IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.753/2015 C/W REGULAR SECOND APPEAL NO.754/2015 IN R.S.A.NO.753/2015:
BETWEEN:
1. SMT.MUNIYAMMA AGED ABOUT 77 YEARS W/O LATE DODDANARASIMAIAH 2. SRI MARIYAPPA AGED ABOUT 59 YEARS S/O LATE DODDANARASIMAIAH 3. SRI NARAYANASWAMY AGED ABOUT 57 YEARS S/O LATE DODDANARASIMAIAH 4. SMT.NARAYANAMMA AGED ABOUT 52 YEARS D/O LATE DODDANARASIMAIAH 5. SMT.JAYAMMA AGED ABOUT 50 YEARS D/O LATE DODDANARASIMAIAH 6. SMT.BHAGYAMMA AGED ABOUT 47 YEARS D/O LATE DODDANARASIMAIAH 7. SMT.RATHNAMMA AGED ABOUT 44 YEARS D/O LATE DODDANARASIMAIAH ALL ARE R/AT VALAGEREPURA VILLAGE JADIGENAHALLI HOBLI HOSKOTE TALUK BANGALORE RURAL DISTRICT–582 112 …APPELLANTS (BY SRI C.M.NAGABHUSHANA, ADVOCATE) AND:
1. SMT.NARAYANAMMA AGED ABOUT 67 YEARS W/O LATE NARASIMHAIAH 2. SRI NARAYANASWAMY AGED ABOUT 49 YEARS S/O LATE NARASIMHAIAH 3. SRI VENKATESHAPPA AGED ABOUT 41 YEARS S/O LATE NARASIMHAIAH 4. SRI KRISHNAPPA AGED ABOUT 39 YEARS S/O LATE NARASIMHAIAH 5. SRI NAGARAJ AGED ABOUT 34 YEARS S/O LATE NARASIMHAIAH 6. SMT.RADHAMMA AGED ABOUT 28 YEARS D/O LATE NARASIMHAIAH R1 TO R6 ARE R/AT VALAGERAPURA VILLAGE JADIGENAHALLI HOBLI HOSKOTE TALUK BANGALORE RURAL DISTRICT BANGALORE – 582 112 7. SRI K.V.S.NAGENDRA PRASAD AGED ABOUT 42 YEARS S/O LATE K. GOVINDA REDDY R/AT NO.369, 9TH MAIN 5TH CROSS, 6TH STAGE BEML LAYOUT, BANGALORE – 560 066 … RESPONDENTS (BY SMT.SOWMYA LAKSHMI BHAT, FOR SRI KUKKAJE & BHAT, ADVOCATES FOR C/R1 TO R6; SRI B.RAMESH, ADVOCATE FOR R7) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 25.03.2015 PASSED BY THE PRINCIPAL DISTRICT JUDGE, BANGALORE RURAL DISTRICT, BANGALORE IN R.A.NO.137/2014 AND CONFIRM THE JUDGMENT AND DECREE DATED 17.09.2014 PASSED BY 2ND ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE IN O.S.NO.137/2006.
