Karnataka High Court
Sushilawwa D/O Tippanna Melappagol vs Gangawwa W/O Tippanna Melappagol on 11 November, 2024
-1-
NC: 2024:KHC-D:16490
RFA No. 100072 of 2015
C/W RFA.CROB No. 100002 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100072 OF 2015 (DEC/PAR)
C/W
RFA CROSS OBJ NO. 100002 OF 2016
IN RFA NO.100072/2015
BETWEEN:
SMT. SUSHILAWWA
D/O. TIPPANNA MELAPPAGOL,
AGE: 29 YEARS,
OCC: AGRICULTURE,
R/O: HALLUR VILLAGE,
TQ: GOKAK, DIST: BELAGAVI-591 312.
...APPELLANT
(BY SRI. G. B. NAIK & SMT. P. G. NAIK, ADVOCATES)
AND:
ASHPAK 1. SMT. GANGAWWA W/O. TIPPANNA MELAPPAGOL,
KASHIMSA
MALAGALADINNI AGE: 64 YEARS, OCC:AGRICULTURE,
R/O: HALLUR VILLAGE,
TQ: GOKAK, DIST: BELAGAVI.
PIN: 591 312.
Location:
HIGH 2. SMT. BHAGAWWA W/O. MAHADEV NESUR,
COURT OF AGE: 44 YEARS, OCC: AGRICULTURE,
KARNATAKA
R/O: HALLUR VILALGE,
TQ: GOKAK, DIST: BELAGAVI-591 312.
3. SHRI. BASAPPA LAXMAN MELAPPAGOL,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: HALLUR VILALGE,
TQ: GOKAK, DIST: BELAGAVI
PIN -591 312.
-2-
NC: 2024:KHC-D:16490
RFA No. 100072 of 2015
C/W RFA.CROB No. 100002 of 2016
4. SHRI. SANGAPPA LAXMAN MELAPPAGOL,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: HALLUR VILALGE,
TQ: GOKAK,
DIST: BELAGAVI-591 312.
...RESPONDENTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE FOR C/R3 & R4;
SRI. SANTOSH B. RAWOOT, ADVOCATE FOR R1 AND R2)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE
1 & 2 OF THE CODE OF CIVIL PROCUDURE, 1908 PRAYING THAT THE
JUDGMENT AND DECREE DATED 30.01.2015 PASSED IN
O.S.NO.119/2010 BY THE PRINCIPAL SENIOR CIVIL JUDGE, GOKAK
MAY KINDLY BE SET ASIDE AND SUIT OF THE PLAINTIFF MAY
KINDLY BE DECREED, IN THE INTEREST OF JUSTICE AND EQUITY.
IN RFA CROSS OBJ NO. 100002/2016
BETWEEN:
1. SMT.GANGAWWA
W/O. TIPPANNA MELAPPAGOL
AGE: 64 YEARS
OCC: AGRICULTURE
R/O: HALLUR VILLAGE,
TQ: GOKAK
DIST: BELAGAVI-591312.
2. SMT. BHAGAWWA W/O MAHADEV NESUR
AGE: 44 YEARS
OCC: AGRICULTURE
R/O: HALLUR VILLAGE,
TQ: GOKAK
DIST: BELAGAVI-591312
...CROSS-OBJECTORS
(BY SRI SANTOSH B. RAWOOT, ADVOCATE)
-3-
NC: 2024:KHC-D:16490
RFA No. 100072 of 2015
C/W RFA.CROB No. 100002 of 2016
AND:
1. SMT. SUSHILAWWA
D/O TIPPANNA MELAPPAGOL
AGE: 29 YEARS
OCC: AGRICULTURE
R/O: HALLUR VILLAGE,
TQ: GOKAK
DIST: BELAGAVI-591312.
2. SHRI BASAPPA LAXMAN MELAPPAGOL
AGE: 40 YEARS
OCC: AGRICULTURE
R/O: HALLUR VILLAGE,
TQ: GOKAK
DIST: BELAGAVI-591312.
3. SHRI SANGAPPA LAXMAN MELAPPAGOL
AGE: 38 YEARS
OCC: AGRICULTURE
R/O: HALLUR VILLAGE,
TQ: GOKAK
DIST: BELAGAVI-591312.
