M.R. Vinoda v. M.S. Susheelamma (d) by Lrs. and Others
SANJIV KHANNA, J.
For convenience, we begin by reproducing the genealogy table as
it stood at the time of filing the suit from which the present appealarises:
We would refer to the parties before us as per the abo ve table,
albeitacknowledge many of the aforesaid parties having expired are
represented by their legal representatives.
2. On 15th April 1961, M.C. Rudrappa, son of Late Chikkegowda
and Patel Mallegowda and Mogannagowda @ Puttaswamygowda, both
sons of Late Nanjegowda, being the eldest members of the res pective
branches executed a partition deed, marked Exhibit P-1,dividing the joint
Hindu family properties inter se the three branches. The validity and
legality of the partition deed, Exhibit P-1,is accepted a nd not under
challenge.
3. On 13th March 1969, M.R. Rajashekar, the eldest among five
sons of M.C. Rudrappa who had expired 1967, and M.P. Basavaraju,
only son of Mogannagowda @ Puttaswamygowda, who it appears had
M.R. VINODA v. M.S. SUSHEELAMMA (D) BY LRS.
AND OTHERS
also expired, executed a relinquishment deed,marked Exhibit P-2, of the
property admeasuring 6 acres 34 guntas in Survey No. 29, Madenahalli
Village (the suit property), in favour of Patel Mallegowda.
4. On 18th November 1994, M.R. Shivakumar (Plaintiff No. 1),
M.R. Mallesha (Plaintiff No. 2), M.R. Vinoda (Plaintiff No. 3) and M.R.
Chidananda (Plaintiff No. 4), all younger sons of late M.C. Rudrappa,
filed a suit seeking a declaration that the relinquishment deed dated 13th
March 1969, Exhibit P-2,executed by their eldest br other M.R.
Rajashekar, Defendant No. 4, and their cousin M.P. Basavaraju,
Defendant No.3 in favour of their eldest uncle Patel Mallegowda, is null
and void. Patel Mallegowda, having expired, his sons M. Shantappa and
H. M. Puttappa were impleaded as Defendant Nos. 1 and 2.
5. The plaint,in a nutshell, states that the Plaintiff No . 4 being
minor on 13th March 1969, their eldest brother M.R. Rajashekar, the
fourth defendant, had no right to relinquish their shares. 1 The
relinquishment deed dated 13th March 1969, Exhibit P-2, being void, the
property remained the joint Hindu family property and should be partitioned
equally amongst them.
6. The suit was resisted by Defendant Nos. 1 to 3 primarily on the
ground that the relinquishment deed is valid and the suit is barr ed by
limitation.
7. The trial court dismissed the suit as barred by limit ation and
that the Defendant No. 4, being the eldest male member, was entitled to
execute the relinquishment deed on behalf of his branch of the family.
8. In the regular first appeal, the Additional Sessions Judge decreed
the suit inter alia holding that Defendant No. 4 was not competent to
execute the relinquishment deed, which being void, the suit was not barred
by limitation.
9. Legal representatives of the Defendant No.1 pref erred
theRegular Second Appeal No. 1989 of 2006 and have succeeded by
the judgment under challenge passed by the High Court of Karnataka at
Bangaloreon 19th November 2008 inter alia ruling that the relinquishment
deed is not void ab initio and the suit having been filedbeyond three
years as stipulated under Article 58 and 59 of the Schedule to the Limitation
Act, 1963 was barred by limitation. The prayer for the parti tion was
1As per the Plaint, all the plaintiffs had attained majority at the time of execution of the
relinquishment deed except Plaintiff No. 4.It is observed that there is some discrepancy
with regard to the year of birth of four Plaintiffs. However, in the context of the present
judgment this would not make any difference.
563
rejected as the property had ceased to be a joint Hindu family property
inter se the three branches.
10. Aggrieved by the decision, Plaintiff No. 3 has preferred this
appeal. Plaintiff No. 1, who is represented by his legal representative,
Plaintiff Nos. 2 and 4, having not preferred this appealare the proforma
Respondent Nos. 8, 9 and 10. The Defendant No. 1, represented by his
legal representatives are Respondents No. 1 to 4, and Defendant No. 2
represented by his legal representativeis Responden t No. 5, and
Defendant No. 4 is Respondent No. 7 in the present appeal. The
Defendant No. 3, Respondent No. 6 herein, has been deleted from the
array of parties.
