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MYSORE HINDU LAW WOMEN'S RIGHTS ACT, 1933

Nagamma vs Deveeramma 2001 (6) KarLJ 373 Mysore Act No. 10 of 1933 (Mysore Hindu Law Women's Rights Act, 1933) had been in force on the First day of January, 1934. The question is what is the effect of the provisions of this Act. This Act no doubt governs succession to interest in the property, after coming into force of the Act, it had the effect of regulating the succession to the property in case of a male Hindu dying intestate. The Act declare that it shall come into force on the first day of January 1934. The Act became applicable to persons who but for the passing of this Act, would have been subject to the law of Mitakshara in respect of matters for which the provisions are contained in the Act. Section 3 does not reveal that it is retrospective in operation.

High Court of Mysore in Hutcha Thimme-gowda v. Dyavamma, AIR 1954 Mys 93. The foregoing shows that the Mithakshara law in force in the former Princely State of Mysore was different from the law which was in force in the State of Madras. It could further be seen that the personal laws of Hindus in Madras as well as in the former Princely State of Mysore were amended by statutes passed by Legislature which were in force in the respective areas.
Chinnamma vs Srinivas AIR 1971 Mys 28, (1970) 2 Mys LJ Bench: C Honniah, E Venkataramiah It is well settled law that a Hindu belonging to Mithakshara School continues to be governed by the law in force in the area to which he belongs even though he may migrate to some other area, until it is proved that the family has adopted the Mithakshara law which is in force in the area to which the family has migrated. It is enough to refer In support of what is stated above to a decision of the Privy Council in Abdurahim v. Halimabai, AIR 1915 PC 86, in which it is observed as follows;-- "Where a Hindu family migrates from one part of India to another, prima facie, they carry with them their personal law, and, if they are alleged to have become subject to a new local custom, this new custom must be affirmatively proved to have been adopted....." The position would not be different even when a part of one State is taken out of that State and added on to another for administrative reasons. That was the view which was expressed by the Privy Council in Somashekara Royal v. Sugutur Mahadeva Royal, AIR 1936 PC 18, in which it was held that the mere transfer of a district to another presidency for administrative purposes was not sufficient to affect the personal law of the residents in that district, unless and until it was shown that in the case of any resident there that he had intended to change and had in fact changed his personal law. …….. The mere fact that Venkata-swamy had gone to Mysore in search of an employment cannot, therefore, be considered as sufficient to hold that there was change of his personal law unless it is shown that he intended to do so. Further, in this case it is to be seen that it is not pleaded in the plaint that there was any such change of personal law, applicable to the family of the parties to these proceedings on account of their intention to do so. This question is a question of law and fact and unless proper pleadings are placed before the court and necessary evidence is led in support of the pleadings, it would not be possible to hold that there was such a change in the personal law governing the family. ………… It may also be mentioned here that by virtue of the personal law of the parties derived from the texts which constitute the source of the law, the plaintiff would not be entitled to a share in the family properties on the ground that the properties have passed on to the hands of the sole surviving coparcener. Such a right was created for the first time by the Mysore Act of 1933 which came into force on 1-1-1934 in the former princely State of Mysore. So unless it is established that the parties to this suit were governed by the Mysore Act of 1933, the plaintiff would not be entitled to a share on the ground that the joint family properties passed to the hands of a sole surviving coparcener on the death of Venkataswamy.


High Court of Mysore in Keshava Anantha Dixit v. Rama Dixit, (1947) 25 Mys LJ 94. That was a case in which a Hindu male who belonged to a family that migrated to former Mysore State from Ranibennur in Dharwar District in the days of his paternal grand-father, died intestate in Mysore after the Mysore Act of 1933 came into force, leaving immoveable property in Mysore. He and his father who had pre-deceased him were born in Mysore after the migration. After his death the plaintiffs who were the sons of his mother's sisters, filed a suit claiming to be his nearest heirs according to the school of Hindu Law that prevailed at Ranibennur at the time of migration. The suit was resisted by the defendants who were the paternal grand-father's sister's sons of the Hindu male in question on the ground that they were the nearest heirs to succeed to his estate according to the Hindu Law Women's Rights Act of 1933 in force in Mysore. The Court found that the members of the family who migrated to Mysore had become the subjects of the Maharaja of Mysore, and, therefore, they were governed by the Mysore Act of 1933 which laid down a course of succession different from the one on which the plaintiffs based their suit.
High Court of Mysore in Chikka Kempegowda v. .Madaiya, (1951) 29 Mys LJ 64 in which it was held that the interest that was acquired in a joint family property by a Hindu female governed by Mitakshara under Clause (d) of Section 8 (1) of the Mysore Act of 1933, was a vested right which was heritable and transferable. This view of the former High Court of Mysore receives support from a decision of the Supreme Court in Nagendra Prasad v. Kempananjamma, AIR 1968 SC 209 . While construing the provisions of Section 8 (1) (d) of the Mysore Act of 1933 Bhargava, J-, speaking for the court observed as follows:-- "This example makes it clear that the scope of ascertainment of the females who are to receive a share under Clause (d) must be very wide, because Clause (d) mentions that when the joint family property passes to a single coparcener by survivorship, the right to shares is vested in all the classes of females enumerated in all the three Clauses (a), (b) and (c). That being the position, we do not think that Clause (d) can be interpreted narrowly as giving a right to only those females who happen to be related to one or the other of the last two male coparceners in the manner laid down in Clauses (a) and (b). In fact the language of Clause (d) has to be interpreted as laying down that right to shares will vest in all females of the joint Hindu family who would have possibly received the right to a share if at any earlier time there had been oarti-tion in the family in any of the three manners laid down in Clauses (a), (b) and (c). This intention can only be given effect to on the basis that Clause (d) does not restrict itself to finding out females on the basis of an assumed partition, between the last two male coparceners. It is significant that Clause (d) gives a right independently of a partition and we do not see why its scope should be restricted by assuming a partition. The reference to the earlier Clauses in this Clause must be held to be restricted to the sole purpose of ascertainment of the females falling under Clauses (a), (b) and (c). and once they are ascertained, it has to be held that each one of them becomes entitled to a share under this Clause. The object of Clause (d) is to give to all females entitled to maintenance from the coparcenery property a right to claim a share in the joint family property instead of a right to maintenance and that is why reference is made in it to all females enumerated in Clauses (a), (b) and (c)....." It is therefore clear from the observations of the Supreme Court extracted above, that females who are entitled to a share under Clause (d) of Section 8 (a) of the Mysore Act of 1933, acquire a vested right to a share as laid down by that section. There is no provision in the Mysore Act of 1933 which provides for a vested right being created in respect of a share of a joint family property on a second occasion when the joint family properties pass on the hands of a sole surviving coparcener during the lifetime of the same female who is entitled to a share under that provision.

Nagendra Prasad vs Kempananjamma AIR 1968 SC 209 :- Clause (a) of sub-s. (1) of s 8 of the Hindu Law Women's Rights Act 1933, provided that at a partition of joint family property between a person and his son or sons, those entitled to share with them would be his mother his unmarried daughters, and the widows and unmarried daughters of his predeceased undivided sons and brothers who had no male issue. Clause (b) provided that when the partition was between brothers, those entitled to share with them would be their mother, their unmarried sisters, and the widows and unmarried daughters of their predeceased undivided brothers who had left no male issue. According to cl. (c) clauses (a) and (b) would apply, mutatis mutandis, to a partition among other coparceners in a joint family. Clause (d) laid down that when a joint family property passed to a single coparcener by survivorship it would so pass subject to the right to share of the classes of females enumerated in the earlier clauses. Sub-s.(2) of s. 8 fixed the shares of the aforesaid relatives. Sub-s.(3), inter alia, defined the term 'mother' as including whether there were both a mother and a step-mother, all of them jointly, and the term 'son' as including a step-son, a grandson and a great grandson. It also provided that the Provisions of the section relating to the mother would be applicable, mutatis mutandis, to the paternal grandmother and great grandmother. …………… It is, however, to be noticed that s. 8, in conferring rights on females, envisages two different circumstances in which that right is to accrue to them. The first circumstance is when there is a partition of the joint family property between any co-parceners, and the other is when, though there is no partition, the entire joint Hindu family property passes to a single male owner. It is in both these cases that the Act envisages that the property may lose its character of co-parcenary property, because the co-parcenary body may cease to exist on partition or on survival of a single male member of the family. It seems that the purpose of S. 8 was to safeguard the interests of females in such contingencies where the co-parcenary property is to disappear either by partition or by survival of a sole male member. The legislature seems to have felt that, in such circumstances, it was not safe to leave the females entitled to maintenance, etc, at the mercy of the individuals who may receive property on partition or at the mercy of the individual in whom absolute rights in the property might vest as a result of sole survivorship. For the first contingency, when there is a partition, provision was made in clauses (a), (b) & (c) of sub-section (1) of S. 8 under which a right was granted to the females to ask for separation of their shares if the male members decided to have a partition. Unless the male members themselves sought a partition, it was not considered necessary to grant any right to the females themselves to ask for partition, because the property could not lose its character as co- parcenary property until the male members of the family sought partition. The right of the females under clauses (a), (b) & (c) of section 8(1), therefore, only arises at a partition between the male co-parceners forming the joint Hindu family.

