The Supreme Court stated that Hindu father or any other managing member of HUF is empowered to make a gift of ancestral property only for a ‘pious purpose’.
K.C. Chandrappa Gowda filed a suit against his father K.S. Chinne Gowda and one K.C. Laxmana for partition and separate possession of his one third share in the suit schedule property and for a declaration that the gift/settlement deed executed by the first defendant K.S. Chinne Gowda in favour of the second defendant K.C. Laxmana as null and void.
According to the plaintiff, the scheduled property belongs to the joint family consisting of himself, the first defendant and one K.C. Subraya Gowda. It was further contended that the first defendant had no right to transfer the scheduled property in favour of the second defendant as he is not a coparcener or a member of their family. Consequently, it was contended that the alienation made without the plaintiff’s consent is null and void and thus not binding on him.
Advocate Anand Sanjay M. Nuli, appearing for the appellant/second defendant, contended that the High Court was not justified in holding that the suit was not barred by limitation. According to him, Article 58 of the Limitation Act, 1963 is applicable to the facts of the present case.
He further argued that the transfer of property by way of settlement was for pious purpose which is permissible in law. Therefore, he submitted that the High Court was not justified in upholding the judgment of the Appellate Court.
Senior Advocate Arvind Varma, appearing for the respondent/plaintiff, while supporting the judgment of the High Court, has submitted that the alienation by way of gift of joint family property made by the first defendant in favour of the second defendant was void.
The division bench of Justice S. Abdul Nazeer and Justice Krishna Murari stated that Article 58 of the Second Schedule to the Limitation Act provides for the period of limitation to file a suit to obtain any other declaration.
The court noted that the period of limitation under the article is three years from the date when the right to sue first accrues. It is a residuary article governing all those suits for declaration which are not specifically governed by any other articles in the Limitation Act.
The court said that Article 109 is the special Article to apply where the alienation of the father is challenged by the son and the property is ancestral and the parties are governed by Mitakshara law.
The court added that the word ‘alienation’ in this article includes ‘gift’. In order to attract Article 109, the certain conditions have to be fulfilled, namely, the parties must be Hindus governed by Mitakshara; the suit is for setting aside the alienation by the father at the instance of the son; the property relates to ancestral property; and the alienee has taken over possession of the property alienated by the father. This article provides that the period of limitation is twelve years from the date the alienee takes possession of the property.
The court observed that the second defendant had adopted the written statement filed by the first defendant before the trial court wherein it was admitted that the scheduled property was a joint family property belonging to the HUF consisting of the plaintiff, his father the second defendant and his brother one K.C. Subbaraya Gowda, all three of whom were coparceners in the HUF. The second defendant is not a coparcener or a member of this family.
The court said that it is settled law that where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained.
The court held that the alienation of the joint family property in favour of the second defendant was voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation.
The court further observed that it is well settled that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a ‘pious purpose’ and what is understood by the term ‘pious purpose’ is a gift for charitable and/or religious purpose.
The court held that a deed of gift in regard to the ancestral property executed ‘out of love and affection’ does not come within the scope of the term ‘pious purpose’. It is irrelevant if such gift or settlement was made by a donor, i.e. the first defendant, in favour of a donee who was raised by the donor without any relationship, i.e. the second defendant. The gift deed in the instant case is not for any charitable or religious purpose.
Case title: K.C. Laxmana v/s K.C. Chandrappa Gowda & Anr.
Citation: CIVIL APPEAL NO. 2582 OF 2010