IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 22ND DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR SECOND APPEAL No.452 OF 2007 C/W REGULAR SECOND APPEAL No.453 OF 2007 In RSA No.452/2007 BETWEEN 1. Sri. Chandrashekaraiah, Dead by his LRs, 1(a) Smt. Rajamma, Aged 70 years, W/o. Late Chandrashekaraiah, 1(b) Smt. Gayathramma, Aged 55 years, W/o. Sri. Nagaraj C.V., R/at No.58, Near Mariamma Temple, Chikkanahalli, Tavarekere Hobli, Bengaluru-562130.
1(c) Smt. Pushpavathi, Aged 52 years, W/o. Gopalappa C., Kammavaripet, Near Maramma Temple, Hosakote-562114 Bengaluru Rural District.
1(d) Sri. K.C.Raghu, Since dead by his LRs.
(d1) Smt. Manjula R W/o. K.C.Raghu, Aged about 43 years, (d2) Govindaraj, S/o. Late K.C.Raghu, Aged about 22 years, (d3) Vandana, D/o. Late K.C.Raghu, Aged about 19 years, D1 to D3 are residing at No.45/1, Kammasandra Village, Electronic City Post, Bengaluru-560100.
(Appellants 1(d1) to (d3) amended vide Court Order dated 30.5.2017) 1(e) Sri. K.C.Narayana Swamy, Aged 48 years, S/o. Late Chandrashekaraiah 1(f) Sri. K.C.Jagadhisha, Aged 46 years, S/o. Late Chandrashekaraiah, 1(g) Sri. K.C.Ramakrishna, Aged 43 years, S/o. Late Chandrashekaraiah, Sl No.1(a), (d) to (g) are R/at No.45/1, Kammasandra Village, Electronic City Post, Bengaluru-560100.
(Appellants 1(a) to 1(d) amended vide Court Order dated 16.12.2016) (By Sri. S.K.V.Chalapathy, Sr. Counsel for Sri. V.Ramesh Babu, Advocate) AND 1 Smt. Sarojamma, Aged about 55 years, W/o. Late Munirathnam, 2. Smt. B.M.Kavitha Aged about 34 years, D/o. Late Munirathnam, 3. Sri. B.M.Harish, Aged about 29 years, S/o. Late Munirathnam, Nos.1 to 3 residing at No.258, KHB Colony Koramangala, Bengaluru 4. Smt. Gowramma, Since dead by her LRs.
4(a) Doreswamy Naidu, Since dead, represented by his LRs., who are respondents 4(c) to 4(f), vide order dated 22.8.2019 4(b) Chengamma Wife of late Bhaktavatsala Since dead by her LRs.
4(b)(i) Sri. Manju Bhargava …Appellants S/o. Late D.Bhaktavatsala and Smt. Late Chengamma, Aged about 30 years, R/at Door No.8/244 M.Manjula Badavane 2nd Main, 2nd Cross, Behind Court, Anekal Town, Bengaluru Rural District-562106.
(4b(i) amended vide court order dated 2.7.2019) 4(c) Chandrashekar S/o. Doreswamy Naidu Aged about 50 years, Son of deceased respondent No.4 4(d) Sheshadri, S/o. Doreswamy Naidu, Aged about 48 years, 4(e) Subramani, S/o. Doreswamy Naidu, Aged about 45 years, 4(f) D.Radha, D/o. Doreswamy Naidu, Aged about 40 years 4(a) to 4(f) are R/at Sy.No.90/2, Kammasandra Village, Electronic City Post, Bengaluru-560100.
(R4a to (f) amended vide court order dated 14.7.2008) 5. Smt. Jayamma, Aged about 58 years, W/o. Lakshminarayanappa, No.104, Vapasandra, Chikkaballapur Taluk, Kolar District.
6. Sri. N.Venkataramanappa, Aged about 65 years, 7. Sri. Narayanappa N., Aged about 60 years, Sl.No.6 & 7 S/o. Late Yengamma, R/at Kallankuppa Village, Doddamaralavadi Hobli, Kanakapura Taluk, 8. Sri. N.Srinivas, Dead by his LRs.
(a) Smt. Gowramma, W/o. Late N.Srinivas, Aged 68 years (b) Sri. Mohan Kumar S/o. Late N.Srinivas Aged 48 years, (c) Sri. Gopala Krishna S/o. Late N.Srinivas, Aged 46 years, (d) Smt. Shobha D/o. Late N.Srinivas Aged 45 years, R8(a) to (d) R/at No.9, 16th Main, KSRTC layout J.P.Nagar, Bengaluru-78.
(R8a to d amended vide court order dated 20.4.2018) 9. Smt. Lakshmamma, Aged about 65 years, W/o. Late Hadaiah, R/a. 1015, 27th ‘A’ Main, 9th Block, Jayanagar, Bengaluru.
10. Smt. Shanthamma, Aged about 55 years, W/o. S.Y.Venkataramappa, No.23, Old Gurappana Palya, Near Srinivas Stores, Bannerghatta Road, Bengaluru.
11. Smt. Susheelamma, Aged about 50 years, W/o. Sri. Ramaiah, No.24, New Gurappana Palya, Near Srinivas Stores, Bannerghatta Road, Bengaluru 12. Smt. Kamalamma, Aged about 80 years, W/o. Chengalarayappa, Servamanya Kittiganahalli, Attibele Hobli, Anekal Taluk.
13. Smt. Sharadamma, W/o. D.C.Krishnappa, D/o. Late Changalarayappa And Kamalamma, Aged about 75 years, R/at No.340, 17 C Main, 6th Block, Koramangala Bengaluru-560095.
14. Smt. Papamma, W/o. Narayanappa, D/o. Late Changalrayappa and Kamalamma, Aged about 73 years, R/at Thattaganapalli Village, Muthali Post, Hosur Taluk, Krishnagiri District. T.N.
(R13 and R14 brought on record on 18.3.2019 as L.Rs of R12).
