IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH R.F.A. No.1937/2007 BETWEEN:
SMT. YASHODAMMA WIFE OF K.S. DUGGAPPAGOWDA AGED ABOUT 45 YEARS, RESIDENT OF HORABYLU BUKLAPURA, KURUVALLI (P), THIRTHAHALLI (T) SHIMOGA (D) – 571 401. … APPELLANT (BY SRI. G.M. ANANDA, ADVOCATE BY PROF. K.S. SREEKANTH ASSOCIATES, ADVOCATES) AND:
1. SMT. LAXMIDEVI, WIFE OF GIRIYAPPAGOWDA, AGED ABOUT 51 YEARS, RESIDENT OF HORABYLU BUKLAPURA, KURUVALLI (P) THIRTHAHALLI (T) SHIMOGA (D) – 571 401.
2. SMT. SHARADAMMA WIFE OF VASAPPA GOWDA AGED ABOUT 52 YEARS AGRICULTURIST RESIDENT OF JADDINAMANE HARAGOLIGE POST MUTHUR HOBLI THIRTHAHALLI TALUK SHIMOGA DISTRICT – 571 401.
3. SMT. INDIRAMMA WIFE OF PUTTAPPAGOWDA AGED ABOUT 55 YEARS R/O. KARBYLU KAMMARADI POST THIRTHAHALLI TALUK SHIMOGA DISTRICT-571 401.
... RESPONDENTS (SRI. CHANDRASHEKAR, ADVOCATE FOR RESPONDENT No.1 RESPONDENT No.2 IS SERVED BUT UNREPRESENTED SRI. K. PRAKASH HEGDE, ADVOCATE FOR RESPONDENT No.3) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 16.04.2007 PASSED IN O.S.No.126/2003 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR. DN.) AND CJM, SHIMOGA, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR HEARING AND HAVING BEEN RESERVED FOR JUDGMENT, THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant, who is the first defendant before the trial Court, challenging the judgment and decree dated 16th April 2007 passed in O.S. No.126/2003 on the file of I Additional Civil Judge (Senior Division) and CJM., Shivamogga.
2. The parties are referred to by their ranking before the trial Court for the convenience of this Court.
3. The brief facts of the case are that:
The plaintiff had filed the suit for the relief of partition and separate possession claiming 1/4th share in the suit schedule properties contending that the plaintiff and defendants are daughters of late Puttaiah Gowda. Plaintiff and defendant No.2 are daughters of the first wife of late Puttaiah Gowda and the first and third defendants are the daughters of the second wife of late Sri Puttaiah Gowda. The contention of the plaintiff before the trial Court is that the suit schedule properties are the joint family properties of the plaintiff and defendants and there was no bequeath or transfer made by her father, Puttaiah Gowda, in favour of any of the parties. Hence, the plaintiff filed the suit for the relief of partition and separate possession of her 1/4th share in the suit schedule properties and she has also claimed mesne profits as per Order 20 Rule 11 of the Civil Procedure Code, 1908.
4. In pursuance of the notice issued to the defendants, defendant No.1 appeared before the trial Court and filed written statement claiming that she along with her husband is the absolute owner of the suit ‘A’ and ‘B’ schedule properties, that the same have been gifted by Sri late Puttaiah Gowda under registered gift deed dated 23.06.1972 and also contended that the suit is bad for non-joinder and misjoinder of necessary parties. Defendant No.1 also alternatively contended that she has perfected her title over the suit schedule properties by way of adverse possession. Defendant No.1 contended that the plaintiff did not seek appropriate relief, the court fee paid is insufficient and so also the suit is barred by limitation.
5. The Court below having considered the pleadings of the plaintiff and defendant No.1, framed the following issues:
“1. Whether the plaintiff proves that the suit schedule properties are joint family properties of plaintiff and defendants?
2. Whether the plaintiff is entitled for partition and separate possession of 1/4th share in the suit schedule properties?
