BOMMAPPA KALLAPPA GUDLEPPANAWAR Vs. BASAVANTAPPA KALLAPPA GUDLEPPANAWAR

JUDGEMENT

(1.) DEFENDANTS 2 to 4 are the appellants. 1st respondent herein filed a suit for partition, claiming his share in several properties. We are concerned only with the property described in plaint schedule 'b'. This was found to be the self acquired property of the 1st defendant. He had gifted it to DEFENDANTS 2 to 4 and therefore plaintiff's right to a share was contested. According to the plaintiff, the gift was void in view of Section 33 of the Karnataka co-operative societies Act, 1959 ('the act' for short) and after the death of the 1st defendant, he became one of the heirs to the said property. Trial court negatived the plaintiffs claim in respect of this item of property. However the district court upheld the right of the plaintiff to succeed as one of the heirs of 1st defendant. Gift of the property by 1st defendant was held to be void under Section 33 of the act. In the year 1964,1st defendant obtained a loan from a co-operative society and in that connection, the property in question was subjected to a charge in favour of the society. In the year 1972, he obtained a further loan; without discharging the liabilities, 1st defendant gifted away the property to his grandchildren (DEFENDANTS 2 to 4), on 19-6-1972. In the year 1973 present suit was filed. During the pendency of the suit, in the year 1974, 1st defendant died. Thereafter in April 1975, the loans were cleared and claim of the society stood discharged. Plaintiff contended that in the year 1972 when the 1st defendant purported to gift away the property, it was already subjected to a charge under Section 33 of the act and therefore, the gift was void having regard to the Provisions of Section 33. The only question to be considered is whether an alienation of a property which is charged with the loan advanced by the co-operative society to the owner of the property, is void altogether, or whether the alienation is voidable only at the instance of the said society. Section 33(1) is as follows: