Karnataka High Court
Chandrashekhara vs Smt.Gouri on 24 November, 2023
-1-
NC: 2023:KHC-D:13753-DB
RFA No. 100310 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.100310 OF 2016
BETWEEN:
1. CHANDRASHEKHARA
S/O. HIRIYANNA GUDDAMANE
SINCE DECEASED BY HIS LR'S,
1(A) TARA
W/O. CHANDRASHEKHAR DEVADIGA
@ GUDDADAMANE
AGE: 52 YEARS
OCCUPATION: HOUSEHOLD WORK
KASTURABA NAGAR, SIRSI
UTTAR KANNADA.
1(B) SUMANA
Digitally signed W/O. MANJUNATH DEVADIGA
by VINUTHA M
Location: HIGH @ GUDDADAMANE
COURT OF AGE: 36 YEARS
KARNATAKA
OCCUPATION: HOUSEHOLD WORK
KANASUR, SIDDAPUR
UTTAR KANNADA.
1(C) MAHESH
S/O. CHANDRASHEKHAR DEVADIGA
@ GUDDADAMANE
AGE: 33 YEARS
OCCUPATION: PRIVATE WORK
KASTURABA NAGAR, SIRSI
UTTAR KANNADA.
-2-
NC: 2023:KHC-D:13753-DB
RFA No. 100310 of 2016
1(D) DINESH
S/O. CHANDRASHEKHAR DEVADIGA
@ GUDDADAMANE
AGE: 30 YEARS
OCCUPATION: PRIVATE WORK
KASTURABA NAGAR, SIRSI
UTTAR KANNADA.
2. NITYANANDA
S/O HIRIYANNA GUDDADAMANE
AGE: 47 YEARS
OCC: AGRICULTURIST.
3. NAGARAJ
S/O HIRIYANNA GUDDADAMANE
AGE: 38 YEARS
OCC: AGRICULTURIST.
4. DAYANANDA
S/O HIRIYANNA GUDDADAMANE
AGE: 36 YEARS
OCC: AGRICULTURIST.
5. SMT.DURGI
W/O HIRIYANNA GUDDADAMANE
AGE: 72 YEARS
OCC: HOUSEHOLD.
6. SMT.KERIYAMMA
W/O SUBBA DEVADIGA
AGE: 55 YEARS
OCC: HOUSEHOLD.
7. SMT.KUSUMA
W/O RAMA DEVADIGA
AGE: 51 YEARS
OCC: HOUSEHOLD.
8. PARVATI
D/O HIRIYANNA GUDDADAMANE
AGE: 48 YEARS
OCC: HOUSEHOLD.
9. BHAGIRATHI
D/O HIRIYANNA GUDDADAMANE
AGE: 40 YEARS, OCC: HOUSEHOLD
ALL ARE RESIDENTS OF GUDDADAMANE
-3-
NC: 2023:KHC-D:13753-DB
RFA No. 100310 of 2016
HUBLI ROAD, SIRSI,
UTTAR KANNADA.
...APPELLANTS
(BY SRI F. V. PATIL, ADVOCATE FOR A1(A-D) AND A2 TO A9)
AND:
1. SMT.GOURI
W/O BANGARI GUDDADAMANE
AGE: 85 YEARS, OCC: HOUSEHOLD WORK.
2. SHANKAR
S/O BANGARI GUDDADAMANE
AGE: 60 YEARS, OCC: BUSINESS.
3. VITTAL
S/O BANGARI GUDDADAMANE
AGE: 58 YEARS, OCC: BUSINESS.
4. GOPAL
S/O BANGARI GUDDADAMANE
AGE: 53 YEARS, OCC: BUSINESS.
5. SHRIDHAR
S/O BANGARI GUDDADAMANE
AGE: 48 YEARS, OCC: BUSINESS.
6. VIVEKANAND
S/O BANGARI GUDDADAMANE
AGE: 45 YEARS, OCC: BUSINESS
RESPONDENTS NO. 1 TO 6
ARE R/O GUDDADAMANE
HUBLI ROAD, SIRSI
UTTAR KANNADA.
7. SMT.SEETE
W/O NARAYAN DEVADIGA
AGE: 63 YEARS, OCC: HOUSEHOLD WORK
R/O: GUDDADAMANE
HUBLI ROAD, SIRSI
UTTAR KANNADA.
8. BHAVANI
W/O SUBRAY DEVADIGA
-4-
NC: 2023:KHC-D:13753-DB
RFA No. 100310 of 2016
AGE: 50 YEARS, OCC: HOUSEHOLD
R/O: MOOD-BHATKAL, BHATKAL
UTTAR KANNADA.
9. RENUKA
W/O NARAYAN KUNDAPUR
AGE: 55 YEARS, OCC: HOUSEHOLD
R/O: NEAR HEAD POST OFFICE
RANEBENNUR
HAVERI.
10. SMT. LEELAVATI
W/O PUTTA
AGE: 65 YEARS
OCC: HOUSEHOLD WORK
R/O: GUDDADAMANE
HUBLI ROAD, SIRSI
UTTAR KANNADA.
11. USHALAXMI @ VISHALAXI
W/O GOVIND DEVADIGA
AGE: 68 YEARS, R/O: HUTTAGAR
MANJAVALI, SIRSI
UTTAR KANNADA.
12. NARASIMHA MANJUNATH HEGDE
A/a: 43 YEARS, OCC: BUSINESSMAN
R/O HUBLI ROAD, SIRSI
UTTAR KANNADA.
13. NARAYAN KRISHNAPPA @ MUDURAPPA KUNDAPUR
AGE: 65 YEARS
R/O: IN FRONT OF HEAD POST OFFICE
RANEBENNUR, HAVERI.
14. T.T. PARASHU
S/O T.T. ACHYUTAN
A/a: 51 YEARS, OCC: BUSINESS
R/O RAMANBAIL, SIRSI.
15. T.T. ANIL
S/O T.T. ACHYUTAN
A/a: 49 YEARS, OCC: BUSINESS
R/O RAMANBAIL, SIRSI.
-5-
NC: 2023:KHC-D:13753-DB
RFA No. 100310 of 2016
16. SUBRAYA S/O KRISHNA HEGDE
AGE: 50 YEARS, OCC: AGRICULTURE
R/O: KALMANE, HUNASEKOPPA POST
SIRSI TALUK
UTTAR KANNADA.
17. MANJUNATH
S/O KRISHNA HEGDE
AGE: 46 YEARS
OCC: AGRICULTURE AND REPORTER
R/O: H.NO.106, ORCHIDS, R.C.NAGAR
MAIN ROAD, HP OFFICE OPPOSITE
RANICHANNAMMA NAGAR
BELAGAVI-590 006.
18. KRISHNA
S/O SUBRAYA HEGDE
AGE: 78 YEARS, OCC: AGRICULUTRE
R/O: KALMANE, HUNASEKOPPA POST
SIRSI, UTTAR KANNADA.
...RESPONDENTS
(BY SRI VISHWANATH HEGDE, ADVOCATE FOR C/R1 TO R6 AND
R16 TO R18;
SRI HARSH DESAI, ADVOCATE FOR R2 TO R6, R8, R9,
R11, R13(A-B);
R10(A), R10(I) AND R10(J) - HELD SUFFICIENT;
R10(B), R10(C) AND R10(H) - DECEASED;
R10(A), (D) TO (G), (I) AND (J) - ARE LR'S OF R10(B),
(C), (H);
R12 - DELETED;
R7, R10(D) TO R10(G), R14, R15 - SERVED AND
UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
01.09.2016 IN O.S.NO.34/2013 PASSED BY THE COURT OF THE
SENIOR CIVIL JUDGE, SIRSI, DISMISSING THE SUIT FILED FOR
DECLARATION AND PARTITION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.06.2023 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, VENKATESH NAIK T. J., DELIVERED THE
FOLLOWING:
-6-
NC: 2023:KHC-D:13753-DB
RFA No. 100310 of 2016
JUDGMENT
This appeal is filed challenging the impugned judgment and decree dated 01.09.2016 passed by the Senior Civil Judge, Sirsi, in O.S.No.34/2013.
2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. The appellants are 'plaintiffs' and respondents are 'defendants'.