11. Before we examine the question of the validity o f the
relinquishment deed, we must define the right and authority of the head
of the branch or the Karta to deal with a joint Hindu family property as
the Plaintiff No.4, a coparcener in the joint family, itis a dmitted2 was
minor when the fourth defendant executed Exhibit P-2, the relinquishment
deedon 13th March 1969.
12. The position in Hindu Law is well settled. In Sri Narayan
Bal and Others v. Sridhar Sutar and Others,3 this Court interpreting
Sections 64 and 85 of the Hindu Minority and Guardianship Act, 1956
2 The Appellant in his Special Leave Petition, Ground (DD) states that the Appellant
was minor at the time of execution of the relinquis hment deed. Even the rejoinder
affidavit vide paragraph 11, the Appellant states that he was not major at the time of
execution of relin quishment deed. However, see note 1.
3 (1996) 8 SCC 54.
4 6. Natural guardians of a Hindu minor.—The natural guardians 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 prope rty), are—
(a) in the case of a boy or an unmarried girl—the fat her, and after him, the
mother: Provided that the custody of a minor who ha s not completed the
age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegiti mate unmarried girl—the
mother, and after her, the father;
(c) in the case of a married girl—the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor
under the provisions of this section—
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi).
Explanation.—In this section, the expressions “father” and “mother” do not include
a stepfather and a stepmother.
5 8. Powers of natural guardian.—(1) The natural guardian of a Hindu minor has power,
subject to the provisions of this section, to do all acts which are necessary or reasonable
M.R. VINODA v. M.S. SUSHEELAMMA (D) BY LRS.
AND OTHERS [SANJIV KHANNA, J.]
(“HMGAct”, for short), has held that these two Sections are not to be
viewed in isolation, albeit in harmony and conjunction, andwhen read
together the intent is manifest that HMG Act does not envisage a natural
guardian of an undivided interest of a Hindu minor in a joint Hindu family
property. A natural guardian of a Hindu minor in respect of the individual
property alone is contemplated under Section 8, whereunder the powers
and duties of a natural guardian are defined. The provisio ns of the
HMGActwith the object of saving the minor’s separate individual interest
from being misappropriated require a natural guardian to seek permission
from the Court before alienating any part of the minor’s estate, do not
affect the right of the Karta or the head of the branch to manage and
and proper for the benefit of the minor or for the realization, protection or benefit of
the minor’s estate; but the guardian can in no case bind the minor by a personal
covenant.
(2) The natural guardian shall not, without the pre vious permission of the
court,—
(a) mortgage or charge, or transfer by sale, gift, exc hange or otherwise,
any part of the immovable property of the minor, or
(b) lease any part of such property for a term exceedi ng five years or for
a term extending more than one year beyond the date on which the
minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention
of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any
person claiming under him.
(4) No court shall grant permission to the natural guardian to do any of the acts
mentioned in sub-section (2) except in case of necessity or for an evident advantage to
the minor.
(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an
application for obtaining the permission of the court under sub-section (2) in all respects
as if it were an application for obtaining the permission of the court under Section 29 of
that Act, and in particular—
(a) proceedings in connection with the application sha ll be deemed to be
proceedings under that Act within the meaning of Section 4-A thereof;
(b) the court shall observe the procedure and have the power specified in sub-
sections (2), (3) and (4) of Section 31 of that Act; and
(c) an appeal shall lie from an order of the court ref using permission to the
natural guardian to do any of the acts mentioned in sub-section (2) of this
section to the court to which appeals ordinarily lie from the decisions of
that court.
(6) In this section “court” means the city civil court or a district court or a court
empowered under Section 4-A of the Guardians and Wards Act, 1890, within the local
limits of whose jurisdiction the immovable property in respect of which the application
is made is situate, and where the immovable property is situate within the jurisdiction
of more than one such court, means the court within the local limits of whose jurisdiction
any portion of the property is situate.