IN R.S.A.NO.754/2015:
BETWEEN:
SRI K.GOVINDA REDDY S/O LATE KONDA REDDY SINCE DECEASED REPRESENTED BY HIS LEGAL REPRESENTATIVE K.V.S.NAGENDRA PRASAD REDDY S/O LATE K. GOVINDA REDDY AGED ABOUT 41 YEARS R/AT NO.369, 9TH MAIN 5TH CROSS, 6TH STAGE BEML LAYOUT, BANGALORE – 560 066 … APPELLANT (BY SRI B.RAMESH, ADVOCATE) AND:
1. SMT.NARAYANAMMA W/O LATE NARASIMHAIAH AGED ABOUT 63 YEARS 2. SHRI VENKATESHAPPA S/O LATE NARASIMHAIAH AGED ABOUT 48 YEARS 3. SHRI NARAYANASWAMY S/O LATE NARASIMHAIAH AGED ABOUT 48 YEARS 4. SHRI KRISHNAPPA S/O LATE NARASIMHAIAH AGED ABOUT 38 YEARS 5. KUM.RADHAMMA D/O LATE NARASIMHAIAH AGED ABOUT 28 YEARS ALL ARE R/AT VALAGERAPURA VILLAGE JADIGENAHALLI HOBLI HOSKOTE TALUK – 582 114 BANGALORE RURAL DISTRICT … RESPONDENTS (BY SMT.SOWMYA LAKSHMI BHAT, FOR SRI KUKKAJE & BHAT, ADVOCATES C/R) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 25.03.2015 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE IN R.A.NO.138/2014 AND CONFIRM THE JUDGMENT AND DECREE DATED 17.09.2014 PASSED BY 2ND ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE IN O.S.NO.1384/2007.
THESE REGULAR SECOND APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These two appeals arise out of common judgment and decree dated 25.03.2015 passed by the Principal District Judge, Bengaluru Rural District, Bengaluru in RA No.137/2014 and RA No.138/2014.
2. By the impugned judgment and decree, the First Appellate Court allowed the appeals of defendant Nos.1 to 6 in OS No.137/2006 and defendant Nos.1 to 5 in OS No.1384/2007 and dismissed both suits.
3. OS No.137/2006 was filed by one Doddanarasimhaiah and OS No.1384/2007 was filed by one K.Govinda Reddy seeking declaration of their title to land bearing Survey No.69/7 measuring 1 acre 10½ guntas situate at Mylapura Village, Jadigenahalli Hobli, Hoskote Taluk, Bangalore Rural District and for permanent injunction etc.
4. Doddanarasimhaiah sold the said property to K.Govinda Reddy under Ex.D9 registered sale deed dated 20.10.2005. K.Govinda Reddy claimed title by virtue of the said sale deed. Doddanarasimhaiah contended that his grandfather Narasimhaiah had two sons namely senior uncle Muniyappa and his father Ajjappa. He further contended that Survey No.69/7 belonged to joint family of Narasimhaiah, Muniyappa and Ajjappa and Ajjappa predeceased Muniyappa. He further contended that since Muniyappa was senior most member of the family he was managing the affairs of the family and on his death, occupancy rights were granted to the son of Muniyappa under Ex.P3 the order of the land Tribunal.
5. Defendant Nos.1 to 6 in OS No.137/2006 were the wife and children of Narasimhaiah. According to the plaintiff-Doddanarasimhaiah grant was for the benefit of the family of Muniyappa and Ajjappa, after grant of land there was oral partition between Ajjappa and Narasimhaiah-the grantee. However, consequential revenue entries were not effected. He further contended that after death of Ajjappa, defendant Nos.1 to 6 themselves gave application for change of khata in his favour and accordingly mutation were effected. Thus, he was absolute owner of the suit land.
6. Plaintiff Doddanarasimhaiah further contended that as he was exclusive owner of the property, he sold the same to K.Govinda Reddy plaintiff in OS No.1384/2007. K.Govinda Reddy was arrayed as defendant No.7 in OS No.137/2006. He contended that defendant Nos.1 to 6 are laying false claim over the said property. K.Govinda Reddy also filed suit for declaration and permanent injunction on the same grounds.
7. Defendant No.3 filed written statement and that was adopted by defendant Nos.1, 2, 4 to 6. They denied that Muniyappa and Ajjappa, plaintiff and defendant Nos.1 to 6 constituted joint family and the property was the joint family property. They contended that there was partition between Muniyappa and Ajjappa about 60 years back and Narasimhaiah was absolute owner of the suit property and that was his self acquired property. They contended that revenue entries relied upon by plaintiffs were reversed in their appeals before the Assistant Commissioner and they were false and baseless documents.
