K.C. Laxmana vs K.C. Chandrappa Gowda and Others

A.N. Venugopala Gowda, J.—The appellant is the original defendant No. 2, against whom, respondent No. 1-original plaintiff, filed O.S. No. 262/91 in the Court of Munsiff at Mudigere, for a declaration that, the settlement deed dated 22.3.80, executed by his father, respondent No. 2 in this appeal, who was original defendant No. 1 in the suit, in favour of the present appellant, is null and void and to set aside the same as not binding on him and for partition and separate possession of his 1/3rd share in the suit property and for an enquiry into mesne profits and other consequential reliefs. For the sake of convenience, I will refer to the appellant as defendant No. 2 and respondent No. 1 as plaintiff, in the latter part of this judgment.

The case of the plaintiff is that his father defendant No. 1, has executed a registered sale deed dated 22.3.1980 (Ex.P1), without his consent and behind his back, alienating the suit property in favour of defendant No. 2 without any legal necessity or for family benefit. It was contended that, the suit property is joint family property in which he has got undivided 1/3rd share and interest. According to him, defendant No. 1, his father, had no right to transfer the suit property in favour of defendant No. 2, who is not a coparcener or a member of their joint family and consequently the alienation made without his consent, under Ex.P1, is null and void and not binding on him.

The suit was contested by the defendants. Defendant No. 1 filed the written statement, which was adopted by defendant No. 2. In the written statement, defendant No. 1 has admitted that, the suit property is a joint family property; that defendant No. 2 was brought up by him and out of love and affection and considering defendant No. 2 as also one of the members of joint family, the suit property was settled under Ex.P1, in his name. According to him, the joint family property which was available for partition was partitioned between himself, plaintiff and other son Subraya Gowda on 23.3.1990 (Ex.P9). He has contended that, plaintiff having taken his share under Ex.P9 without any demur, is not entitled to maintain the suit. Defendant No. 1 has supported the alienation of suit property made in favour of defendant No. 2.

Learned Trial Judge, considering the pleadings of the parties, raised as many as 12 issues. After recording the evidence of PW-1 and PW-2 and DWs 1 to 3, considering Exs.P1 to P9 and Exs.D1 to D3, arrived at the conclusion that, the plaintiff is not entitled to the relief prayed and dismissed the suit. Dissatisfied by the Judgment and Decree of Trial Court, the plaintiff filed appeal In the First Appellate Court. Learned Judge of First Appellate Court after reconsideration of the record and reassessment of the evidence, found the impugned judgment and decree of Trial Court to be perverse and capricious and liable to be interfered with. Consequently, the appeal was allowed, Ex.P1 was declared as null and void, plaintiff was held entitled for 1/3rd share and also for the accounts of his share from the defendants which can be ascertained by separate application and directed to draw preliminary decree accordingly.

Aggrieved by the Judgment and Decree of First Appellate Court In favour of plaintiff, the defendant No. 2 has filed this appeal against plaintiff and defendant No. 1. Since defendant No. 1 has passed away during the pendency of this appeal, his legal representatives have been brought on record. This appeal was admitted on 22.7.03 to consider the following questions of law:

(1) Whether the findings of the Appellate Court that the plaintiff is entitled to 1/3rd share in the suit property is bad in law? and

(2) Whether the suit property conveyed to the second defendant under deed dated 22.3.1980, is valid and binding on the plaintiff and what is the legal effect of non-joinder of another brother of the plaintiff In the suit?

I have heard Sri. Yoganaraslmha, learned senior Counsel for Mrs. Namitha Mahesh, learned Counsel appearing for the appellant/defendant No. 2 and Mrs. Shalini John, learned Counsel for the respondent No. 1/plaintiff. Legal representatives of respondent No. 2/defendant No. 1, though served, have remained unrepresented. I have perused the record of the suit and the appeal of the Courts below. Learned Senior Counsel urged three main grounds for consideration, namely, (i) Bar of limitation, (ii) Effect of non-joinder of necessary party to the suit and (iii) Gift of property made for pious obligation. The contentions are dealt in seriatum hereunder:

Bar of Limitation:

