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R

RSA 434/10

IN THE HIGH COURT OF KARNATAKA AT BANGALORE


DATED THIS THE 1ST DAY OF OCTOBER, 2013
BEFORE:
THE HONBLE MR. JUSTICE A.S. PACHHAPURE

REGULAR SECOND APPEAL No.434 OF 2010

BETWEEN:
H.M. Rudraradhya,
S/o. Mariyappa,
Aged about 49 years,
C/o. I.T.I. Siddappa,
Varthur,
Bangalore South Taluk-560 056.
[By Sri. M.S. Nagaraja, Adv.]

AND:
1. Uma,
W/o. Prakash,
Aged about 43 years,
D/o. late Marula Siddappa,
Anugondanahalli Hobli,
Hosakote Taluk,
Bangalore-561 203.
2. Rajashekar,
S/o. late Siddappa,
Aged about 49 years,
Malleswaram,
Bangalore-560 003.

...

APPELLANT/S

RSA 434/10

3. Prabhu,
S/o. late Siddappa,
Aged about 46 years,
C/o. Teacher Ramanjaneya,
Maralukunte Village,
Devanahalli Taluk,
Bangalore Rural District-562 116. ... RESPONDENT/S
[By Sri. Shanmukappa, Adv. for R1.
Notice to R2 is dispensed with
V.C.O. dt.01.08.2011.
Service of notice to R3 is held
sufficient V.C.O. dt.07.03.2011]
***
This RSA is filed u/Section 100 of CPC, against
the Judgment and Decree dated: 23.01.2010 passed in
R.A. No.18/2007 on the file of the Presiding
Officer,
Fast
Track
Court-I,
Bangalore
Rural
District, Bangalore, allowing the appeal and setting
aside the Judgment and Decree dated: 16.12.2006
passed in O.S. No.295/1996 on the file of the Civil
Judge (Jr.Dn.) & JMFC., Hoskote.
This RSA having been heard and reserved for
Judgment, this day the Court pronounced the
following:
JUDGMENT
The appellant has challenged the Judgment and
Decree of the first appellate Court granting share
to the 1st respondent by allowing her appeal against
the

Judgment

and

dismissing her suit.

Decree

of

the

trial

Court,

2.

RSA 434/10

The facts relevant for the purpose of this

appeal are as under:

The parties are referred to as per their rank


before the trial Court for the sake of convenience.

The

appellant

respondents

respectively
respondent

is

and

in

the

claiming

the

are
suit

her

1st

defendant,

defendants
instituted

1/3rd

share

whereas

2
by

in

and
the

the

3
1st

suit

property i.e., Sy. No.5, measuring 2 acres with the


boundaries mentioned in the schedule to the plaint.
One Siddappa is the father of the plaintiff and
defendants 2 and 3.

Lingarajamma is the wife of

Siddappa and mother of the plaintiff and defendants


2 and 3. Admittedly, the suit survey number was
gifted to Lingarajamma by her father Gurusiddappa
and on her death, Siddappa i.e., the father of the
plaintiff

and

defendants

and

sold

the

suit

property to the 1st respondent/1st defendant under a


registered

Sale

Deed

dated

04.06.1987.

The

plaintiff was married in the year 1986 and before

RSA 434/10

her marriage, the suit property was joint family


property of the plaintiff and defendants 2 and 3.
After the marriage and before institution of the
suit when she came to her parental home, knew about
the sale transaction and as she has 1/3rd share in
the suit property, claiming that the transaction is
not binding on her interest, instituted the suit for
declaration that the sale deed is not binding on her
interest in the suit property and for partition of
her share.

Defendants 2 and 3 did not appear and hence


they were placed ex-parte.

The

1st

defendant

has

filed

his

written

statement and contended that the suit property was


of Lingarajamma, his aunt and on her death, as the
father of the plaintiff was to perform the marriage
of

the

plaintiff,

consideration.

it

was

sold

for

valuable

Since from the date of the sale he

claims to be in possession of the suit property and

RSA 434/10

contended that the plaintiff has no right to claim


any share in it.