...RESPONDENTS
(BY SRI. G. B. NAIK AND SMT. P. G. NAIK, ADVOCATES FOR R1;
SRI. DINESH M. KULKARNI, ADVOCATE FOR R2 & R3)
THIS CROSS OBJECTION IS FILED UNDER ORDER 41 RULE 22
OF C.P.C., PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE OF THE COURT OF PRL. SENIOR CIVIL
JUDGE, GOKAK PASSED IN O.S.NO. 119/2010 DATED 30.01.2015 BY
REMANDING THE MATTER FOR FRESH HEARING TO TRIAL COURT, IN
THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEAL AND CROSS-OBJECTION COMING ON FOR
FURTHER HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
-4-
NC: 2024:KHC-D:16490
RFA No. 100072 of 2015
C/W RFA.CROB No. 100002 of 2016
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
RFA No.100072/2015 is filed challenging dismissal of
the suit for declaration and partition. The suit was filed
against the mother-defendant No.1, sister- defendant No.2,
and defendants No.3 and 4, who are the beneficiaries under
the gift deed dated 19.11.1986, said to have been executed
by defendant No.1.
2. Defendants No.3 and 4 contested the suit and
claimed rights over the properties under the registered gift
deed executed by defendant No.1. Mother of the plaintiff
/Defendant No.1 supported the plaintiff's case. Defendant
No.2 did not file any written statement.
3. Admittedly, when the gift deed was executed, the
plaintiff was minor and aged 3 years. Minor had 1/3rd
undivided share in the suit properties. The plaintiff and
defendant No.2 along with their mother defendant No.1
inherited the said property after the demise of the father of
plaintiff and defendant No.2 and husband of defendant No.1.
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
4. The Trial Court framed the following issues:
i. Whether the plaintiff proves that the suit
properties jointly belong to the plaintiff
and defendants No.1 and 2?
ii. Whether the plaintiff proves that she is
having 1/3rd share in the suit property?
iii. Whether the plaintiff proves that the gift
deed dated 19.11.1986 executed by
defendant No.1 in favour of defendants
No.3 and 4 is illegal and not binding on the
share of the plaintiff?
iv. Whether the suit is barred by limitation?
v. Whether the plaintiff is entitled to partition
and separate possession of 1/3rd share in
the suit properties?
vi. What decree or order?
5. The suit is dismissed on the premise that the suit
is time-barred. The Trial Court held that the suit properties
jointly belonged to the plaintiff and defendants No.1 and 2.
However, the relief of partition is declined on the premise
that the suit is time-barred under Article 60 of the Limitation
Act, 1963 (for short 'the Act of 1963')
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
6. Aggrieved by the aforementioned judgment and
decree, the plaintiff is in appeal.
7. Smt.P.G.Naik, learned counsel appearing for the
appellant/plaintiff would urge that, the properties admittedly
belonged to Tammanna the father of plaintiff and defendant
No.2 and husband of defendant No.1. After his death, his two
daughters, plaintiff and defendant No.2 acquired joint right
along with defendant No.1 their mother. Thus, the property
being the joint family property, the mother has no right to
execute the gift deed of the undivided share. The said
transaction is void, as such the suit is essentially one for
partition and separate possession and relief of declaration is
ancillary. The Trial Court could not have dismissed the suit
as time-barred, as the cause of action arose a week before
filing the suit where the defendants refused to part with 1/3rd
share of the plaintiff.
8. It is also urged that Article 60 of the Act of 1963
does not apply to the facts of the case as the properties in
question were not the separate properties of the plaintiff
when the gift deed was executed by the plaintiff's mother in
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
the year 1986. When the plaintiff's mother executed the gift
deed in the year 1986, the plaintiff had an undivided 1/3rd
share in the said properties and the plaintiff was aged 3
years. Article 60 of the Act of 1963 would apply only in a
situation where the guardian transfers the separate property
of the minor. The suit is governed by Article 110 of the Act of
1963 and the Trial Court failed to appreciate said aspect.
9. It is also her further contention that when the
transfer took place through a registered gift deed in the
name of defendants No.3 and 4, the plaintiff was just 3 years
old and she could not have instituted a suit challenging the
gift deed because of the disability. The disability ceased after
she attained the age of 18 years, and the cause of action
arose when the defendants refused to part with the share of
the plaintiff.
10. It is also her contention that the properties being
the ancestral properties, the gift of undivided share is void
and the transaction being void there is no limitation to
challenge the said transaction and unless the defendants can
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
establish ouster and adverse possession, the suit could not
have been dismissed as time-barred.
11. In support of the contention the learned counsel
for the appellant has placed reliance on the judgments of in
Babu Mother Savavva Navalgund & others vs.