565
from dealing with the joint Hindu family property. In terms of Section
126, ordinarily no guardian shall be appointed for minor’s interest in joint
Hindu family. Only when there is no adult member in the management
of the joint family property in which the minor has an undivided interest
-and then alone - a guardian may be appointed.Further,the adult family
member in the management of the joint family property may be a male
or female, not necessarily the Karta. Therefore, Section 8 of the
HMGAct that requires a guardian of a Hindu minor to seek the permission
of the Court before he disposes of any immovable property of the minor
will have no application when a Karta or adult head of the family alienates
joint Hindu property even if one or more coparceners are mi nor. The
reason is that Section 8, in view of the express terms of Sections 6 and
12, would not apply where a joint Hindu family property is sold/disposed
of by the Karta or head of the family even when a minor has an
undivided interest in the said joint Hindu family property. Sri Narayan
Bal (supra) observes:
“5. With regard to the undivided interest of the Hindu minor in
joint family property, the provisions afore-culled are beads of the
same string and need to be viewed in a single glimp se,
simultaneously in conjunction with each other. Each provision, and
in particular Section 8, cannot be viewed in isolation.....The joint
Hindu family by itself is a legal entity capable of acting through its
Karta and other adult members of the family in management of
the joint Hindu family property. Thus Section 8 in view of t he
express terms of Sections 6 and 12, would not be applicable where
a joint Hindu family property is sold/disposed of by the Ka rta
involving an undivided interest of the minor in the said joint Hindu
family property…”
13. Thus, a Karta of a joint Hindu family can dispose of joint
family property involving the undivided interest of the minor of the family
therein. Therefore the proposition of the Plaintiff No.3/ theAppellant on
the limitation of the power of the Karta to manage and sell the joint
Hindu family property on behalf of the joint family comprising of a minor
6 12. Guardian not to be appointed for minor’s undivi ded 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 undiv ided 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.
M.R. VINODA v. M.S. SUSHEELAMMA (D) BY LRS.
AND OTHERS [SANJIV KHANNA, J.]
is misplaced,as acoparcener has no right to interfere in the act of
management of the joint family affairs. 7 This being the position, a
coparcener cannot seek an injunction restraining the Karta from
alienating joint Hindu family property, but has a right t o challenge
alienation, asthe alienation is not beyond the scope of challenge by other
members of the joint family, and thereby scrutiny of t he court. Latter
right entails the right to claim a share in the joint family estate free from
unnecessary and unwanted encumbrances, whereas the former embraces
the right to interfere with the act of management of the j oint family
affairs. We shall subsequently examine the grounds and circumstances
in which alienation can be challenged.
14. A Hindu family may have different branches within it. From
the perspective of Hindu Law, such branches of a fa mily are
separatebodies, with the eldest of that branch representing it withina
larger joint Hindu family. Father and in the absence of the father the
eldest member of the branch is entitled to act as the Karta and in that
capacity represent the branch. In Bhagwan Dayal (since deceased)
and thereafter his heirs and legal representatives Bansg oal Dubey
and Anotherv. Mst. Reoti Devi (deceased) and after her death, Mst.
Dayavati, her daughter,8 this Court decoded the law as:
“47. In Mayne’s Hindu law, 11th Edn., the legal position has been
neatly stated thus at p. 347:
“So long as a family remains an undivided family, two or more
members of it, whether they be members of different branches
or of one and the same branch of the family, can have no legal
existence as a separate independent unit; but all the members
of a branch, or of a sub-branch, can form a distinct and separate
corporate unit within the larger corporate family and hold
property as such. Such property will be joint family property of
the members of the branch inter se, but will be separate property
of that branch in relation to the larger family.
The principle of joint tenancy is unknown to Hindu law except
in the case of the joint property of an undivided Hindu family
governed by the mitakshara law.”
7Sunil Kumar and Another v. Ram Parkash and Others, (1988) 2 SCC 77.
8(1962) 3 SCR 440.