3. Whether the plaintiff is entitled for mesne profits as per Order 20 Rule 11 C.P.C?
4. Whether the defendant No.1 proves that she has become absolute owner along with her husband of the ‘B’ schedule properties that have been gifted by Sri late Puttaiah Gowda under a registered Gift Deed dated 23.6.1972?
5. Whether Court fee paid is sufficient?
6. Whether the suit is barred by time ?
7. Whether the suit is bad for non- joinder and mis-joinder of necessary parties?
8. Whether the defendant No.1 proves that she perfected her title over the suit schedule properties by way of adverse possession ?
9. What order or decree ?”
6. The plaintiff in order to prove her case, examined herself as PW.1 and got marked the documents as per Exs.P1 to P30. Defendant No.1 examined herself as DW.1 and she also examined her husband as DW.2 and so also examined the son of the attesting witness of the gift deed – Ex.D1 as DW.3. The defendant No.1 got marked the documents as per Exs.D1 to D27. The Court below after hearing both the counsels, decreed the suit of the plaintiff.
7. Being aggrieved by the judgment and decree passed by the trial Court, the first defendant filed this appeal, wherein she has taken up the contention that the trial Court has erred in not considering the contents of Ex.D1, gift deed, which clearly emphasizes the intention of the author of the gift deed. The contents of the gift deed clearly shows that the author of the gift deed had the right of tenancy in respect of certain lands and the same was granted in favour of the father and he executed gift deed in favour of the first defendant and her husband. It is further contended that if land is granted by the Land Tribunal under the Karnataka Land Reforms Act, 1961, (hereinafter referred to as ‘the Act’), then it becomes the self-acquired property of the grantee. The father of the first defendant was having absolute right over the property to transfer the same in favour of the first defendant. The further non-alienation condition imposed by the Land Tribunal is not applicable when the gift is between the family members. The object of imposition of non-alienation period is only to avoid illegal transfer or sale, but in the instant case, the transfer is between the father and daughter out of natural love and affection. But, the trial Court applied this principle of non-alienation to the case and that is a grave error committed by the trial Court. Further, the trial Court erred in relying upon Sections 6 and 23 of the Hindu Succession Act, 1956, but it failed to note that the said provisions are not applicable when the alienation of any kind has taken place before 20th December 2004. Hence, he prayed this Court to set aside the judgment and decree.
8. Learned counsel for the appellant in his oral arguments also vehemently contended that the grant was made in favour of the father of the first defendant in the year 1976 and gift deed was executed in the year 1972 itself. Since Puttaiah Gowda was cultivating the tenanted lands and even though the said lands were granted by the Land Tribunal in his favour subsequently, he was having the tenancy rights at the time of execution of the gift deed. It is further contended that the plaintiff did not seek for cancellation of gift deed – Ex.D1 in the plaint and she did not seek for better relief. The Court below has committed an error in applying the provisions of Section 61 of the Act to the case and the same is not hit by Section 61 of the said Act.
9. In support of his contentions, learned counsel for the appellant has relied upon the judgment of the Hon`ble Apex Court rendered in the case of Smt. JAYAMMA v. MARIA BAI DEAD BY PROPOSED LRs.
AND ANOTHER reported in (2004) 7 Supreme Court Cases 459. Learned counsel relying upon this judgment would contend that the conditions stipulated under the Karnataka Land Reforms Act, 1961, more particularly, non-alienation clause does not prohibit transfer of agricultural land with occupancy rights if such an assignment is made within the prohibitory time limit. It is permissible only in favour of one of the heirs entitled to claim partition of the land and not others.
10. Learned counsel for the appellant also relied upon the judgment rendered by the Hon’ble Supreme Court in the case of JOSEPH ALBERT LEWIS v. MICHAEL ROQUE LEWIS AND OTHERS reported in ILR 2007 KAR 4174 and brought to my notice paragraph No.7 of the judgment, wherein it is held as under:
“A perusal of Section 61 of the Act would indicate that in respect of the lands of which the occupancy has been granted to any person under that chapter shall not be transferred by way of sale, gift exchange, mortgage, lease or assignment during the period of 15 years from the date of the order passed by the Land Tribunal. However, the said provision permits partition among members of the holder’s joint family.”