(a) Learned senior Counsel for defendant No. 2 contended that, the suit Is barred by law of limitation. Inviting my attention to the prayer in the plaint i.e., to set aside the registered deed dated 22.3.1980 (Ex.P1) and the admission of PW-1 to the effect that he came to know of Ex.P1 during 1985, it was contended that, since Article 58 of Limitation Act, 1963 (Act, for short), applies to the suit relating to declarations, whereunder, the period of limitation is three years from the date the right to sue first accrues, it was contended that, in this case, right to sue first accrued on 22.3.1980, when Ex.P1 was executed by defendant No. 1 in favour of defendant No. 2 and at any event, even as per the admission of PW-1 when he came to know of Ex.P1 during 1985 and hence the suit filed on 1.10.91 is clearly barred by limitation. Learned Counsel fairly conceded that, the plea of limitation was not raised in the written statement and an issue in that regard was not framed by the Trial Court. But, he contended that the bar of limitation is a jurisdictional issue and since it goes to the root of the matter and being a question of law, it can be raised at any stage of the proceedings. Learned Counsel referred to Section 3 of the Act and relied upon the decision in the case of Kamlesh Babu and Ors. v. Lajpat Rai Sharma and Ors. reported in 2 (2008) CLT 219 to contend that, Section 3 of the Act casts a duty upon the court to dismiss suit or appeal, if made after the prescribed period, although limitation is not set up as defence. Reliance was also placed on the decision in the case of Narne Rama Murthy v. Ravula Somasundaram and Ors. reported in (2005) 6 SCC 614.

(b) Refuting the said contentions, learned Counsel for the plaintiff contended that, it is essential to plead and prove the bar of limitation, which is a mixed question of fact and law, in support of which she cited the decision in the case of Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, and contended that, a new plea cannot be raised at the stage of second appeal, in support of which she cited the decision in the case of Sri Babu Ram Alias Durga Prasad Vs. Sri Indra Pal Singh (Dead) by Lrs., . Learned Counsel further contended that, the parties are Hindus governed by Mitakshara law and to set aside the alienation of ancestral property made by the father, the period of limitation is, twelve years, which commences from the date from which the alienee takes possession of the property as stipulated under Article 109 of the Act. Learned Counsel cited the decision in the case of Sunder Das and others Vs. Gajananrao and others, . Learned Counsel contended that, Ex.P1 is dated 22.3.1980 and the suit filed on 10.1.1991 is clearly within limitation.

(c) In view of the rival legal contentions, the point for consideration is:

Whether the suit is within limitation?

Section 3 of the Act enjoins a court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed therefore by schedule, irrespective of the fact whether the opponent has set up the plea of limitation or not. It is the duty of the court not to proceed with the suit, appeal or application as the case may be, if it is made after the prescribed period of limitation. A suit filed beyond limitation is liable to be dismissed, even though, limitation may not be set up as a defence. I may notice here that, under the CPC, Order VII Rule 1(e) requires a plaint to state the facts constituting the cause of action and when it arose. A plaintiff is bound to plead in the plaint, when the cause of action arose, if he does not, then, Irrespective of what the defendant may plead in the written statement, the court is bound by mandate of Section 3 of the Act, to dismiss the suit, if it is found that on the plaintiff''s own pleading, if his suit is barred by limitation. But, it is always desirable that, if the defendant would like to raise such an issue, he would better raise it in pleadings, so that, the other party may also note the basis and facts, for which the suit has to be dismissed as barred by time. The court may have to check at the threshold as to whether the suit is within limitation or not. Ordinarily, there will be always a check slip or office report on limitation, at the time of filing of suit or appeal. But, in case the court does not prima facie find it to be beyond limitation at that stage, it would not be necessary for recording any finding on the point of limitation. In the present case, plaintiff pleaded cause of action as having arisen with the issue of a legal notice dated 11.7.90 and defendant No. 2 making claim over suit property by filing a suit in O.S No. 47/91 and on 2.3.91, when he took possession of suit property on the basis of Ex.P1. In the written statement, with reference to the pleading regarding cause of action to the suit, the denial is evasive except pleading that, the alleged cause of action is non-existing. The denial should be specific as contemplated under Rules 3 and 5 of Order VIII CPC. Since there was no specific denial, the Trial Court did not raise issue regarding bar of limitation to the suit. It is quite often that, the question of limitation involves questions of fact as well, which are supposed to be raised and indicated by the defendant so that the plaintiff is not taken by surprise till the late stage of the proceedings. When the matter is a mixed question of fact and law, unless pleaded, a party cannot be permitted to raise It at the stage of concluding of proceedings. Be that as it may. A perusal of the judgment passed by Trial Court shows that, the point of limitation was raised at the time of hearing of arguments and was considered by the Trial Court. A ground has also been raised in the memorandum of second appeal. Hence, I deem it proper, to examine the contention regarding bar of limitation.