8. On the basis of such pleadings, the trial Court framed the following issues in both the suits:
Issues in OS No.137/2006:
1) Whether plaintiff proves that he is absolute owner and in possession of the suit property?
2) Whether plaintiff proves that defendants are interfering in his peaceful possession and enjoyment of the suit property?
3) Whether plaintiff is entitled for the relief sought?
4) What decree or order?
Issues in OS No.1384/2007:
1) Whether the plaintiff proves that he is absolute owner in possession of the property?
2) Whether the defendant No.3 proves that they are owners in possession of the property?
3) Whether the plaintiff is entitled for the relief of declaration and injunction as sought for?
4) What Order or Decree?
9. OS No.1384/2007 was consolidated in OS No.137/2006 and common evidence was recorded. Plaintiff in OS No.137/2006 was examined as PW.1 and got marked Exs.P1 to P13. Venkatesh S/o. late Narasimhaiah was examined as DW.1. By the time the matter came up for evidence, K.Govinda Reddy who was defendant No.7 in OS No.137/2006 and plaintiff in OS No.1384/2007 passed away and his son K.V.S.Nagendra Prasad Reddy was examined as DW.2 and Exs.D1 to D29 were marked.
10. The trial Court after hearing the parties, decreed the suits on the following grounds:
(i) Defendants did not dispute the relationship between plaintiffs and Narasimhaiah husband of defendant No.1 and father of defendant Nos.2 to 6 and in turn their relationship between Muniyappa, Ajjappa and Narasimhaiah-the propositus ;
(ii) Ex.D11 to Ex.D13 showed the name of Muniyappa from 1968-69 to 1979-80 in assessment property;
(iii) Narasimhaiah being the elder son of Muniyappa, the property was granted in his name and revenue records showed his name from 1983-84 onwards by virtue of the said grant order; and (iv) Ex.P4 to Ex.P9 the applications and statements show that defendant Nos.1 to 6 stated before the revenue authorities that there was partition and in that partition plaintiff Doddanarasimhaiah was entitled to ½ share and accordingly his name was mutated in the revenue records.
(v) Defendants have not questioned the sale deed executed by plaintiff Doddanarasimhaiah in favour of K.Govinda Reddy.
11. Defendant Nos.1 to 6 in OS No.137/2006 and defendant Nos.1 to 5 in OS No.1384/2007 challenged the aforesaid judgment and decree before the Principal District Judge, Bangalore Rural District, Bangalore in RA No.137/2014 and RA No.138/2014 as afore stated. The First Appellate Court after hearing the parties allowed the appeals and reversed the judgment and decree of the trial Court on the following grounds:
1) Plaintiff Doddanarasimhaiah and Narasimhaiah i.e., husband of defendant No.1 and father of defendant Nos.2 to 6, were not the direct brothers and they were only cousins;
2) There was no evidence to show that Muniyappa and Ajjappa continued as members of joint family;
3) There is no evidence of partition between plaintiff Doddanarasimhaiah and wife and children of Narasimhaiah;
4) There is variance in the stand of the plaintiff regarding partition. The details of oral partition were not stated in the plaint.
5) The pedigree furnished by the plaintiff is incorrect.
6) A partition can be made in the joint family properties only between the direct brothers and step- brothers of Narasimhaiah but not between Narasimhaiah and the plaintiff i.e. his cousin.
7) The revenue records are not the documents of title. Therefore, Exs.P4 and P5 relied upon by the plaintiffs are not of any help to them.
12. This Court on hearing the parties admitted the appeals to consider the following substantial questions of law:
1. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court ignoring the material documents Exs.P4, 5, 6, 7 and 8 i.e., (Representation by D3, Mahazars and Mutation)?
2. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court interpreting that the only natural brothers can maintain the suit, when the joint family consists of coparcenary from several branches which is permissible under Hindu Law?
3. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court for non- consideration of oral and documentary evidence on record?