567
The legal position may be stated thus: Coparcenary is a creature
of Hindu law and cannot be created by agreement of parties except
in the case of reunion. It is a corporate body or a family unit. The
law also recognizes a branch of the family as a subordina te
corporate body. The said family unit, whether the larger one or
the subordinate one, can acquire, hold and dispose of family property
subject to the limitations laid down by law. Ordinarily, the manager,
or by consent, express or implied, of the members of the family,
any other member or members can carry on business or acquire
property, subject to the limitations laid down by the said law, for or
on behalf of the family. Such business or property would be the
business or property of the family……”
(Emphasis supplied)
In 1901, the High Court of Madras Sudarsanam Maistri v.
Narasimhulu Maistri and Another,9 had observed as follows:
“.....But so long as a family remains an undivided unit, two or
more members thereof — whether they be members of different
branches or of one and the game branch of the family,—can have
no legal existence as a separate independent unit; but if they
comprise all the members of a branch, or of a sub-branch, they
can form a distinct and separate corporate unit within the larger
corporate unit and hold property as such, Such property may be
the self-acquisition or ‘obstructed heritage’ of a paternal ancestor
of that branch, as distinguished from the other branches whic h
property has come to that branch and that branch al one as
‘unobstructed heritage’ or it may be the self-acquisition of one or
more individual members of that branch, which by act of parties
has been impressed with the character of joint propert y, owned
by that branch and that branch alone, to the exclusion of the other
branches.”
In the light of the above position,the father or the eldest member
is the Karta of a branch of the smaller joint family within the larger joint
Hindu family, such branch being subordinate or separate unit within the
larger body.
15. In the partition of 1961, the three branches of the family were
represented by the senior-most member, i.e., father as hea ds of the
91901 SCC OnLine Mad 91
M.R. VINODA v. M.S. SUSHEELAMMA (D) BY LRS.
AND OTHERS [SANJIV KHANNA, J.]
respective branches, namely, Patel Mallegowda, Mogannagowda @
Puttaswamygowda and M.C. Rudrappa. The partition is valid and binding
on the members/coparceners of the three branches.Similarly, the inter
se partition amongst Defendant No. 4, i.e., M.R. Rajashekar and f our
plaintiffs, was done by their respective representatives since they were
the father or eldest in their branches.
16. At this stage, we may refer to a recent decision of this court in
M. Arumugam v. Ammaniammal and Others, 10 wherein after
referring to Section 6 of the Succession Act, 1956, it was obse rved as
under:
“19. A Karta is the manager of the joint family property. He is not
the guardian of the minor members of the joint family. What Section
6 of the Act provides is that the natural guardian of a minor Hindu
shall be his guardian for all intents and purposes except so far as
the undivided interest of the minor in the joint family property is
concerned. This would mean that the natural guardian cannot
dispose of the share of the minor in the joint family property. The
reason is that the Karta of the joint family property is the manager
of the property. However, this principle would not apply when a
family settlement is taking place between the members of the
joint family. When such dissolution takes place and some of the
members relinquish their share in favour of the Karta, it is obvious
that the Karta cannot act as the guardian of that minor whose
share is being relinquished in favour of the Karta. There would
be a conflict of interest. In such an eventuality it would be t he
mother alone who would be the natural guardian and, therefore,
the document executed by her cannot be said to be a void document.
At best, it was a voidable document in terms of Section 8 of the
Act and should have been challenged within three years of the
plaintiff attaining majority.”
In our view this judgment does not lay down a different law, and
is not contra the ratio in Sri Narayan Bal (supra). In M.
Arumugam(supra), the Court was dealing with the situation governed
by pre-amended Section 6 of the Hindu Succession Act, which postulates
deemed partition on the death of a coparcener. Unde r the Hindu
Succession Act, inheritance to the estate of the deceased coparcener on
10 (2020) 11 SCC 103.
569
a deemed partition is by way of succession, and not by way of survivorship.
Therefore, the property inherited is individual and not joint Hindu family
property. Consequent to which the plaintiff therein, who was a minor,
had inherited the share on her father’s death, who was a Karta. The
inherited property belonged to the minor. In this context, the Court held
thatthe mother alone would be the natural guardian, and the relinquishment
made by her on behalf of her minor daughter, i.e., the plaintiff therein,
would not be void.
