K. Indira Bai and Others vs K.R. Achar and Others

S.N. Satyanarayana, J.—The defendants 1 and 2 in O.S. No. 36/1991 on the file of Civil Judge, Hospet, have come up in this second appeal impugning the divergent finding rendered by the Fast Track Court-III, Hospet, in R.A. No. 4/1996 wherein the judgment and decree dated 1.10.1996 in O.S. No. 36/1991 is set aside by allowing the appeal in R.A. No. 4/1996 failed by the plaintiff in the original suit consequently decreeing the suit of the plaintiff for the relief of declaration and possession.

The brief facts leading to this second appeal are that the plaintiff in O.S. No. 36/1991 is one Dr. K.R. Achar who is also referred to as K. Ramachar and as also K. Ramamurthy who is adopted son of late Koti Raghavendrachar and his wife Koti Krishnavenamma who is 3rd defendant in the original suit. The defendant No. 1 in the said suit is one Smt. K. Indirabai widow of K. Madhavamurthy and 2nd defendant is their son S.N. Jagadani.

The plaintiff and 1st defendant''s husband K. Madhavamurthy were children of one Tarabalu Vasudevacharya and his wife Rindamma. The said Vasudevacharya and Rindamma gave away the plaintiff K. Ramamurthy in adoption to Rindamma''s younger sister Krishnavenamma. The adoption of plaintiff in favour of the 3rd defendant Krishnavenamma is subsequent to the death of her husband Koti Raghavendrachar who died on 10.5.1949.

In the adoption deed dated 31.8.1939 it is stated that the desire of deceased Koti Raghavendrachar is to take the plaintiff as his son in adoption. Hence immediately after the death of her husband Krishnavenamma took the plaintiff in adoption on 31.8.1939 and also got the adoption deed registered on 26.9.1939 in the office of Sub-Registrar, Hospet. At the time of taking plaintiff in adoption, the 3rd defendant also released all the right, title and interest in the property of the coparcenary in favour of plaintiff who is the adopted son of 3rd defendant and her husband late K. Raghavendrachar. However the 1st defendant''s husband K. Madhavamurthy continued to be the son of Vasudevacharya and Rindamma in his genitive father''s house.

The dispute between the plaintiff and defendants is in respect of title to suit schedule property namely property bearing door No. 816 (old No. 730) in Ward No. 3 of Hospet Municipality with assessment No. 2916 (old No. 2809) in plot No. 18 of T.S. No. 43 of Hospet. Admittedly the said property was acquired by 3rd defendant in her name in the year 1942 under registered sale deed dated 12.12.1942 from its erstwhile owner. Initially the said property was a vacant house plot on which the 3rd defendant constructed a house by availing loan from the bank in the joint name of herself and her minor son K. Ramamurthy (who is her adopted son). It is seen that the said property which is purchased was initially measuring 60'' x 128''. Subsequently she purchased another small bit of land abutting to the said property measuring 60'' x 15'' under registered sale deed dated 11.8.1953, thereby taking the measurement of the suit schedule property to 60'' x 143'' is not in dispute.

The case of the plaintiff is that the suit schedule property i.e., the aforesaid plot and house constructed thereon was in his possession and enjoyment. That the said house was let out by him to his elder brother K. Madhavamurthy in the year 1980 on monthly rent of Rs. 100/-. It is his case that his brother died in the month of April 1985. Thereafter the defendants 1 and 2 have clandestinely got the suit property registered in the name of defendant No. 1 by way of gift deed which is dated 27.9.1985 and tried to claim title to the said property.

According to the plaintiff, the suit property is his absolute property which was acquired by his mother during the period when he was a minor from out of the income generated by the properties belonging to his coparcenary of which he was a sole coparcener and the said property which was registered in his mother''s name as she was the natural guardian for him at the relevant time does not belong to his mother. She had no right, title or interest in the suit property to execute the gift deed of the said property which absolutely belongs to him and its possession was with him up to 1980 when he put his brother in possession of the same as tenants. Thereafter Madhavamurthy continuing in possession of the same as tenant died in the very same house in 1985. Subsequently his widow and son have got the property registered in the name of 1st defendant clandestinely which would not enure to their benefit for the reason that the said property is his absolute property and as such he sought for declaration of his title to the suit property and for possession of the same. He arraigned his mother as 3rd defendant.