Gopinath1, Ganapati Santaram Bhosale and Ors. Vs.
Ramachandra Subbarao Kulkarni and Ors.2 and
Shankarayya Balayya Pujari vs Champabai3 and
Thamma Venkata Subbamma (Dead) by LR vs Thamma
Rattamma and others4
12. Learned counsel for defendant No.1 would
support the case of the plaintiff and would urge that, after
having held that the suit properties are the joint family
properties of the plaintiff and defendants No.1 and 2, the
Trial Court could not have invoked Article 60 of the Act of
1963, to dismiss the plaintiff's case.
ILR 1999 KAR 3129
ILR 1985 KAR 1115
ILR 1988 KAR 2348
(1987) 3 SCC 294
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
13. Sri.Dinesh M. Kulkarni, the learned counsel
appearing for the contesting respondents would submit that
the judgments relied upon by the learned counsel in the case
of Babu Mother Savavva Navalgund & others vs.
Gopinath5 and Shankarayya Balayya Pujari vs
Champabai6 and Thamma Venkata Subbamma (Dead)
by LR vs Thamma Rattamma and others7 do not apply to
the case on hand, as in those cases the alienation is made by
the coparceners whereas in this case alienation is made by
the guardian.
14. It is his further submission that the properties are
not coparcenary properties as such the properties should be
treated as separate properties of the minor, though
undivided, and the provisions of the Act of 1956 would apply
and the mother being the natural guardian has transferred
the properties for the benefit of the minor. Even if the
transaction is held to be not for the benefit of the minor,
such transfer is voidable under Section 8(3) of the Act of
ILR 1999 KAR 3129
ILR 1988 KAR 2348
(1987) 3 SCC 294
- 10 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
1956. When the Act itself says that the transaction is
voidable, at the instance of the minor, the contention that
the transaction is void cannot be accepted. When the
transaction is voidable, then the transaction remains valid as
long as it is not questioned and the transaction is not
questioned within three years prescribed under Article 60,
the suit is time-barred.
15. It is also urged by Sri. Dinesh M. Kulkarni, the
learned counsel, that Article 110 of the Act of 1963 has no
application and even if it is held to be applicable the suit is
time-barred as the appellant will have only three years to file
the suit after attaining majority as the limitation of 12 years
under Article 110 of the Act of 1963 would expire during the
minority of the plaintiff and the plaintiff will have only three
years to file the suit after attaining majority. Since the suit is
filed 9 years after attaining majority same is time barred.
Learned Counsel would rely on Section 8 of the Act of 1963
- 11 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
and the judgment of the Apex Court in Darshan Singh vs.
Gurudev Singh8.
16. It is also his submission that the suit itself is
defective since all the suit properties were not included when
the suit was filed and the suit is filed only in respect of the
properties transferred in favour of defendants No.3 and 4
under the registered gift deed and the suit being collusive,
the application filed before this Court, by the appellant, to
include the properties is not maintainable and the suit has to
be dismissed for not including all the family properties.
17. This Court has considered the contentions raised
at the Bar and perused the records. The following points
arise for consideration:
i. Whether the provisions of the Hindu Minority
and Guardianship Act, 1956 apply to the joint
family properties and the mother can act as a
guardian of a minor under the said Act and deal
with the joint family properties of a minor?
ii. Whether the suit of the plaintiff is barred by
limitation?
(1994) 6 SCC 585
- 12 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
iii. Whether the suit is not maintainable for not
including all the joint family properties?
18. As can be noticed from the records, admittedly,
the suit properties originally belonged to the father of the
plaintiff, namely Tippanna, who died on 10.03.1986. When
he died in the year 1986, the plaintiff was a minor and one
of daughters, namely Bhagawwa was married. After the
death of Tippanna name of his wife/defendant No.1 was
recorded in the property records as successor.
19. It is also forthcoming from the records that, on
19.11.1986 the gift deed is executed by defendant No.1 in
the name of defendants No.3 and 4, who are the brothers of
the deceased husband of defendant No.1. Defendant No.2 is
a signatory to the said gift deed as a consenting witness.
Admittedly, the plaintiff was three years old when the gift
deed was executed. Pursuant to the gift deed, names of
defendants No.3 and 4 were entered in the property records.
20. Admittedly, when the gift deed was executed,
plaintiff No.1 who was aged three years and had a disability
to file a suit. The disability expired in the year 2001 when
- 13 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
she attained majority. The Trial Court has held that the suit
is time-barred, the Trial Court referred to Article 60 of the
Act of 1963.
