Allowed

Sri T. Ranjith Kumar v. the Government of Karnataka

Karnataka HC16 Jun 2023RFA/186/2013

Case brief

AI extract

What is this about?

This RFA challenges the dismissal of a suit for declaration wherein a minor's gifted property was offered as solvency for an Arrack contract. The High Court held that the guardian lacked authority without court permission and remanded the matter for disposal on merits.

What did the court decide?

Impugned order set aside; O.S. No.6/2012 restored to be decided on merits; parties to appear on 17.07.2023.

Sri T. Ranjith Kumar Vs the Government of Karnataka — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:20857-DB RFA No. 186 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MR JUSTICE P.S.DINESH KUMAR

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AND

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA REGULAR FIRST APPEAL NO. 186 OF 2013 (DEC/INJ)

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BETWEEN:

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SRI T. RANJITH KUMAR S/O SRI V THIPPESWAMY AGED ABOUT 20 YEARS, STUDENT R/O 5^TH CROSS, ANNAPOORNA NILAYA J C R EXTENSION, CHITRADURGA 577 501 …APPELLANT

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(BY SRI. G S BALAGANGADHAR., ADV.)

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AND:

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Digitally signed by MALA K N Location: HIGH COURT OF KARNATAKA

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THE GOVERNMENT OF KARNATAKA BY ITS CHIEF SECRETARY VIDHANA SOUDHA BANGALORE 560 001

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THE EXCISE COMMISSIONER GOVERNMENT OF KARNATAKA NRUPATHUNGA ROAD BANGALORE 560 001

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THE DEPUTY COMMISSIONER OF EXCISE DEPARTMENT OF EXCISE OPPOSITE TO HORTICULTURE OFFICE CHITRADURGA 577 501

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THE DEPUTY COMMISSIONER (REVENUE) DEPUTY COMMISSIONER OFFICE CHITRADURGA 577 501

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THE THASILDAR CHITRADURGA TALUK OFFICE CHITRADURGA 577 501

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THE THASILDAR CHALLAKERE TALUK OFFICE CHALLAKERE 577 522

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THE CHIEF OFFICER TOWN MUNICIPALITY CHALLAKERE TOWN CHALLAKERE 577 522

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SRI V BASAVARAJA S/O VEERANNA AGED ABOUT 46 YEARS EX CONTRACT BUSINESS R/O GANDHINAGAR, 2^ND CROSS CHALLAKERE 577 522 …RESPONDENTS

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(BY SRI.ARUN K.S., HCGP FOR R1 TO R7; R8 SERVED)

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THIS RFA FILED UNDER SECTION.96, READ WITH O-XLI, RULE-1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED10.12.2012 PASSED IN O.S.06/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHALLAKERE, DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, T.G.SHIVASHANKARE GOWDA.J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the order dated 10.12.2012 passed in O.S.No.6/2012 by the Court of Senior Civil Judge, Challakere ('the Trial Court' for brevity) dismissing the suit as not maintainable.

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Appellant is the plaintiff and respondents are the defendants before the trial court. For the sake of convenience, parties shall be referred as per their status before the Trial Court.

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The facts of the case is that, plaintiff's father V.Thippeswamy has purchased the suit schedule properties under registered sale deeds dated 03.04.2011 and 27.09.2011 and they are his self-acquired properties.

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They were gifted in favour of the plaintiff on 22.10.2003 and on 07.05.2004. At the time of gift, plaintiff was the minor. His uncle, i.e., defendant No.8 was shown as his guardian in the gift deed. By virtue of the gift deed, name of the plaintiff was entered in the revenue records and thereby he continued to be in possession and enjoyment

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of the suit schedule property as the absolute owner. The defendant No.8, except being a guardian of the plaintiff, has no right, title or interest over the suit schedule property.

