N Chandrappa @ Chandra Reddy vs T Venkataswmay Reddy Since Dead By His ...
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Karnataka High Court

N Chandrappa @ Chandra Reddy vs T Venkataswmay Reddy Since Dead By His ... on 18 July, 2025

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF JULY, 2025

                        BEFORE

  THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

   REGULAR SECOND APPEAL NO.2103 OF 2007 (INJ)

                         C/W

  REGULAR SECOND APPEAL NO.2109 OF 2007 (PAR)

IN RSA NO.2103/2007:

BETWEEN:

1. N CHANDRAPPA @ CHANDRAPPA REDDY,
   S/O LATE K NARAYANAA REDDY,
   AGED ABOUT 63 YEARS,
   RESIDING AT KAMBALIPURA,
   ATTIBELE HOBLI, ANEKAL TALUK,
   BANGALORE DISTRICT.

2. K N NAGARAJA REDDY,
   SINCE DEAD BY HIS LRS

2(a) SHANTHAMMA T,
     WIFE OF LATE K N NAGARAJA REDDY,
     AGED ABOUT 60 YEARS,
     RESIDING AT KAMBALIPURA,
     ATTIBELE HOBLI, ANEKAL TALUK,
     BANGALORE DISTRICT.
     DIED ON 03.10.2022
     REPRESENTED BY 2(b) to 2(d)

2(b) MAMATHA N,
     WIFE OF LATE NANJAREDDY,
     AGED ABOUT 42 YEARS,
     RESIDING AT NO.334/1,
     GULLAREDDY LAYOUT, 2ND CROSS,
     ANEKAL ROAD, CHANDAPURA,
     BANGALORE - 560 099.
                           2




2(c) AMRUTHA N,
     WIFE OF SUBRAMANI,
     AGED ABOUT 32 YEARS,
     RESIDING AT NO.1515,
     GOVT. SCHOOL ROAD,
     OPP. TO PATALAMMA TEMPLE,
     ALLASANDRA VILLAGE, YELAHANKA POST,
     BANGALORE - 560 065.

2(d) NAVEEN N,
     SON OF LATE K N NAGARAJA REDDY,
     AGED ABOUT 29 YEARS,
     RESIDING AT KAMBALIPURA,
     ATTIBELE HOBLI, ANEKAL TALUK,
     BANGALORE DISTRICT.

                                           ...APPELLANTS
(BY SRI SREEVASTA, SENIOR COUNSEL A/W
 SMT UDITA RAMESH, ADVOCATE FOR APPELLANT NO.1
 AND A2(B-D),
 V/O/DT 05.04.2023 A2(B-D) ARE THE LR'S OF
 DECEASED A2(A))

AND:

 1. T VENKATASWAMY REDDY,
    SINCE DEAD BY HIS LRS

1(a) V NARAYANAA REDDY,
     S/O LATE T VENKATASWAMY REDDY,
     AGED ABOUT 62 YEARS

1(b) V MUNIREDDY,
     S/O LATE T VENKATASWAMY REDDY,
     AGED ABOUT 62 YEARS,

1(c) V THIMMA REDDY,
     S/O LATE T VENKATASWAMY REDDY,
     AGED ABOUT 62 YEARS

1(d) V SHANTHAMMA
     S/O LATE T VENKATASWAMY REDDY,
     AGED ABOUT 62 YEARS,
                            3




     RESPONDENTS 1(a) to 1(d) ARE

RESIDENTS OF BANDAPURA, KASABA HOBLI, ANEKAL TALUK, BANGALORE DISTRICT.

(AMENDMENT CARRIED OUT VIDER ORDER DATED 05.04.2023) ...RESPONDENTS (BY SRI VARADARAJAN M S, ADVOCATE A/W SRI SANTHOSH, ADVOCATE FOR R1(A-D))

THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DT.24.03.2007 PASSED IN RA.NO.6/1993 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DT.18.12.1992 PASSED IN OS.NO.01/1987 ON THE FILE OF THE PRL.CIVIL JUDGE, BANGALORE.

IN RSA NO.2109/2007:

1. N CHANDRAPPA @ CHANDRAPPA REDDY, S/O LATE K NARAYANAA REDDY, AGED ABOUT 63 YEARS, RESIDING AT KAMBALIPURA, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE DISTRICT.

