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