In the said suit defendants 1 and 2 appeared and filed their written statement on 16.1.1992 wherein the plaintiff had issued a legal notice calling upon them to vacate the suit schedule property on 21.10.1986. To the said legal notice they had given reply on 17.11.1986 contending that they are no longer tenants of the property by virtue of gift deed dated 27.9.1985 executed by their mother Krishnavenamma in favour of 1st defendant and as such they are continuing in possession of the property as owners. Therefore the question of vacating the premises does not arise. After receiving the said reply HRC petition was filed in HRC No. 1/1987 seeking eviction of defendants 1 and 2 under Section 21(1)(a) and (h) of the Karnataka Rent Control Act. It is seen that the said petition came to be dismissed by judgment dated 27.10.1989. Thereafter the plaintiff in the original suit preferred a revision against the said order in HRC Revision Petition No. 12/1990 which he subsequently withdrew on 21.1.1991 and thereafter filed the present suit for declaration and possession on 8.8.1991.

According to them the plaintiff has no manner of right, title and interest over the suit property for the reason that it was acquired by 3rd defendant Krishnavenamma by herself in her individual name and as such it is her absolute property. Since it is her stridhana, she has absolute right to use it in whatsoever manner she wanted to. Another defence which was taken was that the suit is filed beyond the period of three years after coming to know the date of execution of gift deed in their favour. As such the suit for declaration which was filed under Article 58 of the Limitation Act is not maintainable, barred by limitation and hence the same is required to be dismissed. In the alternate they also took another defence that in the original suit mere declaration is not sufficient. The plaintiff should have sought cancellation of the gift deed dated 27.9.1985 executed by 3rd defendant in favour of the 1st defendant. In the absence of such prayer, the suit is not maintainable.

With these rival pleadings, the trial Court framed the following issues.

ISSUES

"(i) Does plaintiff prove his exclusive title to the suit house?

(ii) Do defendants 1 & 2 prove that defendant No. 3 voluntarily executed the gift deed in their favour, as such they are the absolute owners of the suit house?

(iii) Do defendants 1 & 2 prove that plaintiffs suit without seeking cancellation of gift deed is not maintainable?

(iv) Whether the plaintiff is entitled for past and future mesne profits?

(v) Whether the suit is barred by time as contended by defendants 1 and 2?

(vi) Whether the plaintiff is entitled for the relief sought?

(vii) What order or decree?

ADDITIONAL ISSUE

Do defendants 1 & 2 prove that defendant No. 3 has got 1 1/2 share in the family properties and gift deed executed by her is valid and legal?"

Thereafter the plaintiff adduced evidence in the said proceedings as P.W. 1 and in support of his case he got examined two other witnesses namely Bhimasenachar as P.W. 2, who is son-in-law of the plaintiff and another witness D.R. Raghavendrarao as P.W. 3. The plaintiff gave evidence regarding his title to suit property and also his right to maintain the suit against defendants 1 to 3 in support of the prayer. P.W. 2 who is son-in-law of P.W. 1 who is also a person doing transport business at Hospet owning a lorry gave evidence to substantiate the evidence of plaintiff so far as it pertains to shifting the construction materials retrieved from the house demolished in Narayandevarakere village where the coparcenary house of plaintiff was situated, which was subsequently submerged in Tungabhadra Dam. P.W. 3 is one D.R. Raghavendrarao who is the relative of both plaintiff and as well as defendants who was present at the time of plaintiff being taken in adoption by 3rd defendant and he is the attester to Ex. P.1 which is adoption deed and as well as the deed wherein the 3rd defendant relinquished her right, title and interest in the coparcenary properties in favour of her adopted son plaintiff in the original suit.