2. K N NAGARAJA REDDY, SINCE DEAD BY HIS LRS

2(a) SHANTHAMMA T, WIFE OF LATE K N NAGARAJA REDDY, AGED ABOUT 60 YEARS, RESIDING AT KAMBALIPURA, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE DISTRICT.

DIED ON 03.10.2022 REPRESENTED BY 2(b) to 2(d)

2(b) MAMATHA N, WIFE OF LATE NANJAREDDY, AGED ABOUT 42 YEARS, RESIDING AT NO.334/1,

GULLAREDDY LAYOUT, 2ND CROSS, ANEKAL ROAD, CHANDAPURA, BANGALORE - 560 099.

2(c) AMRUTHA N, WIFE OF SUBRAMANI, AGED ABOUT 32 YEARS, RESIDING AT NO.1515, GOVT. SCHOOL ROAD, OPP. TO PATALAMMA TEMPLE, ALLASANDRA VILLAGE, YELAHANKA POST, BANGALORE - 560 065.

2(d) NAVEEN N, SON OF LATE K N NAGARAJA REDDY AGED ABOUT 29 YEARS, RESIDING AT KAMBALIPURA, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE DISTRICT.

(AMENDMENT CARRIED OUT VIDE ORDER DATED 05.04.2023) ...APPELLANTS (BY SRI SREEVASTA, SENIOR COUNSEL A/W SMT UDITA RAMESH, ADVOCATE FOR APPELLANT NO.1 AND A2(B-D), V/O/DT 05.04.2023 A2(B-D) ARE THE LR'S OF DECEASED A2(A)) AND:

1. T VENKATASWAMY REDDY, SINCE DEAD BY HIS LR'S

1(a) V NARAYANAA REDDY, S/O LATE T VENKATASWAMY REDDY, AGED ABOUT 62 YEARS

1(b) V MUNIREDDY, S/O LATE T VENKATASWAMY REDDY, AGED ABOUT 62 YEARS,

1(c) V THIMMA REDDY, S/O LATE T VENKATASWAMY REDDY,

AGED ABOUT 62 YEARS

1(d) V SHANTHAMMA S/O LATE T VENKATASWAMY REDDY, AGED ABOUT 62 YEARS,

RESPONDENTS 1(a) to 1(d) ARE RESIDENTS OF BANDAPURA, KASABA HOBLI, ANEKAL TALUK, BANGALORE DISTRICT.

...RESPONDENTS (BY SRI VARADARAJAN M S, ADVOCATE A/W SRI SANTHOSH, ADVOCATE FOR R1(A to D))

THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DT.24.03.2007 PASSED IN RA.NO.5/1993 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, BANGALOE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DT.18.12.1992 PASSED IN OS.NO.40/1981 ON THE FILE OF THE PRL.CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.

THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27TH JUNE, 2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

CAV ORDER

RSA No.2103/2007 is filed against the judgment and

decree in O.S.No.1/1987 on the file of the Principal Civil

Judge, Bangalore and the judgment and decree in

R.A.No.6/1993 on the file of Fast Track -II, Bangalore Rural

District, Bangalore.

2. The said suit is one for bare injunction in respect

of the properties bearing Sy.Nos.165/2 and 197 of Madiwala

village, Taluk:Anekal. Suit is decreed. Defendants' First

Appeal is dismissed. Hence, defendants are before this Court

in this RSA No.2103/2007.

3. RSA No.2109/2007 is filed against the judgment

and decree passed in O.S.No.40/1981 on the file of Principal

Civil Judge, Bangalore and judgment and decree passed in

R.A.No.5/1993 on the file of Fast Track Court - II, Bangalore

Rural District, Bangalore.

4. The said suit is for declaration and partition. The

plaintiffs sought a declaration that they are entitled to half

share and prayed for partition and separate possession of

half share. The said suit is dismissed and First Appeal filed by

the plaintiffs is also dismissed. Hence, the present RSA

No.2109/2007.

5. Both suits were clubbed together and disposed by

a common judgment and both appeals before First Appellate

Court were disposed of by a common judgment.