(d) The next aspect of the matter is which Article under the schedule of the Act, would be applicable. Learned senior Counsel for the defendant No. 2 contended that, it is Article 58 which applies, since a declaration has been sought to set aside Ex.P1 as null and void and not binding on the plaintiff. As against the said contention, learned Counsel for the plaintiff contended that, the Article that is applicable is 109 of the schedule under the Act, which stipulates that, for setting aside an alienation of ancestral property made by the father of a Hindu governed by Mitakshara Law, the cause of action acmes and the time begins to run, when the alienee takes possession of the property and the period stipulated is 12 years.

(e) The period of limitation to file a suit to obtain "any other declaration" is three years under Article 58 of the schedule to the Act, commencing from the day, when the right to sue first accrues. Whereas Article 109 under the schedule to the Act, the period prescribed is, twelve years. The suit by the plaintiff is not for a declaration of his right. The declaration prayed by him is to declare that the alienation of joint family property made under Ex.P1 by defendant No. 1 in favour of defendant No. 2, as null and void and not binding on him. The distinction that is required to be noticed is that, whereas in terms of Article 58 the period of three years is to be counted from the date when ''the right to sue first accrues'', in terms of Article 109 thereof, the period of limitation would be counted from the date ''when the alienee takes possession of the property''. The distinction between Article 58 and Article 109 is, thus apparent.

(f) There Is no dispute that, the parties to the suit are Hindus and are governed by Mitakshara Law; that, the suit property, alienated under Ex.P1 is a joint family property and that, the said alienation is by father of the plaintiff. Plaintiff is not a party to Ex.Pl and has not consented for the alienation by defendant No. 1. The prayer in the suit is, to set aside father''s alienation of joint family property made under Ex.P1. Hence, it is Article 109 in the schedule of the Act which would be applicable. The said Article provides for a period of limitation of 12 years for a Hindu governed by Mitakshara Law who files a suit to set aside his father''s alienation. In the present case defendant No. 1 made the alienation in favour of defendant No. 2 on 2.3.80 under Ex.P1 and the alienee has taken possession of property in pursuance of Ex.P1 on 22.3.80 i.e., when Ex.P1 was registered. Counting 12 years from 22.12.80, limitation for filing of suit in challenging the alienation made by seeking setting aside of Ex.P1 would expire on 21.3.92. The present suit was filed on 1.10.91. Therefore, the suit was well within limitation. The Trial Court, by holding that, the transaction is not an alienation and on the other hand, it is a settlement in the family, in favour of a son brought up in the family, had wrongly held that, Article 58 is applicable and in that view of the matter, relief of declaration was denied. The construction by the learned Trial Judge, on alienation, is totally erroneous. Black''s Law Dictionary, Sixth Edition, defines "Alienation" as:

In real property law, the transfer of the property and possession of lands, tenements or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by operation of law.

Joint family property was conveyed under Ex.P1 by defendant No. 1 in favour of defendant No. 2, which has the nomenclature ''settlement deed''. Learned senior Counsel for defendant No. 2 submitted that, though Ex.P1 has been given the nomenclature of settlement deed, it is in effect, a gift deed, since the property was conveyed by defendant No. 1 in favour of defendant No. 2 out of love and affection and towards polus obligation. Hence, alienation of joint family property has taken place and the learned Judge of the Trial Court was in error in holding that, the transaction under Ex.P1 is not an alienation. Hence, the First Appellate Court was justified in interfering with the finding of the Trial Court with regard to point of limitation. Thus, the contention, that the suit is barred by limitation, is devoid of merit.