…Respondents (By Sri. G.Devaraj, Advocate for R1 & R2, Sri. A.G.Nagaraj, Advocate for R3, LRs of R4 & R13 & R14, Sri. B.K.Chandrashekar, Advocate for R5, Sri. M.S.Varadarajan, Advocate for R6 to R11) This RSA is filed under Section 100 of CPC against the judgment and decree dated 18.11.2006 passed in R.A.No.303/2002 on the file of the District & Sessions Judge & Presiding Officer, Fast Track Court No. V, Bengaluru Rural District, Bengaluru, allowing the appeal and setting aside the judgment and decree dated 31.05.2002 passed in O.S.No.134/1989 on the file of the Principal Civil Judge (Jr.Dn.) & JMFC, Anekal.
In RSA No.453/2007 BETWEEN 1. Sri. Chandrashekaraiah, Dead by his LRs, 1(a) Smt. Rajamma, Aged 70 years, W/o. Late Chandrashekaraiah, 1(b) Smt. Gayathramma, Aged 55 years, W/o. Sri. Nagaraju C.V., R/at No.58, Near Mariamma Temple, Chikkanahalli, Tavarekere Hobli, Bengaluru-562130.
1(c) Smt. Pushpavathi, Aged 52 years, W/o. Gopalappa C., Kammavaripet, Near Maramma Temple, Hosakote-562114 Bengaluru Rural District.
1(d) Sri. K.C.Raghu, Since dead by his LRs.
(d1) Smt. Manjula R W/o. K.C.Raghu, Aged about 43 years, (d2) Govindaraj, S/o. Late K.C.Raghu, Aged about 22 years, (d3) Vandana, D/o. Late K.C.Raghu, Aged about 19 years, D1 to D3 are residing at No.45/1, Kammasandra Village, Electronic City Post, Bengaluru-560100.
(Appellants 1(d1) to (d3) amended vide Court Order dated 30.5.2017) 1(e) Sri. K.C.Narayana Swamy, Aged 48 years, S/o. Late Chandrashekaraiah 1(f) Sri. K.C.Jagadhisha, Aged 46 years, S/o. Late Chandrashekaraiah, 1(g) Sri. K.C.Ramakrishna, Aged 43 years, S/o. Late Chandrashekaraiah, Sl No.1(a), (d) to (g) are R/at No.45/1, Kammasandra Village, Electronic City Post, Bengaluru-560100.
(Appellants 1(a) to 1(d) amended vide Court Order dated 16.12.2016) …Appellants (By Sri. S.K.V.Chalapathy, Sr. Counsel for Sri. V.Ramesh Babu, Advocate) AND 1 Smt. Sarojamma, Aged about 55 years, W/o. Late Munirathnam, 2. Smt. B.M.Kavitha Aged about 34 years, D/o. Late Munirathnam, 3. Sri. B.M.Harish, Aged about 29 years, S/o. Late Munirathnam, Nos.1 to 3 residing at No.258, KHB Colony Koramangala, Bengaluru 4. Smt. Gowramma, Since dead by her LRs.
4(a) Doreswamy Naidu, Since dead, represented by his LRs., who are respondents 4(c) to 4(f), vide order dated 22.8.2019 4(b) Changamma Wife of late Bhaktavatsala Since dead by her LRs.
4(b)(i) Sri. Manju Bhargava S/o. Late D.Bhaktavatsala and Smt. Late Chengamma, Aged about 30 years, R/at Door No.8/244 M.Manjula Badavane 2nd Main, 2nd Cross, Behind Court, Anekal Town, Bengaluru Rural District-562106.
(4b(i) amended vide court order dated 2.7.2019) 4(c) Chandrashekar S/o. Doreswamy Naidu Aged about 50 years, Son of deceased respondent No.4 4(d) Sheshadri, S/o. Doreswamy Naidu, Aged about 48 years, 4(e) Subramani, S/o. Doreswamy Naidu, Aged about 45 years, 4(f) D.Radha, D/o. Doreswamy Naidu, Aged about 40 years 4(a) to 4(f) are R/at Sy.No.90/2, Kammasandra Village, Electronic City Post, Bengaluru-560100.
(R4a to (f) amended vide court order dated 14.7.2008) 5. Smt. Jayamma, Aged about 58 years, W/o. Lakshminarayanappa, No.104, Vapasandra, Chikkaballapur Taluk, Kolar District.
6. Sri. N.Venkataramanappa, Aged about 65 years, 7. Sri. Narayanappa N., Aged about 60 years, Sl.No.6 & 7 S/o. Late Yengamma, R/at Kallankuppa Village, Doddamaralavadi Hobli, Kanakapura Taluk, 8. Sri. N.Srinivas, Dead by his LRs.
(a) Smt. Gowramma, W/o. Late N.Srinivas, Aged 68 years (b) Sri. Mohan Kumar S/o. Late N.Srinivas Aged 48 years, (c) Sri. Gopala Krishna S/o. Late N.Srinivas, Aged 46 years, (d) Smt. Shobha D/o. Late N.Srinivas Aged 45 years, R8(a) to (d) R/at No.9, 16th Main, KSRTC layout J.P.Nagar, Bengaluru-78.
(R8a to d amended vide court order dated 20.4.2018) 9. Smt. Lakshmamma, Aged about 65 years, W/o. Late Hadaiah, R/a. 1015, 27th ‘A’ Main, 9th Block, Jayanagar, Bengaluru.
10. Smt. Shanthamma, Aged about 55 years, W/o. S.Y.Venkataramappa, No.23, Old Gurappana Palya, Near Srinivas Stores, Bannerghatta Road, Bengaluru.
11. Smt. Susheelamma, Aged about 50 years, W/o. Sri. Ramaiah, No.24, New Gurappana Palya, Near Srinivas Stores, Bannerghatta Road, Bengaluru 12. Smt. Kamalamma, Aged about 80 years, W/o. Chengalarayappa, Servamanya Kittiganahalli, Attibele Hobli, Anekal Taluk.
13. Smt. Sharadamma, W/o. D.C.Krishnappa, D/o. Late Changalarayappa, And Kamalamma, Aged about 75 years, R/at No.340, 17 C Main, 6th Block, Koramangala Bengaluru-560095.