6. This Court vide order dated 03.07.2012 has

admitted the appeals to consider the following substantial

questions of law:

(i) Whether the father can release the right of his sons (coparceners) in favour of another coparcener?

(ii) Whether the plea of 'Adverse possession' is available in respect of coparcenary property?

7. The appellants in RSA No.2103/2007 are sons of

Narayana Reddy. Venkataswamy Reddy (defendant in the

suit for partition) is the brother of appellants' father

Narayana Reddy.

8. The appellants in RSA No.2103/2007 who are

plaintiffs in O.S.No.40/1981 have claimed partition on the

premise that the registered release deed dated 05.10.1948 is

got executed by defendant - Venkataswamy Reddy is

outcome of fraud and does not bind them and does not affect

their share. The plaintiffs contend their father, defendant

and the plaintiffs constituted a joint family.

9. Defendant - Venkataswamy denied the joint

family status with the plaintiffs. Defendant contended that

the plaintiffs' father Narayana Reddy was fostered from the

age of 4 by uncle Nanja Reddy, and since then Narayana

Reddy never lived with his father. Defendant also urged that

registered release deed dated 05.10.1948 is executed for a

valid consideration of Rs.4,000/-. The plaintiffs' father who

executed the deed in 1948 died on 01.09.1979 did not

question the said release deed dated 05.10.1948 and his

right to question the release deed had extinguished by the

time he died in the year 1979 and the plaintiffs did not

inherit the right to assail the said registered deed dated

05.10.1948.

10. The plaintiffs also contended that there was a

partition in the family on 16.08.1967 between Naga Reddy

and other family members comprising plaintiffs' father and

defendant - Venkataswamy. The plaintiffs contend that only

Naga Reddy separated from the family and the plaintiffs,

their father and defendant - Venkataswamy lived together.

11. O.S.No.1/1987 is filed by the Venkataswamy, the

defendant in O.S.No.40/1981, for injunction in respect of two

properties. In the said suit, Venkataswamy contended that

ever since execution of release deed dated 05.10.1948, he is

in possession of the properties covered under the said

release deed. And the defendants in the said suit, (plaintiffs

in O.S.No.40/1981) disputed the validity of the release

deed dated 05.10.1948 and prayed for dismissal of the suit.

12. Both suits were clubbed together and the Trial

Court dismissed O.S.No.40/1981 and decreed O.S.No.1/

1987.

13. As already noticed, two appeals are filed against

aforementioned judgments and decrees and both the appeals

are dismissed.

14. Heard Sri Srivatsa, the learned Senior counsel

appearing for the appellants and Sri Varadarajan, learned

counsel appearing for the respondents.

15. Learned Senior counsel appearing for the

appellants raised the following contentions:

The properties in question are said to have been

transferred under registered release deed dated

05.10.1948 marked at Ex.D.1. The properties are the

coparcenary properties. When the deed was executed

in 1948, the plaintiffs were born. They being the

coparceners, had acquired right in the properties by

birth in the family. Thus, Narayana Reddy, their father

had no right to alienate or release the plaintiffs'

undivided share.

Even if it is considered as a valid release, then also the

release has to be for the benefit of the remaining

coparceners viz., the plaintiffs and Venkataswamy

alone cannot claim exclusive right over the properties

covered under the release deed as the plaintiffs had

already acquired right in the properties by reason of the

birth in the family.

The release is permissible only in favour of person who

does possess a joint right or interest in the property

covered by release deed. The release has the effect of

augmenting the share of remaining co-owners when

one co-owner releases the property in favour of

another. Thus, even if release deed is executed in

favour of one coparcener by another coparcener, the

benefit of release would be to all other coparceners who

have a joint right in the property even before the

release deed is executed.

The Apex Court in Arshnoor Singh vs Harpal Kaur

and Others1 has held that in case the property is

inherited by a male Hindu from his father before 1956,

such property would acquire the characteristic of a

coparcenary property. The properties in the hands of

Narayana Reddy were coparcenary properties and when

he executed a release deed, his two sons were already

born and those two sons had acquired right in the

property being coparceners in the family. Plaintiffs'

right is not released in favour of defendant.