In support of his case the plaintiff produced in all 21 documents and got marked them as Exs. P.1 to P.21. Out of that Ex. P.1 is the adoption deed P.2 and P.3 are the sale deeds of the suit schedule property, P.4 and P.5 are the tax paid receipts, P.6 and P.7 are the legal notice and reply, P.8 is the order passed in HRC No. 1/1987, P.9 is the khata extract, P. 10 is the mortgage deed to the bank for having raised loan for construction of house on the suit schedule property. Ex. P. 11, P. 12 and P. 13 are house tax paid receipts and other relevant documents. Exs. P.14 and P. 15 are the letters of defendant No. 3 to the plaintiff and Exs. P.16 to 19 are certificates issued by various authorities with reference to the said property. Ex. P.20 is the post card written by husband of 1st defendant to the plaintiff and P.21 is the certified copy of deposition of R.W. 2 in HRC No. 1/1987.

In the said proceedings on behalf of defendants the 1st defendant got examined herself as D.W. 1 and in support of her case she got examined a person by name Ashok Badiger who is a resident of the area where suit schedule house is situated, who speak about the preparation and execution of the gift deed by 3rd defendant in favour of 1st defendant. In the said proceedings the defendant produced in all 31 documents out of which Ex. D.1 is the certified copy of the partition deed in the family of Seethamma who is the mother of 3rd defendant and as also grandmother of 1st defendant''s husband. Ex. D.2 is the plan, D.3 and D.4 are letters, D.5 to 23 are tax paid receipts and Ex. D.24 is the demand extract, D.25 is the order of extension of construction, D.26 to D.28 are documents with reference to the loan passbook application and other documents. Ex. D.29 is the gazette copy, D.30 is the counter foil of cheque from the account of 1st defendant''s husband and Ex. D.31 is the gift deed, which is the document in dispute in this proceeding.

In the said proceedings the trial Court on appreciation of pleadings and oral and documentary evidence available on record proceeded to answer the issue No. 1 which was framed to consider the exclusive title of plaintiff over the suit property, in the negative. So far as issue No. 2 is concerned which is with reference to 3rd defendant voluntarily executing the gift deed in favour of defendant No. 1 and consequently defendants 1 and 2 being the absolute owners of the suit property was answered in the affirmative in their favour. Issue No. 3 is regarding maintainability of the suit for declaration without seeking cancellation of gift deed was answered in the affirmative holding that the suit is not maintainable and issue No. 4 regarding mesne profits which was sought by the plaintiff was declined by answering it in the negative and so far as issue No. 5 framed regarding limitation is concerned it was answered in the affirmative in favour of defendants 1 and 2 and so far as issue No. 6 regarding the plaintiffs right to seek the relief of declaration is concerned was answered in the negative. When it comes to additional issue, it is answered in the affirmative holding that defendant No. 2 has half share in the family properties and gift deed executed is valid and legal.

The plaintiff being aggrieved by the judgment and decree of the trial Court in dismissing his suit preferred an appeal in R.A. No. 4/1996 on the ground that the trial Court has not properly appreciated the pleadings and evidence available on record and that the finding of the trial Court regarding alleged right of 3rd defendant to suit schedule property as her stridhana is not supported by any document and the notional partition on the death of her husband and holding that she has half share in the suit schedule property is erroneous and holding that the suit property is the absolute property of the 3rd defendant as it is stridhana is also not supported by any document. To show that it was acquired by her from her stridhana and that the basis on which the trial Court accepted that the suit schedule property was purchased by defendant No. 3 from out of the funds that was provided to her by her mother Seetamma who had inherited the property of their father Hanumantachar which was yielding income which was distributed by Seetamma among her daughters with which the 3rd defendant acquired the suit schedule property is incorrect for the reason that there is no evidence to substantiate the same. In the absence of that the finding of the trial Court that the suit schedule property is the absolute property of 3rd defendant Krishnavenamma is incorrect and that the judgment in reversing the judgment of the trial Court is incorrect and that the case of the plaintiff is not supported by 3rd defendant herself by stepping into witness box. It is merely on the basis of the statement filed by the defendant in the trial Court the lower appellate Court has accepted that the gift deed was got executed by defendants 1 and 2 clandestinely. The said finding of the trial Court is not looked into in addition to the written statement of D.W. 3 wherein she has clearly stated that the suit property is the absolute property of plaintiff and the defendants 1 and 2 got the gift deed Ex. D.31 executed and registered in their favour through her by misrepresenting that the plaintiff had given consent to such document and therefore the same should have been looked into by the trial Court.