3. Plaintiffs filed a suit for declaration, partition and separate possession in respect of suit schedule properties. It is the case of the plaintiffs that plaintiff Nos.1 to 5 are the brothers and plaintiff Nos.7 to 10 are the sisters and plaintiff No.6 is the mother of plaintiff Nos.1 to 5 and 7 to
10. Defendant No.11 is the only daughter of deceased Keredevi. Defendant Nos.12 to 15 are not concerned with the family of plaintiffs and defendant Nos.1 to 11. Since defendant Nos. 12 to 15 are contending that they have also got right over some portion of the suit properties and as such they are made as parties in this suit. In fact, defendants Nos.12 to 15 have no sort of right, title and -7- NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 interest over the suit properties. The predecessors of the plaintiffs and defendant Nos.1 to 11 originally hails from South Kanara District and they are governed by Aliyasantana custom. The plaintiffs and defendant Nos.1 to 11 constitute a joint family under their custom. Till today there is no partition amongst the plaintiffs and defendant Nos.1 to 11 as per law and as such they are the joint family members. Originally, the suit properties were tenanted lands. The Propositus of plaintiffs by name Hiriyanna and the Propositus of defendants by name Bangari and the mother of defendant No.11 by name Keredevi were the tenants under the landlord. One Ananth @ Chandrashekar Nadig and Arunachal Nadig were the landlords of suit 'A' schedule properties. One Narayana Yellappa Sulakhe and others were the landlords of suit 'B' schedule properties. Sri Hiriyanna and Sri Bangari were living together and were cultivating the lands jointly till the year 1970.
-8-
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016
4. Thereafter, they started to cultivate half extent each of property in suit 'A' schedule separately with the consent of owners of the land. Accordingly, a document styled as "Geni Tahaname Kararu" dated 18.11.1970 was executed between the parties. After coming into force of amended Land Reforms Act, 1974, Hiriyanna Maya Rama has filed Form No.7 before the Land Tribunal, Sirsi, seeking occupancy right over the portion of land in suit 'A' schedule properties to an extent of land, which is in his possession. Similarly, Bangari Maya Rama had also filed separate application regarding entire area of suit 'A' and 'B' schedule properties. The mother of defendant No.11 by name Keredevi had also filed separate Form No.7 in connection with portion of land in Sy.No.130 of Sirsi village. In the absence of Hiriyanna, the application moved by Keredevi was disposed off. The application moved by Hiriyanna and Bangari was enquired before the Land Tribunal, Sirsi and the Tribunal partly allowed the application moved by Hiriyanna and also the Bangari, in the year 1977.
-9-
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016
5. However, the order passed in favour of Hiriyanna was not traced out before the Land Tribunal. Apart from that, on the strength of the said order, Form No.10 was also not issued. Hence, the order passed in favour of Bangari was challenged before this court in LRRP No.6998/1989. This court remanded the matter back to the Land Tribunal, Sirsi for fresh disposal, in accordance with law.
6. It is contended that, after remand, the Land Tribunal conducted an enquiry and rejected Form No.7 filed by Hiriyanna and conferred occupancy rights in favour of Bangari and Keredevi. Aggrieved by the said order, the present plaintiffs preferred a writ petition before this court in W.P.No.21464/1999 and the same was dismissed. Aggrieved by the same, plaintiffs preferred a writ appeal in W.A.No.899/2007 before this Court. Further, the landlords of suit 'A' schedule property also filed a writ appeal in W.A.No.1102/2007. However, the Division Bench of this court dismissed both the appeals with certain
- 10 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 observations, i.e. "If the appellant has any right in respect of the lands over which occupancy rights have been registered in favour of 3rd respondent, it may be so asserted before the civil court but not possible for this court to examine such aspects in Writ appeal." Considering the observations made by the Division Bench of this court, parties filed the suit in O.S.No.34/2013.
7. It is contended that, they are governed by law of Aliyasantana, the original tenant was one Marla and he was put in possession of the property in the year 1930-31. After his death, his brother Madoora continued as tenant of the suit properties. Thereafter, Smt. Akkamma and Smt. Subbi continued as tenants of the properties. Hence, the tenancy right was the family right of the family of Marla. Even though the occupancy right was conferred in the name of Bangari and Keredevi, the present plaintiffs, as the members of the joint family, have also got right over the properties. There is no partition between the
- 11 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 plaintiffs and defendant Nos.1 to 11 till today, with respect to the suit properties.