17. In the light of the aforementioned proposition of law, the Plaintiff
No. 3 cannot argue that their mother,as a natural guardian, being alive at
the time of execution of the relinquishment deed, Defendant No. 4 being
the eldest brother did not have the right and authority to represent and
manage their branch. Plaintiff No. 3’s father,having died in 1967,
Defendant No. 4, as the eldest brother of the branc h being the
Karta, alonecould have managed the property on behalf of the joint
Hindu familybranch of which he was the head.
18. The second question for consideration is whether as a Karta
or the head of the branch, M.R. Rajashekar, i.e., Defendant No. 4, could
have validly executed the relinquishment deed, marked Exhibit P-2, on
behalf of his branch? The answerto this issue is well settled, and for that
reference is to be made to Thamma Venkata Subbamma (Dead)
By LR v. Thamma Rattamma and Others,11 which decision refers to
the legal position in theHindu law in great depth and detail. After adverting
to Mayne’s Treatise on Hindu Law & Usage, Eleventh Edition, Article
38212 and Mulla’s Hindu Law, Fifteenth Edition, Article 258, 13 it has
been held thus:
11 (1987) 3 SCC 294.
12 Relevant part of the Mayne’s Treatise on Hindu Law& Usage , Eleventh Edition,
Article 382 reads: “It is now equally well settled in all the Provinces that a gift or devise
by a coparcener in a Mitakshara family of his undivided interest is wholly invalid.... A
coparcener cannot make a gift of his undivided interest in the family property, movable
or immovable, either to a stranger or to a relative except for purposes warranted by
special texts.”
13 Relevant part of the Mulla’s Hindu Law, Fifteenth Edition, Article 258 reads as:
“Gift of undivided interest.—(1) According to the Mitakshara law as applied in all the
States, no coparcener can dispose of his undivided interest in coparcenary property by
gift. Such transaction being void altogether there is no estoppel or other kind of personal
bar which precludes the donor from asserting his ri ght to recover the transferred
property. He may, however, make a gift of his inter est with the consent of the other
coparceners.”
M.R. VINODA v. M.S. SUSHEELAMMA (D) BY LRS.
AND OTHERS [SANJIV KHANNA, J.]
“17. It is, however, a settled law that a coparcener can ma ke a
gift of his undivided interest in the coparcenary property to another
coparcener or to a stranger with the prior consent of all other
coparceners. Such a gift would be quite legal and valid.”
This judgment draws a distinction between gifts and relinquishment
by a coparcener of his share; and the head of the branch or Karta as the
representative or eldest member of the branch. Former is valid and legal,
provided the relinquishment is in favour of all other coparceners. The
gift or relinquishment would also be valid if it is with the prior consent of
another coparcener. Equally, a coparcener may make a g ift of his
undivided interest in the coparcenary property to another coparcenary
with the prior consent of other coparceners.
19. Mulla’s Hindu Law, 22nd Edition vide Article 262, states that
a coparcener may renounce his interest in favour of the other coparceners
as a body, but not in favour of one or more of them. When he renounces
in favour of one or more of them, the renunciation enures for the benefit
of all other coparceners and not for the sole benefit of the coparcener or
coparceners in whose favour the renunciation is mad e. A similar
expositionvide Article 407 in Mayne’s Treatise on Hindu Law& Usage,
17th Edition, states that a gift by a coparcener of his entire und ivided
interest in favour of the other coparcener or coparceners is valid whether
it is regarded as one made with the consent of the other or others or as
a renunciation of his interest in favour of all. Referring to the judgment
in Thamma Venkata Subbamma (supra), Mayne’s Treatise on Hindu
Law & Usage observes that renunciation in the form of ostensible gift
may have the effect of relinquishment and if it enures for the benefit of
all the coparceners, such gift would be construed as valid. In addition,
Mulla’s Hindu Law, 22nd Edition recognises that a father or other
managing member of the ancestral immovable property can make gifts
within reasonable limits for “pious purposes”.14
20. Read in this light, it can be validly argued that the relinquishment
deed dated 13 th March 1969, Exhibit P-2, executed by the fourth
defendant would be invalid. However, in the present case, other aspects
have to be noticed to decide the relinquishment deed’s validity. First, we
must again refer to the superior power that the Karta enjoys and,
consequently, his greater rights and duties than other members. A Karta
can alienate the property when other coparceners have given consent.
