura Hobli, Devanahalli Taluk. bounded by:
East by : Ranganatha Swamy Temple Land.
West by: Government Oni.
North by: Reddigara Muniyappa Land. South by: M. Sheshgiri Rao land.
Item No:3:
All that piece and parcel of agricultural land bearing Survey Number 47/2 measuring 8 Acres 13 guntas of Ranganathapura Village, Vijayapura Hobli, Devanahalli Taluk. bounded by:
East by : Ranganatha Swamy Temple Land.
West by: Government Oni.
North by: Reddigara Muniyappa Land.
South by: Survey No.46 as cited above."
3. In response to the suit summons and the Court notices, defendant Nos.1, 14 to 17 and 18 to 23 appeared. 11
Defendant Nos.18 to 23 filed IA.No.10 under Order VII Rule 11(a), (b) and (d) of Code of Civil Procedure, 1908 (CPC) seeking rejection of plaint.
4. By the impugned order and decree dated 03.04.2018, the trial Court has allowed the said application and rejected the plaint. Being aggrieved, the plaintiffs have preferred this appeal.
5. Notice to respondent Nos.4 and 9 is dispensed with. Respondent Nos.1, 2, 3, 5 to 8, 10 to 13, 19, 20 and 22 have been served and are unrepresented. Service of notice to respondent No.23 is held sufficient.
6. We have heard the learned counsel for the appellants and the learned counsel for respondent Nos. 18 and 21 and 14 to 17and perused the material on record.
7. Appellants' counsel submitted that the trial Court was not right in rejecting the plaint, as a result, the appellants have been deprived of an opportunity of seeking the aforesaid reliefs as against the defendants. He 12 contended that the suit was filed by the legal representatives of Maligappa, who was the donor of the suit schedule properties; that he had donated the suit schedule properties to the first defendant-Vijayapura Education Society (hereinafter referred to as 'the Society') for a charitable purpose i.e. to construct a building of the Society and a General Hostel to accommodate the students to study in Institutions of the Society; that the said gift was made on 04.05.1967 under a registered deed subsequently a rectification deed was executed on 19.02.1968. The object and purpose of the rectification deed was to enable the first defendant-Society-the donee to form sites in the schedule land be sold in a public auction at a reasonable rate and to utilize the proceeds of sale for construction of hostel, school building and to run the hostel and to reconvey three sites measuring 40' x 60' feet without any consideration to the donor; that the first defendant-Society has sold suit item No.1 in favour of defendant Nos.12 and 13 under a registered sale deed dated 29.09.2011, similarly the first defendant-Society has 13 sold suit item Nos.2 and 3 in favour of defendant No.12 under a registered sale deed dated 04.08.2008. That the said sale made by defendant No.1 in favour of defendant Nos.12 and 13 is illegal and void. Therefore, the relief of cancellation of the said sale deeds were sought. Further, a direction was sought against defendant Nos.12 and 13 to deliver possession of the suit schedule properties of the first defendant-Society. So that the said Society could utilise the property for the charitable purpose for which they were denied under the gift deed dated 04.05.1967 and rectification deed 19.02.1968. Also, a declaration was sought against defendant Nos.14 to 23 who are the purchasers from defendant Nos.12 and 13 that they have no right whatsoever in the suit item Nos.2 and 3. An injunction was sought against the defendants from dealing with suit schedule properties in any manner other than for the purpose for which the gift was made by Sri Maligappa. He contended that the first defendant-Society, contrary to the terms and conditions of the gift deed alienated the properties to defendant Nos.12 and 13 and hence, the 14 aforesaid prayers were sought; that the trial Court was not right in rejecting the plaint under Order VII Rule 11 (a),
(b) and (d) of CPC. Hence the impugned order and decree may be set aside and the suit may be restored on the file of the trial Court so that, it could be decided on merits.
8. Per contra, learned counsel for respondent Nos.18 and 21 and respondent Nos.14 to 17, who are the alienees from the first defendant-Society, supported the impugned order and decree and contended that the plaintiffs claimed to be the legal representatives of the deceased Maligappa- donor of the suit schedule items and neither in the gift deed nor in the rectification deed is there any clause seeking either suspension or revocation of the gift deed. They contended that even in the plaint, the plaintiffs have not sought for revocation of the gift deed. In the absence of seeking such a prayer, the plaintiffs, being strangers to the suit schedule properties, have no locus standi to question the alienation made by defendant No.1 in favour of third parties and thus, they could not seek cancellation 15 of the sale deeds made in favour of defendant Nos.12 and
13. They further contended that, if at all, the gift deed dated 04.05.1967 and the rectification deed 19.02.1968 contained any clause for suspension or revocation of the gift deed as contained in Section 126 of the Transfer of Property Act, 1882 (hereinafter referred to as 'the T.P.Act') then, they may have had the right to sue against the defendants. That in the absence of right to sue, no cause of action to file the suit as against the defendants arose. They contended that there is no merit in the appeal and the appeal may be dismissed.