Non-Joinder of Necessary Party:

(a) Learned senior Counsel for defendant No. 2 contended that, the suit is bad for non joinder of necessary party i.e., Subraya Gowda another coparcener. He contended that, in a suit for partition of joint family property, all the members of the joint family are, both necessary and proper parties. It was contended that, to pass an effective decree for partition, all the coparceners are necessary parties and since the suit was not properly framed, the decree passed is illegal and calls for interference.

(b) Per contra, learned Counsel for the plaintiff contended that, there is no plea in the written statement regarding non joinder of necessary party, which should have been raised at the earliest opportunity and cannot be permitted to be raised in the second appeal. Learned Counsel invited my attention to Rule 9 of Order I CPC, which provides that no suit shall be defeated by reason of non-joinder of parties and to Rule 13 which states that, all objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, unless ground of objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived. Alternatively, it was contended that, Subraya Gowda the only other coparcener was not aggrieved by the alienation made under Ex.P1 and even otherwise, he has deposed as DW-3 in the suit and in favour of the defendants. Learned Counsel also submitted that, the subsequent event may also be taken into consideration i.e., Subraya Gowda has passed away during the pendency of the proceedings and his legal representatives are on record, as the legal representatives of respondent No. 2/defendant No. 1 and that, even they are also not making any claim by seeking a share in the suit property. According to the learned Counsel, the non impleading of Subraya Gowda is not fatal to the suit.

(c) In view of the rival contentions, the point for consideration is:

Whether the non-imp leading of Subbaraya Gowda, can result into dismissal of suit, on account of nonjoinder of a necessary party?

There is no dispute that, defendant No. 1 has two sons i.e., plaintiff and Subraya Gowda. A partition of joint family property (other than suit property) has taken place amongst them, on 23.3.1990 as per Ex.P9, in which all the three coparceners were allotted with the share. Alleging that, the suit property was not subjected to partition under Ex.P9 and the partition that took place under Ex.P9 is a partial partition, claiming 1/3rd share in the suit property, the suit was filed. There is no plea in the written statement regarding non-joinder of Subraya Gowda as a necessary party. Considering the scheme of Order I and Order II CPC, the Hon''ble Supreme Court in the case of Prem Lala Nahata and Another Vs. Chandi Prasad Sikaria, , has held as follows:

It is well understood that procedure is the handmaid of justice and not its mistress. The scheme of Order I and Order II clearly shows that the prescriptions therein are in the realm of procedure and not in the substantive law or rights. That the Code considers objections regarding the frame of suit or joinder of parties only as procedural, is further clear from Section 99 of the Code which specifically provides that no decree shall be reversed in appeal on account of any misjoinder of parties or causes of action or non-joinder of parties unless a Court finds that the non-joinder Is of a necessary party. This is on the same principle as of Section 21 of the Code which shows that even an objection to territorial jurisdiction of the Court in which the suit is instituted, could not be raised successfully for the first time in an appeal against the decree unless the appellant is also able to show consequent failure of justice.

So far as the law with regard to non-joinder of a necessary party, under Order 1, Rule 9 and Order 1, Rule 10 CPC, no suit shall fail because of misjoinder or nonjoinder of parties. Court can proceed against the persons before it. The Court has power under Order 1, Rule 10(4) to give direction to implead a person who is a necessary party. In view of objection as to non-joinder having not been taken in the written statement and an issue to the said effect having not been settled by the Trial Court, the objection regarding non-joinder is deemed to have been waived. Be that as it may.

