Ancestral property cannot be gifted without consent of all coparceners

K.C. LAXMANA(APPELLANT) Vs. K.C. CHANDRAPPA GOWDA & ANR. RESPONDENT(S)
THE SUPREME COURT OF INDIA
DATED 19TH APRIL,2022

The Apex Court Held 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. Therefore, 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'.

BRIEF FACTS

1. 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 dated 22.03.1980 (Ex. P¬1) executed by the first defendant¬K.S. Chinne Gowda in favour of the second defendant¬K.C. Laxmana as null and void.

2. According to the plaintiff, the schedule 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 schedule 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.

3. The first defendant( father) opposed the suit by filing his written statement. It was admitted that the suit schedule property is a joint family property. It was contended that the second defendant was brought up by the first defendant and out of love and affection he settled the suit property under Ex.P¬1 in favour of the second defendant. It was further contended that the joint family property was already partitioned between himself, the plaintiff and the other son¬Subbraya Gowda on 23.03.1990. The plaintiff, having taken his share without any demur is not entitled to maintain the suit. It was also contended that the suit was barred by limitation. The second defendant had adopted the written statement filed by the first defendant.

4. The Trial Court, on appreciation of the materials on record, dismissed the suit.

5. Feeling aggrieved, the plaintiff filed a first appeal. The Appellate Court, after reconsideration of the entire materials on record and re¬assessment of evidence, set aside the judgment of the Trial Court. It was held that the Settlement Deed at Exhibit P¬1 is a void document. The plaintiff was granted one¬third share in the suit property.

6. This judgment of the Appellate Court was challenged by K.C. Laxmana, the second defendant in the High Court. The High Court, after hearing the learned counsel for the parties and on consideration of the materials on record, dismissed the appeal by the impugned order.

7. Being aggrieved by the Order of Hon'ble High Court the appellant appealed before Supreme Court.

OBSERVATIONS AND DECISION OF SUPRME COURT

8. Having regard to the contentions urged, the first question for consideration is whether the suit filed by the plaintiff was barred by limitation.

There is no dispute that the parties to the suit are Hindus and are governed by Mitkashara Law. The plaintiff has challenged the alienation made by his father the first defendant, under Ex.P¬1 which is a joint family property, in favour of the second defendant.
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 period of limitation under this 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.

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. Generally, where a statute contains both general provision as well as specific provision, the later must prevail. Therefore, Article 58 has no application to the instant case.

Article 109 provides that

• Description of suit: By a Hindu governed by Mitakshara law to set aside his father's alienation of ancestral property.
• Period of Limitation: Twelve Years
• Time from which period begins to run: When the alienee takes possession of the property.

It means appellant has a period of twelve years when the alienee taken possession of the property to file a suit.

The word 'alienation' in this article includes 'gift'. In order to attract Article 109, the following conditions have to be fulfilled, namely,

(1) the parties must be Hindus governed by Mitakshara;
(2) the suit is for setting aside the alienation by the father at the instance of the son;
(3) the property relates to ancestral property; and
(4) 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.

In the instant case, Ex.P¬1 was executed by the father of the plaintiff in favour of the second defendant on 02.03.1980 and the second defendant has taken possession of the property on
22.03.1980 when Ex.P¬1 was registered. Counting the period of twelve years from 22.03.1980, the limitation for filing of the suit in the present case would have expired on 21.03.1992. The suit was filed on 11.10.1991. Therefore, the suit was not barred by time.

9. The second question for consideration is whether the transfer of property made by the first defendant in favour of the second defendant under Ex.P¬1 was for a pious purpose.

It is trite law that Karta/Manager of a joint family property may alienate joint family property only in three situations, namely,

(i) legal necessity;
(ii) for the benefit of the estate and
(iii) with the consent of all the coparceners of the family.

In the instant case, the alienation of the joint family property under Ex.P¬1 was not with the consent of all the coparceners. 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.

Therefore, 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.

10. In the instant case, it is admitted by the second defendant that the settlement deed dated 22.03.1980 (Ex.P¬1) is, in fact, a gift deed which was executed by the first defendant in favour of the second defendant 'out of love and affection' and by virtue of which the second defendant was given a portion of the joint family property.

11. 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. Therefore, 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.

12. In view of the above, we are of the view that the settlement deed/gift deed dated 22.03.1980 (Ex.P¬1) executed by the first defendant in favour of the second defendant was rightly declared as null and void by the first Appellate Court and the High Court.

CONCLUSION

This is a landmark judgement by the Apex Court, which settled that gift of an ancestral property cannot be given on the basis of "Love and Affection" without consent of all coparceners. It is also settled that a Hindu father or a member of HUF or managing member of an ancestral property has power to make gift of property only for
"Pious Purposes" (The definition of pious is someone or something that is devoted to religion. An example of pious is someone who goes to temple every Sunday and chanting Hanuman Chalisa throughout the week). It means property should be gifted for Charitable and /or religious purposes.

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