8. It is contended that, the defendants taking undue advantage of the entry in the record of rights and also in the order of Land Tribunal, Smt. Keredevi, the mother of present defendant No.11 had executed a sale deed in favour of defendant No.12 through a registered sale deed dated 15.03.2001 and she has also executed another sale deed dated 07.05.2001 in favour of defendant Nos.14 and
15. Defendant No.13 is contending that he has acquired right over the property by virtue of a Will executed by Keredevi. So far as Sy.No.163 is concerned, the same was also tenanted property and occupancy right was conferred in the name of Bangari. But by violating the provisions of Karnataka Land Reforms Act, she sold the property to somebody. Hence, the same was forfeited to the Government. Even with respect to the said properties, Hiriyanna had filed Form No.7 before the Land Tribunal. In fact the above said sale deeds and the alleged Will are
- 12 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 illegal documents. During the pendency of the tenancy matter, defendant Nos.12 to 15 cannot acquire any sort of right, title and interest over the suit properties by virtue of the alleged sale deed and the Will. It is stated that defendant Nos.12 to 15 are also not in actual possession of the properties. The plaintiffs are in actual possession and enjoyment of the half portion of the 'A' schedule properties. Even though occupancy right was conferred-in favour of Bangari and Keredevi, the same is for and on behalf of the joint family consisting of the present plaintiffs and defendant Nos.1 to 11.
9. It is contended that, in the absence of plaintiffs, defendant Nos.1 to 11 cannot act as per their whims and fancies; Bangari died on 16.11.1985, defendant Nos.1 to 10 have created many documents styling as Will, partition, etc. All those documents were created behind the back of plaintiffs with an intention to deprive the right of the plaintiffs over the suit schedule properties. Therefore, any sort of documents in the absence of the consent of
- 13 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 plaintiffs has no force in the eye of law and the same does not bind upon the right of the plaintiffs over the suit schedule properties. By virtue of those illegal documents, the right of the plaintiffs over the suit properties is not vitiated. Even though the occupancy right was conferred in favour of Bangari with respect to 'B' schedule properties, the same is for and on behalf of the entire family comprising the plaintiffs also.
10. It is contended that, the plaintiffs have half share in the suit schedule properties. After the disposal of the writ appeal on 16.06.2013, the plaintiffs have requested defendant Nos.1 to 11 to effect actual partition by metes and bounds, then defendant Nos.1 to 13 have asserted that the plaintiffs have no manner of right, title and interest over the suit schedule properties and they have also denied to effect partition and to hand over the actual separate possession to the plaintiffs. Thus, cause of action arose for the plaintiffs to file the suit for declaration,
- 14 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 partition and separate possession. Hence, they filed the suit.
11. After institution of the suit, summons were issued to the defendants. In spite of service of summons, defendant Nos.7, 10 and 15 remained ex-parte, and the name of defendant No.12 came to be deleted during the pendency of the proceedings, since the plaintiffs gave up their claim as against defendant No.12. The contesting defendant Nos.1 to 6, 8, 9, 11 and 13 appeared through their counsel and defendants Nos.1 to 6, 8 and 9 filed their written statement, whereas, defendant Nos.11 and 13 filed their separate written statements. In the written statements, these defendants have disputed the description of the suit properties, the correctness of the genealogy furnished in the plaint and the relationship inter-se shown in the genealogy.
12. Defendant No.12 contended that he had purchased two acres of land in Sl.No.19 of 'A' schedule, '12' years prior to the filing of the suit under a registered
- 15 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 sale deed for a valuable consideration and he is in possession of the said property.