On

the

basis

of

these

Court framed the issues.

pleadings,

the

trial

The plaintiff was examined

herself as P.W.1 and a witness P.W.2.

The documents

Exs.P1 to 4 were marked in their evidence.

The 1st

defendant was examined as D.W.1 and a witness D.W.2


and documents Exs.D1 to 20 were marked in their
evidence.

After hearing learned counsel for the parties


and on appreciation of the evidence on record, the
trial Court dismissed the suit holding that it is
barred by limitation.

It was of the opinion that

Article 60 of the Limitation Act is applicable to


the suit and it was not filed within 3 years from
the date of attaining the majority, it dismissed the
suit on the said ground.

Aggrieved by the Judgment

and Decree, the plaintiff filed the appeal in R.A.


No.18/2007.

The first appellate Court was of the

opinion that it is Article 109 of the Limitation Act

RSA 434/10

which is applicable and therefore, it decreed the


suit of the appellant of her share, holding that the
claim is in time.
Decree

of

the

Aggrieved by the Judgment and

first

appellate

Court,

the

1st

defendant is in appeal.

3.
the

At the time of admission, this Court raised

following

substantial

question

of

law

for

consideration:
Whether
Article

60

Limitation

the

suit

or

Article

Act,

respondent,

in

who

was

the

was

governed

by

109

of

the

light

of

the

the

appellant-

plaintiff before the First Appellate Court


claiming that the property was Sthridhan
property, which had been acquired by her
mother,

sold

by

her

father

during

her

counsel

for

minority?

4.

have

heard

learned

the

parties.

5.
contend

Learned counsel for the appellant would


that

the

suit

property

was

gifted

to

RSA 434/10

Lingarajamma i.e., the mother of the plaintiff and


defendants 2 and 3 and on her death, her husband,
sons and daughter have succeeded to it.

Therefore,

he submits that as the suit property is not a joint


family property, its sale to the 1st defendant is in
contravention of Section 8(3) of the Hindu Minority
and Guardianship Act, 1956 [hereinafter called as
the

Act

of

1956

for

short]

and

the

voidable at the instance of the plaintiff.

sale

is

The suit

to set aside the same and separate possession of the


share has to be filed within 3 years from the date
of

the

plaintiff

Therefore,

contends

the

He

the

first

trial

majority.

right in dismissing the suit as barred by time.


that

the

of

was

submits

that

age

Court

further

he

attaining

appellate

Court

wrongly applied Article 109 of the Limitation Act on


the

ground

property
submit

that

governed

that

the

the
by

suit

property

Mitakshara

approach

of

the

was

law.
first

ancestral
He

would

appellate

Court is contrary to the aforesaid provisions.

RSA 434/10

On the other hand, learned counsel for the 1st


respondent submits that the suit property is

joint

family property and the first appellate Court was


justified in granting the share by applying Article
109 of the Limitation Act.
that

it

is

either

He would further submit

Article

109

or

110

of

the

Limitation Act which is applicable to the facts in


dispute.

6.

It is not in dispute that the suit property

was gifted to Lingarajamma i.e., the mother of the


plaintiff and defendants 2 and 3.
Lingarajamma by

name

The father of

Gurusiddappa had

gifted

the

suit property under the Gift Deed dated 01.04.1975.


Therefore, Lingarajamma was the absolute owner of
the suit property on the basis of the gift.

It is

for this reason, it could be safely concluded that


the

suit

land

was

not

joint

family

property.

Hence the provisions of Sections 6 and 8 of the


Hindu Succession Act, 1956 are not applicable as the
said

provisions

either

deal

with

joint

family

RSA 434/10

property or succession to the property of a male.


As Lingarajamma was the exclusive owner of the suit
property on the basis of the gift by her father, it
is general rule of succession in the case of female,
Hindu, apply, wherein on the death of Lingarajamma
it is her husband, the sons and the daughters are
entitled to succeed to her interest in the suit
land.

7.