14 See Articles 223 and 224 at pages 332 and 333, Mulla’s Hindu Law, 22nd Edition.
571
It is also settled that a Karta may alienate the joint family property for
value, either for legal necessity or for the benefit of the estate, to bind
the interests of all the undivided members of the family, whether they
are adults or minors or widows.15 There are no specific grounds to prove
the existence of legal necessity, and it must therefore depe nd on the
facts of each case. A Karta has wide discretion in the decision over the
existence of legal necessity and as to in what way such legal necessity
can be fulfilled.16 However, it is observed this exercise of power and
rights by Karta is not beyond challenge on the limited ground of lack of
existence of legal necessity or absence of benefit to the estate.
21. This Court in Kehar Singh (Dead) Through Legal
Representatives and Others v. Nachittar Kaur and Others,17 analysing
the concept of legal necessity had relied on Mulla’s Hindu Law to observe:
“20. Mulla in his classic work Hindu Law while dealing with the
right of a father to alienate any ancestral property said in Article
254, which reads as under:
“Article 254
254. Alienation by father.— A Hindu father as such has special
powers of alienating coparcenary property, which no other
coparcener has. In the exercise of these powers he may:
(1) make a gift of ancestral movable property to the ext ent
mentioned in Article 223, and even of ancestral immovable
property to the extent mentioned in Article 224;
(2) sell or mortgage ancestral property, whether movable or
immovable, including the interest of his sons, grandsons and
great-grandsons therein, for the payment of his own deb t,
provided the debt was an antecedent debt, and was not incurred
for immoral or illegal purposes (Article 294).”
21. What is legal necessity was also succinctly said by Mulla in
Article 241, which reads as under:
“Article 241
241. What is legal necessity. —The following have been held to
be family necessities within the meaning of Article 240:
15 Mayne’s Treatise on Hindu Law and Usage, 17th Edition, Article 385.
16 Mulla’s Hindu Law, 22nd Edition, Article 242A.
17 (2018) 14 SCC 445.
M.R. VINODA v. M.S. SUSHEELAMMA (D) BY LRS.
AND OTHERS [SANJIV KHANNA, J.]
(a) payment of government revenue and of debts which are
payable out of the family property;
(b) maintenance of coparceners and of the members of their
families;
(c) marriage expenses of male coparceners, and of the daughters
of coparceners;
(d) performance of the necessary funeral or family ceremonies;
(e) costs of necessary litigation in recovering or preservi ng the
estate;
(f) costs of defending the head of the joint family or any othe r
member against a serious criminal charge;
(g) payment of debts incurred for family business or other
necessary purpose. In the case of a manager other than a father,
it is not enough to show merely that the debt is a pre-exist ing
debt;
The above are not the only indices for concluding as to whether
the alienation was indeed for legal necessity, nor can the
enumeration of criterion for establishing legal necessity be copious
or even predictable. It must therefore depend on the facts of each
case. When, therefore, property is sold in order to ful fil tax
obligations incurred by a family business, such alienation can be
classified as constituting legal necessity.”
(See Hindu Law by Mulla “22nd Edition”)
XX XX XX
26. Once the factum of existence of legal necessity stood proved,
then, in our view, no co-coparcener (son) has a right to challenge
the sale made by the karta of his family. The plaintiff being a son
was one of the co-coparceners along with his father Pritam Singh.
He had no right to challenge such sale in the light of findings of
legal necessity being recorded against him. It was more so when
the plaintiff failed to prove by any evidence that there was no
legal necessity for sale of the suit land or that the evidence adduced
by the defendants to prove the factum of existence of legal
necessity was either insufficient or irrelevant or no evidenc e at
all.”