Narayana Reddy could not have transferred the share

of his two minors (plaintiffs) as there was no legal

necessity as such the plaintiffs' right in the properties

remained with the plaintiffs and defendant did not

acquire the plaintiffs' share under the release deed

properties and the plaintiffs' right over the properties

covered under the release deed is not extinguished.

Even if the release deed is said to be valid and confers

exclusive right in favour of defendant, said right can

only be in respect of the share held by plaintiffs' father

(2020) 14 SCC 436

Narayana Reddy and not the share of the plaintiffs as

the release deed does not indicate that the plaintiffs'

share is also conveyed by Narayana Reddy acting as

family manager.

The Trial Court and First Appellate Court have

committed an error in not appreciating the ratio laid

down in Krishan Chander Vs Board Of Revenue For

Rajasthan2 and the judgment of co-ordinate bench of

this Court in Halappa & Others Vs Ranganna &

Others3.

16. Learned Senior counsel for the appellants placed

reliance on the following judgments:

(i) Thamma Venkata Subbamma vs Thamma Rattamma & Others4

(ii) Kuppuswami Chettiar vs A.S.P.A. Arumugam Chettiar and Another5

(iii) Tripta Kaushik vs Sub Registrar VI-A and Another6

(iv) Smt.Balwant Kaur and Others vs State of U.P. 7

1972 RLW 473

1968 (2) Mys.L.J.,597

(1987)3 SCC 294

1966 SCC Online SC 125

2020 SCC Online Del 2748

1983 SCC Online All 700

(v) Nathuni Mishra and Others vs Mahesh Misra and Others 8

(vi) Balbir Singh vs State of U.P. & Others 9

(vii) Govind Das and Others vs Board Of Revenue, U.P., Lucknow 10

17. Learned counsel appearing for the respondents

raised the following contentions:

There is no pleading and evidence that the properties

in the hands of Narayana Reddy are coparcenary

properties;

Two properties were transferred by Narayana Reddy in

favour of his brother-defendant under a registered

released deed dated 05.10.1948 for a valid

consideration of Rs.4000/-. Since, the properties are

released for a consideration, it is nothing but a sale in

favour of defendant.

Assuming that the properties were coparcenary

properties, the transfer is for the benefit of the

1962 SCC Online Pat 58

2012 SCC Online All 478

1971 SCC Online All 90

Narayana Reddy's family comprising the plaintiffs and

same is permissible as Narayana Reddy as a

kartha/guardian can transfer the properties of his

minor children. There is no pleading in the plaint that

the properties are transferred without legal necessity.

The contention in this regard cannot be raised without

pleading.

The plaintiffs cannot question the release deed of

1948, which was not questioned by their father-the

executant who died in 1979.

The suit of the plaintiffs is barred by limitation even

assuming that the properties are the ancestral

properties, as the suit is filed beyond 12 years from

the date of attaining majority.

18. Learned counsel for the respondents placed

reliance on the following judgments:

(i) Thayyil Mammo and Another vs Kottiath Ramunni and Others11

(ii) Pandurang Mahadeo Kabade and Others vs Annaji Balwant Bokil and Others12

AIR 1966 SC 337

(iii) Sukhbiri Devi and Ors. vs Union Of India and Ors. 13

19. Certain facts need to be stated are as under:

The father of the appellants - Narayana Reddy was

fostered by his uncle when he was aged 4 years and he was

staying with his uncle in Kambalipura. The fostered parents

executed registered Gift Deed in favour Narayana Reddy

prior to the execution of the release deed dated 05.10.1948.

Even Narayana Reddy has executed a Gift Deed describing

himself as the son of his fostered father and not as a son of

his biological father.

20. There is a vague reference in the plaint that the

release deed dated 05.10.1948 is the outcome of fraud. The

necessary plea relating to fraud as required under Order VI

Rule 4 of Code of Civil Procedure is not forthcoming. It is

also relevant to notice that Narayana Reddy who died in the

year 1979 did not question the validity of the release deed

dated 05.10.1948. Thus, the said plea cannot be considered.

Moreover, there is no evidence to hold the plea of fraud.