13. Defendant No.13 contended that, he became the owner of land bearing Sy.No.130A/10 to an extent of one acre by virtue of a registered Will executed by deceased Keredevi in his favour and therefore, the plaintiffs cannot assert any right over these properties held by defendant Nos.12 and 13. These defendants have denied the claim of the plaintiffs that their ancestors and ancestors of defendant Nos.1 to 11 hail from South Kanara and they are governed by Aliyasantana law of inheritance as alleged in the plaint. Though these defendants have admitted that the suit properties were originally tenanted lands, but they have specifically denied the claim of the plaintiffs that Hiriyanna and Bangari were cultivating these lands jointly and thereafter cultivated their respective half portions separately as alleged. They have denied the fact that both Hiriyanna and Bangari had filed Form No.7 before the Land Tribunal for grant of occupancy rights. It is contended that
- 16 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 the plaintiffs are not at all related to their family nor their ancestor Hiriyanna ever cultivated the suit land as tenant along with Bangari. They have asserted that 'A' schedule properties were exclusively cultivated by their ancestor Bangari and mother of defendant No.11 Keredevi jointly and both of them filed separate Form No.7 for grant of occupancy rights in their favour and both were accordingly conferred with occupancy rights in their names. It is contended that 'B' schedule properties were the exclusive tenanted lands of Bangari and occupancy rights was granted in favour of Bangari by the Land Tribunal. It is further denied that there was an agreement dated 18.11.1970 between Hiriyanna, Bangari and the landlords, as claimed by the plaintiffs.
14. It is contended that, since the ancestors of plaintiffs Shri Hiriyanna, was not tenant of 'A' schedule properties, his application was rejected by the land tribunal. It is contended that, a mere observation made in writ appeal by the High court would not give any legal
- 17 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 right to the plaintiffs to file the present suit, as Smt. Bangari alone was tenant of 'A' schedule properties. It is further contended that, plaintiffs never claimed that, suit schedule properties were their joint family properties or they are governed by Aliyasantana law of inheritance before the land tribunal, therefore, now plaintiffs cannot contend that, Shri. Hiriyanna had executed Power of Attorney in favour of plaintiff No.2, before land tribunal, wherein, plaintiff No.2 had stated that, Shri Hiriyanna and Sri Bangari were not full brothers. It is further contended that, in order to prove the relationship, the plaintiffs have to prove, whether Shri. Marla had a brother by name - Shri Madoora and they had a sister by name Smt. Manjakka and she had a son by name Rama and Shri. Rama had 2 daughters by name Smt. Akkamma and Smt. Subbi, but without there being any relationship with the defendants, the plaintiffs have filed a false suit. Hence, the defendants prayed for dismissal of the suit.
- 18 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016
15. The trial Court, based on the pleadings of the parties, framed the following issues;
1. Whether the plaintiffs prove the correctness of genealogy furnished by them in Para 2 of the plaint?
2. Whether the plaintiffs further prove the correct description of the suit properties?
3. Whether they further prove that they along with defendant Nos.1 to 11 constitute a Hindu Undivided Family?
4. Whether they further prove the grant of occupancy rights in favour of one Bangari and one Keredevi with respect to B schedule properties was for and on behalf of the joint family?
5. Whether they further prove their joint possession over the suit A and B schedule properties along with defendant Nos.1 to11?
6. Whether they further prove that the sale deed dt.15.3.2001 and 7.5.2001 executed by the mother of the defendant No.11 in favour of defendant Nos.12 to 15 are not binding on their rights over the suit properties?
7. Whether they further prove that the alleged Will dt.16.11.1985 is also not binding on them? 8. Whether defendant Nos.1 to 6, 8, 9, 11 and 13 prove that partition of suit schedule A properties are the absolute properties of deceased Bangari and portion of the same were the self acquired properties of deceased Keredevi?
9. Whether they further prove that B schedule properties were the self acquired properties of deceased Bangari?
10. Whether the suit reliefs are properly valued and court fee paid thereon by the plaintiffs is proper?
- 19 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016
11. Whether the defendant No.11 proves the alleged Will dt.24.4.1986 by his mother Keredevi in her favour?
12. Whether defendant No.12 proves his absolute title and possession over Survey No.130A/19 to an extent of 2 acres under the Registered Sale Deed Dt.16.3.2001?
13. Whether the plaintiffs are entitled to seek the suit reliefs?
14. What order of decree?
16. The plaintiffs, in support of their case, plaintiff No.2, Shri. Nityanand was examined as PW1 and got marked documents at Ex.P1 to Ex.P77. Plaintiffs also examined two witnesses as PW2 and PW3. None of the defendants was examined, but they relied upon Ex.D1 to Ex.D11.
17. The trial Court after recording the oral and documentary evidence, answered issue No.1, 3 to 5 and 13 in the negative, issue No.2, 8 and 9 in the affirmative, issue No.6, 7, 10 to 12, does not survive for consideration, and consequently dismissed the suit of the plaintiffs. Aggrieved by the judgment and decree passed by the trial court, the plaintiffs have preferred this appeal.