573
22. In the present case, the partition deed, Exhibit P-1, states that
owing to lack of harmony in the family members, the members had
decided to separate from the joint Hindu family status. The joint Hindu
properties were divided amongst the three groups represen ted by the
three brothers, Patel Mallegowda, Mogannagowda @ Puttaswamygowda
and M.C. Rudrappa. The partition deed, Exhibit P-1, acknowledges that
during the joint family status, “all properties” were mortgaged to one
Suranashetty for Rs. 32,000/-, which outstanding loan amount stood
ascertained. The loan would be paid by Mallegowda to the extent of
approximately 10 annas and by M.C. Rudrappa to the extent of
approximately 6 annas, whereas Mogannagowda had no responsibility.
23. It is an accepted position that the repayments were made, and
the joint Hindu family properties mortgaged were freed shortly before
the execution of the relinquishment deed on 13th March 1969, Exhibit P-
2. We would now refer to the evidence and material on record to show
the circumstances and reason for the execution of the relinquis hment
deed on 13th March 1969, Exhibit P-2.
24. The trial court judgment refers to the cross-examination of
M.R. Vinoda, PW-1, who affirmed that when the joint Hindu properties
were partitioned in 1961, Patel Mallegowda had retained the property in
his share. Further as Patel Mallegowda had got the property when the
partition took place in 1961, after his death the same came to the share
of his son Shantappa, i.e. Defendant No.1 in the suit. The court of regular
first appeal appraised the evidence of Shanthappa (DW-1) on repayment
of the loan to Suranashetty. As per DW-1, his father, Patel Mallegowda,
had filed a suit before the Mysore Court for the redemption of mortgage,
which was compromised for Rs. 33,000/-. Patel Mallegowdahad pai d
Rs. 25,000/- and Rs.8,000/- was paid by M.C. Rudrappa to redeem the
mortgage.18 Thus, Patel Mallegowda had paidsubstantial amount, much
more than the stipulation in the partition deed (Exhibit P-1).
25. Defendant Nos. 219 and 3 in their examination-in-chief accepted
that at the time of partition in 1961, a suit was pending regarding the loan
18 During the arguments before the Trial Court, Defen dant Nos. 1 and 3 have argued
that Patel Mallegowda looked after the court procee dings for redemption. Further, it
was argued that whoever looked after the court affairs was to be given the suit land.
19Although Defendant No. 2, i.e., H.M. Puttappa, corr oborated the plaintiff’s
contentions before the court of first regular appeal, it will bear no consequences on his
statement before the trial court and hence, no rami fications for the present appeal.
M.R. VINODA v. M.S. SUSHEELAMMA (D) BY LRS.
AND OTHERS [SANJIV KHANNA, J.]
taken from Suranashetty, which was later decided in the Mysore court.
Further, the Plaintiffs did not have any right over the suit property because
the same belonged to those who borne the court expenses for the
redemption suit. To repay the amount, Defendant No.1’s father, P atel
Mallegowda, had paid the entire expense, except for Rs. 8,000/- th at
was paid by M.C. Rudrappa. Thereafter to clarify the position and doubts
the relinquishment deed, Exhibit P-2, was executed in 1969.
26. The trial court also relied upon Exhibit D-2, the recor d of
rights, which mentions that M.R. No.1: 62-63, the mortgage was released
in 1968 and Patel Mallegowda, father of M. Shanthappa, had got the
rights in the property since 1962-63 itself. In Exhibit D-3, Index of lands,
in column number 18, it is mentioned that Patel Malle gowda and
Mogannagowda, son of Nanjegowda, had got the property released from
Suranashetty, and the rights were redeemed in favou r of Patel
Mallegowda as per the terms agreed between them. The trial court, on
further perusal of the said documents, in Exhibits D-2 and D- 3, the
mortgage release letters, observed that the property ha d come to the
share of Patel Mallegowda.
27. The relinquishment deed, Exhibit P-2, states th atM.P.
Basavaraju and M.R. Rajashekarwere paid Rs. 1,000/- for leaving any
right or interest to which they had consented and accepted, and that
even before the relinquishment, they and their family had no right or
interest in the suit property. The relinquishment deed, Exhibit P-2, was
an acknowledgment of the rights and interest of the Patel Mallegowda
branch.