13. Sri.C.M.Nagabhushana and Sri.B.Ramesh, learned Counsel appearing for the appellants seek to assail the impugned judgment and decree of the first appellate court on the following grounds:
1) The defendants did not dispute the relationship between themselves and their predecessor Narasimhaiah;
2) The revenue records showed that from 1968- 69 upto 1984-85, the name of Muniyappa, the paternal grandfather of defendant Nos.2 to 6 was shown as the cultivator and the source of title was shown as ancestral property. Only after grant, the name of Narasimhaiah, the predecessor of defendant Nos.1 to 6 was entered;
3) To consider the correctness of the pedigree or the allotment of shares to the other co-sharers or the other properties allotted to the plaintiff, the suit was not for partition. The only question the court was called upon to decide was whether the plaintiff Doddanarasimhaiah had succeeded to the property in a partition between his father and father of defendant Nos.2 to 6 and husband of defendant No.1.
4) It was the case of the plaintiff that, though the partition was effected, the mutation entries were not effected during the life time of his father and thereafter on the application and statements of defendant Nos.1 to 6 themselves, his name was mutated. The first appellate court ignored the admission of DW-1 with regard to Exs.P4 to P7.
5) Once the relationship of the parties is admitted, the presumption is that the parties were members of the joint family. Having admitted the relationship between the plaintiff, Muniyappa, Ajjappa and their father Narasimhaiah, it was for the defendants to prove that there was a partition between Muniyappa and Ajjappa about 60 years back and the suit property was the self-acquired or absolute property of their predecessor Narasimhaiah.
6) Having admitted Exs.P4 to P7, the defendants were estopped from claiming that they had not filed any application or given any statement acknowledging the right of the plaintiff.
14. In support of their contentions, they rely upon the following judgments:
1. Chinthamani Ammal –vs- Nandagopal Gounder & Anr. 2007 AIR SCW 1629;
2. V.Chandrasekaran and Another –vs- Administrative Officer and Others (2012) 12 SCC 133.
15. Per contra, Smt.Sowmya Lakshmi Bhat, learned Counsel for the respondents seeks to justify the impugned judgment and decree on the following grounds:
1) PW-1 himself admitted that propositus Narasimhaiah had another wife other than defendant No.1 Narayanamma and children out of the said marriage. Therefore, the genealogical tree Ex.P1 is incorrect;
2) Having pleaded the partition, burden was on the plaintiff to prove when oral partition took place and to establish that, the plaintiff was bound to demonstrate who were the other parties to the partition and what were the properties allotted to the share of respective parties, which he failed to do.
3) The revenue entries made on the basis of statements Exs.P4 to P7 were reversed by the Deputy Commissioner under the Order Ex.D1. Therefore, those documents lose significance. Anyway Exs.P4 to P7 cannot be treated as documents conveying the title to the plaintiff.
16. Having regard to the rival contentions, this Court has to examine whether the first appellate court was right in ignoring Exs.P4 to P8 and holding that there cannot be a joint family between the cousins and the partition can be only amongst the direct brothers.
17. At the outset plaintiff in O.S.No.1384/2007 claimed title through the plaintiff in O.S.No.137/2006. Therefore if plaintiff in O.S.No.137/2006 succeeds, automatically plaintiff in O.S.No.1384/2007 succeeds. Therefore O.S.No.137/2006 is material for discussion.
18. Narasimhaiah was the propositus and Muniyappa and Ajjappa were his sons. The plaintiff Doddanarasimhaiah was the son of Ajjappa. Muniyappa’s son was one Narasimhaiah. Defendant nos.1 to 6 and the wife and children of said Narasimhaiah. The defendants did not dispute the aforesaid relationship between the parties.
19. Plaintiff Doddanarasimhaiah claimed the declaration of title to the suit property on the ground that, Survey No.69/7 was the ancestral property and in an oral partition between his father and Muniyappa, half share was allotted to his father. Plaintiff had not brought a suit for partition. Though much was sought to be made regarding plaintiff not disclosing about Narasimhaiah, the predecessor of defendant Nos.1 to 6 having another wife and children through the second wife, etc., that will not dilute the plaintiff’s case because his suit is not for partition. Therefore there is no question of non-inclusion of necessary parties or the properties of the joint family.