21. Article 60 of the Act of 1963 reads as under:
Article Description of suit Period of Time from
limitation which period
begins to run
60 To set aside a transfer
of property made by the
guardian of a ward-
(a) by the ward who has Three years When the ward attains
majority
attained majority;
(b) by the war's legal
representative-
(i) when the ward Three years When the ward attains
dies within three majority
years from the
date of attaining
majority;
Three years When the ward attains
(ii) When the ward majority
des before
attaining majority
22. From reading the above Article, it is evident that,
in case the alienation made by the guardian of a ward is to
be questioned, then the said challenge has to be within 3
years from the date of the alienation by the guardian of the
ward.
- 14 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
23. The next question is whether the plaintiff's
mother can be termed as guardian of the plaintiff when the
properties were transferred by way of gift in the year 1986.
At this juncture, it is necessary to refer to the relevant
portion of Section 6 of the Act of The Hindu Minority and
Guardianship Act, 1956, (for short 'Act 1956') which reads as
under:
6. Natural guardians of a Hindu minor.- The natural
guardian of a Hindu minor, in respect of the minor's
person as well as in respect of the minor's property
(excluding his or her undivided interest in joint
family property), are -
(a) in the case of a boy or an unmarried girl - the
father, and after him, the mother: provided that
the custody of a minor who has not completed the
age of five years shall ordinarily be with the
mother;
(b) in the case of an illegitimate boy or an illegitimate
unmarried girl - the mother, and after her, the
father;
(c) in the case of a married girl - the husband.
(Emphasis supplied)
24. On a reading of Section 6 of the Act of 1956, it is
explicitly clear that the Act of 1956 has no application in
- 15 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
respect of a minor's undivided interest in a joint family
property when it comes to a guardian of a minor. There is no
dispute that the suit properties once belonged to Tippanna,
the father of the plaintiff and defendants No.1 and 2, and
they jointly inherited the properties in the year 1986 after
the demise of Tippanna. Admittedly, plaintiff and defendant
No.1 were the joint family members as the plaintiff was aged
3 years and was living with her mother. Defendant No.2, the
daughter of defendant No.1 was married at the time of the
gift in the year 1986, technically may not be a joint family
member. Nevertheless, the properties inherited by plaintiff
and defendants No.1 and 2 would be joint family properties
as far as defendants 1 to 3 are concerned. Thus, the Act of
1956 does not apply to the properties in question and the
mother cannot act as a guardian within the meaning of the
'guardian' as defined in the Act of 1956.
25. Article 60 of the Act of 1963, as already noticed,
would apply to a case where the separate property of the
minor is involved and alienation is made by the guardian.
- 16 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
26. It is also relevant to refer to Section 12 of the Act
of 1956, which reads as under:
12. Guardian not to be appointed for minors
undivided interest in joint family property.-- Where
a minor has an undivided interest in joint family property
and the property is under the management of an adult
member of the family, no guardian shall be appointed for
the minor in respect of such undivided interest: Provided
that nothing in this section shall be deemed to affect the
jurisdiction of a High Court to appoint a guardian in
respect of such interest.
27. On a reading of Section 12 of the Act of 1956, it
is also evident that no guardian can be appointed to the
minor in respect of undivided interest. This is the bar
contained under Section 12 of the Act of 1956. However, the
High Court has the power to appoint a guardian in respect of
the undivided interest in the appropriate cases. It is nobody's
case that defendant No.1 was appointed as guardian of the
plaintiff's properties and guardian of the plaintiff by the order
of the High Court.
28. Thus, on a combined reading of Sections 6 and 12
of the Act of 1956, this Court is of the view that the transfer
- 17 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
made by defendant No.1 in the year 1986 cannot be
construed as a transfer by the 'guardian' of the plaintiff.
Hence, Article 60 of the Act of 1963 has no application. The
Trial Court did not notice the implications of Sections 6 and
12 of the Act of 1956 which would make it very clear that
Article 60 of the Act of 1963 does not apply to the case.