9. We have given out anxious consideration to the arguments advanced by the respective counsel. Having heard the learned counsel for the respective parties and on perusal of the material on record, we find that the following are the undisputed fact, namely, that Maligappa had gifted the suit schedule properties in favour of the first defendant-Society under a registered gift deed dated 04.05.1967 and subsequently, by rectification deed dated 16 19.02.1968. It is also an admitted fact that the first defendant-Society alienated the suit schedule items in favour of defendant Nos.12 and 13, who, subsequently alienated to third parties and it is thus, the third party- alienees namely, defendant Nos.18 to 23 in the suit who, filed the application under Order VII Rule 11(a) (b) (d) of CPC.
10. We have perused the contents of the plaint and also the gift deed dated 04.05.1967, a copy of which was furnished by the learned counsel for the appellants during the course of the arguments. The gift deed reads as under:
"GIFT DEED THIS DEED OF GIFT is made this Fourth day of May in the year One thousand nine hundred sixty seven between Sri M.G.Maligappa son of Melur Giddappa, aged about 68 years, Agriculturist and Land Lord, Vijayapura, Bangalore District hereinafter called the donor, OF THE ONE PART AND THE President and Secretary, The Vijayapura Education Society (Reg) Vijayapura, Bangalore District, hereinafter called the "DONEES" OF the other part.17
WHEREAS the terms of the Donor shall mean and include his heirs and legal representatives and the terms of the Donees shall mean the President and secretary and their successors of their Office called as Donee.
WHEREAS the Donor has acquired the scheduled properties out of his own earnings and got possession and became full and absolute owner of the properties described in the schedule. NOW THIS DEED OF GIFT witnesseth in the pursuance of the said intention to gift the scheduled properties for charitable proposes to construct a building of the Vijayapura Education Society (Regd) Office and General Hostel building to accommodate the students who are studying at the said Institutions, out of his own free will, without fraud, coercion or undue influence from the Donee or anybody whomsoever and in full possession of his sense, does hereby give, convey, grant and transfer and confirm unto Donee the said properties more fully described in the schedule on condition to fix up a Name Plate on both the buildings as "GIFTED BY SMT. BASAMMA, M.G. MALIGAPPA'S CHARITIES".
AND THAT THE SAID DONEES shall and may from time to time and at all times hereafter peaceably and 18 quietly enter upon, hold, occupy, possess and enjoy all the properties hereby gifted and receive and take any transaction amount made on the schedule properties and profess thereto and of every part thereof without any let or hindrance whatsoever from or by the said Donor or by and person or persons claiming from under or in trust of the Donor. AND WHEREAS THE DONEES are agreed with the Donor to reconvey three sites by measuring 40x60 without taking any consideration at the time of formation of sites in the schedule.
THE SCHEDULE OF PROPERTIES is valued at Rs.1000/- (Rupees One thousand) IN WITNESS where the said Donor has hereunto set and scribed his signature and delivered in the presence of the witnesses present at the date, month and year as above written.
SCHEDULE OF PROPERTIES
1) Survey No.201/3 of Vijayapura Village Three Acres and six guntas; Revenue assessment:Rs.5.50 Bounded by:- East : Power and Light Office West : Main drain connecting to Vijayapura Tank North: Power and Light Office.
19South: Municipal sites and Road.
2) Survey No.46 of Ranganathapura Village One Acre and twenty five guntas; Revenue assessment: Rs.3.89 Bounded by:- East : Ranganatha Temple Road West : Government Oni North: Reddigaramuniyappa Land South: M.Seshagiri Rao's Land.
3) Survey No.47/2 of Ranganathapura Village Eight Acres and thirteen guntas; Revenue assessment: Rs.26.37 Bounded by:- East : Ranganathaswamy Temple land West : Government Oni North : Reddigaramuniyappa's Land South : Survey No.46 as cited above.