For Rejection of Plaint under code of civil procedure only plaint averrments have to be taken into consideration

Hafeez and Ors Vs. Asif and Ors – Karnataka High Court Order on Apr 22 2010 Reported 2010 (5) KarLJ 60 Hon’ble Justice: Aravind Kumar, J. This is a defendants' revision petition questioning the correctness of the….. lower court order where under interlocutory application filed by the revision petitioners (defendants) under Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 came to be dismissed.


FACTS OF CASE:- Plaintiffs sought for an order of perpetual injunction against the defendants, their men, agents, representatives, henchmen ………. The said suit was contested by the defendants. During the pendency of the suit an application under Order 7, Rule 11(d) read with Section 151 of the Civil Procedure Code, 1908 came to be filed by the defendants with a prayer to reject the plaint as same is barred by law. The said application was supported by an affidavit of 4th defendant. It was contended in the said affidavit that in respect of suit
schedule property the defendants' father had taken 15 guntas of agricultural land on tenancy basis from Kolad Mutt Mahasamsthanam during 1965 and during his lifetime he was cultivating the land by giving half share to the mutt. It was also contended that father of the plaintiffs late G. Khaleel had filed an application for registration of occupancy rights before land Tribunal and the Tribunal by order dated 19-4-1989 had ordered late G. Khaleel to be registered as occupant of the Schedule property. The said order came to be set aside by this Court in W.P. No. 25423 of 1993 by order dated 19-9-2001 and same came to be set aside at the instance of the mutt and was remitted back to the Land Tribunal. The matter is being adjudicated by the Special Deputy Commissioner for Abolition of Inams as the land was a Devadaya land and during pendency of adjudication before Tribunal, above said G. Khaleel expired on 17-7-2004 and his legal heirs were prosecuting the proceedings before the Special Deputy Commissioner. It was contended by the defendants that when the matter was pending before the Tribunal, the plaintiffs have filed the present suit to deprive the rights of the defendants. It was also contended that suit schedule property was in joint possession of both plaintiffs and defendants and the defendants have already got impleaded themselves before the Tribunal and as such the plea regarding joint tenancy has to be referred to the Land Tribunal under Section 133 of the Karnataka Land Reforms Act, 1961. Hence it was contended that the suit was not maintainable and barred by law.


COURT OBSERVATIONS AND CITED CITATIONS

Though several judgments are cited at the bar the same having been perused by this Court, following judgments would throw light on the questions formulated hereinabove which requires to be determined in the instant case and as such the following decisions are extracted.

Kamala and Others, v K.T. Eshwarappa and Others, AIR 2008 SC 3174 case, paras 15 and 16 "15. Order 7, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Rule 11 of Order 7 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a Court can be invoked at different stages and under different provisions of the Code. Order 7, Rule 11 of the Code is one, Order 14, Rule 2 is another.


16. For the purpose of invoking Order 7, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the Court at that stage. All issues shall not be the subject-matter of an order under the said provision. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out there from is that the Court at
the stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the Court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for registration of plaint should be entertained".

Smt. Mallamma v Chenne Gowda, 2009(1) AIR Kar. 21; case:

"45. The Courts below have declined to grant the relief of possession to the plaintiff similarly on the ground that the land Tribunal has granted occupancy rights in favour of the 3rd respondent and therefore he is in possession. As such in view of the bar contained in the aforementioned sections the Trial Court cannot examine the said aspect of the matter. No doubt, a plain reading of the above provisions indicate that the Civil Court shall have no jurisdiction to deal with any question which is required to be settled or decided by the authorities mentioned in Section 132 and sub-section (2) further makes it clear that no order of the authorities mentioned therein shall be called in question in any Civil Court or Criminal Court and Section 133 further makes it clear by specifically mentioning that the Civil Court or Criminal Court shall not decide the question as to whether the land is not a agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1-3-1974.
46. A careful reading of the aforesaid clause (i) of sub-section (1) of Section 133 therefore gives an indication as to the exclusion of the jurisdiction of the Civil Court to deal with the questions referred to above in clause (i) of sub-section (1) of Section 133.



Mudakappa v Rudrappa, AIR 1978 Kant. 136:

"12. Section 132 provides that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Deputy Commissioner, the Assistant Commissioner, the Tribunal, the Tahsildar, the Karnataka Revenue Appellate Tribunal or the State Government in exercise of their powers under the Act. It also further provides that no order of the Deputy Commissioner, the Assistant Commissioner, the Tribunal, the Tahsildar, the Karnataka Revenue Appellate Tribunal or the State Government made under the Act shall be questioned in any Civil or Criminal Court. The consequence of an agricultural land being held by a lessee immediately prior to 1-3-1974 is that with effect on and from the said date, it would stand transferred to and become vested in the State Government by virtue of Section 44(1) of the Act. The tenants holding such lands, would as against the State Government, be entitled only to such rights or privileges and would be subject to such conditions as provided by or under the Act. Any other rights or privileges which may have accrued to them in such lands before the date of vesting against the landlord or other person would cease and would not be enforceable against the State Government. Under Section 45 of the Act, every tenant would be entitled subject to such restrictions and conditions that are imposed by the Act to be registered as an occupant in respect of the lands of which he was a tenant before the date of vesting and which he had been cultivating personally. Section 48-A prescribes the procedure to be followed by a person entitled to be registered as an occupant under Section 45. For securing such registration, he has to make an application to the Tribunal constituted under the Act for that purpose in accordance with law. Under sub-section (5) of Section 48-A, where an objection is filed disputing the validity of the applicant claim or setting up a rival claim, the Tribunal is required to hold an enquiry and determine whether the applicant is entitled to be registered as an occupant or not. Section 112(B) expressly requires the Tribunal to make necessary verification or hold an enquiry in all cases relating to registration of a tenant as an occupant under Section 48-A. Section 133 of the Act, states that when, in any suit or proceedings concerning a land, the question whether such land is or is not an agricultural land or whether the person claiming to be in possession is or is not a tenant of the said land prior to 1st March, 1974, arises for consideration, such question should be referred to the Tribunal for its decision and the suit or proceedings should be disposed of in accordance with the finding of the Tribunal on the above question. When, as in this case, one person applies for registration of the lands as an occupant in his individual name and three others apply for registration of the said lands in their name along with the other applicants as joint occupants, it becomes the duty of the Tribunal to decide whether only one of them was the sole tenant of the lands in question before the appointed day or whether all of them were jointly in possession of the lands as tenants. Without deciding the said question, it would not be possible for the Tribunal to make an effective order under Section 48-A of the Act. In order to decide the said question, it becomes necessary for the Tribunal to decide whether the tenancy in question was held by one of them exclusively or by all the applicants jointly. We have to hold that under Section 48-A, the Tribunal has that power having regard to the scope of that section. Whenever a statute confers a duty on an authority to decide a question and a corresponding right on an individual or individuals it has to be assumed that the statute, has, by necessary implication conferred on that authority the power to decide all issues which are incidental and ancillary to the main question to be decided. Otherwise the Tribunal will have to keep all the applications pending until such issues are decided by the Civil Court. In fact there is no procedure prescribed by the Act to refer such issues for the decision of the Civil Court. We do not think that it would be reasonable to hold that the Tribunal should await the decision of the Civil Court on such issues, in view of sub-section (5) of Section 48-A, which requires the Tribunal to hold an enquiry into all rival claims made in respect of the registration of the occupancy rights in respect of the agricultural lands before disposing of the applications made to it. We, therefore hold that the land Tribunal is competent to decide for the purpose of disposing of the applications under Section 48-A the question whether the leasehold rights were held exclusively by the appellant or by the joint family consisting of the appellant and the respondents before the partition took place and thereafter by all of them as co-tenants till the appointed day. It is its duty to do so under the Act. The said question could not therefore be decided by the Civil Court in view of Section 132 of the Act".


