IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT
DI-IARWAD.
DATED THIS THE 2nd DAY OF FEBRUARY 2o1o,f_j
PRESENT in 3
THE HON'BLE3 MRJUSTICE K.;.,AM;§NJtr1vA*bij§: «
AND , . _ 1' .
THE HON'BLE MR. JUsTICE._ARAV1v;§b 3
REGULAR FIRST A1=PEA:iii'i1~¢{§__§__;§s_1 <i£'2i5Qz§
Between: ' i it i
Pushpa @ N/Iaiathi, 58 years
W / o Ramarao Desai _
R/0 saunshi,Kundgkuifiaiiuic.
Dharwar District; ' .. ._ ~
Represented Praicasti Bistapfia Naik
R/0 Ranebergnuif, _Hav_eriV_Distri9F-.i._ . j .. Appellant
(By Sri Harsh iDe_siai_, .,
And: i V i i i
i?aneberihiJ§ii Taluka Elitiiiiication Society'
'Rep1fesented«byiVitsi Chairman
Venkappa_Kris'hnappa Savakar
R / 0 Rar3.ebe11t"1_~zir','T;E?£aVeri District
Vj 2 .v Shreeshliaila agadguru Umapathi
Pnaditaradhya Shiva Charya Mahaswarnigalu
f~"Seh.1fl'eeshai1a, Andhra Pradesh .. Respondents
iK’.I.Ji.Patii, Sri S.S.Beturmath and R.S.Hegde, Advocate for
$7
in
. This regular first appeal is filed u/s 96 CPC against the
judgment and decree dt. 03.11.2003 passed in OS No.2/20’Q2e.on
the file of the Addl. Civil Judge (Sr.Dn.), Ranebennur, diS1:I}l_S”€~’.171;1g
the suit for declaration and possession and etc.
This appeal coming on for hearing this day, J3.,*i 1
delivered the following: _
JGDGMENT
The appellant is the unsuccessful plai’1n.tiff.. _ ‘iThe’v«:.’ap.pe1–iant v 1’
instituted suit os No.2 of 2002 beigfe-.t:tttt-;_V_ cii}i1~Jti_dg¢f% (Senior
Division), Ranebennur against«–_ti’1eA ir_espbo»nde’n-t:s’tfor the following
prayer: i
To grant a fglift””‘dated 03.10.1999
executed by the 1st Qsdlldelfendant as null and void
and to directfithe the possession of the
schedule property. ” averments, the plaintiff
was the absolute of .922iiacr:es and one gunta of land situated
a.t’.Ranebennu’ritown and she gifted the entire extent
of acregslliigunta of land in favour of the 13′ defendant
iuivider a lgiftldeedlldlated 03.10.1966 with a specific condition that
. entire ext’cI1t:.of land gifted by her to the 1st defendant–Society
‘shall only for the educational institution run by the 19¢
it dfefendanit. According to the plaint averrnents, contrary to the
/ .
ti/’
terms and conditions of the gift deed dated 03.10.1966, the 1st
defendant herein has executed a gift deed to an extent of 3 acres of
land in favour of the 2136 defendant under a gift deed ‘dated
22.10.1999 to enable the 2nd defendant to construcfval.f}::e!15*£’sfi
rnantap. Contending that the action of the 15* defen_da:nt 9
a portion of the land gifted to the 19′ defendant :bly’__tl5§e’
favour of the 2nd defendant as nullpaeand voidllg suitlvivas fi1edfo=:l”g
declaring the execution of the gift tl’V1b~.:1’V5t’ jdefendlant in
favour of the 2nd defendant nu_il’lland:’.voiidp andlto direct the
defendants to put the plaintiff same. The 1st
defendant ifthe 2nd defendant
remained the execution of the
gift deed to entire’exte.ntof by the plaintiff in favour of it.