Witnesses:
1. DONOR
2. DONEE"
Subsequently, on 19.02.1968 there was a rectification deed made between Maligappa and the first defendant-Society-donee, the object and purpose of the rectification deed was to add the following words namely, 20 "the donee after making formation of sites in the schedule land be sold out in public auction or for reasonable rate and the realized amount may be utilized only for construction of hostel, School building and running hostel without any hindrance of the donor and the donee may recover three sites by measuring 40' x 60' feet without taking any consideration from the donor."
11. On perusal of the gift deed 04.05.1967 as well as the rectification deed dated 19.02.1968, it is evident that defendant No.1 had the right to alienate or encumber the gifted properties which are the suit schedule properties and utilise the proceeds for the purpose of running the educational institution. Further, it is also noted that there has been no reservation of any kind mentioned in favour of the donor Maligappa in the gift deed and also there is no mention that, on the happening of any event, the gift shall stand suspended or revoked.
12. Section 126 of the T.P.Act categorically states that the donor and the donee may agree that on the 21 happening of the specified event which does not depend on the will of the donor, the gift deed shall be suspended or revoked but a gift cannot be revoked at the mere will of the donor and even, if such a condition is mentioned in the gift deed, it is void. Further, a gift may also be revoked in any of the cases, in which, if it were a contract, it might be res integra, the same as aforesaid a gift cannot be revoked. Therefore, what emerges is the fact that a condition for suspension or revocation of the gift deed, which must be in accordance with Section 126 of the T.P. Act, must be mentioned in the gift deed before any such suspension or revocation could be sought, whether by the donor or by the legal representatives of the donor. As already noted, there is no such condition regarding the suspension or revocation mentioned either in the gift deed or in the rectification deed. On the other hand, the gift deed and the rectification deed permit defendant No.1- Society to encumber the suit schedule lands or even alienate them and to utilise the proceeds for the purpose of the educational institution. The case of the plaintiffs is 22 with regard to alienation made by defendant No.1-Society in favour of defendant Nos.12 and 13, in respect of which, the cancellation of the sale deeds have been sought. The plaintiffs are strangers to the said transactions. Further, the plaintiffs have no right, title and interest in the suit schedule properties which are also the subject matter of the gift deed, the reason being, there is no condition regarding the suspension or revocation of the gift, either in the gift deed or in the rectification deed. In the circumstances, the plaintiffs who claim to be the legal heirs of the donor-Maligappa have no right, title and interest in respect of gifted properties. When the donor-Maligappa himself had lost all right, title and interest in the gifted properties, the plaintiffs who claim under the donor as his legal representatives cannot have any right in respect of the said properties. They are strangers to the said properties, in the absence of there being any condition for revocation or suspension of the gift deed. 23
13. Further, in the absence of seeking such a suspension or revocation, the plaintiffs have sought for cancellation of the sale deed made by defendant No.1- Society in favour of defendant Nos.12 and 13. They have sought for possession of the suit schedule items which are also the items of the gift deed to be handed over to defendant No.1-Society and a direction is sought to defendant No.1-Society to utilise the properties for charitable purpose and further, consequential relief of injunction has been sought. The plaintiffs who may be the legal representatives of Maligappa-the donor of suit schedule items to the first defendant-donee have no right, title and interest in the said properties, when their ancestor, Maligappa gifted the said properties to the first defendant-donee. Secondly, in the absence of any clause seeking suspension or revocation of the gift, the plaintiffs cannot file a suit seeking cancellation of the sale deed executed by defendant No.1 in favour of defendant Nos.12 and 13 and subsequent alienations made in favour of the other defendants. The plaintiffs, in fact, have no cause of 24 action to seek any relief against the defendants. Therefore, the trial Court has rightly rejected the plaint under Order VII Rule 11 (a) of CPC. When the plaintiffs have no cause of action to file the suit as they do not have locus standi to do so, on account of no right being reserved in the deeds the plaint has to be rejected on that score i.e. under Order VII Rule 11(a) of CPC. The other provisions invoked by defendant Nos.18 to 23 i.e. Order VII Rule 11(b) and (d) were unnecessary. In the circumstances, we do not find any infirmity in the order and decree of the trial Court. There is no merit in the appeal. The appeal is hence, dismissed.
Parties to bear their respective costs. In view of the dismissal of the appeal, pending applications stand dismissed.
Sd/-
JUDGE Sd/-
JUDGE LB