In addition to that the trial Court should have taken into consideration that though the property was standing in the name of 3rd defendant Krishnavenamma, it was in her name on behalf of sole coparcener plaintiff who was taken in adoption which is not properly looked into and further contended that when title to the property stood with him as sole coparcener of the family of Koti Raghavendrachar by way of adoption into the said family, the trial Court accepting the suit property as absolute property of 3rd defendant is incorrect which is also not supported by 3rd defendant in her written statement wherein she has clearly stated that the plaintiff is the absolute owner of the suit property which is not even taken into consideration.

In the said proceedings the lower appellate Court proceeded to frame the following points for consideration.

POINTS

"(i) Whether the appellant/plaintiff proves that, by virtue of his adoption in the year 1939 under Ex. P.2 and 3rd defendant had divested all her rights in her husband''s properties and therefore the plaintiff was the absolute owner of the properties of his adoptive father?

(ii) Whether the appellant/plaintiff proves that the suit schedule plot acquired in 1942 and 1953 by the 3rd defendant and the house constructed thereon was from and out of income of his adoptive father''s property situated at Narayana Devara Kere village?

(iii) Whether the appellant/plaintiff proves that the trial Court has committed an error in applying the provisions of Section 14(1) of Hindu Succession Act on the theory that the 3rd defendant had acquired full ownership over the suit schedule properties under an pre-existing right in property?

(iv) Whether the appellant/plaintiff proves that finding of the trial Court that the suit is barred for not seeking cancellation of the gift deed is illegal?

(v) Whether the appellant/plaintiff proves that the article 65 of the Indian Limitation Act 1963 was applicable to the suit in hand?

(vi) Whether the appellant/plaintiff proves that the judgment and decree of the trial Court is perverse, capricious and against the evidence on record?

(vii) What order or decree?"

After hearing the learned counsel for the appellant and as well as respondents the lower appellate Court proceeded to answer all the points in affirmative which were framed to consider and consequently set aside the judgment of the trial Court and the suit of the plaintiff was decreed.

Being aggrieved by the same, the 1st and 2nd defendants in the original suit have come up in this second appeal on the following grounds.

"a) That there is a serious error on the part of the lower appellate Court in not properly re-appreciating the pleadings, oral and documentary evidence available on record and that while reconsidering the pleadings and evidence it has exceeded its right conferred on him under Section 96 of CPC and also on the ground that though the adoption of plaintiff has taken place in the year 1939 and all the properties of coparcenary is vested with the plaintiff as sole coparcener, suit property is the property which is acquired by the 3rd defendant in her individual name in the year 1942 and in respect of which she had executed gift deed, therefore considering the same as coparcenary property is erroneous and that reversing of the finding of the trial Court in holding that the suit property is the absolute property of 3rd defendant under the provisions of Hindu Woman''s Right to Property Act, 1937 is incorrect and also the reversal of finding that in view of Section 14(1) of Hindu Succession Act, 1956, the trial Court holding that Krishnavenamma has acquired title to suit property and as such she is entitled to deal with the same is erroneously reversed by the lower appellate Court.

b) It is further urged that when compensation for acquisition of properties of coparcenary received subsequent to 1948, how the lower appellate Court can consider the same as basis for purchase of the property by the 3rd defendant in 1942 and deal with the same as coparcenary property is incorrect against the finding of the trial Court in holding that Krishnavenamma being widow of her husband was entitled to a share in the property left behind by her husband and as such she had absolute right to bequeath the suit property in favour of 1st defendant in the year 1985. It is also contended that in the facts and circumstances Article 65 of the Limitation Act would not apply in as much as plaintiff was never owner of the property and 3rd defendant was owner of the suit schedule property, in the absence of there being no material to show his title to the suit schedule property, accepting him as owner and to declare him as such and to order for delivery of possession is contrary to article 58 of the Limitation Act 1963 which squarely applies to the facts of the case.

