IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.2765/2006 BETWEEN:
H S SREEDHARA RAO S/O H N SREENIVASAPPA AGED ABOUT 41 YEARS R/O KEREKOPPA VILLAGE BHEEMANAKONE POST ANANDAPURAM HOBLI SAGAR TALUK SHIMOGA – 577 401.
(BY SRI R GOPAL, ADVOCATE) AND:
1. H N SREENIVASAPPA SINCE DEAD BY LRs.
APPELLANT AND R-2 TO R-4 ARE TREATED AS LRs OF DECEASED R-1 VIDE ORDER DATED 01.08.2008 2. H S GANAPATHI S/O H N SREENIVASAPPA AGED ABOUT 38 YEARS 3. H S KRISHNAMURTHY S/O H N SREENIVASAPPA ...APPELLANT AGED ABOUT 34 YEARS 4. H S PRAKASH S/O H N SREENIVASAPPA AGED ABOUT 31 YEARS 5. H G SHESHACHALA S/O H S GANAPATHI AGED ABOUT 35 YEARS AGRICULTURIST.
6. SRI H K SUKEERTHA S/O H S KRISHNA MURTHY AGED ABOUT 31 YEARS ALL ARE R/O HULIMANE VILLAGE KALMANE POST, AVINAHALLI HOBLI SAGAR TALUK SHIMOGA DISTRICT – 577 401.
...RESPONDENTS (BY SRI S V PRAKASH, ADVOCATE FOR R-2 & R-3 R-2 TO R-4 ARE TREATED AS LRs OF DECEASED R-1 VIDE ORDER DATED 01.08.2008 NOTICE TO R-4 DISPENSED WITH VIDE ORDER DT.18.10.2010;
SRI PRASANNA B R, ADVOCATE FOR R-5 & 6) THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:20.7.2006 PASSED IN RA No.314/2004 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, SHIMOGA DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:3.1.1995 PASSED IN OS.No.50/1993 ON THE FILE OF THE ADDITIONAL MUNSIFF, SAGAR.
THIS RSA COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the plaintiff/appellant is directed against the judgment and decree passed by the learned Presiding Officer, Fast Track Court II, Shimoga on 20/07/2006 in Regular Appeal No.314/2004, wherein, the appeal came to be dismissed, thereby confirming the judgment and decree passed by the learned Munsiff, Sagar, dated 03/01/1995 in O.S.No.50/1993.
2. In order to avoid confusion and overlapping, the parties are addressed in accordance with their rankings as stood before the trial Court.
3. Suit in O.S.No.50/1993 was filed by the plaintiff before the trial Court seeking partition and separate possession of the joint family properties against the defendants claiming that the suit schedule properties belong to joint family comprising of plaintiff and defendants. On contest, learned trial Judge found that the suit was devoid of merits and dismissed the same with costs and the connected regular appeal in R.A.No.314/2004 which is challenged in this second appeal also came to be dismissed by the first Appellate Court.
4. Before adverting on the other aspects, it is necessary to clarify that defendant No.1 is reported dead and he is survived by the other defendants and the plaintiff as well.
5. The plaint schedule properties are stated to be the ancestral properties of plaintiff and defendants. The schedule properties are owned and possessed by the joint family consisting of plaintiff and the defendants, wherein, plaintiff is the son of the defendant No.1 and similarly, defendant Nos. 2, 3 and 4 are also the sons of defendant No.1. As stated above, since the defendant No.1, father of the parties is dead, the dispute is between the siblings.
6. This is a suit simplicitor, wherein plaintiff claim his share at par over the schedule properties along with the defendants. The defendants contested the matter and that it is the defendant No.1 who has filed the written statement denying the averments of the plaint disputing the existence of joint family or its properties, and contended that the properties were belonging to him.
7. The learned trial Judge framed the issues relating to joint family, separate possession, rightlessness of the plaintiff as contended by the defendants and held that the contentions of the defendants was right and dismissed the suit. Against which, plaintiff preferred Regular appeal before the First Appellate Court in R.A.No.314/2004 which also came to be dismissed and the same is challenged in this second appeal by the plaintiff.