But the Istgdefendantl deiniedlthat the entire extent of land has
–use’d fo~z1peducati’onlal purpose. It is also denied that the
giftdeed’adated..22l.l10:.li.999 executed by the 1st defendant in favour
the ;ir;q_4ldefevndanti::is illegal and Without any authority of law. It
~ .i.i’_j”gvas’ also contended that there is no cause of action for the suit and
{~.l_lpth.ecause of action is based on the court fee paid by the
9. lffplaintiff is inadequate and the plaintiff has to pay court fee based
‘S?//,./’ ‘
on the market value of the property. The 15′ defendant also denied
that the person who has signed and verified the plaint as power of
attorney holder is not the real power of attorney holder. ItV.is_:als_o
contended that the gift deed executed by the 13’:
favour of the 2nd defendant cannot be cancelled and ”
has no right to seek possession of the
above pleadings the following issuesgweére framed by court;
“1. Whether the plaintiff provesVi’e’that the if ~1$i”deft..ii’l;)y
violating the conditionsofzgift deeds 10. i966 has
gifted the suit property”– il5li,’j!1jnd_ deft. on
22.10.1999?
2. Whether” proves. gift deed
dtd.22._r0;’1999}:is air1d;”voidl?i_’i”””
3. Whetherrthe to possession of the
suit properl,y?. i V ‘V
4. Whether the suit. is hzirréd by limitation?
V. _5. the coi1rt..__fe.e paid is sufficient?
What_vor.der”o.r decree?”
2.” ln’–.ord:ierl7.to prove the respective contentions on behalf of
i’7’the plaintiff on’eaPrakash Naik who is the power of attorney holder
.: rplaintiffiiwas got examined as PW1. He relied upon Ex.P1 to
of the defendants no evidence was let in. The trial
“after considering the entire evidence and hearing the
{Q}//’ i
ANOTHER VS. RAMESH CHANDRA reported in AIR 2001 SC 2340
and in the case of STATE OF UTTAR PRADESH VS. BANS} DHAR
AND OTHERS reported in AIR 1974 SC 1084. Relying uponitithese
two decisions, he contends that the trial court has corrirnittc.d
error in not appreciating the true spirit of ”
executing a gift deed in favour of the 15* déefendaht on 1:O’.*1 t. e
4. Per contra, learned counsel.for__the VI =’*?_ respore.l’der1trisubrnits
that the 15* respondent has not violatedv«.theuterrns conditions
of the gift deed dated 03. 10. A-iccQg.rdin.g’ gift deed has
been executed by the iét defendalfitiriiifatfourvof 2nd defendant
for the purpose for bysfthe plaintiff to the
is’ defendant», Therefore-,,:Vthefigifti deed executed by the 13*
defendant in favozirof tlzeidiilmi .d’efendant cannot be construed as
contrary to}; terrn’s=..and_conditions of the gift deed dated
O3A.’1_0..A19’66. circumstances, he requests the court to
‘V 5. heard learned counsel appearing for the parties,
; toconvsider the following two points in this appeal:
»-
<,,:_/..
(i) Whether the plaintiff can maintain a suit seeking for
declaration to declare the gift deed executed by the 13*
defendant in favour of the 2nd defendant as
void?
(ii) Whether the plaintiff is entitied for posse.issioin~i.:of.the”
suit property’?
Regarding Point No.[i):
As stated supra, in order to provetthe _respie(:teivecontentions
of the parties, the plaintiff hzyépsg-e1i–i_5’d }.1po..r_1nthe evidence of one
Prakash N aik who is none otherflthan ippovver ‘eifattorney holder.
PW1 is none other than};.t..il’1e younger b’rotlie’r..o.f the plaintiff. He
has produced», of ‘ attorney executed by the
plaintiff. Ex.P2″1e giftiiiidieedidated 03.10.1966. Ex.P3 is the
certified of the iigiftivideed executed by the 13* defendant in
faveur.iof« -defendant. EX.P-4 is the certified copy of the
recordfiof the certified copy of the order passed by
i71*pthe_Reveni;1e Shireistedar of Ranebennur. Except these five
noother documents are produced by the plaintiff and
docurnents are aiso produced by the defendants. The execution
of deed dated on 03.10.1966 in favour of the ls defendant
32/
by the plaintiff is not in dispute. As a matter of fact, defendant
No.1 admits the purpose for which the land in question b_ee.n
N
gifted by the plaintiff to the defendant No.1.
