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Karnataka High Court
Judges : G.C.BHARUKA,S.R.BANNURMATH
BABU MOTHER SAVAVVA NAVELGUND - Appellant
Versus
GOPINATH - Respondent
R. P. A. 381 Of 1983
Decided On : 03/25/1999
Gifts - Ancestral Property - AIR 1987 SC 1775, Mulla's Hindu Law, 16th Edition, Art. 258, Art. 267 - The court affirmed the view taken by the trial Court and held that the gifts made by Shivamurthappa after the adoption of the plaintiff were ab-initio void and null in its entirety. The transactions were null and void since their inception and had to be ignored by the Court while entertaining the prayer for recovery of the possession of the properties covered by such instruments of gifts. The court also held that the sales effected by late Shivamurthappa were null and void to the extent of half share of the plaintiff and he was entitled to recover the possession thereof.
Fact of the Case:
The suit properties were ancestral in nature in the hands of late Shivamurthappa which he got in 1941 as a consequence of family partition. He adopted the plaintiff on 1-11-1957 under a registered deed of adoption after observing the customary ceremonies. Subsequently on 3-4-1979 Shivamurthappa died. His wife had died much earlier to the date of adoption of the plaintiff. He had kept the mother of the first defendant as concubine in his house. The trial Court held certain transactions of gift and sales effected by late Shivamurthappa as illegal and void and granted consequential reliefs of permanent injunction in respect of gifted properties and possession in respect of sold properties with future mesne profits from the date of the suit.
Finding of the Court:
The court affirmed the view taken by the trial Court and held that the gifts made by Shivamurthappa after the adoption of the plaintiff were ab-initio void and null in its entirety. The transactions were null and void since their inception and had to be ignored by the Court while entertaining the prayer for recovery of the possession of the properties covered by such instruments of gifts. The court also held that the sales effected by late Shivamurthappa were null and void to the extent of half share of the plaintiff and he was entitled to recover the possession thereof.
Issues: The issues included the validity of certain transactions of gift and sales effected by late Shivamurthappa, the legal necessity for the sales, and the entitlement of the first defendant to a share in the house property.
Ratio Decidendi: The court held that the gifts made by Shivamurthappa after the adoption of the plaintiff were ab-initio void and null in its entirety. The transactions were null and void since their inception and had to be ignored by the Court while entertaining the prayer for recovery of the possession of the properties covered by such instruments of gifts. The court also held that the sales effected by late Shivamurthappa were null and void to the extent of half share of the plaintiff and he was entitled to recover the possession thereof.
Final Decision: The appeal was allowed in part. The judgment and decree passed by the Court-below with regard to mesne profits will be applicable in respect of half share of the plaintiff out of the property conveyed by the sale deeds only. Parties to bear their own costs.
( 1 ) THIS appeal is filed by defendants Nos. 1 and 8 to 15. They are aggrieved by the part of the impugned judgment and decree of the Trial Court by which certain transactions of gift and sales effected by late Shivamurthappa, being the adoptive father of the plaintiff (Respondent herein) as illegal and void and has granted consequential reliefs of permanent injunction in respect of gifted properties and possession in respect of sold properties with future mesne profits from the date of the suit.
( 2 ) IT is not in dispute that the suit properties were ancestral in nature in the hands of late Shivamurthappa which he got in 1941 as a consequence of family partition. He adopted the plaintiff on 1-11-1957 under a registered deed of adoption after observing the customary ceremonies. Subsequently on 3-4-1979 Shivamurthappa died. His wife had died much earlier to the date of adoption of the plaintiff. He had kept the mother of the first defendant as concubine in his house.
( 3 ) IT also bears out from the evidence recorded during the course of the trial that the house property being item No. 1 of Schedule A to the plaint was gifted by Shivamurthappa under a registered deed dated 3-10-1968 jointly to defendant No. 1 and one Prahlad, since dead. The wife and children of the said late Prahlad are defendants 2 to 7. Similarly Item No. 1 of Schedule B being agricultural lands were gifted by late Shivamurthappa under a registered deed dated 4-10-1968 to defendants 15 and 16. It is also a fact that Item Nos. B-3 to B-7 had been conveyed by sale deeds dated 19-6-70 to defendant Nos. 1, 8 and 9. So far as the conveyed lands at Item Nos. 5 and 6 of Schedule-B are concerned it appears that defendant No. 8 in turn had sold the same to defendant No. 12 under a sale deed dated 12-2-73 which in a family partition had subsequently fallen in the hands of defendant Nos. 13 and 14. So far as the Item No. 7 of Schedule-B is concerned defendant No. 8 had sold it to defendant No. 11.
( 4 ) THE Trial Court at paragraph 55 of its impugned judgment has held the above referred two gifts as null and void by taking the view that Shivamurthappa as a kartha had no right to gift away the undivided family properties. Sri Jayakumar S. Patil, learned Counsel appearing for the appellants, has assailed the said declaration by contending that the Court-below has erred in declaring the entire gift as null and void because according to him such a declaration could have been only in respect of the share of the plaintiff. In our opinion the contention so raised is devoid of any merit. The legal aspect on this Court has now been finally settled by the Supreme Court in the case of Thamma Venkata Subbamma v. Thamma Rattamma, AIR 1987 SC 1775. In para 14 of the judgment it has been held that :". . . . . . IT has been already stated that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. The rigor of this rule against alienation by gift has been to some extent relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by way of Will of a male Hindu in a Mitakshara coparcenary property. The most significant fact which may be noticed in this connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a Will the interest of a male Hindu in a Mitakshara coparcenary pro
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