14. Smt. Papamma, W/o. Narayanappa, D/o. Late Changalrayappa and Kamalamma, Aged about 73 years, R/at Thattaganapalli Village, Muthali Post, Hosur Taluk, Krishnagiri District. T.N.
(R13 and R14 brought on record on 18.3.2019 as L.Rs of R12).
…Respondents (By Sri. G.Devaraj, Advocate for R1 & R2, Sri. A.G.Nagaraj, Advocate for R3, LRs of R4 & R13 & R14, Sri. B.K.Chandrashekar, Advocate for R5, Sri. M.S.Varadarajan, Advocate for R6 to R11) This RSA is filed under Section 100 of CPC, against the judgment and decree dated 18.11.2006 passed in R.A.No.166/2002 on the file of the District & Sessions Judge & Presiding Officer, Fast Track Court No. V, Bengaluru Rural District, Bengaluru, dismissing the appeal and confirming the judgment and decree dated 31.05.2002 passed in O.S.No.134/1989 on the file of the Principal Civil Judge (Jr.Dn.) & JMFC, Anekal.
These appeals having been heard and reserved on 18.9.2019, coming on for pronouncement this day, the Court pronounced the following:
J U D G M E N T These two second appeals arise from common judgment of the Fast Track Court No.V, Bangalore District in two first appeals, R.A.No.166/2002 and R.A.No.303/2002 that were filed challenging the judgment of the Principal Civil Judge (Jr.Dn.), Anekal in O.S.No.134/1989, a suit for partition.
2. The relationship between the parties to the suit is as shown in the pedigree given below;
Chengaiah (wife - Lakshmamma) Mangamma (Def.no.3) Yengamma Sakamma Ramakka Kamalamma Gowramma (Husband- (Deft.no.5) (Deft.no.4) (Husband (Deft.no.6) (Pltf.no.2) Govindappa) ( Husband -Chengaiah) (Deft.no.1) -Govindappa) i.e., D.1) Son
3. Defendant no.1 Govindappa is the brother of Lakshmamma and he married her (Lakshmamma’s) daughter Mangamma (defendant no.3). Since Mangamma did not conceive, he married Sakamma (defendant no.4), another daughter of Lakshmamma; but after his second marriage, the first wife, Mangamma gave birth to a son and a daughter namely Chandrasekaraiah (defendant no.2) and Jayamma, who was impleaded in the suit after the death of her father Govindappa.
4. The plaintiffs sued the defendants seeking partition in ten items of landed properties described in the plaint schedule (hereinafter referred to as ‘schedule properties’) and claimed 1/6th share each in them. The plaintiffs stated that all the schedule properties originally belonged to Lakshmamma. As she had no male issues, she was residing with defendant no.1 who was her brother as also son-in-law. The khata of the schedule properties stood in the name of Lakshmamma. Defendant no.1 took undue advantage of Lakshmamma’s helplessness, persuaded her to say no objection for transfer of khata and got the revenue records mutated to his name. The plaintiffs pleaded further that defendant no.1 did not become absolute owner of schedule properties by mere change of khata to his name; and since the properties belonged to Lakshmamma, they had equal share in them.
5. Defendants 1 to 4 filed common written statement admitting the relationship but denying the plaintiffs’ right to seek partition. They pleaded that some of the schedule properties were self acquisition of defendant no.1 and some were acquired by defendant no.2. With respect to item no.9 of the schedule properties, they contended that it was an inam land in S.M.Kittaganahalli, a Sarva Manya village and defendant no.1 was cultivating the same as a kadim tenant. Consequent upon introduction of Mysore (Religious and Charitable) Inams Abolition Act, 1955 (referred to as Act for short), the said land vested in the State free of all encumbrances and thereafter the Special Deputy Commissioner for Inam Abolition, granted the occupancy right to defendant no.1 reorganizing his cultivation of that land as a kadim tenant. Therefore, he became absolute owner of that land and that the plaintiffs had no right to claim partition.
6. The plaintiffs filed rejoinder to the written statement of defendants 1 to 4 stating that defendant no.1 lost his parents when he was a boy of five years. His elder sister Lakshmamma brought him up in her house. Defendant no.1 was actually looking after the properties that belonged to Lakshmamma’s husband, Chengaiah. He had no independent source of income; and source for acquisition or purchase of any property subsequently by him was the income derived from the property of Chengaiah and Lakshmamma. Defendant no.1 held all the schedule properties for and on behalf of the joint family and not in his individual capacity.
7. Defendant no.2 filed his additional written statement in the capacity of legal representative of deceased defendant no.1 putting forth a plea that his father had executed a will dated 28.02.1990 bequeathing all the schedule properties to him and therefore he became absolute owner of all the properties.
8. Jayamma, daughter of defendant no.1 who was impleaded in the suit as another legal representative, filed her written statement stating that although khata of schedule properties stood in the name of her father, all the daughters of Lakshmamma had equal share in the properties. She also disputed the will said to have been executed by her father in favour of her brother i.e., defendant no.2 and claimed equal share in the share of her deceased father.
9. During pendency of the suit, plaintiff no.1 died, and his legal representatives were impleaded.
10. The judgment of the trial court discloses that at the stage of arguments, a submission was made that the plaintiffs would confine their claim for partition in respect of 9th item of the schedule properties only.
11. Upon appreciation of evidence, the trial court held that in item no.9 of the schedule properties, plaintiff nos.1(a) to (c) were each entitled to 1/18th share, that plaintiff No.2 and defendants 3, 4 and 6 were each entitled to 1/6th share and that defendants 5(a) to 5(f) were all entitled to 1/36th share. The trial court also held that item nos.3 and 6 of the schedule properties were absolute properties of defendant no.2, but in regard to item nos.1, 2, 4, 7, 8 and 10, it held that defendant no.2 and defendant no.1(d) were entitled to 1/3rd share each, and that defendant nos.3 and 4 were together entitled to 1/3rd share. The suit in respect of item no.5 was dismissed.
12. To decree the suit as aforesaid, the trial court recorded the reasons that item nos.1, 2, 4, 5, 7, 8 and 10 were self acquisitions of defendant no.1 and therefore his legal representatives alone were entitled to shares in those items. But applying section 10 of the Hindu Succession Act, the trial court further held that the widows of defendant no.1 i.e., defendant nos.3 and 4 would together take 1/3rd share and defendant no.2 and defendant no.1(d) being the children of defendant no.1 would each get 1/3rd share according to section 8 of the Hindu Succession Act. Although, 5th item of the schedule properties was held to be the self acquisition of defendant no.1, the trial court dismissed the suit in respect of this property giving the reason that a part of this property had been sold to one Sri Thimothi Furtado on 24.03.1980 by defendant no.1, yet partition of the entire land was claimed; at least the boundaries and the extent of the remaining land should have been correctly given by effecting amendment to the plaint. The trial court also held that defendant no.2 failed to prove the will dated 28.02.1990 and this was another reason for holding that defendant no.1(d) would get equal share in the properties acquired by her father.
13. In regard to item No.9 of the schedule properties, the trial court arrived at an opinion that it was purchased by Chengaiah, the husband of Lakshmamma as evidenced by Ex.P-1, the sale deed. Mere change of khata in the name of defendant no.1 did not convey to him absolute right of ownership. There was no evidence to show that defendant no.1 was cultivating the land as a tenant under Lakshmamma, and therefore after the death of Chengaiah, his children alone should succeed to his property, defendant no.2 and defendant no.1(d) would not get any share as their mother was one of the class-I heirs of Chengaiah.
14. Aggrieved by the judgment and decree of the trial court, defendant no.2 and defendant no.1(d) preferred two separate appeals, R.A.No.166/2002 and R.A.No.303/2002, respectively. Defendant no.2 challenged that part of judgment of the trial court granting decree of partition in respect of item nos.1, 2, 4, 7, 8, 9 and 10 and defendant no.1(d) challenged that part of the decree denying share to her in item nos.3, 5 and 6 of the schedule properties.
15. During the pendency of the first appeal, defendants 3 and 4 died. Reappreciating the evidence, the first appellate court almost confirmed the findings of the trial court but with regard to item nos.3 and 6 of the schedule properties, it held that they were not self acquisitions of defendant no.2; he purchased these items in his name from the income of joint family and hence they constituted joint family properties. So far as item no.5 is concerned, it is held by the first appellate court that it was also self acquisition of defendant no.1. Since a part of it had been sold, the remaining land to an extent of 3.17 acres on the northern side was available for partition. The first appellate court also found that defendant no.2 was not able to prove the will said to have been executed by his father. Taking note of death of defendant no.1, the first appellate court modified the decree of the trial court holding that defendant no.2 - Sri Chandrasekaraiah and defendant no.1(d) Smt.Jayamma were entitled to ½ share each in item nos.1, 2, 4, 5, 7, 8 and 10 and in item nos.3 and 6, defendant no.2 would take 3/4th share and defendant no.1(d), 1/4th share according to section 6 of the Hindu Succession Act. In regard to item no.9, the allotment of share made by the trial court was confirmed. R.A.No.166/2002 stood dismissed and R.A.No.303/2002 was allowed. Hence, the defendant no.2 has filed these two second appeals. In R.S.A.No.452/2007, he has questioned the grant of R.A.No.303/2002 and in R.S.A.No.453/2007, he has challenged the dismissal of R.A.No.166/2002.
16. At the time of admission of these two appeals the following two substantial questions were framed;-
1. Whether the lower appellate court was justified in holding that except suit item 3 and 4, the remaining properties were self- acquisitions of the father when it records a finding it is from the nucleus of joint family funds the suit properties 3 and 6 are purchased and granted equal share to the daughters in the joint family properties?
2. Whether the courts below were justified in denying any share to Govindappa when grant is in his favour?
17. While arguing, Sri S.K.V.Chalapathy, the learned counsel for the appellant proposed an amendment to the second question and suggested three more substantial questions. According to him, the second question is to be modified as under;
“Whether the daughters of late Lakshmamma claiming title to 9th item of the suit schedule property as heirs of Lakshmamma can do so when admittedly 9th item of the suit schedule property vested in Government under Mysore Religious and Charitable Inams Abolition Act and subsequently the first defendant Govindappa was registered as occupant by virtue of his being a Kadim Tenant?”
18. Three other substantial questions of law suggested by him are;
i) Whether an inter-se dispute between the co-defendants can be adjudicated when such adjudication is not required to grant or refuse relief to the plaintiffs, and whether any decision rendered by the courts would operate as res judicata in between the co-defendants?
ii) Whether Defendant 1(d) who has come on record as legal representative of her father deceased first defendant Govidnappa can make an independent claim and seek partition of the suit schedule properties thereby travelling beyond the defence taken by the first defendant?
iii) Whether plaintiff’s suit was barred by limitation?
19. Proviso to sub-section 5 of section 100 of Civil Procedure Code (the Code, for short) empowers the Court to raise any other substantial question of law, but its’ only requirement is to record reasons if a new question is raised. At this juncture, I would only state that the questions proposed by learned counsel for the appellants are the real substantial questions of law to be answered. The discussion on those questions discloses how relevant and substantial they are, and therefore I adopt those substantial questions. The learned counsel for the respondents did not object to these questions being raised, rather they too argued on those questions elaborately. Another aspect to be mentioned here is that the first substantial question of law formulated at the time of admission appears to be based on facts, rather the actual point involved in it is also involved in the new substantial questions of law (1) and (2) and therefore it may not be necessary to answer the first substantial question of law.
20. Before taking up the questions for discussion, it is better to record undisputed facts. The plaintiffs though initially sought partition in ten items of the properties, they confined their claim to item no.9 of the schedule properties only. Relationship between the plaintiffs and the defendants is not disputed. The khata of item no.9 earlier stood in the name of Lakshmamma and it was mutated in the name of defendant no.1- Govindappa. There was regrant of occupancy right of item no.9 in favour of defendant no.1, this is not disputed; but whether it was a grant absolutely to defendant no.1 or not is contentious.