perused Ex.P2. It is recited under Ex.P2 Jthat in orderiito run’ the
educational institution the entire extent of._22:;’acres’eand one
of land has been gifted to the 13* defendantl the pa
valuable land situated within the Ranebennur toiirn
6. From the reading of that the land
has been gifted by the p_laintiff..in:._favouAr:iof”.thelilftdefendant only
for the purpose of educlatilonialiinstitution for children
and Ex.P2 does enableithe._:l’i$iV’t_d.et%2-zidantl to use the land gifted
to it by the plaintiff “purpose other than running the
educational institution.
if V’ 7. the certified copy of the gift deed executed by the
15* defendant the 25″‘ defendant. The execution of the
libessaid docu_rnent_ iseilialso not in dispute as the 1st defendant has
..i_:adniitted the execution of the same. From the contents of the
f_’clocunientil’E_x.P3 it is clear to us that 3 acres of land out 22 acres
V” gunta of land gifted by the plaintiff to the 18* defendant
(Q)/..
has been gifted by the IS’ defendant to the 21″? defendant inorder
to construct a kalyan mantap and also to establish a
school and for other purposes. Therefore, the
considered by us in this appeal is whether.,,tl_1_€: eiiiecutedv
by the plaintiff in favour of the 13′ defendant
defendant to deal with the property in any’-nianynerviiitjlikttps and
whether any restrictions are imposed”-o:n ,the defenidant in
regard to use of the gifted property’. eonsiidering the recitals
of Ex.P2 we are of the Aview only for the
purpose of running_Va__n the 1st defendant
and it has no po\2ver vye consider that EX.P3
empowers a Sanskrit school and
other educational from kalyan mantap, when the
13* defendant hasfiifnoi sL1ehi”‘poi5r.er of alienation, but the Ex.P3
€Xéiv<3f11f€d 215* defenda'n't in favour of the 2"" defendant has to
be held the 13* defendant was not empowered to
the property. 'e.e_ the 13* defendant was required to utilise the
"extent "of 22 acres and one gunta of land for the purpose for
f§;h.ichi"i':_is"gifted by the plaintiff. The judgment relied upon by the
i" i.appe'l'1ant's counsel would support his case. Therefore, we are of
\'"§;»«r"/I I
10
the view that at any rate when there is a violation of the terms and
conditions of the gift deed, the plaintiff is entitled to maintain a
suit for revocation of the gift deed executed by the 15′ defendan:tg:i’n.<
favour of the 2nd defendant. Accordingly, We answer" their "
No.(i) in favour of the appellant and againstthe.
8. At this stage, the learned counsel appiellant
as the 15* respondent have filed a jointarriemo view of
the categorical finding of this Court -that the’exe’cution of
the gift deed by the 1st defendantin 2nd defendant
measuring 3 acres as null__and’ not bind the plaintiff .’
h n$@$&tmg__tha–t_tl:.e appellant-plaintiff will not
press the relief for ‘posisession, the respondent No.1 has given
an undertaking ito.__4utilis’e_ the” entire extent of 22 acres and one
gunta onlyfor the educationalv institutions run by it. The memo is
signed byfitilcviii powueiiof attorney holder of the plaintiff and the
Chairman’i.._of t’i’1~i:i$;’\..v,1ppsiv.i’:fe’spondent, so also by the learned counsel
iV’.1–gaipipearingifor the “parties. The plaintiffs power of attorney holder
Chairman who are present before the Court have been
«.:ideint.if1’ed’byithe respective Advocates and they admit the execution
of :the…_§oint memo. The joint memo is taken on record. In view of
11
the join memo, we are of the View that there is no necessity for us
to consider point No.(ii) formulated by us. In the result, the alidpeal
is allowed in part. The gift deed executed by the 13′
favour of the 2nd defendant on 22.10.1999 is herelziylifiiecliared’last: _ it
null and void by setting aside the judgmenthand,decreeily:pia,ssedl”in”.
os No.2 of 2002 dated 03.11.2003 of the’.Additional_~_tCivi1’~Judged”
(Senior Division), Ranebennur and it issifyurtherinllin yiew
of the joint rrierno filed by the’ appellant: resfjondtént No.1.
respondent No.1 shall use only for the
purpose of running further declare
that the 15′ respondeiity Parties to bear
their costs.
Séiei;
Iudgs
Sdl–Z
Judge
,i’==mfg,/f’ *