11. Learned counsel also relied upon the judgment of this Court rendered in the case of BENEDICT NAZRETH v. LAWRENCE NAZRETH AND OTHERS reported in AIR 2003 Karnataka 369 and brought to my notice para No.16 of the said judgment, wherein this Court has held that a Will could be made in favour of sons though not in favour of stranger to the family.
12. Per contra, learned counsel appearing for respondent No.1 would submit that the gift deed - Ex.D1 was executed by Puttaiah Gowda in favour of his daughter, defendant No.1, and her husband. It is elicited in the cross-examination of defendant No.1 that her grandfather was cultivating the tenanted lands and thereafter, her father continued to cultivate the said lands and tenancy rights are inherited and hence, the lands in question are joint family properties and grant made by the Land Tribunal was also in favour of the family. Learned counsel would further contend that as on the date (23.06.1972) of execution of the gift deed, there was no grant at all in favour of the father of the first defendant. The Court below has taken note of the fact that the executant of the gift deed had ignored the interest of the remaining daughters, disinherited them from the properties and no reason is reason assigned by Puttaiah Gowda in that regard in the gift deed. Learned counsel further contended that it is clear from the answers elicited from the mouth of DW.1, that the properties belonged to the family. The Court below has considered the material on record and rightly decreed the suit and the same does not call for interference in this appeal.
13. In reply to the arguments of the learned counsel for the respondent No.1, learned counsel for the appellant counsel would contend that the beneficiaries under the gift deed – Ex.D1 are daughter and son-in-law of the executant and both of them had taken care of the executant during his lifetime and in the gift deed vide Ex.D1 executed by Puttaiah Gowda, there is recital explaining the reason for executing the gift deed in favour of the daughter and her husband.
14. Having heard the arguments of the learned counsel for the appellant and also learned counsel appearing for respondent No.1, the points that arise for consideration of this Court are as follows:
1. Whether the Court below has committed an error in coming to the conclusion that the suit schedule properties belong to joint family?
2. Whether the Court below has committed an error in decreeing the suit in favour of the plaintiff and whether the impugned judgment and decree passed by the Court below requires interference ?
3. What order ?
15. Point Nos.1 and 2 : It is the case of the plaintiff that the suit schedule properties belong to the joint family and hence, the plaintiff is having share in the same. On the other hand, it is the contention of the first defendant that the said properties exclusively belonged to her father, Puttaiah Gowda, and he had executed the gift deed – Ex.D1 in her favour and in favour of her husband and Puttaiah Gowda had assigned reason in the gift deed for transferring the same in their favour. It is to be noted that there is no dispute with regard to the fact that the properties were granted in favour of the father of the first defendant in the year 1976 and also it is to be noted that the registered gift deed was executed on 23.06.1972 in terms of Ex.D1 in favour of the first defendant and her husband. It is to be noted that this Court has to examine both the question of law and the question of fact since this Court being the first appellate Court has got powers to consider both the question of fact and question of law.
16. PW.1, the plaintiff, in her evidence has deposed that the suit schedule properties belong to the joint family. She has reiterated the contents of the plaint in her evidence by way of affidavit and got marked the documents, Exs.P1 to P30. In her cross- examination, PW.1 has admitted that the suit house property was earlier a thatched roof house and the husband of the first defendant got converted the same into Mangalore tiled house, but she claims that expenses for such conversion was meted out from the joint family income. She has denied the very execution of the gift deed in favour of the first defendant and her husband. It was also suggested to her that from 1972 onwards, both defendant No.1 and her husband were in possession and cultivation of the suit schedule properties as their own property. She has denied the said suggestion. In the cross-examination of PW.1, nothing is suggested that the suit schedule properties are not the joint family properties and the very pleading and the evidence of PW.1 that the suit schedule properties are the joint family properties are questioned in order to substantiate the defence of the first defendant that it was the exclusive property of her father and nothing is elicited in that regard.