8. This Court while admitting the appeal on 26-10-2010 framed the following substantial question of law:
Whether in the facts and circumstances of the case, the Courts below were justified in holding that the suit schedule properties are self acquired properties of the first respondent without properly considering Exhibit P-3 and the evidence of DW-1?
9. Again, on 21-03-2019 the additional substantial questions of law are framed as under:
(i) Whether the grant of schedule land in item 1 and 2 of ‘A’ schedule property that was granted to the defendant No.1 fall in the category of grants to be considered as exclusive grant to the defendant No.1 or otherwise.
(ii) Whether by virtue of the Will dated 13.11.2006 said to have been executed by defendant No.1 (now deceased) in favour of respondents 5 and 6 under this appeal, the plaintiff is excluded from succession in case the Will is proved?
Another substantial question of law that may require consideration in the circumstance is, Whether the grant of occupancy rights or recognized tenancy rights in favour of one or more than one person enure to the benefit of the entire family passing of undivided rights of co- parcener?
10. The properties as stated in the plaint ‘A’ schedule consists of three items, namely: (1) 19 guntas of garden land in Sy.No.5 of Kalmane grama (Hulimane) in Avinahalli Hobli, Sagar Taluk, bounded by boundary stones and assessed at Rs.17-25 paise; (2) 32 guntas of garden land in Sy.No.9/2 of Kalmane (Hulimane) in Avinahalli Hobli, Sagar Taluk, assessed at Rs.13-97 paise, bounded on East by Dhare and boundary stones, West by Garden of Sheshagiriyappa and boundary stones, North by remaining garden land in Sy.No.9 in possession of Kadappa @ Thimmappa and south by Dhare and boundary stones and (3) Residential house in Khaneshumari No.1 of (Hulimane) Kalmane Grama with 3 Ankana with Mangalore tiles.
11. The evidence that came to be considered during trial is oral evidence of PWs 1 and 2 and documentary evidence of Exs.P1 to P9 on behalf of plaintiff and oral evidence of DW-1 and documentary evidence of Ex.D1 on behalf of defendants.
12. The denial by the defendants is that, at no point of time schedule properties are belonging to joint family. The defendants, including defendant Nos. 2 to 4, though sons of defendant No.1 along with defendant No.1, though father held the property separately and it was the defendant No.1 who got the share of the property in the partition of the year 1947 which was entered into between defendant No.1 and his brothers as claimed by the plaintiff.
13. Defendants admitted the relationship between the plaintiff and his father. The plaintiff states that he is residing separately for 8 to 9 years.
14. The suit schedule properties according to the defendants are the self acquired properties of the defendant No.1. They were tenanted lands and it was passed on from his landlord as the occupancy rights were conferred on the defendant No.1. He paid rents upto date and his right was recognized over the schedule properties under the landlord Nagarada Shamanna and Rattehalli Ananthappa.
15. The occupancy rights were conferred and registered in favour of the defendant No.1 under the provisions of the Karnataka Land Reforms Act, as Form No.7 filed by him came to be recognized by the Land Tribunal, Sagar, in proceedings bearing No. KLR (AH) No.17/1974-75 dated 07-07-1976 and the properties were granted in his favour.
16. It is further stated that defendant No.1 paid kandayam regularly and his relationship with the schedule property were as exclusive owner and not as head of the joint family. Thus, the simplicitor a suit for partition between the siblings as it remains.
17. Learned counsel Sri. R. Gopal appearing for plaintiff/appellant would submit that the property was originally owned by the joint family led by defendant No.1 and was mortgaged to one Nagarada Shamanna and he leased the same to one Kadappa who is none other than the brother of defendant No.1 and thus, the schedule property came into the hold of joint family, accordingly, the same was being enjoyed for the benefit of the entire family. Regard being had to the fact that another brother Venkatagiriyappa did not actively participate in the family and abandoned the same.