Subraya Gowda has deposed as DW-3 and supported the alienation of suit property made under Ex.P1 by defendant No. 1 in favour of defendant No. 2. Inspite of knowledge of Ex.P1, he did not claim any right or share in the suit property. The plaintiff has only prayed for decree of 1/3rd share in the suit property. No relief against Subraya Gowda was prayed. In fact the plaintiff has conceded the 2/3rd remaining share in the suit property in favour of other coparceners. Defendant No. 1 having executed Ex.Pl is deemed to have alienated his share. The alienation made under Ex.P1 was voidable at the instance of the non consenting of coparceners. DW-3 by his conduct, has approved and has consented for the alienation made by defendant No. 1 under Ex.P1 in favour of defendant No. 2. The subsequent event is also material. DW-3 has passed away. His legal representatives have been brought on record of this appeal as legal representatives of defendant No. 1, after his demise. Their share and rights if any, can be the subject matter of consideration in the final decree proceedings. Hence, the non-joinder of DW-3/brother of plaintiff, has no legal effect on the suit and on the preliminary decree of partition ordered in the matter. Hence, there cannot be dismissal of the suit, on the ground of non-joinder of Subraya Gowda.

Gift Made For Pious - Obligation or Purpose:

(a) Learned senior Counsel for defendant No. 2 contended that, Ex.P1 is towards pious obligation of defendant No. 1. By taking me through the evidence of defendant No. 1 who has deposed as DW-1, it was argued that, defendant No. 2 was brought up from the age of less than a month and was treated as a fostered son and in view of the service rendered by defendant No. 2 to the family of defendant No. 1, out of love and affection of defendant No. 1 towards defendant No. 2, Ex.P1 was executed and suit property was gifted towards the well being of defendant No. 2 and hence, Trial Court was justified in dismissing the suit, which has been erroneously reversed by the First Appellate Court. Learned Counsel also read out Ex.P1, to point out the intention of defendant No. 1 in making the gift of suit property in favour of defendant No. 2.

(b) Per contra, learned Counsel for plaintiff contended that, the alienation made by defendant No. 1 as per Ex.P1 was neither for any legal necessity nor was for family benefit and hence, is null and void. She contended that, gift of coparcenary property by a Hindu father, to an outsider/relative, without the consent of other co parceners is void. Reference was made to the decisions in the case of Guramma Bhratar Chanbasappa Deshmukh and Another Vs. Malappa, and Thamma Venkata Subbamma (Dead) by Lr Vs. Thamma Rattamma and Others, Learned Counsel made submissions in support of the findings and conclusion of the First Appellate Court in the impugned judgment and she submitted that, the finding on facts, by proper appreciation of material evidence on record, by the last court of fact, is not liable to be interfered with, in exercise of jurisdiction u/s 100 of CPC.

(c) In view of the rival contentions, the point for consideration is:

Whether the alienation made by a Hindu Father, by way of gift, to a relative or an outsider, is null and void?

Undisputed facts are that, Defendant No. 1 is the father of plaintiff and DW-3, who constituted themselves as members of the Hindu Joint Family. Before the partition of joint family property amongst them on 23.3.1990 as per Ex.P9, Defendant No. 1 made and executed Ex.P1 under which, the suit property was settled in the name of defendant No. 2, who is a relative, though was brought up from his childhood by defendant No. 1. Ex.P1 shows that, towards the love and affection defendant No. 1 had on defendant No. 2 and towards his well being, the suit property was settled in favour of defendant No. 2. Plaintiff and DW-3 are not parties to Ex.P1. Other than the suit property, partition of other joint family property has taken place amongst defendant No. 1, plaintiff and DW-3 on 23.3.90 (Ex.P9). There is no dispute that, suit property is a joint family property. Since, suit property was not subjected to partition under Ex.P9, suit was filed claiming 1/3rd separate share in it. Suit was contested on the ground that, suit property had been alienated under Ex.P1, the plaintiff had the knowledge of it and hence, not maintainable.

Alienation of family property made by a Hindu father/Kartha/Manager governed by Mitakshara Law, is voidable in three situations, namely, (a) legal necessity, (b) benefit of estate or (c) with the consent of all the coparceners of the family, as held in the decision in case of Guramma v. Mallappa (supra). Where the alienation is not with the consent of all the coparceners, it is voidable at the instance of the coparcener, whose consent was not obtained. In the instant case, plaintiff has not consented for the alienation made in Ex.P1. Pious purpose is gift for charitable and/or religious purposes as generally understood. In the decision in the case of Timmaiah v. Ningamma reported in AIR 2000 SC 3529, it has been held that, the Karta is competent or has the power to dispose of coparcenary property if only:

(a) Disposition is of reasonable portion of coparcenery property.