c) It is also contended that when by reply dated 17.11.1986 which is at Ex. P.7 plaintiff was given to understand that defendants 1 and 2 are the absolute owners of suit property by virtue of gift deed executed in their favour in the year 1985, the failure on the part of the plaintiff to file the suit for declaration and possession within three years is fatal to the claim he has made in the original suit and as such the suit is not maintainable which is not properly appreciated by the lower appellate Court. With these grounds this second appeal is filed."

At the time of hearing this appeal for admission, this Court on going through the judgments of both the Courts below and as well as the grounds urged with reference to pleadings and evidence available on record, proceeded to admit this appeal to consider the following substantial questions of law.

SUBSTANTIAL QUESTIONS OF LAW

"(i) Whether the lower appellate Court was justified in holding that on adoption of plaintiff the third defendant will loose all her right in the property of her husband?

(ii) Whether the finding of lower appellate Court that not seeking cancellation of gift deed in the suit filed by plaintiff for declaration is justifiable?"

Heard the learned counsel on both side, perused the judgments of both the Courts below with reference to pleadings, oral and documentary evidence available on record. On going through the same, and after giving careful consideration to the arguments advanced by both the parties, this Court would answer the substantial questions of law framed for consideration in the affirmative in favour of respondents 1 and 2 who are the legal heirs of original plaintiff Dr. K.R. Achar, for the following reasons.

REASONS

In this second appeal the relationship between the plaintiff, defendants 1 and 2 and 3rd defendant is not in dispute. Admittedly the plaintiff is adopted son of 3rd defendant and her husband Koti Raghavendrachar. It is also not in dispute that the 1st and 2nd defendants are widow and son of one K. Madhavamurthy who is the genitive brother of plaintiff. The fact that the plaintiff was taken in adoption by 3rd defendant in the year 1939 is not in dispute.

It is also not in dispute that the said adoption was taken after the death of 3rd defendant''s husband K. Raghavendrachar under registered adoption deed Ex. P.1 which would clearly indicate that the plaintiff who is the son of 3rd defendant''s elder sister was identified by the husband of 3rd defendant during his life time for adoption and it is immediately after the death of 3rd defendant''s husband to fulfil his desire, the plaintiff was taken in adoption by 3rd defendant. In that behalf a registered adoption deed was also executed on 31.8.1939 which was registered on 26.9.1939, vide Ex. P.1.

The contents of the said document would clearly indicate that immediately after the adoption the plaintiff was to succeed to the properties of his adoptive father K. Raghavendrachar as the sole coparcener of the said family. The document would indicate that the family of deceased K. Raghavendrachar had several properties and it was also declared by the 3rd defendant that from the said date of deed of adoption he shall be coparcener of her husband''s family and he shall be entitled to all the properties of the family and in the said family she also gave up her right, title and interest which she had in the said properties in favour of her adopted son, the plaintiff.

It is seen that thereafter within three years the suit schedule property was purchased under registered sale deed dated 12.12.1942. Initially it was measuring about 60'' x 128''. To the said property another portion was acquired measuring 60'' x 15'', thereby taking the total extent of the suit property to 60'' x 143''. It is seen that the said property is acquired by 3rd defendant in her individual name and thereafter she borrowed loan from the bank in the joint name of herself and her minor son, the plaintiff who was minor at the relevant time, for construction of house by utilizing the said amount and she has constructed a house.

In addition to that she has also stated, the material which were available after submerging of Narayanadevarakere village into Tungabhadra Dam, where the ancestral family''s original house was situated was also shifted from the said place and utilized for construction of the present house which is also not in dispute. It is further not in dispute that the said property continued to be in possession and enjoyment of the 3rd defendant and plaintiff. The material available on record would disclose that in the year 1980 the plaintiff''s elder genitive brother K. Madhavamurthy was put in possession of the property by the plaintiff and his mother 3rd defendant which is not in dispute.