21. Learned counsel for all the respondents highlighted one point that in a second appeal, there cannot be interference with consistent findings of the trial court and the first appellate court, and learned counsel for respondent Nos.1 and 2 relied upon the decisions of the Hon’ble Supreme Court in the case of Ramanuja Naidu Vs. V. Kanniah Naidu and Another (AIR 1996 SC 3021), Jangbir Vs. Mahavir Prasad Gupta (AIR 1977 SC 27), Mst. Kharbuja Kuer Vs.
Jangbahadur Rai and Others (AIR 1963 SC 1203) and Deity Pattabhiramaswamy Vs. S. Hanymayya and Others (AIR 1959 SC 57).
22. As regards the above argument, it is to be stated that generally in a second appeal there shall not be interference with findings on facts, but there is no absolute restriction or precludement. If it is found that there is perversity in appreciation of facts and evidence, and that an issue has not been determined by the courts inspite of sufficient evidence being available on record, or an issue has been wrongly determined by the courts, the High Court may determine such issue. Section 103 of the Code is very clear on this aspect.
23. The first appellate court has almost concurred with the findings of the trial court, but only with regard to item nos.3 and 6 of the plaint schedule, it has taken a different view to hold that they are not absolute properties of defendant no.2 as the source for acquiring them was of joint family income. I do not find error in such a conclusion being drawn by the first appellate court. The findings of both the courts below as regards the will said to have been executed by the defendant no.1 in favour of defendant no.2 do not call for interference.
24. In fact, learned counsel for appellants, Sri S.K.V Chalapathy concentrated whole of his argument on the right of defendant no.1(d) to seek for partition being a legal representative of deceased defendant no.1, which aspect is purely legal, hence I now proceed to discuss the following substantial question of law:
Whether the courts below were justified in denying any share to Govindappa when grant is in his favour? (Second question framed at the time of admission) 25. On this question, the argument of Sri S.K.V. Chalapathy was that defendant no.1 was a kadim tenant and consequent upon coming into force of the Act, the Special Deputy Commissioner, the officer empowered to regrant the land to the tenants, recognized defendant no.1 as kadim tenant and passed an order granting occupancy right to him as evidenced by Ex.D.9 and Ex.D.11. He argued that on coming into force of the Act, all the inam lands vested in the State free of encumbrance and any regrant made thereafter according to section 4 of the Act in favour of a tenant conferred on him absolute ownership, and thus defendant no.1 became the absolute owner of item no.9 property. He stressed the point that defendant no.1 was not a member of joint family of Chengaiah and Lakshmamma. Though defendant no.1 was the brother and son-in-law of Lakshmamma, he could not be treated or considered as a member of joint family and therefore the regrant of occupancy rights to Govindappa did not enure to the benefit of joint family entitling the plaintiffs to claim partition. The order passed by the Special Deputy Commissioner under section 10 of the Act was final and it cannot be questioned or reopened in a Civil Court, and on this point, Sri. S.K.V Chalapathy placed reliance on the judgments of this court in the case of Anjanappa and others Vs. Byrappa (Since Deceased) by LRs (ILR 1995 KAR 2495); B.R.
Vasudeva Murthy and etc. etc. Vs. Hon’ble Minister for Revenue, Govt. of Karnataka and others etc. [2007 (3) AIR Kar R71 (DB)].
26. Sri M.S.Varadarajan, learned counsel for respondent 6 to 11 countered the argument of Sri S.K.V.Chalapathy by arguing that item no.9 was actually purchased by Lakshammma’s husband, Chengaiah on 29.12.1926 as evidenced by the sale deed, Ex.P.1. Therefore, it was Chengaiah’s property and rightly the courts below have held that the children of Chengaiah do get a share in that property. This land did not vest in the State. Vesting of land is according to section 3 of the Act. Section 1(4) of the Act states that except sections 2, 34 and 36, all other sections will come into operation only after notification is issued. On 04.04.1970, notification was issued stating that all other sections would come into operation on 01.07.1970. Therefore on 30.06.1960, item no.9 had not vested in the State, and the Special Deputy Commissioner had no authority to pass an order confirming occupancy rights. Even if there were to be any such order, the same was invalid in law and it was a nullity. In this regard he referred to a judgment of the Hon’ble Supreme Court in the case of Kiran Singh and others Vs. Chaman Paswan and others (AIR 1954 SC 340). He further argued that item no.9 property was not endowed by Chengaiah on a deity to treat or hold it as a religious inam land for application of the provisions of the Act. Ex.D.9 is an endorsement, but defendant no.1 has not produced the order of regrant. Therefore, defendant no.1 could not have claimed this property as belonging to him absolutely.
27. Sri S.K.V. Chalapathy replied that Ex.D.9 very clearly shows regrant of land in favour of defendant no.1. The order of Special Deputy Commissioner was not challenged at all. It was passed almost 60 years ago. Since the Special Deputy Commissioner issued an endorsement as per Ex.D.9, a presumption under section 114 (e) of the Indian Evidence Act could be drawn about following all official acts before issuing Ex.D.9. He also referred to section 133 of the Karnataka Land Revenue Act to garner support for his argument that in view of revenue entries being accepted in the name of defendant no.1 on the basis of regrant, presumption can be drawn that the said land had been regranted to him.
28. Now on this point, it is to be stated that the courts below have actually not discussed this legal aspect. The trial court has held that there is no evidence to the effect that the defendant No.1 was a tenant under Lakshmamma. The first appellate court has held that defendant No.1 held the land only on behalf of the family of Lakshmamma and that there is no cogent and convincing evidence to believe that he was a tenant in respect of land in survey number 68 (9th item) under the jodidars. The courts below have proceeded on the premise that the land was purchased by Chengaiah, and after his death his children take equal share. It is not as though defendant no.1 has not taken a plea about regrant in the written statement; but the courts below have given prominence to purchase of land by Chengaiah. As argued by Sri. M.S. Varadarajan, there is no evidence as to when this land was endowed to a deity. But, Exs.D.9 and D.11 show regrant of this land in favour of defendant no.1 treating him as a kadim tenant. It is also true that none questioned the regrant in favour of the defendant no.1; and in fact there was no need to question that order.