AIR 1971 SC 2228

2022 SCC Online SC 1322

21. The registered release deed dated 05.10.1948 is

not questioned for want of legal necessity for Narayana

Reddy to transfer the undivided shares of his children. There

is no plea or evidence in this behalf.

22. Both Courts have concurrently held that the

execution of release deed dated 05.10.1948 is proved. This

Court is also of the view that the question as to the proof of

execution of release deed dated 05.10.1948 does not arise in

these Second Appeals as there is no plea and evidence to

hold that the release deed dated 05.10.1948 was not

executed by Narayana Reddy. Thus, the Court has to

proceed on the premise that the release deed dated

05.10.1948 is executed for a consideration of Rs.4,000/-.

23. It is also relevant to notice that the

plaintiffs/appellants have not raised a contention that

consideration of Rs.4,000/- paid under the release deed

dated 05.10.1948 does not represent adequate consideration

for transfer of the interest in the two properties covered by

the release deed.

24. Since the release is for valuable consideration,

the Court has to consider whether the release deed dated

05.10.1948 is a sale for consideration in favour of defendant.

25. The Hon'ble Apex Court in Thayyil Mammo And

Anr. supra, has held that the proposition that, the release

cannot be treated as a conveyance is not a proposition

having universal application. It has been also held that a

registered instrument styled as a release deed releasing the

right, title and interest of the executant in any property in

favour of the releasee for valuable consideration may

operate as a conveyance if the document clearly discloses

the intention to effect a transfer.

26. Thus, the Court has to consider whether there

was any intention on the part of a releasor to release the

entire property in favour of the releasee.

27. As already noticed, the Court has to proceed on

the premise that two properties are released or conveyed for

a consideration of Rs.4,000/-. The Trial Court has extracted

the relevant portion of the release deed in its judgment at

paragraph No.20. The said portion of the release deed

reveals that the father of the appellants Narayana Reddy

transferred his entire right in favour of his brother and the

recital would also indicate that his successors also will not

have any right over the said property.

28. The initial part of the release deed would also

recite the fact that Narayana Reddy was residing with his

fostered parents away from his brother Venkataswamy

Reddy. It has also come in the evidence that Narayana

Reddy was fostered when he was aged 4 to 5 years and his

marriage was performed by his fostered parents and it is not

the case of the plaintiffs that the plaintiffs were residing with

defendant Venkataswamy Reddy -their uncle.

29. There is no recital in the deed dated 05.101948

that plaintiffs father Narayana Reddy is releasing only his

undivided share and the undivided share of his minor

children is not part of the transaction. As already noticed,

Narayana Reddy had stayed with his fostered parents since

he was aged four or five years. It is nobody's case that his

children continued to live with their uncle Venkataswamy.

These circumstances suggest that the transfer of the

properties covered under the deed dated 05.10.1948 is in

respect of half share and remaining half share was with

releasee/transferee - Venkataswamy. Thus, the intention is

very much apparent from the circumstances, that Narayana

Reddy wanted to convey his entire interest in the property in

favour of his brother with whom he did not live jointly as he

was raised by his fostered parents.

30. It is also relevant to notice that the High Court of

Delhi in case of Tripta Kaushik supra, has summarised the

law on the point and in paragraph No.30(f) of the said

judgment, held as under:

"Where the relinquishment of the right by the co-owner is only in favour of one of the co-owner and not against all, the document would be one of Gift/Conveyance and not of "release".

31. As can be noticed from the recital in the release

deed dated 05.10.1948, it can be safely concluded that the

release deed was executed in favour of Venkataswamy

Reddy and not in favour of the plaintiffs who are the children

of executant Narayana Reddy. As already noticed, the

registered release deed of 1948 is for a consideration of

Rs.4,000/- which itself is a huge amount in those days. The

properties conveyed under the said deed are only two

properties bearing Sy.No.165/2 measuring 5 acres in

Madiwala village, Taluk:Anekal and Sy.No.197 measuring 2

acres 20 guntas in Madiwala village, Taluk:Anekal. As

already noticed, it is not the case of the plaintiffs that the

consideration amount is inadequate. The suit was filed only

on the premise that deed was outcome of fraud committed

on their father.