It is the case of the plaintiff that his brother was put in possession on monthly rent of Rs. 100/- in which he continued to live along with his wife and sons, defendants 1 and 2 in the original suit and the said Madhavamurthy died in the month of April 1985. It is seen that the actual litigation has commenced therefrom, after the 3rd defendant executing a gift deed in favour of the 1st and 2nd defendant with reference to the suit schedule property in the month of September 1985. It is only thereafter in the month of October 1986 the plaintiff issued a legal notice calling upon the defendants 1 and 2 to vacate the suit property since the same was required for his self occupation. On receipt of such notice, defendants 1 and 2 issued a reply stating that they are not tenants in the suit property but the said property is gifted in their favour by the 3rd defendant who is adoptive mother of plaintiff and maternal aunt of 1st defendant''s husband Madhavamurthy and it is contended that the said property is bequeathed in their favour by gift since they were taking care of 3rd defendant, out of love and affection the said property was given to her.

After the said reply was given, the plaintiff filed a petition seeking their eviction under the provisions of Section 21(1)(a) and (b) of the Karnataka Rent Control Act, on the ground of arrears of rent and also for bona fide requirement. The said petition came to be dismissed by order dated 27.10.1989 which was subject matter of HRC Revision Petition No. 12/1990 which was subsequently withdrawn on 21.1.1991 and thereafter on 8.8.1991 the present suit in O.S. No. 36/1991 is filed for the relief of declaration and possession and also for recovery of mesne profits of Rs. 5,400/- and also seeking further mesne profits at the rate of Rs. 150/- per month. The said suit was initially dismissed as discussed supra and in that behalf a regular appeal was filed by the plaintiff which is allowed by the lower appellate Court resulting in the present second appeal.

Now the point which is required to be considered in this second appeal is whether the lower appellate Court was justified in holding that in adoption of plaintiff by 3rd defendant, she lost her title to property. Admittedly Koti Raghavendrachar was sole coparcener of his family. During his lifetime it was his desire to take the plaintiff as his adopted son. Koti Reghavendrachar died in the year 1939, immediately after his death his wish to take plaintiff as his adoptive son is fulfilled by his wife in taking the plaintiff in adoption under registered adoption deed dated 26.9.1939. The recital of the said document would clearly indicate that by virtue of the said adoption deed the plaintiff become sole coparcener of the family of K. Raghavendrachar and as such he will inherit to all the properties of coparcenary of which he is the sole coparcener subsequent to his adoption into the family of his adoptive father Koti Raghadendrachar.

In the said adoption deed the 3rd defendant who is adoptive mother of plaintiff has clearly given up all her right, title and interest in the properties of the coparcenary which has fallen to the share of plaintiff who was taken in adoption to the family of Koti Raghavendrachar. As such, as on 26.9.1939 the 3rd defendant had no manner of right, title and interest in any of the properties of her husband. Even assuming there was some right, title to her in the properties by virtue of the recitals in the adoption deed she has given up the same in favour of plaintiff, she has lost her all right to the coparcenary properties. It is not in dispute that the properties which were belonging to the coparcenary of K. Raghavendrachar was of huge estate with respectable income yielding, which she was managing on behalf of the plaintiff who was aged about 8 years at the time when he was taken into adoption. Besides this there is nothing on record to indicate that the 3rd defendant Krishnavenamma had any independent income between 1939 to 1942. Though the defendants 1 and 2 in the original suit tried to assert that Krishnavenamma is one of three daughters of Hanumantaraju and his wife Seetamma who owned several properties in Sindhanur measuring 60-70 acres of land. There is nothing on record to demonstrate whether any such property had fallen to the share of Krishnavenamma prior to 1942.