29. If Article 60 of the Act of 1963 does not apply
then the question is which is the article that governs the
limitation in this suit. The suit is one for the relief of
declaration and injunction. The plaintiff seeks a declaration
that the gift deed dated 19.11.1986 executed by defendant
No.1 in favour of defendants No.3 and 4 is illegal and not
binding. As already noticed the Act of the Act of 1956 has no
application. Thus Section 8(3) of the Act of 1956, does not
apply. Section 8(3) of the Act of 1956 makes the transaction
voidable. Since the Act does not apply to the suit properties,
the transaction does not become voidable. In that event, the
question is whether the mother had the right to gift the
minor's undivided share. Mother cannot act Karta. Such
power is not recognized under Shastric law. No statute law is
- 18 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
pointed out conferring such power on the mother. Thus, the
transaction of 1986 where defendant No.1 purports to
transfer the minor's undivided share is one without the
authority of law and the same is void. Thus, the relief of
declaration ration is superfluous. Even without the relief of
declaration simple suit for partition is maintainable. Thus,
this Court is of the view that Article 110 of the Limitation Act
applies.
30. Sri Dinesh M.Kulkarni, the learned counsel would
urge that even under Article 110 of the Act of 1963, the suit
is time-barred. It is urged that on a reading of evidence in its
entirety, it is evident that the plaintiff was aware that she
has been excluded from the joint possession of the
properties under the registered gift deed of 1986. Thus, he
would contend that the suit ought to have been filed within
12 years from the date of dispossession in 1986.
31. Article 110 of the Limitation Act, 1963 reads as
under:
- 19 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
Article Description of suit Period of Time from
limitation which period
begins to run
110 By a person excluded Twelve When the exclusion
from a joint family years becomes known to
property to enforce a the plaintiff.
right to share therein.
32. On a reading of Column No.3 of Section 110 of
the Act of 1963, it is noticed that in a suit for partition to
enforce rights in the joint family properties, 12 years would
begin to run from the date when exclusion becomes
known to the plaintiff. It is to be noted that the exclusion
by itself is not a reason. The exclusion should be known to
the plaintiff. In a suit for partition, the person claiming
exclusive possession by way of exclusion, should prove
ouster and adverse possession to warrant dismissal of the
suit. Even if it is construed that Article 110 applies only to
suit to enforce the family partition and the plaintiff is not the
joint family member of defendants 3 and 4, what is required
to be noticed is defendant No.1 claims to have parted joint
family property.
33. After going through the evidence placed on
record, it is noticed that the plaintiff has pleaded that she is
- 20 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
in joint possession of the suit properties along with
defendants No.1 and 2. Though defendants No.3 and 4 have
cross-examined the plaintiff at length to contend that the
plaintiff was very much aware of the exclusion because of
the registered gift deed of 1986, the evidence does not
support such contention. It is not the case of defendants
No.3 and 4 that the plaintiff was aware of exclusion
because of the gift deed and the plaintiff knew the gift
deed 12 years before the suit. There is no such pleading and
evidence. Defendants 3 and 4 to successfully urge the
defence of limitation under Article 110 must urge that the
plaintiff was aware of the exclusion of the properties under a
device i.e., gift deed. Knowledge of the gift deed to the
plaintiff is not established at all. The plaintiff was three years
old when the gift deed was executed. Thus, even if
defendants 3 and 4 are presumed to be in exclusive
possession of the properties to the exclusion of the plaintiff,
such exclusion should be made known to the plaintiff as a
total exclusion in denial of the title of the plaintiff. Mere
exclusive possession of the property by a person who is the
- 21 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
uncle of the plaintiff does not amount to exclusion within the
meaning of Article 110 of the Limitation Act.
34. Learned counsel appearing for the appellant
would also contend that, in case a minor is not given due
share in the properties and if the suit for partition is filed on
the premise that the minor's interest is not safeguarded in
the said partition, to reopen the said partition there is no
limitation prescribed. In support of her contention learned
counsel for the appellant would rely upon the following
judgments of Hon'ble Apex Court:
(a) Sukhrani (Dead) By L.R.s & others vs. Hari
Shanker & others9
(b) Ratnam Chettiar & Others vs.
S.M.Kuppuswami Chettiar & others10
35. Learned counsel appearing for the respondents
would contend that the aforementioned judgments do not
come to the aid of the respondents as the said judgments
are delivered in the context where there was a partition in
favour of minors and minors if wanted to reopen the partition
AIR 1979 SCC 1436
AIR 1976 SC 1
- 22 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
after attaining majority on the premise that the partition was
inequitable, the Court held that limitation does not apply in
such cases. Thus it is urged the judgments cited are
distinguishable.