(b) Disposition Is for recognised pious purpose. The rationale behind the impermissibility of certain disposition of coparcenery property, is the protection of interest of other coparceners, where other coparceners have interest In property inchoate and willingly do not consent for the depletion of interest for whatever purpose, such disposition shall be impermissible.

In the case of Ammathayee Ammal and Another Vs. Kumaresan and Others, , it was held that, the scope of the words, "Pious Purposes" need not be extended beyond what has already been done in the earlier decisions wherein it had been held as follows:

Hindu law on the question of gifts of ancestral property is well settled. So far as moveable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift for example of the whole or almost the whole of the ancestral moveable property cannot be upheld as a gift through affection: (see Mulla''s Hindu Law, 13th Edn., p.252, para.225). But so far as immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of moveable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for "pious purposes", (see Mulla''s Hindu Law, 13th Edn., para. 226, p.252). Now what is generally understood by "pious purposes" is gift for charitable and/or religious purposes. But this Court has extended the meaning of "pious purposes" to cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfillment of an antenuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead: see Kamala Devi Vs. Bachu Lal Gupta, .

In the case of Balginder Singh v. Rattan Singh reported in AIR 2008 SCW 5666 it has been held as follows:

The question whether the sate deed was void or voidable has to be adjudicated in the light of principles set out by this Court In several decisions. We shad deal with this aspect In detail while considering the appeal relating to the gift.

In Thamma Venkata Subbamma (Dead) by Lr Vs. Thamma Rattamma and Others, It was observed as follows:

There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions, Instead, we may refer to the following statement of law In Mayne''s Hindu Law, Seventh Edn., Article 382:

It is now equally well settled In all the Provinces that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid.... A coparcener cannot make a gift of his undivided interest In the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts.

We may also refer to a passage from Mulla''s Hindu Law, Fifteenth Edn., Article 258, which is as follows:

Gift of undivided Interest.-(1) According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.

It is submitted by Mr. P.P. Rao, learned Counsel appearing on behalf of the respondents, that no reason has been given in any of the above decisions why a coparcener is not entitled to alienate his undivided interest in the coparcenary property by way of gift. The reason is, however, obvious. It has been already stated that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided Interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated.

It is, however, a settled law that a coparcenary can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. Such a gift would be quite legal and valid.

(emphasis supplied by me)

This Court in the case of Shankarayya Balayya Pujari Vs. Champabai, has held as follows:

The scope of the power cannot be extended on the basis of the wide interpretation given to the words "pious purposes" in Hindu Law in a different context. Therefore, a gift to a stranger or relative of a joint family property out of love and affection by the manager of the family is void.

In the case of Babu Mother Savavva Navelgund and Others Vs. Gopinath, , a Division Bench of this Court, was considering an identical issue. The facts that fell for consideration therein were that, one Shivamurthappa, had made gifts out of ancestral properties which were in his hand, in favour of an adopted son, which was challenged. The Trial Court held the gift as null and void by taking the view that Shivamurthappa as a kartha, had no right to gift away the undivided family properties. The alienee assailed the finding of the Trial Court in an appeal before this Court. Considering the contentions, it was held that, the gift made by Shivamurthappa were ab-initio void and null in entirety and since the transactions were null and void from the inception, has to be ignored by the Court while entertaining the prayer for recovery of possession of the properties covered by such instrument of gift. It has been held that a coparcener governed by Mitakshara law cannot make a gift of the coparcener property not even his own interest in the property and as such, gifts are ab initio void.

Keeping in view the legal position settled by the pronouncements noticed supra, it has to be held that the first appellate Court has not committed any error in allowing the appeal and decreeing the suit.

In view of the evidence on record, which has been considered by the first appellate Court, which in my view, is neither perverse nor illegal, the finding of first appellate Court that the plaintiff is entitled to 1/3rd share in the suit property is not bad in law and the alienation made as per Ex.P1 in favour of defendant 2 is not valid and is not binding on the plaintiff. Questions of Jaw framed for consideration are answered accordingly.

In the result, the appeal is devoid of merit and hence is hereby dismissed. In the circumstances of the case, the parties are directed to bear their respective costs.