17. The plaintiff also examined the witness as PW.2 regarding the relationship between the parties. PW.2 in his evidence has stated that the suit schedule properties were granted in favour of the father of the parties and the suit schedule properties are the properties of the family. PW.2 is also beneficiary of the grant made by the Land Tribunal. He has stated that all the children of the deceased Puttaiah Gowda are entitled for share in the suit schedule properties. PW.2 has stated that though demand was made to the first defendant to partition the suit properties, the first defendant had not given any share in the said properties. In the cross-examination of PW.2, it is elicited that the plaintiff along with her husband is having land measuring to an extent of 38 guntas in Sy. No.22 and also 13 guntas in Sy. No.27. It was suggested to him that the plaintiff inherited the said two properties from her father. He has denied the said suggestion. It was suggested to him that Puttaiah Gowda during his lifetime had executed gift deed in the year 1972 gifting the suit schedule properties in favour of the first defendant and her husband. He has stated that he did not know about the same. In the cross-
examination of PW.2 also, nothing is suggested to him that the suit schedule properties are not the properties of the joint family.
18. On the other hand, defendant No.1 has been examined as DW.1. In her affidavit, she has reiterated the averments made in the written statement claiming that her father had executed gift deed in her favour. DW.1 also got marked the documents as per Exs.D1 to D27. It is to be noted that in the cross-examination of DW.1, she has categorically admitted that her grandfather, Ramanna Gowda, was also doing agriculture and he was not doing any other work. DW.1 further admitted that her grandfather was cultivating tenanted lands and except the same, he was not having any other property and the very same tenanted lands were cultivated by her father during his lifetime. DW.1 has further admitted that her father had not purchased any other property and he was having only tenanted lands. She has further admitted that her father worked under the same landlords under whom her grandfather was working as tenant. DW.1 has also categorically admitted that the lands, which were cultivated by her grandfather also came to her father and her father was also not doing any other job except agriculture.
19. Having taken note of the admission of DW.1 and also the evidence of PWs.1 and 2, it is clear that the suit schedule properties are the tenanted properties of the joint family and not the exclusive property of the father of the parties to the suit. No doubt, the defendants relied upon Ex.D1, gift deed. In order to prove the gift deed, the first defendant has examined one Parameshwara as DW.3, who came and deposed before the trial Court that his father was the attesting witness to the gift deed. But, DW.3 in his cross- examination, has categorically stated that he had only identified the signature of his father in Ex.D1 and he did not know anything about the contents of the said document and also he has not spoken anything with regard to the document – Ex.D1. On perusal of Ex.D1, it is seen that it was executed in the year 1972. It is an admitted fact that as on the date of execution of the gift deed, there was no grant made in favour of the father of the parties to the suit and admittedly, it was granted in the year 1976. Defendant No.1 also examined another witness, who is none other than the husband of defendant No.1. No doubt, Ex.D1 is executed in favour of defendant No.1 and her husband, who has been examined as DW.2. In the cross-examination of DW.2, he has also admitted that there is no recital in Ex.D1 stating that the contents of Ex.D1 were explained to the executant of the gift deed. It is pertinent to note that on perusal of Ex.D1, the reason assigned for executing the gift deed in favour of the first defendant is that his other daughters were married and they were staying in the house of their respective husbands. Apart from the said reason, no other reason has been assigned by Puttaiah Gowda to disinherit his daughters other than defendant No.1 from his properties and in order to execute the gift deed in favour of his daughter, defendant No.1, and her husband. There must be a cogent reason for disinheriting the other daughters in respect of the suit schedule properties. It is also pertinent to note that the evidence on record reveals that the suit schedule properties are the tenanted properties of the joint family and categorical admissions are elicited in the cross- examination of DW.1 that her grandfather during his lifetime was cultivating the tenanted lands and the very same tenanted lands were granted in favour of the father of the parties. Hence, I am of the opinion that the very case of the defendant No.1 that the suit schedule properties are the exclusive property of her father cannot be accepted. On the other hand, the plaintiff has contended that suit schedule properties are the joint family properties and the admission of the first defendant takes away the case of the first defendant. Also, execution of the gift deed – Ex.D1 has also not been proved. The trial Court has taken note of the material available on record and has rightly answered issue No.1 in the affirmative that the suit schedule properties are the joint family properties and I do not find any reason to come to the other conclusion that the suit schedule properties are not the joint family properties.