28. From the evidence on record, it is apparent, Patel Mallegowda
had paid the larger share in the redemption of the mortgage and had
managed the legal proceedings in the redemption suit. The repayment
so made by Patel Mallegowda served the interest for the entire family
since, and as recorded in the Partition Deed dated 15th April 1961, “all
properties” of the family were mortgaged. Thus, the relinquishment made
by M.R. Rajashekar and M.P. Basavaraju in favour of Patel Mallegowda
was on account of the repayment of the debt made by Patel Mallegowda,
on basis of an understanding between the three branches vide the partition
deed 15th April, 1961, Exhibit P-1. The relinquishment made by M.R.
Rajashekar, as the eldest of the family, enured benefit for all the members
575
of that branch as it settled accounts inter se three branches of the family.
Since there was a legal necessity to settle the acc ount with Patel
Mallegowda who had made significant payments to redeem the properties
that had fallen in the share of M.R. Rajashekar branch, M.R. Rajashekar
was entitled to relinquish the share in the property in such exercise of his
managerial power. The relinquishment deed dated 13 th March 1969,
Exhibit P-2, having been executed by the fourth defendant being the
head of his branch of the joint family was for legal necessity and for the
benefit of the estate belonging to his branch of the family.
29. The question of a transaction being void or, for that matter, the
validity of the relinquishment in this case, much depends on the facts. It
is an inquiry into the determination of relevant facts bough t onto the
record for the perusal of the court. The nature of transaction is required
to be determined based on the substance and not the nomencla ture of
the deed. Documents are to be construed having regard to the context
thereof whereof labels given to them will not be of much relevance. In
the light of the factual position of this case as discussed above, we do
not think that the relinquishment deed,even if there be a debate as to the
legal necessity or lack of benefit, can be declared and treated as null and
void.
30. The Plaintiffs, including the present appellant, in the plaint, did
not predicate their case on the ground of inheritance of the share on the
death of their father, M.C. Rudrappa in 1967. Plaintiff No. 3 has not
raised the plea of deemed partition in the present appeal. Even otherwise,
we would not allow Plaintiff No. 3 to raise this contention before us for
the first time, as it would deprive and deny the contesting def endants
from raising defences founded on facts in nature of estoppel,
acquiescence and right to restitution; apart from the plea that the suit is
barred by limitation, which aspect has been considered below.
31. This brings us to the question of limitation.The validity of the
relinquishment deed dated 13th March 1969,Exhibit P-2, was challenged
vide the suit filed on 18th November 1994.
32. On the said aspect we would like to reproduce and refer to
Articles 58, 59, 60 and 109 of the Schedule of the Limitation Act, which
read:
M.R. VINODA v. M.S. SUSHEELAMMA (D) BY LRS.
AND OTHERS [SANJIV KHANNA, J.]
33. In our opinion, Article 60 would not apply as this is not a case
of transfer of property made by a guardian of a ward. Article 109 applies
to a plaint for setting aside the father’s alienation of ancestral property
governed by Mitakshara law. As per Article 109, the suit must be filed
within 12 years when the alienee takes possession of the property. When
we apply Article 109, the suit would be barred by limit ation as it was
filed in 1994, nearly 24 years after the relinquishment deed (Exhibit P-2)
was executed to the fourth defendant in favour Patel Mallegowda branch
and nearly 21 years after the Plaintiff No.3 attained majority in 1973.For
the same reason, the suit would be barred under Articles 58 and 59 of
the Limitation Act as it had been filed post three years from the date the
right to sue first accrued as per Article 58 and when the facts entitling
the plaintiffs to have the instrument or decree cancelled or set aside or
577
the contract rescinded first came to the knowledge of the p laintiffs as
per Article 59. The High Court, in our opinion, rightly rejected the specious
and untrue plea of the plaintiffs that till two months before the filing of
the suit, they were unaware and did not know about execution of t he
relinquishment deed by their elder brother, the fourth defendant.
34. For the aforesaid reasons we dismiss this appeal, and uphold
the judgment of the High Courtdismissing the suit as barred by limitation.
Decree will be drawn up accordingly. There would be no or der as to
costs.
Devika Gujral Appeals dismissed.
M.R. VINODA v. M.S. SUSHEELAMMA (D) BY LRS.
AND OTHERS [SANJIV KHANNA, J.]