The

validity

of

sale

transaction

in

respect of the joint family property by Kartha or


adult member of a joint Hindu Family depends upon
the existence of the legal necessity.
of

its

alienation,

though

minor

At the time
in

the

joint

family has an undivided interest in the property


alienated, if a suit is instituted challenging such
alienation of a joint family property by a Karta
or an adult member of the joint Hindu family and
if it is proved that the same was not for legal
necessity, the plaintiff who is not a party to the
sale

transaction

could

ignore

the

alienation

and

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RSA 434/10

claim her share even in the property alienated.

In

such circumstances, it is the provisions of Article


109 of the Limitation Act which are attracted and
the plaintiff can institute the suit within 12 years
from

date

of

alienee

takes

possession

of

the

property.

8.

Reliance is placed on the decision of the

Apex Court, reported in 2002(1) Supreme Court Cases


178 [Madhegowda (dead) by L.Rs. Vs. Ankegowda (dead)
by

L.Rs.

and

others],

by

the

counsel

for

the

respondents wherein a de facto manager/guardian has


sold the property inclusive of undivided interest of
a minor.

The Apex Court held it is Section 11 of

the Act of 1956, which is applicable, which provides


that a de facto manager/guardian has no authority to
deal with the minors property on the ground that he
is the de facto manager/guardian.
case,

the

elder

sister,

who

In the aforesaid
was

de

facto

manager/guardian had sold the interest of her minor


sister and the Apex Court held that in view of

11

RSA 434/10

Section 11 of the Act of 1956 the sale is void.

The

aforesaid principle does not apply to the facts on


hand as the father of the plaintiff who executed the
Sale Deed along with defendants 2 and 3 to the 1st
defendant was not a de facto manager/guardian.

He

was a natural guardian of the plaintiff.

9.

In fact, the provisions of Section 12 of

the Act of 1956 specially provide that a guardian


not to be appointed for minors undivided interest
in

joint

family

property.

This

provision

is

incorporated with the purpose to protect the rights


of a manager of the Hindu joint family, who has
authority to sell the joint family property/ies in
case of legal necessity.

Therefore, the provisions

of Sections 11 and 12 of the Act of 1956 do not


apply to the facts on hand.

10.

The question as to whether Article 60 or

109 of the Limitation Act apply to an alienation by


a Karta or guardian of the Hindu joint family
property came up for consideration by this Court and

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RSA 434/10

in the decision reported in AIR 1985 Karnataka 143


[Ganapati

Santaram

Bhosale

and

another

Vs.

Ramachandra Subbarao Kulkarni and others] this Court


held that a suit for setting aside alienation by
Kartha in relation to the undivided interest of a
minor is governed by Article 109 and not Article
60(i)

of

the

Limitation

Act.

Therefore,

the

decisions aforesaid relied upon by learned counsel


for the respondents are of no assistance.

11.

Reliance is placed on the decision of the

Apex Court reported in (1996)8 Supreme Court Cases


54 [Narayan Bal and others Vs. Sridhar Sutar and
others]; wherein a karta of a joint Hindu family in
which there were minor sons sold the joint family
property as guardian of their minor sons,

the Apex

Court held that the provisions of Section 8 of the


Act of 1956 are to be read co-jointly by Sections 6
and 12 of the Act of 1956 and it held that in the
absence of legal necessity, the same is void.

13

Therefore,

RSA 434/10

in case if an interest of a minor

in the family property, other than the property of a


joint family, it is the provisions of Section 8 of
the

Act

of

alienation.

1956

which

is

applicable

to

the

Under the provisions of the Act of

1956, a natural guardian of a Hindu minor has power


to do all acts which are necessary or reasonable and
proper for the benefit of the minor subject to the
exception that in case if he is to effect a transfer
of an interest of a minor by way of mortgage, sale,
gift,

etc.,

it

could

be

permission of the Court.


obtained

by

the

only

with

the

previous

If no such permission is

guardian,

then

the

disposal

of

immovable property by such a natural guardian is


voidable at the instance of the minor or any person
claiming under him.