In the proceedings before the trial Court Ex. D.1 is relied upon by the defendants to demonstrate partition between the family of Hanamantraju and other members of his family. In the said document what would indicate is, some property falling to the share of 3rd defendant''s parents. Though the said parents of 3rd defendant had no male issues and all the properties belong to them would eventually fall to the benefit of 3rd defendant and her two sisters, out of that one being the genitive mother of plaintiff, there is nothing on record to demonstrate that prior to 1942 any such share was given to 3rd defendant Krishnavenamma or she had inherited any other property from any other source or received any income from any source other than the income generated from the estate of her deceased husband Koti Raghavendrachar, to which the plaintiff had become the sole successor and sole coparcener.

Therefore the contention of the plaintiff that the entire property that was available in the hands of 3rd defendant Koti Krishnavenamma is none other than the property belonging to plaintiff''s coparcenary which she was holding as his guardian since he was a minor at that time, which is not denied by Krishnavenamma in her written statement should be accepted as true. In that view of the matter it is clearly seen that there is nothing on record to demonstrate that Krishnavenamma had any independent income between 1939 to 1942 and also up to 1952 for acquisition of any property in her name. Though there are certain receipts in her name in the year 1947, 1948 and 1950, they are again from the income which is derived by way of compensation for acquisition of Narayanadevarakere village properties which are submerged in Tungabhadra Dam.

Admittedly these are the properties of the coparcenary of which the plaintiff was coparcener. Therefore the 3rd defendant Krishnavenamma though she has received such compensation in her name, it is on behalf of the plaintiff who was minor at that time. In that view of the matter in the absence of any material to show that 3rd defendant had any independent property in her name or that she had acquired any property either by way of succession or by way of gift or partition from her parents, it is difficult to believe that the 3rd defendant Krishnavenamma had any property in her individual name which entitled her to acquire suit property under two different sale deeds executed in her favour in the year 1942 and 1952.

In addition to that the evidence which is available on record namely the loan papers which she had executed in favour of the bank by mortgaging the suit property for raising loan to build the house on suit property would also indicate that she has borrowed loan not in her individual capacity but in the capacity of minor guardian of her minor son for whose benefit the property is purchased and in whose name the property is developed, though it was registered in her name. The defendants 1 and 2 have tried to disprove the same to establish that there was several source of income to Krishnavenamma independently through her parents and other sources which constituted her independent asset under the provisions of Woman''s Right to Property Act, 1937 and as such the said property which is acquired by her is her absolute property. Though such assertion is there in the pleadings and oral evidence, there is no material to substantiate the same. In the absence of any material to support the pleading, the finding of the trial Court in accepting the same is erroneous and accordingly the lower appellate Court while reassessing the pleadings and evidence has rightly declined to accept that.

In addition it is seen that Krishnavenamma would have succeeded to the portion of husband''s property in view of his death. However that assertion is also dispelled by the contents of Ex. P.1, wherein there is a clear recital to the effect that she has given up her right, title and interest in the coparcenary property in favour of her adoptive son, who is the sole coparcener to the family. With this it is clearly seen that she has not retained any share in the properties of the coparcenary which would generate income for her to acquire any property in her individual name. In that view of the matter this Court find that there is no material to answer the first substantial question of law framed other than answering the same in affirmative.

Now coming to the 2nd substantial question of law, in the light of the aforesaid discussion what emerges is that the suit schedule property is the coparcenary property which was standing in the name of Krishnavenamma, in which she had no independent right. When she had no right, when she had acquired the property during the period when the plaintiff was minor, it was purchased by her as guardian of plaintiff who was in minority and as such the title of the property would be with the plaintiff.

When the plaintiff is the owner of the property and when he was in possession of the suit schedule property up to 1980 and that in the year 1980 he had given the suit property to his genitive brother K. Madhavamurthy on monthly rent of Rs. 100/-, as evidenced by the postal letter written by said K. Madhavamurthy in favour of plaintiff in the year 1980 would clearly demonstrate that up to 1980 the said property was in possession and enjoyment of plaintiff and his mother which was subsequently rented out to his genitive brother who is husband of 1st defendant and father of 2nd defendant. Their possession and continuation in the said property is in the capacity of tenants only and not as owner as plaintiff''s brother having accepted the ownership of plaintiff. The subsequent denial of the same by his wife and son would not enure to their benefit to seek confirmation of right said to have flown in their favour in Ex. D.31 gift deed.