- 20 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016
18. Heard learned counsel Sri. F.V. Patil appearing for plaintiffs and Sri Vishwanath Hegde and Sri Harsh Desai, learned counsel appearing for the defendants.
19. Learned counsel for the plaintiffs contended that, the judgment and decree passed by trial court is contrary to the evidence on record; the trial court has not appreciated the aspect that, defendants have not proved their defence by leading evidence; the trial court has not properly appreciated the genealogy furnished by the plaintiffs. It is contended that, tenancy was created under the Bombay Tenancy and Agriculture Holdings Act of 1939, and the tenancy is traceable in the name of Marla and both plaintiffs and defendants have admitted the same; the tenancy rights are heritable both under the Bombay Tenancy and Agriculture Holdings Act and Mysore Land Reforms Act of 1961. It is further contended that, in the affidavit (Ex.P74) dated: 09.01.1999 filed by father of defendants (Shri. Bangari Marla), before the Land Tribunal and the affidavit (Ex.P75) dated: 09.01.1999 of Rama
- 21 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 Mava Krishna Dubbe, wherein the genealogy of the family and creation of tenancy and its inheritability, has been admitted; therefore, the burden of proof on plaintiffs, have been discharged, now, the burden shifts on the defendants, but they have not discharged the burden, by leading cogent evidence. It is contended that, the trial court ought to have answered issue No.1 and 3 in favour of plaintiffs, holding that, both plaintiffs and defendants constitute joint family; the trial court has erroneously proceeded to consider the question of Aliyasantana and Kavaru, thus committed an error in not applying the provisions of KLR Act, 1961, as to the heritability of the tenancy, division of the joint family properties and the competency of civil court in respect of ascertaining the shares of respective parties. It is contended that, tenancy was created in favour of Marla as per Ex.P54 to Ex.P64 and this fact being admitted by plaintiffs and defendants and the constitution of the joint family and cultivation being established as per Ex.P73 and 74 coupled with Ex.P71, it is contended that, the compromise entered
- 22 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 between the plaintiffs and heirs of Keredevi i.e, defendant No. 11 and 12, pursuant to orders on I.A. 3 and 4, the genealogy of family has been admitted and the grant of occupancy right in favour of joint family.
20. It is contended that, by virtue of Ex.P77-Original Geni Tahaname, Shri. Hiriyanna and Bangari were cultivating schedule 'A' properties, half each, hence Hiriyanna had filed form No.7 in the year 1974 and claimed occupancy rights to half extent of 'A' schedule properties, therefore, the Hon'ble High Court in Writ Petition, has granted liberty to plaintiffs to put forth their claim in respect of their half share and accordingly, the plaintiffs have filed the present suit. It is further contended that, merely because, the landlord sought for rejection of occupancy rights claimed by Hiriyanna, it cannot disprove the existence of the same, when the landlord himself affixed his signature on the agreement. It is further contended that, the trial court has wrongly held that, Ex.P77 is inadmissible evidence on the ground of non
- 23 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 registration and insufficiency of stamp duty; Ex.P77 was produced for collateral purpose to ascertain possession of Hiriyanna and Bangari over half portion each in suit 'A' schedule properties and Ex.P77 is executed as a memorandum of past event, it does not require registration and it is admissible in evidence. It is contended that, though the plaintiffs have proved joint family status and suit schedule properties is joint family properties of plaintiffs and defendants and no partition took place in the family of plaintiffs, the trial court ought to have decreed the suit of the plaintiffs. Hence, the plaintiffs prayed to allow the appeal and to decree the suit.
21. Learned counsel for the appellants relied upon the following decisions;
1) ILR 2004 KAR 3355 in Case of Parushuram Nemani Kuduchakar and Ors V. Smt. Shantabai Ramachandra Kuduchakar and Ors
2) ILR 1992 KAR 1359 in Case of Booda Poojary V. Thomupoojarthy
3) AIR 1968 MYSORE 216 in case Smt. Tatnamala V. State
4) ILR 2003 KAR 3176 in case Krishna V. Sanjeev
- 24 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016
5) AIR 1999 GUJARAT 108 in case AshokkumarUttamchand Shah V. Patel Mohmad Asmal Chanchad
6) RFA No.1790/2010 in case Rajesh Naik V. Smt. G Susheela and Ors
7) 2017(4) KCCR 3615(DB) in Sri. Ramachandra Narayan Talwar V. KUmar Soukharya and Others
8) 2006(2) AIR KAR R 700 in case Kallappa Ningapopa Alagundi V. Narasappa Ningappa Alaguni Major.