36. This Court has considered the rival contentions.
37. In the aforementioned case the Apex Court has
held that in a situation where a minor is given a lesser and
inadequate share, the suit to reopen the partition is
maintainable. As can be noticed, the document which is
sought to be used against the plaintiff is the registered gift
deed of 1986. Admittedly, the gift deed is not for any
consideration other than love and affection in favour of the
donor's deceased husband's brothers. Admittedly, as can be
seen from the recitals in the gift deed, no benefit whatsoever
is conferred on the minor. Thus, the principle laid down in
the case can be applied to the case, as the plaintiff's
undivided share is with defendants 2 and 3.
38. In addition, defendants No.3 and 4 cannot
contend that the transfer of the properties of the minor's
- 23 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
undivided share is for the benefit of the minor. At any stretch
of the imagination, the gift of the minor's undivided share
without any consideration benefiting the minor, cannot be
construed as an alienation authorized by law. Such a
transaction is void.
39. This being the position, on reappreciation of the
evidence, this Court does not find any such evidence to
support the contention that the plaintiff was aware of
'exclusion' within the meaning of 'exclusion' in Article 110 of
the Act of 1963 to hold that such exclusion was 12 years
prior to the suit.
40. In so far as the suit being defective said
contention is not available to defendants No.2 and 3 as
defendants No.2 and 3 do not have any share in the
remaining properties of defendants No.1 and 2 and the
plaintiff.
41. It is noticed that the plaintiff has filed an
application to include other properties standing in the name
of defendants No.1 and 2 which according to her are the joint
- 24 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
family properties of plaintiff and defendants No.1 and 2. This
Court is of the view that the said application cannot be
considered at this stage, however, liberty is granted to the
plaintiff to seek partition in respect of those properties by
filing an appropriate proceeding, if so advised.
42. In such an event, the plea under Order II Rule 2
shall not be raised as this suit is mainly against defendants
No.3 and 4. Since the application for amendment is rejected,
the application filed for production of additional documents in
support of the amendment is also rejected.
43. Learned counsel Sri.Dinesh M. Kulkarni would
contend that the suit is one for relief of declaration and
partition and relief of declaration is time barred.
44. This Court has to hold that in a suit of this nature,
the relief of declaration is superfluous and relief of partition
can be granted if it is established that the mother has acted
without any power to alienate the minor's interest. The
transfer of the property is without any legal necessity or for
the benefit of the minor.
- 25 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
45. Hence, even though there is a prayer for a
declaration to set-aside the gift deed on the premise that it is
not binding, this Court is of the view that the plea of
limitation is to be considered with reference to plea of
partition which in the opinion of this Court is main relief and
relief of declaration is superfluous in this case.
46. For the reasons recorded the Court has to hold
that the suit of the plaintiff is in time.
47. For the aforementioned reasons, the judgment
and decree passed by the Trial Court are liable to be set-
aside.
Discussion on Cross objection RFA Crob
No.100002/2016:
It is noticed that defendants No.1 and 2 have filed
cross-objection challenging the judgment and decree
denying the share to defendants No.1 and 2. Before the Trial
Court, they did not claim any share in the suit properties. It
is noticed that defendant No.1 did file written statement
before the Trial Court disputing the gift deed and defendant
No.2 did not make any claim over the suit properties.
- 26 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
2. As already noticed, defendant No.1 has executed
a gift deed in favour of defendants No.3 and 4 and she has
not chosen to question the gift deed for more than 3 years
after the execution of the gift deed. Hence, defendant No.1
cannot claim any share in the properties.
3. Defendant No.3 has not filed any written
statement, and has not claimed any share. Though she is not
the executant to the gift deed, she has consented to the gift
executed by the mother where the mother has executed the
gift in respect of entire properties which also included 1/3rd
share of defendant No.2. Hence, defendant No.2 is also
precluded from claiming any share over the properties.
4. For these reasons, the claim made in the cross-
examination is not maintainable.
5. Hence, the following:
ORDER
(i) Appeal is allowed and Cross objection is
dismissed.
- 27 -
NC: 2024:KHC-D:16490
C/W RFA.CROB No. 100002 of 2016
(ii) The judgment dated 30.01.2015 in
O.S.No.119/2010 on the file of Principal
Senior Civil Judge, Gokak are set aside.
(iii) The suit of the plaintiff is decreed. Plaintiff is
entitled to 1/3rd share in the suit properties.
(iv) It is made clear that the gift deed made by
defendants No.1 and 2 to the extent of
transfer of alienation of the property in
favour of defendants No.3 and 4 is valid as
defendants No.2 and 3 are both major when
the gift deed was executed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
gab - up to para 8
GVP - para 9 till end
CT:ANB