Mudakappa v Rudrappa, 1996(6) Kar. L.J. 129 (SC), paras 7 and 8:

"7. In Chapter III heading is conferment of ownership on tenants. A conspectus of the provisions establishes the gamut of operation of the Act, namely, conferment of ownership of tenancy rights of the lands vested in the State Government. The pre-existing right, title and interest of the landlord in relation to the lands in possession of the tenant, even against whom a decree or order for eviction or a certification for assumption was made or issued immediately prior to the date of the commencement of the Amendment Act other than the lands held by them under leases permitted under Section 5, with effect on and from the said date, i.e., March 1, 1974 stand transferred to and vested in the State Government. In other words the pre-existing relationship of the tenant with the landlord stood extinguished from the date of vesting in the State Government. By operation of non obstante clause of sub-section (2) of Section 44, the lands which were resumed by or in any contract, grant or other instrument or in any other law for the time being in force with effect on and from the date of vesting and save as otherwise expressly provided in the Act shall cease. The consequences enumerated thereunder shall ensue, namely, all rights, title and interest held by the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Government free from all encumbrances. Consequently the pre-existing right, title or an interest of the owners of such lands shall cease and be vested absolutely in the State Government free from all encumbrances. Pending finalisation of the registration with the State Government of a tenant, his possession of the land is protected and he should not be dispossessed. Section 45 gives right to the tenant to be registered as an occupant of land on specified conditions enumerated in Section 45 and the provisions of the succeeding Chapter. Every tenant who is personally cultivating the land shall, with effect from the date of vesting, be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant, protected tenant or other tenant or sub-tenant before the date of vesting. The pre-existing tenancy rights with predecessor landlord have been extinguished and new rights have been created by the statute which would be ensued under the Act creating direct tenancy relationship with the State as a tenant. Section 48-A constitutes the forum and enjoins it to enquire into the application registered by it. It should direct every person entitled to be registered as an occupant under Section 45 to make an application to the Tribunal in that behalf within the time specified thereunder. On receipt of such application, the Tribunal should publish or cause to be published a public notice in the village in which the land is situated calling upon the landlord and all other persons having an interest in the land to appear before it on the specified date. Personal notice shall be served on the persons named in the application or otherwise found to be entitled to be heard. By operation of Explanation II to Section 2(A)(11) if the land is being cultivated by or on behalf of the joint family or by any one of the members of the joint family, it should be deemed that the joint family is personally cultivating the land. The Joint family is, therefore, the tenant and the land is lawfully in occupation of the joint family as a tenant. Sub-section (5) of Section 48-A postulates that when an objection is filed disputing the validity of the applicant's claim or set up a rival claim, the Tribunal shall, after enquiry, determine, by order, the person entitled to be registered as tenant and pass orders accordingly. Therefore, when rival claims were set up for tenancy right and entitlement for registration, it is incumbent upon the Tribunal to enquire into the dispute and to decide the same in the prescribed manner. Thereon an order should accordingly be made by the Tribunal and it would become final. Thereby it is clear that the Act extinguishes the pre-existing right, title and interest of the landowners as well as those who were inducted into possession by the erstwhile landholders. The new rights have been created in the Act itself in favour of the tenant in personal cultivation to claim registration as tenants so as to continue to enjoy the occupancy rights as a tenant as enumerated under Section 45. A forum was created and the forum is enjoined to enquire into not only the nature of the land but also the entitlement for registration as a tenant. When inter se rival claims for tenancy rights have been set up, it has been empowered with jurisdiction to decide that question as to who is the tenant in possession of the land prior to the date of vesting and entitled to be registered as a tenant with the State Government and its decision shall be final. The Civil Court's jurisdiction under Section 9 of CPC by necessary implication, therefore, stood excluded.

8. It is seen that the words tenant', 'the Tribunal' and the 'joint family have been defined under the Act. If one of the members of the family cultivates the land, it is for and on behalf of the joint family. Under these circumstances, pending the suit, when the question arose whether the appellant or joint family is the tenant, that question should be decided by the Tribunal alone under Section 48-A read with Section 133 and not by the Civil Court. It is needless to mention that when the Tribunal constituted under the Act has been invested with the power and jurisdiction to determine the rival claims, it should record the evidence and decide the matter so that its correctness could be tested either in an appeal or by judicial review under Article 226 or under Article 227, as the case may be. But that cannot, by necessary implication, be concluded that when rival claims are made for tenancy rights, the jurisdiction of the Tribunal is ousted or its decision is subject of the decision once over by the Civil Court. It is clear from Section 48-A(5) and Section 112(B)(bbb) read with Section 133, that the decision of the Tribunal is final under Section 133(l)(iii). The Civil Court has power only to decide other issues. It is, therefore, difficult to accept the contention that the rival claims for tenancy rights or the nature of the tenancy are exclusively left to dealt with by the Civil Court".



Mayar (H.K.) Limited and Others v Owners and Parties, Vessel M.V. Fortune Express and Others, AIR 2006 SC 1828 : case, Paras 11 and 12:

"11. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order 7, Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the Court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7, Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants.

12. Similarly, the Court could not have taken the aid of Section 10 of the Code for stay of the suit as there is no previously instituted suit pending in a Competent Court between the parties raising directly and substantially the same issues as raised in the present suit".



Doddamma v Muniyamma and Others, 2005(3) KCCR 1602; case, para 21:

"(21) It is clear from the above said provisions of the Inams Abolition Act and the provisions of the Land Reforms Act that so far as the rights of the tenants are concerned, the provisions of the Karnataka Land Reforms Act are similar to the provisions of the Inams Abolition Act though the provisions may not be similar in respect of the owners of the land under Karnataka Land Reforms Act and Inam holders and inamdars under the Inams Abolition Act. However, so far as the tenants are concerned, the effect of the above said proceedings is that from the appointed date, the relationship of the landlord and tenant ceases and the property vests with the Government and the tenant is entitled to conferment of occupancy right as per the provisions of the Inams Abolition Act. The object of the Inams Abolition Act as already culled out from the observations made in Muniraj and Another v Karnataka Appellate Tribunal, Bangalore and Others, 2004(3) Kar. L.J. 570 is to see that the application attached to the inams are abolished by vesting of the property in the State and the tenants would get occupancy right under the Inams Abolition Act and in substance, there is change of tenure and property would vest with the State absolutely free from all encumbrances and the relationship of landlord and tenant ceases and on conferment of occupancy right, the tenant would get the right under the Inams Abolition Act. While considering the provisions of the Karnataka Land Reforms Act and dealing with the question as to whether the occupancy right granted in favour of a member of the joint family would ensure to the benefit of all the members of the Joint Family and whether a civil suit can be filed for partition and separate possession in respect of the occupancy right that is granted under the Karnataka Land Reforms Act, the Hon'ble Supreme Court in the case of Balawwa and Another v Hasanabi and Others, (2000)9 SCC 272 has observed as follows:-
"7. Having examined the provisions of the Karnataka Land Reforms Act and the aforesaid two judgments of this Court, we have no doubt in our mind that the Civil Court cannot be said to be ousted of the jurisdiction, in granting the relief sought for. It is too well-settled that when a special Tribunal is created under a special statute and the jurisdiction of the Civil Court is sought to be ousted under the said statute, it is only a respect of those reliefs which would be granted by the Special Tribunal under the special statute, the jurisdiction of the Civil Court cannot be said to be ousted. 8. Looking at the provisions of Section 48-A of the Karnataka Land Reforms Act and the relief which is sought for in the present case, it is difficult to hold that the Tribunal had the jurisdiction to grant the said relief so as to oust the jurisdiction of the Civil Court. Under Section 48-A, the Tribunal can only grant the relief of declaring the occupancy right in favour of an applicant provided the preconditions for the same are satisfied, namely, that the land was in the possession of the tenant concerned on the relevant date. That being the position, and the Tribunal under the Land Reforms Act not having the jurisdiction to grant relief of partition, the Civil Court itself has the jurisdiction to entertain the suit for partition. The first contention of the learned Counsel for the appellants is, therefore, devoid of any force. 9. Coming to the second contention, as it appears, the decision of the learned Trial Judge granting the relief of partition in respect of two houses has not been assailed. The plaintiff is one of the daughters of Imamsab. Defendant 1 happens to be the widow of the son of Imamsab and defendant 3 is the husband of the other daughter of the said Imamsab. All these persons had a right in the property left by Imamsab. In this view of the matter, the High Court as fully justified in coming to the conclusion that the so-called order of the Land Tribunal under the Karnataka Land Reforms Act would enure to the benefit of the other members who were otherwise eligible for a share in the property in question. Therefore, we see no infirmity with that conclusion so as to be interfered with by this Court"".