29. In the case of Kiran Singh (AIR 1954 SC 340), the Hon’ble Supreme Court has held that a decree passed by a court without jurisdiction is a nullity. This judgment has been relied upon by Sri M.S.Varadarajan as according to him, there was no vesting of land in the State as on the date Ex.D.9 bears and therefore the Special Deputy Commissioner under the Act had no authority to pass an order of regrant. On this point, I concur with argument of Sri. S.K.V. Chalapathy that the notification dated 4.4.1970 applied to minor inams only. Item no.9 property appears to be a Sarva Manya inam land, not a minor inam. Therefore there was absolute vesting in the State, and as evidenced by Ex.D.9, there was regrant in favour of defendant no.1. The order of Special Deputy Commissioner became final, as has been held by this court in the cases of Anjanappa and B.R. Vasudeva Murthy (Supra), the judgments cited by Sri. S.K.V.Chalapathy. Though to this extent, I find merit in his argument, in my opinion, this question requires to be examined from another angle. Sri. S.K.V.Chalapathy argued that defendant no.1 was not a member of joint family of Chengaiah and Lakshmamma. He was Lakshmamma’s younger brother and also son- in-law; he was a stranger in the sense that he could not be considered as a member of joint family. Therefore, the point to be examined is whether defendant no.1 could be treated as member of joint family?
30. The plaintiffs state that the suit properties belonged to Lakshmamma. They gave up their claim on item nos.1 to 8 and 10. It is not in dispute that khata of item no.9 property earlier stood in the name of Lakshmamma. In this context it is necessary to observe that though the courts have consistently held that khata or revenue entry does not confer any right, title and interest to a khatedar and it only indicates as to in whose name the revenue is to be assessed, the ground reality, especially in the rural areas should not be totally ignored. There is a general impression that khatedar is the real owner, and it is for this reason that people get agitated if revenue entries are changed without any basis. Probably for the reason that Lakshmamma was the earlier khatedar, the plaintiffs might have pleaded that the properties belonged to her. Insofar as item no.9 is concerned, Ex.P1 shows that Lakshmamma’s husband purchased this property. This is not pleaded, but it is an accepted principle as has been observed by a Division Bench of this court in the case of Smt.Nanjamma Vs. Smt. Akkayamma and others (2008) 4 Kant. LJ 177 (DB), that moffusil pleadings need to be construed liberally; and for this reason, if nothing is stated in the plaint about purchase of item no.9 of schedule property by Chengaiah, it cannot be attached much significance. The fact remains that khata of the said property earlier stood in the name of Lakshmamma and that it was mutated to the name of defendant no.1, just on the basis of no objection statement given by Lakshmamma. There was no transfer of property in his favour. Before transferring khata, defendant no.1 made a statement before the Tahasildar, as per Ex.P2 that khatedar Lakshmamma and he were cultivating the land being members of joint family. From this statement it can be inferred that he was treated as a member of joint family.
31. A joint Hindu family is a broader body when compared to coparcenery. It consists of all persons lineally descended from a common ancestor and includes their wives and daughters. Though this is the normal requirement to constitute a Hindu joint family, in certain circumstances, a third party can also be treated as a member of joint family. In this context, I find it useful to refer to a judgment of the Hon’ble Supreme Court in the case of Kale and others vs. Deputy Director of Consolidation and others (AIR 1976 Supreme Court 807). The Supreme Court, while discussing the aspect of family settlements, held that whenever a family settlement takes place, the word ‘family’ cannot be construed in a very narrow sense. In para 27 of the judgment it is very clearly held as below ;-
“27. From the principles enunciated by us and the case law discussed above, it is absolutely clear that the word ‘family’ cannot be construed in a narrow sense so as to confine the parties to the family arrangement only to persons who have a legal title to the property.”
32. In the very same judgment, reference is made to earlier judgment of the Supreme Court in the case of Krishna Beharilal v. Gulabchand (AIR 1971 SC 1041), as below ;-
“17. In Krishna Biharilal v. Gulabchand, (1971) Supp. SCR 27, 34 = (AIR 1971 SC 1041) it was pointed out that the word ‘family’ had a very wide connotation and could not be confined only to a group of persons who were recognised by law as having a right of succession or claiming to have a share. The Court then observed:
“To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all belong to one family. “As observed by this Court in Ram Charan Das v. Girjanandini Devi, (1965) 3 SCR 841 at pp. 850 and 851 = (AIR 1966 SC 323 at p.329) – the word “family” in the context of a family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement.”
33. Applying the above principle to the case on hand, it can be very well said that though defendant no.1 did not stand in such relationship with his sister as having a right of succession, having been brought up by her and having married two of her daughters and being a part of her family throughout, it is possible to infer that he was acknowledged as a member of joint family. Therefore, the regrant he obtained in respect of item no.9 of the suit property did not enure to his exclusive benefit so as to divest the children of Lakshmamma from claiming partition.
34. It is to be noted that though in Ex.D11 it is mentioned that defendant no.1 was a kadim tenant, the facts and circumstances are as such that he might have obtained the regrant of item no.9 of the suit property as an inamdar of that land according to section 8 of the Act. While section 4 of the Act entitles a kadim tenant to apply for regrant, section 8 gives a right to the inamdar of the land to apply for regrant. Therefore, it is to be held that the courts below have not committed any error in coming to conclusion that item no.9 of the suit property is to be partitioned among the legal representatives of the first plaintiff, second plaintiff and defendants 3, 4 and 6 and legal representatives of defendant no.5.
Substantial Question Nos.2 and 3:
2) Whether an inter se dispute between the co- defendants can be adjudicated when such adjudication is not required to grant or refuse relief to the plaintiffs and whether any decision rendered by the courts would operate as res judicata in between the co- defendants?