20. Now, the question before this Court is with regard to the bar under Section 61 of the Karnataka Land Reforms Act, 1961, for transfer of the land of which tenant has become occupant since the trial Court referring to Section 61 of the said Act has come to the conclusion that in view of the bar under Section 61 of the Act, Puttaiah Gowda could not have transferred the tenanted lands in favour of the first defendant and her husband. Learned counsel appearing for the appellant referring to the judgments referred supra, vehemently contended that properties could be partitioned even if there was a bar under the provisions of the Act and Will could also be executed in favour of any of the family members of the tenant. The very contention cannot be accepted in the light of the fact that the trial Court has come to the conclusion that the suit schedule properties are the joint family properties and this Court also reaffirms the same. No doubt as per the principles laid down in the judgments referred supra, this Court as well as the Hon’ble Apex Court have held that any assignment or any transfer could be made only in favour of one of the heirs of the tenant to claim partition of the land and not others and also an arrangement could be made to partition the property in favour of the family. It is to be noted that Section 61 of the Act restricts transfer of land of any land which is in the occupancy and which has been granted to any person should not be transferred within 15 years and Section 61(3) of the Act also stipulates that any transfer or partition of land shall be invalid and the said land shall vest in the State Government free from all encumbrances and shall be disposed of in accordance with the provisions of Section 77 of the Act. However, this Court in the judgment reported in ILR 2007 Kar 4174 (referred supra) has held that the said provision permits partition among the members of the holders of the joint family. In the case on hand, it is not a case of partition. A perusal of Section 61 of the Act would indicate that in respect of the lands of which occupancy right has been granted to any person under that chapter shall not be transfer by way of sale, gift, exchange, mortgage, lease or assignment during the period of 15 years from the date of the order passed by the Tribunal. In the case on hand also, it is to be noted that the execution of the gift deed was made in the year 1972, as on the date of execution of the gift deed, there was no grant made in favour of the executant and the same was made in the year 1976 and the said fact has not been disputed. The trial Court has also not taken note of this factual aspect into consideration.
21. Having taken note of the principles laid down in the judgment referred supra relied upon by the learned counsel for the appellant and considering the facts and circumstances of the case, the very argument of the learned counsel for the appellant would not come to the aid of the appellant for the reason that first of all, there was no grant in favour of the executant as on the date of execution of the gift deed in favour of his daughter and son-in-law excluding his other daughters.
22. I have already pointed out that no reason has been assigned by Puttaiah Gowda to exclude the other daughters to disinherit the property of the joint family and there was no exclusive right to execute the gift deed. The only reason assigned in the gift deed is that the other daughters were already married and except this reason, in order to exclude the other daughters no reason has been assigned. It is not that the other daughters are not in good terms with him and D.W.1 has categorically admitted that the tenancy is inherited by her father.
23. Having considered both the question of fact and question of law and also on re-appreciating the material available on record, I am of the opinion that I do not find any reason to reverse the finding of the trial Court. The other contention of the appellant that there was no prayer in the plaint for cancellation of the gift deed also cannot be accepted. The plaintiff has not contended in the plaint that the very execution of the gift deed in favour of the first defendant is void and only defendant No.1 has set up the defence in the written statement that there was a gift deed and hence, the question of seeking relief of cancellation of gift deed also does not arise as contended by the appellant’s counsel. Hence, the appeal is devoid of merits.
In view of the discussion made above, I pass the following:
ORDER The Appeal is dismissed.
Sd/- JUDGE sma