As could be seen from the defence taken by the 3rd defendant that the suit property is the absolute property of the plaintiff and that she was made to believe the original plaintiff had agreed for the gift deed to be executed in favour of defendants 1 and 2 and as such believing the words she has executed the same, now coming to the correctness or otherwise of the said statement, if we look into the circumstances under which Ex. D.31 is executed, as could be seen from the evidence of P.W. 1 in HRC No. 1/1987, wherein the person who has given evidence supporting the execution of gift deed is none other than the friend of 2nd defendant in the original suit, who is admittedly a professional witness having given evidence in various cases. He clearly admits that he had seen the 3rd defendant in the house of defendants 1 and 2 where he was going to meet his friend defendant No. 2 and on his insistence he is a witness to the execution of Ex. D.31. In the said evidence he would state that at the time of execution of Ex. D.31, the 3rd defendant was present in the Sub-Registrar''s Office with several original documents of title for execution of Ex. D.31. However if that is to be believed, then natural corollary is that along with the gift deed all other original title deeds would have been given to the defendant No. 1 by 3rd defendant. In the instant case it is only the original gift deed which is in custody of defendant No. 1 whereas the original sale deeds original mortgage deed and all other deeds are in possession of plaintiff who is the sole coparcener of his family.

In that view of the matter plaintiff''s assertion that he is the owner in possession of the property earlier and since his ownership is sought to be challenged by securing a gift deed executed by 3rd defendant in favour of 1st defendant is without any basis and therefore question of seeking cancellation does not arise and whatever required by him is to assert his title to the property by seeking declaration of same by invoking the provisions of Article 65 of the Limitation Act appears to be just and proper. In that view of the matter the finding given by the lower appellate Court in re-appreciating the evidence and also the finding of the trial Court which had relied upon Article 58 of the Limitation Act as the relevant provision to consider the prayer and thereafter coming to the conclusion that relevant provision is Article 65 of the Act appears to be correct.

In the light of aforesaid discussion this Court observe that the finding of the lower appellate Court in accepting that the plaintiff need not seek cancellation of gift deed and his prayer for declaration and possession is justifiable is accepted by answering the said substantial question of law accordingly.

Accordingly while discussing this, this Court also had an occasion to go through the judgment rendered by a co-ordinate bench of this Court in the matter of Somawwa by L.Rs v. Gurusiddappa reported in 1983(1) Kar.L.J. 252 , wherein their lordships while discussing about the Hindu Women''s Right to Property Act, 1937 held that whatever the property that was standing in the name of a woman would be her absolute property relying upon the judgment rendered by the Apex Court in the matter of Sitaji and Others Vs. Bijendra Narain Choudhary and Others, and also another judgment rendered by division Bench of this Court in the matter of Shivalingappa Vs. Gouravva, .

On going through the said two judgments it is clearly seen that the said judgment would not have bearing on the facts of this case whereas in the aforesaid case on facts the independent right of a woman to hold property and deal with the same was decided by the Court whereas in the instant case the 3rd defendant Krishnavenamma has clearly admitted in Ex. P.1 that all the properties of the coparcenary are the properties of her minor son K. Ramamurthy @ K.R. Achar @ K. Ramachar who is her adoptive son in whose favour she has given up all right, title and interest in the coparcenary property of her husband and family and therefore whatever property purchased by her is as minor guardian of the said child who is sole coparcener of the family. The purchase of suit property in her name is for his benefit and it is the absolute property of the minor sole coparcener and the same is not a property of 3rd defendant and she had no right, title and interest in the said property to deal with the same in any manner she likes much less in giving away the same in favour of defendant No. 1.

In that view of the matter this Court find that finding of the lower appellate Court in reversing the judgment and decree passed by the trial Court appears to be just and proper. Hence this Court find, in the light of the aforesaid finding on substantial questions of law the judgment and decree passed by the lower appellate Court in decreeing the suit of the plaintiff is just and proper and the same cannot be reversed in this second appeal. According this second appeal is dismissed.