3) Whether defendant no.1(d) who came on record as legal representative of her father i.e., deceased defendant no.1(d)-Govindappa, could make an independent claim and seek for partition of the suit schedule properties thereby travelling beyond the defence taken by the defendant no.1?
35. These two questions take common discussion as they are inter-related. Defendant no.1(d) is the daughter of defendant no.1-Govindappa. She was impleaded in the suit after Govindappa’s death. She filed written statement completely resiling from the defence taken by her father and asserted that though the khata stood in the name of defendant no.1, every daughter of Lakshmamma was entitled to a share in the suit schedule properties. She also stated that she was entitled to a share in the share of her father. She disputed the will, which defendant no.2 claimed to have been executed in his favour by defendant no.1.
36. Learned counsel Sri S.K.V.Chalapathy argued that the defence put forward by defendant no.1(d) was against Order XXII Rule 4 (2) of the Code. His argument was that whenever a person was impleaded as a legal representative of a deceased defendant, he could not take defence inconsistent with defence already taken by the party whom he represents as a legal representative. He referred to the written statement of defendant no.1(d) to argue that she has taken a stand contrary to the defence set up by her father. In the same suit, she cannot claim partition against her brother i.e., defendant no.2. If at all she has a right to seek partition, she has to file a separate suit against her brother. Adjudication of the dispute in which she is on record as a legal representative would not amount to res judicata in case she would file a separate suit for partition against her brother. In this regard he referred to following authorities -
1) Shashibhushan Prasad Misra (dead) and another Vs. Babuaji Rai (dead) by his legal representatives and others ( AIR 1970 SC 809);
2) Syed Mohammad Saadat Ali Khan Vs. Mirza Wiquar Ali Beg and others [ AIR (30) 1943 PC 115;
3) Shivashankar Prasad Sah and another Vs. Baikunth Nath Singh and others (AIR 1969 SC 971);
4) Iftikhar Ahmed and others Vs. Syed Meharban Ali and others ( AIR 1974 SC 749);
5) Mahboob Sahab Vs. Syed Ismail and others ( AIR 1995 SC 1205); and 6) Mudakappa Vs Rudrappa and others [(1994) 2 SCC 57].
37. Sri B.K.Chandrashekhar, learned counsel for respondent no.1(d) argued that she had every right to claim partition in the same suit. In a partition suit, plaintiff can be treated as defendant and vice versa. Her written statement clearly discloses that she claims share in the property of her father and not in the other properties. She does not claim any share in the property of her brother. There is no need to file a separate suit to claim her legitimate share. It might be a fact that her brother was arrayed as defendant no.2 in the suit and after the death of her father, he also became one of the legal representatives and that he continued in the suit in that capacity also. In view of this, defendant no.1(d) had every right to claim partition. Moreover, defendant no.2 filed additional written statement setting up a will said to have been executed by his father She disputed the said will. For this reason defendant no.1(d) has claimed a share in the share of her father and Order XXII Rule 4(2) of the Code is not a bar in these circumstances.
38. Order XXII Rule 4(2) of the Code reads as below:
“ 4(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.”
39. Plain reading of this provision makes it very clear that legal representative of a deceased defendant is entitled to take a defence, but any defence that a legal representative takes must be appropriate, in the sense it must not be inconsistent with the defence already taken by the defendant in whose place the legal representative has come on record. If at all the legal representative has got any independent interest, he has to come on record in the suit in his independent capacity by making an application under Order I Rule 10 of the Code. But in the capacity of a legal representative of the deceased defendant, he does not get any right to put forward a defence based on his independent right. This is settled principle.
40. In this case defendant no.1(d) filed her written statement claiming partition in the share of her father and therefore according to appellants’ counsel, Sri S.K.V.Chalapathy, this amounted to inter se dispute between the co-defendants and its adjudication was not at all necessary in the same suit and especially when such an adjudication was not necessary to grant or refuse reliefs to the plaintiffs; any decision rendered in the suit on hand would not operate as res judicata in case another suit is filed by defendant no.1(d) against her brother seeking partition. He has also cited several decisions as to under what circumstances inter se dispute between co-defendants amounts to res judicata. The conspectus of all these decisions is that a decision operates as res judicata between co-defendants only if the following three conditions are fulfilled:
1) There is conflict of interest between them;
2) It is necessary to decide that conflict in order to give plaintiffs the reliefs which they claim; and 3) The question between the co-defendants is finally decided.
41. These principles will decide two issues namely, whether defendant no.1(d) could have taken independent plea deviating from written statement filed by her father and whether she could claim partition in the same suit being a co-defendant in the capacity of legal representative?
42. Defendant no.1(d) in her written statement states that all the daughters of Lakshmamma are entitled to claim their respective shares although khata of the properties stood in the name of her father. This plea is definitely in conflict with her father’s defence and she cannot take such a stand as it is opposed to Order XXII Rule 4(2) of the Code. But defendant no.1(d) also disputes a will which defendant no.2 propounded in his additional written statement. It is quite clear that defendant no.2, on the basis of the will, wants to lay claim on all the properties and even wants to exclude his sister from claiming a share in the properties. For this reason, if defendant no.1(d) takes a contention disputing the will, it cannot be said that she intends to contradict the defence taken by her father. Without deciding the validity of the will, it is not possible to decide the suit. Not only that defendant no.1(d) is deprived of a share in the properties if this will is held to be valid but also the plaintiffs and other defendants do not get any share in item no.9 of the schedule properties. Thus, the will said to have been executed by Govindappa is definitely an impediment for allotting shares. Viewed from this angle, it can be said that there exists conflict of interest between defendant no.1(d) and defendant no.2, and without resolving the same, the suit of the plaintiffs cannot be decided. The intricacy involved thus makes a world of difference and therefore it is not possible to accept the argument of Sri S.K.V. Chalapathy that defendant no.1(d) was precluded from taking an independent stand. In the circumstances made out, it is possible to hold that although defendant no.1(d) was impleaded in the suit as a legal representative of deceased defendant No.1, she can be treated as having come on record on her independent right in accordance with Order 1 Rule 10 of the Code. Substantial question Nos.2 and 3 are answered accordingly.