20. Plaintiff was expected to prove that the Sy.No.69/7 was the ancestral property and on the death of his ancestors, he acquired half share in the suit property as contended by him. Exs.D11 to D17, the RTCs relating to Sy.No.69/7 measuring 2 acres 21 guntas for the period 1968-69 to 2001-02. The name of Muniyappa appeared in column No.9 as the cultivator in those records till the year 1984-85. From 1985-86, the name of Narasimhaiah s/o Muniyappa appeared in those records in column No.9 and 12.2. In column No.10 of Exs.D13 and D14,, the source of title of the holder is shown as ancestral.
21. The defendants did not dispute those documents. Their specific contention was that, the suit property was the self-acquired property of Narasimhaiah and it was his absolute property. They did not produce any material in proof of acquisition of the said property. The only document they relied was the order of the Land Tribunal Ex.D10.
22. It was contended that Narasimhaiah predeceased his father Muniyappa. If that be so, then the name of Muniyappa should have been continued all along in the records till the names of defendants entered to the suit property in the revenue records. The name of Muniyappa does not appear in the revenue records from 1985 onwards. Whereas his son Narasimhaiah continues thereafter. Defendants also did not contend in the written statement that Narasimhaiah predeceased Muniyappa. The admitted revenue records showed that after death of Muniyappa, Narasimhaiah’s name is continued in the records.
23. The parties tried to trace the title to the property through the third and fourth lineal ascendants. The very contention that there was a partition between Muniyappa and Ajjappa about 60 years back presupposes that they were the members of Hindu Joint family. Therefore, the burden was on defendants Nos.1 to 6 to prove that there was a division in the joint family.
24. In Chinthamani Ammal’s case relied upon by the learned Counsel for the appellants, it was held that in law the presumption exists regard to the continuance of a joint family and the party who raises a plea of partition has to prove the same. Para-17 of the said judgment reads as follows:
“In law there exists a presumption in regard to the continuance of a joint family. The party who raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefor.”
25. In the light of aforesaid judgment, when defendants admitted that Muniyappa and Ajjappa were the members of the joint family and set up a partition about 60 years back, burden was on them to prove the same. Amongst the parties, the only senior person was plaintiff Doddanarasimhaiah, who was aged about 70 years as on the date of the suit and he gave the evidence before the court stating that his father and uncle Muniyappa constituted the joint Hindu family and there was a partition between his father and cousin brother Narasimhaiah after the land was granted to Narasimhaiah.
26. As rightly pointed out by the learned Counsel for the appellants, it becomes hard to accept the evidence of DW-1/defendant No.3, who was hardly 45 years old at the time of his deposition, that he was aware of the partition, which allegedly took place 60 years back. The only other person who could speak about such division at the most could have been defendant No.1. She did not choose to enter the witness box.
27. The plaintiff’s contention was that though there was an oral partition between his father Ajjappa and his cousin Narasimhaiah, the mutation entries were not effected and later on the application of defendant Nos.1 to 6 and their statements, as per the proceedings Exs.P4 to P9, his name was mutated to his half share and those documents support his contention of partition. The defendants contended that they were all concocted documents.
28. Ex.P4 is an application said to have been given by defendant Nos.3 and 4 to the Tahsildar to enter the name of the plaintiff Narasimhaiah to 1 acre 10½ in Sy.No.69/7. Ex.P6 is the mahazar said to be drawn on conducting the local enquiry on the application of defendant Nos.2 and 3.
29. Ex.P7 is the statement said to be given by defendant Nos.1 to 6 before the Village Accountant. In Ex.P7, defendants purportedly gave a statement that on the death of their grandfather Narasimhaiah and his children Muniyappa and Ajjappa, the name of plaintiff Doddanarasimhaiah shall be mutated to 1 acre 10½ guntas and they have no objection for that.