32. It is already held by this Court that Narayana

Reddy has received Rs.4,000/- in 1948. It is not the case

of the plaintiffs that the said amount is not utilized by

Narayana Reddy for the benefit of the family. That

contention is not available to them as they filed the suit on

the premise that the transaction is outcome of fraud. This

Court has recorded a finding that the transaction is valid

and consideration is passed in favour of Narayana Reddy.

The Court has to presume, in the absence of any other

allegation that amount is not utilized for the benefit of

minors, that amount of Rs.4,000/- received in 1948, which

is a substantial amount for two properties covered under

the said transaction also represented the value of

plaintiff's share in the properties, and must have been

utilized for the benefit of the family.

33. This being the position, applying the ratio laid

down in the aforementioned judgment of the Hon'ble Apex

Court as well as the Delhi High Court, it can be safely

concluded that the plaintiffs' father Narayana Reddy

executed a document as conveyance though it is styled as

released deed.

34. It is also well-settled position of law that the

nomenclature of the document is not necessarily a guide to

the nature of the transaction covered under the document.

The nature of the transaction has to be gathered from the

recital in the document and other attending circumstances.

35. At this juncture, it is necessary to refer to the

judgments referred by the learned Senior counsel for the

appellants:

(i) In Thamma Venkata Subbamma supra, the

Hon'ble Apex Court has laid down a law that gift of an

undivided share without the consent of co-owners is

impermissible and void. In the said judgment referring to

the document in question, the Court concluded that the

document in question in the said case was a relinquishment

deed and not a gift deed. In the said case, it was

relinquishment in favour of a family member without any

consideration. In the instant case, this Court has concluded

that the transaction is a conveyance for consideration.

Hence, the judgment in Thamma Venkata Subbamma

supra does not assist the appellants.

(ii) In Krishan Chander supra, the Court has

considered the case of one co-parcener renunciating the

right of another coparcener.

(iii) In Tripta Kaushik supra, the Court has

considered the question relating to the stamp duty payable

on a relinquishment deed executed by son in favour of the

father.

(iv) In Balawant Kaur supra, the Court has held the

relinquishment or renouncement of claim by one

co-owner in favour of another co-owner results in remaining

co-owners' rights augmented.

(v) In Halappa supra, the Court dealt with a

question as to whether a person who was not born when his

father executed a release deed could question the release

deed on the premise that the release deed was not executed

at all by his father.

(vi) In Nathuni Mishra supra, the Court was dealing

with the question of sale of the property by the father of

minor children.

(vii) In Govind Das and Balbir Singh supra, the

Court was dealing with the interpretation of a transaction

between the partners of a partnership firm.

36. Above cited judgments by the learned Senior

counsel do not support the appellants' contention inasmuch

as the Court has come to the conclusion that the transaction

dated 05.10.1948 is a conveyance for consideration and not

a simple release by one coparcener in favour of another

coparcener or in co-owner in favour of another co-owner.

37. The fact that the father of the plaintiffs received

Rs.4,000/- from his brother, the fact that he was fostered by

his uncle and that he was residing away from his brother in

unmistakable terms would lead to the conclusion that the

transaction was a conveyance and not mere release.

38. Though learned Senior Counsel appearing for the

appellants would place reliance on the judgment of High

Court of Allahabad in Smt.Balavant Kaur supra and

referring to paragraph No.9 of the judgment would urge that

merely because the intention of the executant can be better

achieved by executing an instrument of a different nature,

the instrument executed should not be construed differently

from what emerges from the plain reading. This Court has

perused the said judgment.

39. The said observation by the High Court of

Allahabad cannot be construed as having laid down a law

having universal application. The said observation is, or may

be apt, in the facts and circumstances obtained in the said

case.

40. From the very same judgment, it is also possible

to hold that merely because Narayana Reddy could have

executed a sale deed in favour of his brother defendant for

having received Rs.4,000/- as a consideration for

transferring the properties in favour of defendant, to

achieve his objective of transferring the properties, the

transferor's act of not executing a sale deed and executing a

release deed does not by itself mean that the transaction is

not a sale, if other circumstances suggest that the

transaction is a sale.