Herein the case on hand, it is

the father of the plaintiff, who executed the Sale


Deed and he falls within the purview of Section 4(b)
and also Section 6 of the Act of 1956 and when the
Sale Deed was executed in favour of the 1st defendant
without previous permission of the Court, as the

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RSA 434/10

property sold is not the joint family property, he


was bound to obtain the previous permission of the
Court under sub Section (2) of Section 8 of the Act
of 1956.

As he had not obtained the permission, the

sale

in

is

contravention

of

sub-Section

(2)

of

Section 8 of the Act and hence voidable at the


instance of the plaintiff as provided under subSection (3) of Section 8 of the Act of 1956.

12.

Reliance could be placed on the decision

of the Apex Court reported in AIR 2001 SCW 2616


[Vishwambhhar and others Vs. Laxminarayana (Dead)
through L.Rs. and another]. The facts in this case
reveal

that mother/guardian of

the plaintiff

had

executed the Sale Deed without legal necessity and


without sanction of the Court, the Apex Court held
that

the

sale

by

the

guardian

without

prior

permission of the Court is voidable and not void ab


initio.

Hence it held that the suit for recovery of

possession

from

the

purchaser

filed

by

minor

on

attaining the age of majority in the absence of a

15

relief

to

set

aside

the

RSA 434/10

Sale

Deed,

wherein

the

prayer was subsequently added, the limitation was 3


years

from

majority.

the

date

of

Therefore,

attaining
in

the

respect

age
of

of
such

transactions, it is Section 8(2) of the Act of 1956,


which is applicable and the suit has to be filed
within 3 years from the date of attaining the age of
majority.

A similar question rose before the High Court


of Punjab and Haryana in a decision reported in AIR
1983 Punjab and Haryana 114 [Surta Singh Vs. Pritam
Singh]. In the aforesaid Full Bench Judgment, the
High

Court

held

that

the

transfer

of

minors

property by a natural guardian in contravention of


Clause (2) and (3) of Section 8 of the Act of 1956
is a voidable transaction and suit to set aside the
sale and for possession has to be within 3 years
under Article 60 of the Limitation Act.

13.
in

The Apex Court also in a decision reported

2004(8)

Supreme

Court

Cases

785

[Nangaliamma

16

RSA 434/10

Bhavaniamma Vs. Gopalkrishnan Nair and others] held


that in such transaction, it is Article 60 of the
Limitation Act and the suit has to be filed within 3
years from the date of the minor attaining the age
of majority.

Admittedly, the sale of the suit property in


favour of the 1st defendant was on 04.06.1987.

The

suit instituted by the plaintiff is not within 3


years

of

her

attaining

the

age

of

majority.

Therefore, in view of the provisions of Article 60


of the Limitation Act, the suit was barred by time.
Though a contention is taken up by learned counsel
for

the

respondents

that

the

plaintiff

has

not

prayed for the relief of setting aside the sale


transaction and he contends that on this ground that
Article 60 of the Limitation Act provides for 3
years to set aside the sale, he would submit that in
the absence of the relief for setting aside the
sale, this Article itself is not applicable.

When

the sale transaction is voidable transaction and it

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RSA 434/10

is for the plaintiff, to sue for possession of the


property and it is incumbent upon him to pray for
such a relief.

Even otherwise, the plaintiff has

prayed for a declaration that the Sale Deed is not


binding on her interest in the suit property and
this relief is similar to setting aside the sale,
which

is

Limitation

contemplated
Act

and

under
the

the

relief, the suit itself cannot be maintained.

So,

from

and

if

the

of

of

said

angle,

absence

60

the

whatsoever

in

Article

facts

circumstances are looked into, it is Article 60 of


the

Limitation

Act,

which

is

applicable

to

the

dispute and not Article 109 or 110 of the Limitation


Act.

In the result, it has to be held that Article


60 of the Limitation Act applies to the suit and the
substantial
accordingly.

question

of

law

raised

is

answered

Consequently, the appeal is allowed.

The Judgment and Decree of the first appellate Court

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RSA 434/10

granting share to the 1st respondent/plaintiff is set


aside and that of the trial Court is restored.

Sd/JUDGE.

Ksm*