A Division Bench of this Court in Appi Belchadthi and Others v Sheshi Belchadthi and Others, 1982(2) Kar. L.J. 565 (DB); has observed as follows:- "18. The questions such as, the existence of a joint family, the rights of the members thereof, the position and power of the manager, and the nature of the property acquired by them are not so simple to the decided by a summary enquiry, and that too without the assistance of trained lawyers. The Joint Hindu Family or coparcenary is a creature of Hindu law. The status of every Hindu family is presumed to be joint, joint in food, worship and estate. That presumption is stronger in the case of brothers. Once the family is proved to be joint, that presumption continues until it is rebutted. Those who allege separation must prove unless it is admitted that there was a separation at some point of time. The question as to whether a particular family retains its character of jointness at a particular time is a difficult question for decision. Mere severance in food and worship does not effect a separation of the family nor separate residence by members operates as a severance of the joint status. We are only mentioning some of these principal features to impress upon that the decision on these questions requires a lot of brooding even by Courts of law. One could only imagine the difficulties of Tribunals without proper wherewithal".


The same principle is reiterated by the Division Bench of this Court in K. Guruvappa and Another v Smt. Manjappa Hengsu and Others, 1985(1) Kar. L.J. 51 (DB): ILR 1985 Kar. 386 (DB). It is clear from the above said observations made by this Court that effect of abolition of the relationship of landlord and tenant or vesting of the property in the State and conferment of occupancy right on the tenant would only result in the change of tenular of the tenant as the same would not affect the personal inam of the parties. When there is a rival claim before the Land Tribunal with regard to the fact that the tenancy is individual or joint family tenancy, the Tribunal is bound to decide the said question while considering the rival applications filed by the members of the family. However, when application for conferment of occupancy right is filed by one of the members of the family, conferment of the occupancy right on the said applicant, would not preclude and other members of the family to contend that the said tenancy is the joint family tenancy and that they are entitled to partition and separate possession of the shares. Under the Inams Abolition Act, no power is given to the Competent Authority to pass a decree for partition and what is required to be considered by the authorities is only as to whether the applicant is entitled to conferment of occupancy right as a tenant under Section 5 of the Inams Abolition Act, which is relevant for the purpose of this case to decide the question as to whether he was a permanent tenant on the date of vesting.

In a recent decision of this Court where there was divergent opinion between two Judges of this Court and the matter was referred to a third Bench, the learned Judge has observed as follows in Parushuram Nemani Kuduchakar and Others, v Smt. Shantabai Ramachandra Kuduchakar, 2004(6) Kar. L.J. 275: ILR 2004 Kar. 3355; after referred to the relevant provisions of the Karnataka Land Reforms Act:
"(i) The Tribunal alone has the exclusive jurisdiction to decide the question whether a person is a tenant or not of the land in question, and the Civil Court has no jurisdiction or power to decide the same.
(ii) If a rival claim is made before Land Reforms Tribunal one party contending that the tenancy rights exclusively belongs to himself and another contending that tenancy rights belonging to the joint family and therefore all of them are entitled to grant of occupancy rights, the Tribunal has the jurisdiction to go into the question whether tenancy rights claimed belongs exclusively to one of the member of the joint family or it belongs to the joint family, as it is incidental and necessary to decide the question of grant of occupancy rights.
(iii) If before grant of occupancy rights the Tribunal adjudicates the rival claims and holds that the tenancy pleaded exclusively belongs to the applicant in whose favour the occupancy right is granted and it does not belong to the joint family, the parties have to challenge the said order under the provisions of the Land Reforms Act only and the Civil Court has no jurisdiction to sit in judgment over the said decision of the Land Tribunal nor can ignore the said finding and record a finding contrary to the one recorded by the Tribunal in a suit for partition.
(iv) If tenancy is not disputed or rival claims by members of the joint family are not put forth and agitated, after grant of occupancy rights by the Tribunal, Civil Court can entertain a suit for partition in respect of such property, decide whether such property is a joint family property or the separate property of the applicant to whom the occupancy right is granted, and grant a decree for partition.
(v) If the question of tenancy belonging to the joint family is raised before the Land Tribunal and the Tribunal does not decide the said question one way or other and leaves it to be decided by Civil Court; Civil Court is not precluded from going into the said question after the tenancy rights has been granted in favour of one of the claimants, while considering the relief of partition.
(vi) The Civil Court alone has the jurisdiction to entertain a suit for partition and to grant the relief of partition and the Tribunal has no jurisdiction to entertain and grant a decree for partition".


DECISION:- A perusal of the order passed by the Trial Court it is seen that said order does not suffer from either jurisdictional error or it suffers from any material irregularity. The suit being at the stage of further cross-examination of P. W. 1 it would not be desirable to reject the plaint on the basis of the averments made in the written statement and which cannot also be embarked upon by this Court. Hence, ………… is answered by holding that the order of the Court below does not suffer from any error or infirmity. ……… Accordingly, the following order is passed: The revision petition is dismissed as devoid of merits.

PARTITION SUIT – SALE DEED NOT BINDING RELIEF – LIMITATION – EXPLAINED BY JUSTICE V. JAGANNATHAN


IN THE HIGH COURT OF KARNATAKA, IN A CASE OF  SUSHEELAMMA VS. SHIVAKUMAR AND ORS,   DECIDED ON NOV 19 2008, REPORTED IN 2010 (2) KARLJ 195,   JUDGEMENT BY JUSTICE V. JAGANNATHAN, J.

CASES CITED:  

Ningawwa v Byrappa Shiddappa Hireknrabar and Others, AIR 1968 SC 956
Ram Charan Das v Girja Nandini Devi and Others, AIR 1966 SC 323:
Ramaiah v N. Narayana Reddy (deceased) by L.Rs, 2004(6) Kar. L.J. 164 (SC);
Krishna Chandra Bose v Commissioner of Ranchi. AIR 1981 SC 707:
Ramachandra Jivaji Kanago and Another v Laxman Shrinivas Naik and Another, AIR 1945 PC 54 :
Appanna v Jami Venkatappadu, AIR 1953 Mad. 611 (DB);
K.S. Mariyappa and Others v K.T. Siddalinga Setty and Others, 1989(1) Kar. L.J. 150 (DB);
Kona Adinarayana v Dronavalli Venkata Subbayya, AIR 1937 Mad. 869;
Pillanna alias Thimmiah v Syed Nasurodeen Sab, 1921(27) MCCR 11;
Smt. Bismillah v Janeshwar Prasad and Others, AIR 1990 SC 540: (1990)1 SCC 207;
Thamma Venkata Subbamma (dead) by L.R. v Thamma Rattamma and Others, AIR 1987 SC 1775 :  

IMPORTANT COURT OBSERVATIONS OF CASE:- 30. The Trial Court had dismissed the suit as barred by limitation. But, the lower Appellate Court held it otherwise. The main argument of the learned Senior Counsel for the appellants is that the lower Appellate Court was totally in error in taking a contrary view as regards the limitation point is concerned. Since the facts are not in dispute, it is clear that the partition took place in the family in the year 1961 and thereafter, in respect of one of the items of the joint family i.e., the suit item, in the year 1969, there was a deed of relinquishment executed by the fourth defendant and the first defendant in favour of Patel Mallegowda and, by that deed, the suit property was relinquished in favour of Patel Mallegowda in view of Patel Mallegowda being shouldered with the responsibility of clearing the mortgage loan standing against the suit property.

31. Subsequent to the said event of 1961, there was also a partition within the family of the plaintiffs in the year 1982. At that point of time, the plaintiffs, being the younger brothers of fourth defendant- Rajashekhar, did not raise any questions regarding the relinquishment of the suit property in favour of Patel Mallegowda by the plaintiffs' eldest brother Rajashekar and first defendant-Shanthappa. The plaintiffs have contended before the Trial Court in their pleadings that the cause of action for the suit arose only about two months prior to the filing of the suit when the defendants tried to interfere with the plaintiffs' possession. The suit itself was filed on 18-11-1994. Therefore, from the date of relinquishment deed i.e., 13-3-1969, the suit was filed almost after 25 years and if the time is reckoned from the partition effected within the family of the plaintiffs i.e., in the year 1982, still the suit came to be filed almost after 12 years.