Substantial question No.4:
4) Whether plaintiffs’ suit was barred by limitation?
43. The first point of argument of Sri S.K.V.
Chalapathy, learned counsel appearing for the appellants is that though a contention regarding limitation has not been taken in the written statement, the said aspect being a pure question of law can be urged even in the second appeal. He refers to Section 3 of the Limitation Act to argue that at any stage the question of limitation can be urged even though limitation has not been set up as defence. He submitted that after the death of Lakshmamma in the year 1971, defendant no.1 held the properties adverse to the interest of the plaintiffs. In this regard he referred to explanation (b) to Article 65 of the Limitation Act to argue that the suit should have been filed within 12 years from the date of death of Lakshmamma. Since the suit was filed in the year 1989, the suit was time barred and on this count the suit deserves to be dismissed.
44. Sri M.S.Varadarajan countered this argument by arguing that explanation (b) to Article 65 of the Limitation Act is not at all applicable. What is involved in this case is succession to the property of Lakshmamma. Moreover, item no.9 of the schedule properties was purchased by Chengaiah. Merely because khata was transferred to the name of Lakshmamma and thereafter to the name of defendant no.1, the six children of Chengaiah and Lakshmamma did not loose their right to claim partition according to section 8 of Hindu Succession Act. Whenever a question of succession to the property is involved, adverse possession cannot be made applicable at all and therefore the suit is not time barred.
45. Learned counsel for respondent Nos.1 and 3 placed reliance on the judgment of the Supreme Court in the Case of Panchugopal Barua and Others vs. Umesh Chandra Goswami and others [AIR 1997 SC 1041] and argued that the appellant has totally put forward a new case based on adverse possession. It is not supported by pleadings or evidence and it should not be permitted to be raised in the second appeal.
46. The point that the appellant has raised as regards holding item no.9 of the suit property adversely to the interest of the daughters of Lakshmamma is certainly a new aspect which does not firstly find a place in the written statement and secondly that it was not urged before both the Courts below. It is to be remembered that it is defendant no.2, who is in appeal, has put forth this point. Therefore, this needs to be answered purely on the assumption whether defendant no.1 would have been benefited in any way had he taken this plea.
47. For application of explanation (b) to Article 65 of the Limitation Act, the requirement is that the property must be held by a person continuously for a period more than 12 years after the death of a female Hindu or Muslim. The starting point of limitation is the date of death of a female. In this case, probably the intention of defendant no.2 appears to be that his father held the possession of item no.9 of the suit property even after the death of Lakshmamma and therefore, the plaintiffs and the defendant nos.5 and 6, having failed to take possession within twelve years from the date of death of Lakshmamma, cannot seek for partition and possession of their share. If at all defendant no.1 or defendant no.2 wanted to establish their adverse possession over item no.9 of the suit schedule property, they should have to first establish ouster of the plaintiffs and the defendant nos.5 and 6. This is a pure factual aspect which should have been pleaded. Unless ouster is established, defendants 1 and 2 cannot say that they excluded the daughters of Lakshmamma, more particularly the mother of the first plaintiff, the second plaintiff and the defendants 5 and 6. Therefore, it is difficult to accept the arguments of Sri S.K.V. Chalapathy, in this behalf.
48. While discussing substantial question nos.2 and 3, a clear conclusion has been drawn that regrant of land to defendant no.1 under the provisions of the Act did not confer him absolute right, rather defendant no.1 was just a cultivator on behalf of joint family being the brother and son-in-law of Lakshmamma. Therefore, after the death of Lakshmamma, her daughters became entitled to claim partition. The question involved here is right of succession. At the most, defendant no.1 would have got share in the property that could be allotted to his two wives Mangamma and Sakamma and nothing more than that. This being the circumstance, defendant no.2 cannot contend that the suit is time barred and question of limitation, in fact does not arise at all.
48. Lastly, Sri S.K.V.Chalapathy emphasized one point that allocation of shares to defendant no.1(d) is not proper. It was his submission that the finding of the first appellate Court that item nos.1 to 8 and 10 did not belong to the joint family; defendant no.1 died in the year 1992; as such defendant no.1(d) being his daughter cannot claim equal share. Defendant no.1(d) was married even before Karnataka amendment to Section 6 of Hindu Succession Act came into force. Therefore, she was not a coparcener. Only after the Central amendment to Section 6 of Hindu Succession Act was given into effect in the year *2005, a married daughter was recognized as a coparcener. But in this case, the succession opened in the year 1992. Therefore, defendant no.1(d) cannot claim equal share as she was not a coparcencer at all. She would be entitled to a share in the notional partition in favour of deceased defendant no.1. In support of his argument, he placed reliance on following judgments:
1. M. Prithviraj and Others vs. Smt.Leelamma N. and Others (ILR 2009 KAR 3612) 2. Anar Devi and Others vs. Parmeshwari Devi and Others [(2006) 8 SCC 656] *Corrected vide chamber order dated 10.01.2020.
3. B. Sanjeeva Shetty vs. Land Tribunal, Udupi and Others [2012 (3) KCCR 2347] 4. Mangammal @ Thulasi and another vs. T.B.Raju and Others [(2018) 15 SCC 662] 49. The above argument of Sri S.K.V.Chalapathy cannot be accepted. The clear finding of the first appellate Court after reappreciation of evidence is that item nos.1, 2, 4, 5, 7, 8 and 10 were the self- acquisitions of defendant no.1 Govindappa. Item nos.3 and 6 are held to be the joint family properties of defendant no.1. Item no.9 belonged to the joint family of Lakshmamma. Therefore, in all the self acquired properties of defendant no.1, his daughter i.e., defendant no.1(d) is entitled to equal share and in respect of item nos.3 and 6, she is entitled to a share in the notional share of her father. Insofar as item no.9 is concerned, all the daughters of Lakshmamma take equal share. In this view, I am of the opinion that allotment of shares made by the first appellate Court does not require interference.
50. In view of the above discussion, I come to the conclusion that these two appeals fail and they are dismissed with costs.
Sd/- JUDGE BL/sn/swk/Srt