18. Learned counsel would further submit that the lease of schedule property infavour of Kadappa was not an exclusive right and on the other hand, it was for joint family and it is quite evidenced by the fact that Form No.7 was filed by defendant No.1.
19. The same is relied upon by the plaintiff.
However, the same was not filed before the trial Court. Regard being had to the fact that the application was filed under Order 41 Rule 27 CPC and this Court by orders dated 23.1.2019 allowed the said application. Thus, the said document is available for perusal. In fact, Form No.7 a copy of is filed along with the said application.
20. Learned counsel Sri. Prasanna B.R., for defendants 5 and 6 would submit that none of the documents establish the claim of the plaintiff regarding the joint family possessing the schedule properties. Learned counsel would further submit that the properties at no point of time was used or represented as belonging to joint family.
21. Insofar as Ex.D1 is concerned, it is the certified copy of the order passed by the Land Tribunal. The substance of the same is pertaining to confirmation of occupancy rights in favour of defendant No.1 Srinivasa, son of Nagappa. Application for grant of occupancy rights was made by him and the landlord was Ananthappa. The subject matter was survey No.5 to the extent of 19 guntas, 9 guntas and 32 guntas of village Kalamane, Sagar Taluk and District Shimogga. The occupancy rights were granted to the said Srinivasa. Plaintiff along with the application filed under order 41 Rule 27 CPC has filed copy of the Form No.7 that was filed by Srinivasappa. Thus, neither plaintiff nor defendants dispute the fact of Srinivasappa fling an application in Form No.7 that the grant being made in his name. At the same time, the parties do not dispute the blood relationship, interse they are the siblings of Srinivasappa.
20. Learned counsel Sri. B.R.Prasanna for defendants 5 and 6 would submit that there is no circumstances or documents which spell out the existence of joint family with thesuit schedule properties. It was further submitted that the crucial base for determining the tenancy is the status of the parties as on 1.3.1974 as the tenancy rights were recognized on the basis of status of the person cultivating a granted land in the capacity of tenant under the land lordship of the owner.
21. The subject matter to be considered is whether the grant of said items of land came to the benefit of the Srinivasappa, exclusively or the plaintiff and defendants also.
22. ‘Joint Hindu Family’ is a creature by status and not by agreement. The rights and liability continues to get modified on birth and death of its members and disruption of the status. It is not a thumb rule that the property belonging to a joint family invariably stands in the name of all the members of the joint family.
23. The very concept of ‘Kartha’ is that head of the family manages its properties and looks after the well being of the entire family members. There is a presumption in respect of joint ness of a family and there is no limit regarding the membership. But joint ness does not mean that every joint family will be possessing its property, or it is a co-parcenary.
24. The co-parcenary property in the Hindu joint family consists of the property earned by its members by their common and joint efforts, of ancestral property, and separate property of the members earned through their exertion put into hotch pot of joint family acquisition of properties from the earnings for ancestral properties. No member of the joint family is banned or prohibited from acquiring or holding property from his earnings to hold them as his separate ones.
25. Now the learned counsel Sri.S.V.Prakash for defendants/respondents 2 and 3 would submit that as on the date of making application, it was made by Srinivasappa and the grant was made in the name of Srinivasa and the property by virtue of grant under Ex.D1 invariably belonged to Srinivasappa the defendant No.1 and his sons.
26. It was submitted on behalf of defendants that insofar as plaintiff is concerned, he has abandoned the relationship with the family of defendant No.1 and became member under ‘Aliya Santhana’. Literally, he is a member of another family and not as the one stated by the plaintiff. In this connection, it is necessary to observe the matters of facts are to be pleaded then evidenced in the manner known to law and that has not happened in respect of the contentions regarding ‘aliya santhana’ in the case. It is necessary to find that the defendants are tight lipped as to what happened subsequent to the death of defendant No.1. Admittedly, defendant No.1 is the father of the plaintiff and defendants 2 to 4 and further defendant No.1 has gone on record during the life time by asserting that there never existed joint family to include the plaintiff. But what is missing is the reason for excluding the plaintiff is not existence in a manner inspiring confidence of the court. It is necessary to mention even during the pendency of the appeal the defendants maintained that the plaintiff does not have any right over the property.