32. The first relief sought in the plaint is to declare the relinquishment deed dated 13-3-1969 as invalid (the word used m Kannada is "Asindhu"). The second relief sought is consequent to the first prayer being granted, the plaintiffs are entitled to their separate share and possession from out of the suit property, which is put at 1 acre and 33 guntas to each one of them, and also for mesne profits, therefore, it is clear that the plaintiffs getting their share depends upon declanng the relinquishment deed as invalid.

33. The period of limitation prescribed under Article 58 of the Limitation Act, 1963 to obtain any other declaration other than what is mentioned in Articles 56 and 57 is three years and the time starts to run when the right to sue first accrues. Therefore, it has to be found out as to when the right to sue first accrued to the plaintiffs.

34. Though in the plaint, at paragraph 12, it is stated that the plaintiffs came to know of the deed of relinquishment only two months prior to the filing of the suit and that, for two years prior to filing of the suit, the defendants have been trying to interfere with the plantitts possession of the suit property, the documents produced by the defendants viz., Exs, D. 1 to D. 10 and Ex. D.12 which is the relinquishment deed, indicated that the khatha stood m the name of the first defendant pursuant to the deed of relinquishment and the plaintiffs had not questioned the said khatha in the name of the first defendant before any forum.

35. Secondly, it has also come in the evidence of P.W. 1-Vinoda, that, at the time of the relinquishment deed i.e., in the year 1969 except the fourth plaintiff, all other plaintiffs were aged more than 18 years and the learned Judge of the Trial Court has also referred to the year in which each one of the plaintiffs attained majority and has observed in paragraph 18 of his judgment that all the plaintiffs had attained majority and the plaintiffs woke up to question the validity of the relinquishment deed after a lapse of more than three years from the date of their attaining majority. The learned Judge of the lower Appellate Court has not referred to this part of the reasoning of the Trial Court, in her judgment.

36 Further, the very same witness P.W. 1 has also admitted in the course of his evidence that on 13-3-1969, defendants 3 and 4 executed the relinquishment deed in favour of Patel Mallegowda and has also stated further that in the very year in which the relinquishment deed was executed, the khatha also stood transferred. The witness has also further stated in the course of his cross-examination that he and his brothers had a partition effected in the year 1982.

37 In the light of the aforesaid evidence on record, the learned Judge of the Trial Court, therefore, held that the suit of the plaintiffs was hopelessly barred by time. The lower Appellate Court did not take the trouble of examining the evidence properly and did not even refer to the reasons given by the Trial Court as regards the suit being barred by limitation is concerned.

38. The learned Counsel for the respondents-plaintiffs strongly contended that there is no concept of kartha of the joint family, relinquishing the joint family property in favour of any one and the alienation that is permitted is only either by sale or by mortgage and, as such, fourth defendant-Rajashekhar could not have relinquished the suit property in favour of Patel Mallegowda and it is also argued in the same vein that, at the most, the fourth defendant could have relinquished his interest in the suit property but not the interest of the plaintiffs as the said Rajashekar was not the guardian of the plaintiffs nor the kartha of the family. The decision that is referred to in this regard is the one reported in Thamma Venkata Subbamma. I have carefully gone through the said decision rendered by the Apex Court in the case of Thamma Venkata Subbamma. It has been held in the said case by the Apex Court that if a coparcener relinquishes his interest in favour of another, it enures for the benefit of the remaining coparceners also. Relying on the aforesaid observation, the learned Counsel for the respondents-plaintiffs contended that even if Rajashekar had relinquished his share in favour of Patel Mallegowda under the deed of relinquishment, the same would enure to the benefit of the other coparceners including the plaintiffs. But, at the same time, the interests of the other coparceners could not have been relinquished by Rajashekar.

39. The very same decision also gives an indication that the concept of relinquishing or renunciation is also not alien to Hindu Law. In fact, a passage from Mulla's Hindu Law (15th Edition) has also been excerpted and Article 264 at page 357 is as under:
"Article 264. (1) Renunciation or relinquishment of his share:- A coparcener may renounce his interest in the coparcenary property in favour of the other coparceners as a body but not in favour of one or more of them. If he renounces in favour of one or more of them the renunciation enures for the benefit of all other coparceners and not for coparceners in whose favour the renunciation is made. Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance. The renunciation or relinquishment must, of course, be genuine. If fictitious and not acted upon it would not be operative as between the parties and partition can be claimed".

40. Therefore, it is clear from the aforesaid observation that the argument of the learned Counsel for the respondents-plaintiffs that except sale and mortgage, there can be no other form of alienation, does not carry much conviction and the Apex Court in the very case under discussion has observed that though the transaction is ostensibly gift, but really the donor meant to relinquish his interest in the coparcenary in favour of the brother and his sons and such renunciation enures for the benefit of all other coparceners and, as such, the gift may be construed as renunciation or relinquishment. Hence, the aforesaid decision, in my view, instead of coming to the assistance of the learned Counsel for the respondents-plaintiffs, supports the case of the appellants.

41. The next contention that is put forward by the learned Counsel for the respondents-plaintiffs with much persuation is that the relinquishment deed Ex. D. 12 is a void document and, therefore, the plaintiffs can ignore the same and, as such, the question of the suit of the plaintiffs being barred by time from the date of the deed of relinquishment does not arise. Before answering the said contention of the learned Counsel for the respondents-plaintiffs, it is proper to refer to the law laid down by the Apex Court as well as by other High Courts in the decisions referred to by the learned Senior Counsel for the appellant, as a reference to the same would provide the answer to the aforesaid contention of the learned Counsel for the respondents-plaintiffs.

42. In the case of K.S. Mariyappa, a Division Bench of this Court has held that where a suit was filed as one for declaration that the preliminary and final decrees passed were nullity because they were tainted with fraud and coercion, if such a relief is granted, in effect, it would result in setting aside the preliminary and final decrees and the Court went on to observe that, in fact, without getting the preliminary and final decrees set aside or cancelled, the plaintiffs are not entitled to reopening of the partition because, their father was a party to the preliminary and final decrees passed in the previous suit. In the instant case also, the plaintiffs, by seeking the relief of partition and separate possession of their share in the suit property are, in effect, calling in question the deed of relinquishment of the year 1969, which is a registered document. Therefore, unless and until the said deed of relinquishment is set aside, the question of the plaintiffs staking a claim for share in the suit property will not arise.

43. In the case of Ramachandra Jivaji Kanago, it has been held that the fact that the transaction of gift was brought about by undue influence, does not necessarily mean that it was not made voluntarily within the meaning of Section 122 of the Transfer of Property Act, 1882 and is, therefore, void. Where the donor wished to make a gift and acted voluntarily in making it, but the transaction was induced by undue influence, the gift is only voidable and requires to be set aside before the property conveyed by it can be claimed by the donee or anyone claiming through him and Article 91 applies to such a case and when the donee was aware of the character of the transaction when he executed the deed, limitation for setting aside the deed of gift would run from the date of the gift because under Article 91 time runs from the date of the knowledge.
44. The next decision is the one in the case of Kona Adiruirciyana, and it was held in the said case that, where the eldest brother of a joint Hindu family as kartha entered into a contract of sale of an item of joint family property, wherein he signed it for himself and as representing the minor brother, the contention that the contract could not be said to have been entered into on behalf of the family and all the members of the family were not parties as the minor was separately represented by the kartha was negatived by the Court by holding that the kartha alone could represent the minor member and, in fact, he alone could represent by himself the entire family and, therefore, the kartha must be deemed to have represented the entire family and the other brother signing it is only by way of concurrence.

45. In the case of Appanna, it was held by a Division Bench of the Madras High Court that Article 91 presupposes that a suit is necessary under the law to set aside the instrument. But, where under the law, there is no duty cast on the person to get an instrument set aside, the Article does not impose any obligation on him and the fact that there is a prayer for declaration that a deed is void or that it should be set aside, does not affect the position and such prayers being ancillary to the substantive prayer for possession may be regarded as mere surplusage.

46. In the case on hand, the plaintiffs' main prayer is to declare the relinquishment deed is invalid and the subsequent prayer is to grant their share in the suit item. Therefore, it cannot be said that the prayer seeking the relinquishment deed to be declared as invalid is an ancillary prayer but, in my view, the said prayer is the substantive prayer in the present suit.