30. DW-1 in his cross-examination unequivocally admitted that those documents were submitted by the defendants and they are signatories to Ex.P7 and the application Ex.P4 is submitted by him. Though the defendants contended that they are the concocted documents, except DW-1, the other defendants did not enter the witness box to deny their signatures or contents of Exs.P4 and P7.
31. Section 58 of the Evidence Act states that the admitted facts need not be proved. Having regard to admission of DW-1 regarding Exs.P4 and P7, in turn they amount to the admissions of the parties as per Section 18 of the Evidence Act.
32. As rightly pointed out by the appellants, the first appellate court did not consider Ex.P7 at all. Only referring to Exs.P4 and P5, the first appellate court says that revenue records are not the records of title. By virtue of Exs.P4 and P7, the name of the plaintiff was entered in the record of rights.
33. The revenue entries were reversed by the Assistant Commissioner and the Deputy Commissioner on the ground that the matter requires adjudication by the civil Court. That does not erase the admissions of the parties under Exs.P4 and P7. Those documents unequivocally showed that defendants-1 to 6 admitted the right of the plaintiff to 1 acre 10½ guntas of land in Sy.No.69/7.
34. The trial court considering all these aspects on sound reasoning had decreed the suit. The first appellate court reversed the reasoned judgment only on the ground that the revenue records are not records of title. First Appellate Court failed to note that defendant Nos.1 to 6 acknowledged the right of the plaintiff over the property in those documents. By such revenue entries, plaintiff did not gain any new right. Whatever right he had in those properties as an ancestral property was only acknowledged and bifurcated.
35. The other reasoning for the first appellate court in dismissing the suit was that there cannot be any partition between the cousin brothers and the partition should always be between the direct brothers. The very fact of defendants themselves claiming that there was a division 60 years back between Muniyappa and Ajjappa showed that there was a joint family of Muniyappa and Ajjappa.
36. Having regard to the judgment in Chinthamani Ammal’s case, the family of Muniyappa and Ajjappa and other heirs presumed to be continued jointly, the partition set up by the plaintiff 60 years back was not proved. Therefore, there can be partition between the heirs of Ajjappa and Muniyappa.
37. Articles 210, 211 and 212 of Mulla Hindu Law, 21st Edition by Sir Dinshaw Fardunji Mulla state about constitution of Joint Hindu Family as follows:
Article 210: Joint Hindu Family.
(1) A joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. ..................................
(2) .....................................
(3) ...... it may similarly consist of a male Hindu and the widow of his deceased brother. ..............
Article 211- Hindu coparcenary:
A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent.
...................
Article 212-Formation of coparcenary:
(1) The conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within four degrees counting from, and inclusive of, such ancestor (or three degrees exclusive of the ancestor). No coparcenary can commence without a common male ancestor, though after his death, it may consist of collaterals, such as brothers, uncles, nephews, cousins etc.
(emphasis supplied) 38. Therefore, the reasoning of the first appellate court that the partition can only be between the direct brothers and there cannot be any partition between the cousin brothers is wholly unsustainable.
39. For the aforesaid reasons, the impugned judgment and decrees of the first appellate court are unsustainable. The substantial questions of law Nos.1 to 3 are answered in favour of the appellants. The appeals are allowed.
The impugned common judgments and decree dated 25.03.2015 passed by the Principal District Judge, Bengaluru Rural District, Bengaluru in R.A.No.137/2014 and R.A.No.138/2014 are hereby set aside.
The judgments and decrees of the trial court in O.S. No.137/2006 and O.S.No.1384/2007 are hereby confirmed.
In view of disposal of the appeals, I.A.No.1/2017 filed in both cases do not survive and disposed of accordingly.
Sd/- JUDGE KSR/KNM/