27. Learned counsel Sri. S.V. Prakash would submit that there is no concept of split tenancy under the land lord. Under the Land Reforms Act reckoning of occupancy rights was made only with reference to Srinvasa, defendant No.1 who died during the pendency of regular second appeal on 16.7.2019.
28. Going by the contentions of the defendants that if the schedule properties belonged to defendant No.1 Srinvasa as a sole owner, being the Hindu died intestate nothing is explained regarding devolution of his rights and liability whether under the testamentary or intestate succession and this non explanation goes to the root of the case. Further the concept of ‘joint family’ under the Hindu Law does not focus residence of all the members under a common roof in order to maintain the jointness nor could it be said that properties is to be held in the joint names of all the members. Nor are there any principles that mandates there must be exertion in proportion to the share or shares granted on the basis of exertion and efforts made by a members. The rights are determined by virtue of birth and death or the contract unlike a partnership. When the property is claimed to be self acquired property of the defendants, the onus is on them to explain what happened subsequent to the death of defendant No.1 who is the father of defendants 2 to 4 and plaintiff.
29. Insofar as the grant is concerned, either on the date of application i.e. on the date of filing Form No.7, the defendants cannot claim that the family was disrupted and consisted only of defendants 1 to 4 and plaintiff was excluded, even otherwise, the defendant No.1 died during the pendency of the present appeal.
30. There are certain grants and awards that are given personally which go separately to a particular member of the joint family which are in the nature of assessing the efforts of achievement that is beneficial to the entire Society like Gallantry and Meritorious and the related awards. Insofar as the grant of land as mentioned under Ex.D1 in the circumstances of the case can never be presumed for a while that it was granted exclusively to defendant No.1 and thereafter devolved exclusively on defendants 2 to 4. Such stand neither stand to logic nor there is any justification. In the procedures followed by the Land Tribunal in the matters of receiving Form No.7 or granting occupancy rights, there is no mechanism assigning the number of members of joint family and its partition the subject matter and concerned joint rights of tenancy. The exclusion of plaintiff to the group of defendants 1, 2 and 3 is ill logical as well.
31. In this connection, this Court rely upon the judgment produced by the learned counsel for appellant as under:
(i) ILR 2008 Karnataka 3610;
(ii) 2011(2) KCCR 1097;
(iii) ILR 2000 Karnataka 4809 (SC) (iv) AIR 1978 SC 1201 (v) AIR 1996 SC 2025 and (vi) ILR 1988 Karnataka 1095 32. In the overall context and circumstances of the case, the trial Court and the first Appellate Court as well, utterly failed to apply recognized principles of Hindu Law to the case on hand and erred seriously in finding rightlessness of the plaintiff and therefore, the judgment and decree of the trial Court and confirmed by the First Appellate Court are liable to be set aside. Hence, the substantial question of law including the additional substantial questions of law are answered accordingly.
33. Hence, I pass the following:
ORDER The appeal is hereby allowed in part.
The judgment and decree passed by the learned Presiding Officer, Fast Track Court II, Shimoga on 20/07/2006 in Regular Appeal No.314/2004, and the judgment and decree passed by the learned Munsiff, Sagar, dated 03/01/1995 in O.S.No.50/1993 are hereby set aside. Consequently, the suit of the plaintiff is decreed recognizing 1/4th share of the plaintiff in all ‘A’ schedule property. As there is no evidence regarding the existence of ‘B’ schedule properties, accordingly the appeal stands dismissed to the extent of ‘B’ schedule property.
In the circumstances, the prayer for enquiry is rejected.
Parties to bear their own costs.
Sd/- JUDGE tsn*