47. As far as the decision in the case of Ram Charan Das, is concerned, it has been held in the said case that the Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family and in this context, the word "family" is not to be understood in a narrow sense of being a group of persons of which law recognises as having a right of succession by having a claim to a share in the disputed property. The consideration for a family settlement is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations. That consideration having passed by each of the disputants the settlement consisting of recognition of the right by each other cannot be permitted to be impeached thereafter. It was further observed in the said case that a party who had taken benefit under the transaction was not now entitled to turn round and say that the transaction was of a kind which the other lady party could not enter into and was therefore invalid.

48. This decision also applies to the case on hand inasmuch as it is an admitted fact that there was a mortgage loan hanging over the suit property and in order to clear the said loan which would ultimately benefit the whole family that the deed of relinquishment came into picture and Patel Mallegowda was entrusted with the responsibility of dealing the said loan.

49. In the case of Ramaiah, it has been held by the Apex Court that applicability of the relevant article of the Limitation Act, 1963 will have to be decided on the basis of the pleadings. But, by suppression of material facts and skillful pleading, the plaintiff cannot seek to avoid inconvenient article and, after observing thus, the Apex Court found in the case before it that the suit was filed by the appellant in 1984 without disclosing that admittedly he was ousted from the property in 1971 and, therefore, applying Article 64, the Apex Court found that the suit had been filed 13 years after dispossession and accordingly, it was held barred by limitation.

50. In the instant case also, from the evidence of P.W. 1, it has come out in clear terms that barring one plaintiff, the other had attained majority on the date of execution of the relinquishment deed in the year 1969 and one of the date of execution of the relinquishment deed in the year 1969 and one of the plaintiffs, who was a minor, also attained majority and the present suit is filed in the year 1984 long after the completion of three years period from the date of attaining of each one of the plaintiffs. Therefore, by skillfully mentioning in the pleadings that the plaintiffs came to know about the relinquishment deed only about two months prior to the filing of the suit, they cannot avoid the limitation period that is applicable to the case on hand having regard to the nature of the suit that is filed viz., suit for declaration of the relinquishment deed of the year 1969 as invalid.

51. Another decision referred to by the learned Senior Counsel for the appellants is the judgment of this Court in an unreported case in R.S.A. No. 745 of 1975, disposed of on 20-4-1983, and it was held in the said case in facts that where the father of the plaintiff had relinquished his share in favour of the defendant by executing the documents Exs. D.7 and D.8 and later, the defendant were in possession of the share of the plaintiff in the joint family properties, and when the evidence revealed that following the death of the plaintiff''s father in the year 1935, the plaintiff never raised his little finger to claim his share in the joint family properties till he filed the suit in the year 1965. That itself probabilises that the plaintiff did not take any action because he knew early that his father of the defendants as otherwise, as a man partition in the year 1948.

52. The facts, more or less, can be comparable to the facts of the case before us in the sense, even in the present case, defendants 3 and 4 relinquished the interest in the suit property in favour of Patel Mallegowda in 1969 and even according to P.W. 1, on the very day itself, khatha was also changed in the name of Patel Mallegowda and thereafter, the plaintiffs did not raise their little finger when there was partition in the plaintiffs'' family in the year 1982 and furthermore, even after attaining the age of majority and long after that, the plaintiffs slept over their right, if they had any, and did not file the suit to question the validity of the relinquishment deed within three years of attaining the age of their majority.

53. In the next decision in the case of Smt. Bismillah, the Apex Court was dealing with a case where the issue revolved on a plea of nullity of certain sale deeds and the High Court had held that the plaint averment which amounted to plea of nullity of the transactions was only a prayer which was simply illusory but the main relief was that of the relief of possession. The Apex Court, reversing the above finding of the High Court, held that in order to determine the precise nature of the action, the pleadings should be taken as a whole and the real substance of the case has to be gathered by construing the pleadings as a whole and then refer to the law laid down by it in earlier decisions which are to be found at paragraphs 10 and 15 as mentioned hereunder:

"10. Indeed in Gorakh Nath Dube v Hari Narain Singh and Others, (1973)2 SCC 535, this Court, dealing with the provisions of the Uttar Pradesh Consolidation of the Holdings Act, 1954 where the provision excluding the Civil Court's jurisdiction is even wider, has had occasion to observe: (SCR p. 342: SCC p. 538, para 5)
"... but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a Court having the power to cancel it....".

15. This decision was referred to with approval by this Court in Ningawwa v Byrappa Shiddappa Hireknrabar and Others, AIR 1968 SC 956. It was observed: (SCR pp. 800-01) "It is well-established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the mean time acquire rights and interests in the matter which they may enforce against the party defrauded".

This would be a voidable transaction. But the position was held to be different if the fraud or misrepresentation related to the character of the document. This Court held: (SCR p. 801)

"The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable".

However the House of Lords in Saunders v Anglia Building Society, 1971 AC 1004, reviewed the law and held that the essential features of the doctrine, as expressed by Byles, J. in Foster v Mackinnon, 1869 LR 4 CP 704, had been correctly stated. Lord Reid, however observed: (AC headnote at p. 1005)

"The plea of non est factum could not be available to any one who signed without taking the trouble to find out at least the general effect of the document. Nor could it be available to a person whose mistake was really a mistake as to the legal effect of the document. There must be a radical or fundamental difference between what he signed and what he thought he was signing"".

54. The last of the decisions is in the case of Pillanna alias Thimmiah. The Court was dealing with the expression "set aside" used in Article 91 of the Limitation Act, 1911 and posed to itself the question viz., can the plaintiff recover possession without cancelling the sale which is, in the eye of law, a reality, and answered it as under: "It is a fundamental principle of law that 'if a sale is a reality at all, it is a reality defeasible only in the way pointed out by law'', and 'anybody who desires relief inconsistent with it may and should pray to set it aside'. (See Malkarjun v Narhari, (1900)25 B. 337 (350, 352) (PC)). What then is the procedure prescribed by law to get rid of the effect of a voidable instrument?

In India, it is not expressly laid down in any statute that a person who comes in as plaintiff claiming relief against the effect of a deed voidable at his instance should have it judicially rescinded before or at the time of his getting the relief. Common Law of England has been followed in this country and will be a safe guide in determining this point. According to it, it is necessary 'to maintain an action or analogous proceedings for the purpose of having the contract or transaction declared void and rescinded by the Court, in which event it is deemed to have been void ab initio' (See Halsbury's Laws of England, Volume 20, para 1745).

According to the Indian Contract Act, Section 17(a), it is clear that the rescission of the contract unless accepted by the other party, must be by a judicial pronouncement. A mere unilateral repudiation in pais (e.g., effected by act out of Court) cannot constitute an effectual rescission of a contract. (See Bigelow on Fraud, pages 74 to 69). This view is confirmed by the provisions of Indian Contract Act and Section 35 of the Specific Relief Act, 1963. Articles 11, 12, 13, 14, 15 and 44 provides as shown above for suits to set aside the obstacles affecting adversely the interest of the plaintiff. Article 114 provides for the rescission of a contract. Thus by implication Indian Law requires judicial rescission. Sir H.H. Shephard says that Section 35 of the Specific Relief Act indicates that 'rescission imports a judicial decision, and that 'rescission by a person entitling to rescind means that he, having resolved not to persist in demanding performance is in a position to sue for rescission or to defend an action brought on the contract5. (See 24, Madras Law Journal 55 at page 59).

It follows therefore that the plaintiff has to sue for rescission in a Court of law, and if he omits to take such a step within the time fixed under Article 91, the instrument will operate as a bar for the relief claimed by her against the tenor of the instrument. There is no principle on which suits involving the issue of validity of an instrument should, if of a declaratory nature, be brought within one period of time, but if involving relief based on that declaration, may be brought within another period of time. The combination of several claims in a suit would not deprive each claim of its specific character and description".

55. As far as the contention put forward by the learned Counsel for the respondents-plaintiffs that the relinquishment deed is void ab initio is concerned, it has no merit in view of the very argument of the learned Counsel that to the extent of Rajashekar relinquishing his interest in the suit item in favour of Patel Mallegowda is concerned, the said act would enure to the benefit of the other coparceners also and the only grievance is that the interest of the plaintiffs could not have been relinquished by defendants 3 and 4 in favour of Patel Mallegowda. We have also seen from the very first relief that the claim in the suit that all that the plaintiffs seek in the form of declaration is to declare the relinquishment deed as invalid. Therefore, the question of the relinquishment deed being labelled as "void" does not arise and, in the instant case, it could be classified as a document which is voidable at the instance of the aggrieved persons.