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3.1. Defendant No.8 was an Arrack Contractor, he had obtained the Arrack contract for Molakalmuru taluk of Chitradurga district and offered the suit schedule properties to the defendant No.2 as solvency to the said Arrack contract. Defendant No.2 has fixed the monthly rent to the tune of Rs.32,45,000/- payable by defendant No.8 to the Government. Defendant No.8 committed default in paying the rentals. Defendant No.3 passed the consequential order vide Ex.No.27/04-05 dated 31.03.2005 and forwarded it to the defendant No.4 to effect the recovery of the dues. Accordingly, defendant No.4 issued a recovery certificate in Cr.No.1/2005-06 dated 19.04.2005. By virtue of said order, defendants No.5 and 6 have passed the consequential order No.1/2005-06 dated 23.04.2005. As per the said order,

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defendant No.7 changed the revenue entries in name of the Government of Karnataka. As per letter issued by the defendant No.2, the Deputy Commissioner, Chitradurga, issued a Solvency Certificate vide order in Cr.No.4/200405 dated 30.06.2004. The defendant No.4 without conducting any enquiry, blindly issued the Solvency Certificate on the minor's property.

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3.2. On attaining the age of majority, plaintiff has made a representation to the defendant No.7 to delete the name of his guardian, but it was refused. After obtaining relevant records, he has issued notice on 22.11.2011 to defendant Nos.1 to 7 calling upon them to delete the name of the Government and to enter his name and his request was not acceded to. Claiming that the encumbrance or change of name in revenue entries is not binding on the plaintiff and that he continues in possession and enjoyment of the suit schedule property, he has filed the instant suit for various reliefs.

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Defendants No.1 to 7 have filed their written statement denying the possession and enjoyment of the suit schedule property by the plaintiff. They have contended that defendant No.8 having obtained Arrack contract of Molakalmuru taluk has offered the suit schedule property as a solvency. Defendant No.8 was having right to deal with properties and the solvency passed by the defendant No.4 is in accordance with law. Defendant No.8 has conducted his business for his family necessities. The encumbrance is binding on the plaintiff and the change of revenue entries in favour of the Government is also in accordance with law. Defendant No.8 and the father of plaintiff with full knowledge have misguided the defendants No.1 to 4 by playing fraud in offering the property as the solvency. After offering the suit schedule property towards solvency, neither defendant No.8 nor the father of the plaintiff have asked any declaratory relief in respect of the order in Cr.No.4/2004-05 dated 30.06.2004 and Cr.No.1/2005-06 dated 19.04.2005, the said orders are binding on the

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plaintiff and sought for dismissal of suit as not

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maintainable.

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On the basis of the above pleadings, the Trial Court has framed issues including an issue regarding maintainability of the suit, which reads as follows:

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"Whether defendant No.1 to 6 proves that suit of plaintiff is not maintainable in law?

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The Trial Court after hearing both sides has recorded its finding on the said issue in affirmative and dismissed the suit as not maintainable. Aggrieved by the same, the plaintiff has filed this appeal on various grounds.

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We have heard the arguments of Sri.G.S.Balagangadhar, learned Counsel for the appellant/plaintiff, Sri.K.S.Arun, learned HCGP for

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respondents/defendants-1 to 7.

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It is the contention of the learned counsel for the plaintiff that the plaintiff acquired title over the suit

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schedule property by virtue of the gift deed. The recitals in the gift deed did not confer any authority on the defendant No.8 to offer the suit schedule properties as surety or solvency. The plaintiff attained majority in the year 2010. During the minority of the plaintiff, the property was offered as solvency. The defendants have not contended that the Arrack contract was on behalf of the family consisting of the plaintiff and defendant's father. When the plaintiff was minor, the Arrack business was not in his interest, the property which belongs to the minor cannot be alienated or encumbered in any manner without prior permission of the jurisdictional District Judge, who is the legal guardian of the minor.

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8.1. His further contention is that the finding recorded by the Trial Court that the plaintiff ought to have challenged the revenue entries before the competent authority is incorrect. When the suit transaction was not in the interest of the minor, any action taken by the defendant No.8 as guardian is not binding on the interest

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of the plaintiff. Defendants No.1 to 7 being Government servants ought not to have taken the solvency of the property belonging to the minor. The order of defendants No.1 to 7 in accepting the solvency, in creating the encumbrance and removing the name of minor from revenue entries is illegal. Within three years from the date of attaining the majority, the suit has been filed and the findings recorded by the Trial Court are erroneous.