41. This Court has already noticed the circumstances

which suggest that the transaction was a sale. In addition, it

is also to be noticed that if the transaction was not a sale or

a conveyance conveying entire right, title and interest in

favour of his brother, then the transferor could not have

executed the release deed by incorporating a recital that

none of his successors will have any right over the properties

covered under the said deed.

42. Under these circumstances, this Court is of the

view that the release deed dated 05.10.1948 should be

construed as a conveyance transferring the entire 1/2 share

in the two properties in favour of Venkataswamy Reddy who

had already possessed the remaining share.

43. The contention whether the transaction was for

legal necessity or not, whether the transaction binds the

plaintiffs who were minors when the transaction took place in

the year 1948 do not arise for consideration as the plaintiffs

have not raised contention in the plaint pleading want of

legal necessity to transfer the properties, which essentially

prevented the defendant from raising a defence that said

transfer was for legal necessity. This being the position, the

reliance on the judgment of the Apex Court in Arshnoor

Singh supra, which lays down a law that burden of proving

family necessity is on alienee is misplaced as the plaintiffs

have not raised a contention that the transaction is not for

legal necessity.

44. At this juncture, it is also necessary to refer the

judgment of the Apex Court in Pandurang Mahdeo Kabade

supra, wherein the Apex Court has held that in the absence

of a plea that the sale transaction is not for legal necessity, it

is not necessary for the purchaser to establish that the

transaction was for legal necessity.

45. Assuming that the plaintiffs could have raised the

plea challenging the alienation on the premise that it is not

for legal necessity, or assuming that such a plea is raised in

the plaint, then also the suit is time barred under Article 108

of the Limitation Act, 1963, as the records would reveal that

defendant has taken possession in 1948. The plaintiffs' then

were required to file a suit within three years after attaining

majority. Even if it is taken as twelve years after attaining

majority, then also the suit is time barred.

46. Plaintiffs' father Narayana Reddy died in the year

1979 and he did not challenge the deed of 1948. Two years

after the demise of executant Narayana Reddy-the plaintiffs'

father, suit is filed on the premise that the transaction is

invalid.

47. The contention of the learned Senior counsel that

the release by one co-owner or coparcener in favour of

another co-owner or coparcener, will not confer absolute

right in favour of the person to whom it is released and it

would also enure to the benefit of remaining co-owners or

coparceners, cannot be accepted with reference to the

release deed dated 05.10.1948 as the said document when

viewed from the attending circumstances, has all the

trappings of a conveyance for consideration.

48. Since, the plaintiffs have not raised a contention

that the transfer of right, title and interest under the

registered release deed dated 05.10.1948 is for the benefit

of remaining coparceners namely the plaintiffs, the

defendant was prevented from raising a defence that the

release deed dated 05.10.1948 is also representing the

interest of the plaintiffs or for the benefit of the plaintiffs.

49. Nevertheless the defendant has led evidence

narrating the circumstances under the which the release

deed came to be executed. From the facts already noticed,

Narayana Reddy was fostered when he was aged about 4 to

5 years and he stayed away from his brother Venkataswamy

Reddy (defendant) and later after attaining majority, he

transferred the property in the year 1948 when he had two

children aged around 3 and 5 years.

50. Under these circumstances, first substantial

question of law, "whether the father can release the right of

his sons (coparceners) in favour of another coparcener?" has

to be answered by holding that in the present case, the

transaction dated 05.10.1948 is a conveyance and Narayana

Reddy being the plaintiffs' father and kartha was competent

to transfer the properties. The sale by a coparcener

representing his sons' share who are also coparceners is well

recognised subject to fulfilling the conditions of legal

necessity. The validity of the transaction for want of legal

necessity is not raised before the Trial Court. Thus, the Court

would presume that the transaction is for legal necessity.

51. Second substantial question of law "Whether the

plea of 'Adverse possession' is available in respect of

coparcenary property?" need not be answered as the suit is

not decided based on the said plea.

52. For the aforementioned reasons, this Court is of

the view that no grounds are made out to interfere in the

concurrent finding recorded by the Trial Court and First

Appellate Court.

53. Accordingly, the appeals are dismissed.

54. No order as to costs.

Sd/-

(ANANT RAMANATH HEGDE) JUDGE

brn