56. Therefore, the distinction between void and voidable needs to be kept in view and, in this regard, it is appropriate to refer to the commentary of U.N. Mitra on Law of Limitation and Prescription (12th Edition - Volume 1) wherein, at page 1176, the learned author has drawn the distinction between Void' and 'voidable' very succinctly as under:

"3-A. Distinction between void and voidable:- The expression "void" has several facets. One type of void acts, transactions decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary and law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of "void" act e.g. may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole World. So far as the minor is concerned, if he decides to avoid the same and succeeds m avoiding it by taking recourse to appropriate proceedings the transaction becomes void from the very beginning Another type of void act may be one which is not a nullity, but for avoiding the same a declaration has to be made. Voidable act is that which is good act unless avoided e.g. if a suit is filed for declaration that a document is fraudulent and/or foiled and fabricated it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is foiled and fabricated and a declaration to that effect is given, the transaction becomes void from the very beginning. There may be voidable transactions which is required to be set aside and the same is avoided from the day it is so set aside and not any day Prior to cases, where legal effect of a document cannot be taken away without setting aside the same it cannot be treated to be void, but would be obviously voidable. The word Void' has a relative rather than absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity depending upon the gravity of infirmity, as to whether it is fundamental or otherwise. The word "void" need not automatically indicate that any disposition should be ab initio void The legal implication of the word "void" need not necessarily be a stage of nullity in all contingencies".

Therefore the word Void' has a relative rather than absolute meaning and it only conveys the idea that the order is invalid or illegal and the word "void" need not automatically indicate that any disposition should be ab intitio void but the legal implication of the word ''void" need not necessarily be a stage of nullity in all contingencies.

57. The learned Counsel for the respondents-plaintiffs, in the course of his arguments, also had submitted that the plaintiffs were not seeking cancellation of the relinquishment deed, but their only prayer is to declare the said deed as invalid. The appropriate article applicable for seeking cancellation or setting aside an instrument or decree or for rescission of a contract is Article 59. But, where the prayer is to declare the deed of relinquishment as an invalid one, the article that is attracted will be Article 59. But, where the prayer is to declare the deed of relinquishment as an invalid one, the article that is attracted will be Article 58 and, therefore, if the said argument of the learned Counsel for the respondents-plaintiffs is to be taken note of viz., that the plaintiffs are not seeking for cancellation of the relinquishment deed, but only a declaration, then, Article 58 would come into play and the limitation period is three years from the time when right to sue first accrues.

58. Therefore looked from any angle, the suit filed by the plaintiffs has been rightly held to be barred by time by the learned Trial Judge But, the lower Appellate Court did not, as mentioned earlier, go into all the aspects of the matter and also did not consider the evidence in proper Perspective and, as such, the finding of the lower Appellate Court as regards the limitation issue cannot be sustained both on facts as well as in law. Accordingly, the first substantial questions of law stands answered.

59. As far as the second question of law is concerned, once the suit item was relinquished in favour of Patel Mallegowda by defendants 3 and 4 under Ex. D. 12, which is a registered document, the acquisition of the suit item by the aforesaid Patel Mallegowda, therefore, can be traced to the right which Patel Mallegowda got under the registered deed and, as such, the suit property continued to remain as joint family property does not arise. The second question of law, therefore, stands answered accordingly.

60. In the light of the foregoing reasons, the judgment of the lower Appellate Court cannot be sustained in law and that of the Trial Court needs to be restored and hence, I pass the following order: The appeal is allowed. The judgment of the lower Appellate Court is set aside and that of the Trial Court stands restored. No costs.


SPECIFIC PERFORMANCE - LIMITATION ACT - LAND REFORMS ACT - EXPLAINED BY JUSTICE K.L.MANJUNATH AND JUSTICE B.V.NAGARATHNA


SYED ZAHEER   VS. C.V. SIDDAVEERAPPA DECIDED ON DEC 18 2009  REPORTED IN   ILR 2010 KAR 765,   HON’BLE JUSTICES:  K.L. MANJUNATH AND B.V. NAGARATHNA,

WHEN NO TIME IS FIXED UNDER CONTRACT AND SORROUNDING CIRCUMSTANCES TO DECIDE CAUSE OF ACTION:-

Article 54 of the Limitation Act specifies two points of time from which time begins to run for the purpose of computing the period of three years limitation with regard to filing suits for specific performance of contract. One, is the date fixed for the performance of the contract and two, if no such date Is fixed then when the plaintiff has notice of the performance being refused. Much reliance has been placed on the decision of the Apex Court in the case of Ahamed Saheb Abidulla Mulla v. Bibijan reported in (2009) 5 SCC 462, by the counsel for the appellants to contend that in the instant case, the suit filed for specific performance was beyond the prescribed period of limitation and therefore, the suit filed by the respondent herein was not maintainable by placing reliance on the second limb of Article 54 of the limitation Act. While considering time from which period begins to run under Article 54 of the Limitation Act, the Apex Court in the aforesaid decision held that 'fixed' used in the said article in essence means having final or crystallized form or not stopped to change or fluctuation and the inevitable conclusion is that the expression "date fixed for the performance" is a crystallized notion which is clear from the fact that the second part of Article 54 states "time from which period begins to run" which refers to a case where no such date is fixed. In other words, the Apex Court held that when date is fixed, it means that there is a definite date fixed for doing a particular act and when there is no date fixed then when the plaintiff has notice that performance is refused is also a definite point of time when the plaintiff notices the refusal and in that sense both the particulars refer to definite dates. The same has been relied upon to contend that in the instant case the legal notice was issued by the appellants in the year 1995 with regard to refusal to perform the contract, In as much as it was stated that the agreement was unenforceable on account of non-alienation clause, but the suit has been filed only in the year 1999. The facts of the present case have to be considered in the light of the decision of the Apex Court. It is seen that the land grant which Is the subject matter of the agreement in question was made in the year 1983 and there was a fifteen year period of non-alienation which would have come to an end only In the year 1998. However, three years prior to that date i.e., in the year 1995 Itself legal notice was sent to the respondent stating that on account of the non-alienation clause, the contract could not be performed by the appellants on account of permission not been obtained from the concerned authority by them. At that point of time there were still three more years for the non-alienation period to come to an end and therefore, it was premature on the part of the appellants to contend that in the year 1995 itself that on account of the non-alienation clause the contract could not be performed on account of permission not being obtained. However, a declaration with regard to unenforceability of the contract was sought by the appellants by filing a suit in the year 1995 itself. But, what has to be noticed is the fact that on account of the non-alienation clause it was specifically mentioned in the contract that the sale deed would be registered only after coming to an end of the non-alienation period, which would have been in the year 1998. Therefore, until the non-alienation period came to an end the respondent also could not have asked for performance of the contract by the appellants. Only after the end of the non-alienation period i.e., in the year 1998 the cause of action to seek specific performance of the contract arose for the respondent.


WHEN A PARTY IS IMPLEADED : DATE OF IMPLEADING HIM AS PARTY DATES BACK TO FILING OF SUIT IF COURT IS SATISFIED IN THAT BEHALF:-

The case of Ganapathy (Padala) Suryakumari v. Dr. Erra Reddy and Anr. reported in AIR 2007 AP 118 has been cited to contend that if a party is added subsequently as a plaintiff or a defendant in the suit as far as that party is concerned, the date of institution of suit would be reckoned as the date on which the order allowing the impleadment is passed by the court and that in the instant case, 5th appellant was arrayed as fifth defendant by the respondent herein after the institution of the suit and that the suit was barred by limitation as against her. However, the said position of law is not correct in view of proviso to Section 21 of the Limitation Act which has been interpreted by the Supreme Court in the case of Munshi Ram v. Narsi Ram and Anr., AIR 1983 SC 271, wherein it has been held that if the court is satisfied with the omission to include a new plaintiff or a defendant was due to a mistake or the mistake was made in good faith it may direct that the suit as regards such plaintiff or defendant should be deemed to have been instituted on any earlier date. The said proviso is inserted to take care of the case of omission to implead a person due to to be a bonafide mistake which should not deprive the plaintiff of his rights against the person if the court is satisfied in that behalf.