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Per contra, learned HCGP contended that the defendant No.8 being the guardian of the plaintiff is having legal right to act on the property of the minor in his interest as the business was being carried in the interest of the family and for this reason, the property of the minor was offered as a solvency. Only after verifying all these aspects, defendants No.1 to 7 have accepted the solvency and for the default committed by the defendant No.8 in clearing the government dues, the property was forfeited and the revenue entries have been changed in the name of the government. The plaintiff has filed the suit against

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the Town Municipality of Challakere and also against the Government and therefore, the suit is hit by Section 238 of the Municipality Act. Hence, the Trial Court has rightly considered the said aspects and dismissed the suit and thus supported the impugned order.

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We have given our anxious consideration to the arguments addressed on both sides and perused the material on record.

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There is no dispute that the suit schedule property originally belonged to the father of the plaintiff, who gifted the same in favour of the plaintiff by a registered gift deed nominating defendant No.8 as guardian. Further, defendant No.8 as a guardian of the plaintiff after obtaining the Arrack contract of Molakalmuru taluk, offered the suit schedule properties as a solvency and it was accepted and various orders have been passed by defendant Nos.1 to 8. It is also not in dispute that the defendant No.8 committed default, he did not repay the money due to the government, ultimately the Government

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has forfeited the solvency and entered the name of the Government in the RTC extracts pertaining to the suit schedule properties.

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Now the point that arises for our consideration is:

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"Whether the act of defendant No.8 is binding on the plaintiff?"

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Admittedly, the defendant No.8 was appointed as guardian. The material on record shows that the Arrack contract obtained by the defendant No.8 is not on behalf of the family. The guardian has no legal right to create encumbrance on the minor's properties for his personal business. Even if it is for the benefit of the family, prior permission of the jurisdictional District Judge is mandatory. In this regard, it is relevant to refer to Section 29 of the Guardians and Wards Act, 1890, which reads as under:

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"29. Limitation of powers of guardian of property appointed or declared by the Court. —Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been

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appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court,—

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(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or

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(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor."

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The 'Court' is defined under sub-section (5) of Section 4

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of the said Act as hereunder:

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"(5) “the Court” means—

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(a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or

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(b) . . . . . ."

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There is no material on record to show that

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defendant No.8 has obtained the permission of the jurisdictional District Judge to encumber the minor's property towards government dues. It is pertinent to note that the defendants No.1 to 7 being the government servants while accepting the minor property towards

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solvency ought to have directed the defendant No.8 to obtain permission from the jurisdictional Court. Admittedly, defendants have accepted the minor's property. The defence set up is, the same was in the interest of the minor. Therefore, the Trial Court is required to determine whether the property which was offered as solvency, was on behalf of the minor or not. Unless it is determined, the suit cannot be dismissed. As we notice from the impugned order, the learned Trial Court has passed the order without considering the suit comprehensively. Hence, the suit has to be considered comprehensively on merits and the impugned order is liable to be set aside.

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In the facts and circumstances of the case,

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without expressing any opinion on the merits of the case, we deem it proper to remand the matter for disposal in accordance with law. In the result, the following:

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ORDER

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(i) Appeal is allowed.

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(ii) The impugned order is set aside.

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(iii) O.S.No.6/2012 stands restored on the file of the

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Trial Court. Learned Trial Judge shall decide the case on merits in accordance with law.

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(iv) Without further notice, parties shall appear

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before the Trial Court on 17.07.2023.

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Parties to bear their own costs.

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Sd/JUDGE

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Sd/JUDGE

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KNM CT:HS List No.: 1 Sl No.: 36

Sri T. Ranjith Kumar v. the Government of Karnataka

Case brief

What is this about?

What did the court decide?

Sri T. Ranjith Kumar v. the Government of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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