PERMISSION OF AUTHORITIES IS NO BAR TO SPECIFIC PERFORMANCE DECREE:-

In this context it would be of relevance to refer to a decision of the Apex Court in the case of Ranjibhai v. Narotham Das reported in AIR 1986 SC 1912. In the said case there was an agreement for sale of flat which had to be finalized after obtaining permission of authorities to use as village site was a pre-condition for the execution of the sale deed. The suit for specific performance was filed within three years after obtaining permission, it was held to be not barred by limitation. The said decision is applicable to the facts of the present case also. Consequently, the other decisions which have been cited by the learned Counsel for the appellants namely ILR 1992 Karnataka 429 and ILR 1992 Karnataka 644 are not applicable to the facts of the present case.  


Gahesa Naicken v. Arumugha Naicken AIR 1954 Mad 811 has been cited to contend that where the darkhast grant was in the nature of a gift by the Government with a specific provision that the property shall not be alienated without the consent of the Tahsildar, any contract which has the effect of circumventing this policy of the Government would be opposed to public policy and the agreement to sell the property would be void. The said decision is not applicable to the facts of the present case since the sale agreement had to be executed by the appellants after the period of non-alienation and it is only on the lapse of the said period that the respondent filed the suit for specific performance. Similarly, the decision in Ramachandraiah v. Nagappa Naidu, ILR 1995 Kar 570 is also not applicable.


Pujari Narasappa and Anr. v. Shaik Hazrat and Ors. AIR 1960 Mys 59 has been cited on behalf of the appellant to contend that where permission of the collector is a condition precedent for alienation under the Act and the plaintiffs sought before the Civil Court specific performance of the agreement to sell and if the said suit is decreed, it would defeat the pre-condition of obtaining permission which would be in contravention of the grant or law regarding alienation of such grant and Section 23 of the Contract Act and would be a bar to such a suit. However, another Division Bench of this Court in the case of Yogambika v. Narsingh, ILR 1992 Kar 717 has held that even in the presence of a period of non-alienation clause for ten years in a document of allotment is not a bar to decree a suit for specific performance as the object of the law is to enforce contract which is applicable to the facts of the present case.


In the case of Nirmala Anand v. Advent Corporation Put Ltd. and Ors., AIR 2002 SC 2290 it has been held that when the construction company refused construction on the ground that the original lease of plot was terminated by the municipality and the facts showed that there was a possibility of renewal of lease and revalidation of building plan and the purchaser was ready to perform her part of the contract, then specific performance cannot be refused. The said decision is applicable to the facts of the present case.


In the case of Andanur Rajashekar v. Vasavi Industrial Enterprises and Ors. AIR 2007 Kar 497 this Court considered Section 80 of the Karnataka Land Reforms Act in the context of Section 23 of the Contract Act and Section 20 of the Specific Relief Act and held that what is prohibited under Section 80 is a non-agriculturist purchasing agricultural land and if a permission can be obtained from the statutory authority, then proviso to Section 80 would not be a bar. It was also stated that Section 80 did not bar an agreement to sell agricultural land to a non-agriculturist, but what is prohibited is a sale. The said decision is in fact applicable to the facts of the present case as no sale has taken place in contravention of the terms of the grant in the instant case and the agreement of sale specifically mentions that the sale deed would be executed after the period of non-alienation is completed. Therefore, the agreement in question cannot be held to be null and void or hit by Section 23 of the contract. To the same effect is the decision in another decision of this Court in the case of Ningappa Durgappa v. Hanumantappa Balappa and Anr. L.J. 1982(1) 419. In fact even in the case of Manasa Housing Co-operative Society Ltd. v. Marikellaiah and Ors. AIR 2006 Kant 273 it has been held that the mere filing of a suit for specific performance of contract for grant of a decree in the same would not amount to violation of Section 80 of the Karnataka Land Reforms Act and that the said Section will not create any bar in the Civil Court to decide whether the plaintiff would be entitled to a decree for specific performance or not.



In the case of Balu Babu Rao v. Shaik Akbar, AIR 2001 Bombay 364 in the context of Section 43 of the Bombay Tenancy and Agricultural Lands Act and Section 20 of the Specific Relief Act it has been held that when the suit property was not transferable, without prior permission of the collector a decree of specific performance granted subject to sanction of collector cannot be held to be improper.


READINESS AND WILLINGNESS INFERRED FROM EVIDENCE:- In Manzoor Ahmed Magray v. Gulam Hassan Aram and Ors., AIR 2000 SC 191 it is held that readiness and willingness can be inferred from evidence led by the parties and if there is no delay on the part of the plaintiff, equitable relief cannot be denied.



DISCRETIONARY RELIEF OF SPECIFIC PERFORMANCE EXPLAINED:-

Section 20 of the Act states that the jurisdiction to decree specific performance is discretionary. It says that the Court is not bound to grant such relief merely because it is lawful to do so. Such a discretion, however, is not to be exercised arbitrarily, but must be based on sound and reasonable judicial principles. The Section also specifies the circumstances in which the Court may properly exercise the discretion not to decree specific performance and it also specifies when, in an appropriate case, a decree could be given by proper exercise of discretion.

Section 20 is not an exhaustive provision, but merely illustrative as it is not possible to define the circumstances in which equitable relief could or could not be granted. If, therefore, on a consideration of all the circumstances of the case, the Court thinks that it will be inequitable to grant the relief asked for, it should not give the relief. In this context, it is necessary to refer to explanation to Section 10 of the Act provides that, unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. But the said presumption is a rebuttable presumption.

Sub-section (2) of Section 20 specifies certain circumstances when discretion may be exercised not to decree specific performance. These circumstances are illustrative and they can be defined as follows:
(i) when the terms of the contract or the conduct of the parties at the time of entering into contract or the circumstances under which the contract was entered into are such that they give the plaintiff an unfair advantage over the defendant.

(ii) where the performance of the contract would involve some hardship to the defendant whereas, its non-performance would involve no such hardship on the plaintiff.

(iii) that it makes it inequitable to enforce specific performance.


While explaining these circumstances,
Explanation-I speaks about unfair disadvantage.
Explanation-II relates to hardship which is a circumstance in favour of the defendant, while Explanations-Ill and IV are in favour of the plaintiff when in a case where the plaintiff has done substantial acts in consequence of a contract capable of specific performance or refused specific performance, merely because the contract is not enforceable at the instance of the defendant.


The decision of the Supreme Court in the case Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son and Ors., AIR 1987 SC 2328 is relied upon by the respondent to contend that it is the duty of the Court to see that litigation is not used as an instrument of oppression to have an unfair advantage to the plaintiff. In the said decision, the Hon'ble Supreme Court, while considering Section 20 of the Specific Relief Act, stated that Section 20 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case and the Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict.


In 1999(3) Kar.L.J. 677 (Y.N. Gopala RAO v. D.R. Laxminarayana and Ors.) it has been held by this Court that the presumption in a suit for specific performance is that a breach of contract cannot be adequately relieved by compensation in money and that contract can be satisfied only by conveyance of particular estate contracted for sale and the said presumption is rebuttable, and the burden of rebutting is on the party opposing enforcement of contract and where such party has failed to rebut presumption, suit for specific performance is to be decreed against such party. This principle is also stated in Explanation (i) to Sub-section (b) of Section 10 of the Specific Relief Act.

While adverting to Section 20 of the Act, it is stated in this decision that rise in price is no ground to refuse specific performance and the refusal may also have tendency to cause hardship in the plaintiff in acquiring such property or other property at such time.

In AIR 2004 SC 909 (M.S. Madhusoodhanan and Anr. v. Kerala Kaumudi Pvt. Ltd. and Ors.) it is observed that the guidelines for the exercise of the Court's discretion to decree specific performance of an agreement have been statutorily laid down in Sub-section (2) of Section 20 of the Act and that, in Explanation 1 to Section 20, it is stated that mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature shall not be deemed to constitute an unfair advantage within the meaning of Clause (a) or hardship within the meaning of Clause (b).


ILR 1992 Kar 717 (Yogambika v. Narsingh) is relied upon by the respondent to contend that the mere fact that a person is a retired Government servant cannot at all be considered to be a valid ground to refuse to enforce the contract he had voluntarily agreed to and that, under Section 20 of the Act, the grounds which enable the Court to refuse to grant a decree must be such which were not in the contemplation of the parties when they entered into an agreement of sale and also that the defendant had no control over those grounds and as a result of those grounds, it has become impossible for him to get on without the property agreed to be sold.







CASE LAW ON LAND LAWS

KARNATAKA LAND LAWS