9) AIR 1959 SC 914 in case Dolgobinda Paricha V. Nimai Charan Misra and Othrs
10) AIR 1928 NAGPUR 20 in case Jagdeo V. Vithoba
11) AIR 1999 SC 1341 in case Iswar Bahi C Patil @ Bachu Bhai Patel V. Harihar Behera and Others.
22. The learned counsel for the defendants contend that, plaintiffs have failed to prove the genealogy furnished by them and they along with defendant No.1 to 11 constitute a Hindu Undivided Family; plaintiffs have failed to prove that, the grant of occupancy rights in favour of one Bangari and one Keredevi in respect of 'B' schedule properties was for and on behalf of the joint family and the plaintiffs are in joint possession of suit schedule 'A' and 'B' properties, along with defendants No.1 to 11. It is further contended that, defendants No.1 to 11
- 25 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 and 13 proved that, after partition of 'A' schedule properties, it was the absolute properties of deceased Bangari and portion of the same were the self acquired properties of deceased Keredevi; suit schedule 'B' properties were self acquired properties of deceased Bangari. Therefore, the counsel contended that, the trial court considering the oral and documentary evidence on record and the fact that, the plaintiffs failed to prove the relationship with the defendants rightly dismissed the suit of plaintiffs, hence, the counsel justified the judgment and decree passed by the trial court.
23. From the perusal of the evidence of both the parties, it appears that, the plaintiffs are mainly relying upon the genealogy, contending that, the plaintiffs' paternal grand mother (Smt. Subbi) and mother of Bangari (Smt. Akkamma) were full sisters and they were full sisters of one Rama and they were children of one Manjakka, who is none other than the daughter of propositus Manja. Smt. Manjakka had two brothers by
- 26 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 name Marla and Madoora. Therefore, the plaintiffs are claiming their rights in the suit properties, through their paternal grand mother Smt. Subbi.
24. According to the plaintiffs, their grandmother Subbi and the grandmother of defendants No.2 to 10 Akkamma were full sisters and daughters of Manjakka and as such they inherited the suit properties under Aliyasantana law of inheritance and they being the successors of Subbi and defendants No.2 to 10 being the successors of Akkamma are the joint family members having equal half share in the suit properties. Thus, the heavy burden is on the plaintiffs at the first instance to prove that they belong to Aliyasantana custom.
25. To prove their claim, PW1 has relied on Ex.P54 to P59 mutation entries. Ex.P54 to Ex.P56 are the mutation entries dated 09.07.1936 pertaining to the suit property. Ex.P57 is the mutation entry dated 06.09.1936 in the name of Akkamma. Ex.P58 is another mutation entry dated 08.01.1954 in the name of Akkamma with regard to
- 27 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 conferment of occupancy rights in her favour. Similarly, Ex.P59 is the mutation entry dated 23.10.1956 in the name of Bangari, after the death of Akkamma. These documents are produced and relied on by the plaintiffs to show that the family was following Aliyasantana custom since the second name of all these persons in these documents is shown as mava (maternal uncle) instead of mentioning the names of their father or mother.
26. Therefore, it is to be seen as to how Ex.P54 to Ex.P59 is helpful to the case of the plaintiffs. No doubt, in all these documents the name of the maternal uncle is shown infront of the names of Akkamma and Bangari, but not a single revenue record is placed before the court showing the name of Smt. Subbi, whom the plaintiffs claim to be their grandmother. Before considering the claim of the plaintiffs regarding Alyasantana law of inheritance, it would be relevant to refer to the essentials of this particular customary law of inheritance. A Hindu who follow this law is governed by the Madras Aliyasantana Act
- 28 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 1949, Sec.3 of the Act defines the word "Aliyasantana" as under:
Sec.3(a) "Aliyasantana" means the system of inheritance in which descent is traced in the female line, but does not include the system of inheritance known as the "Marumakkatayam".
27. As per Sec.3(b) of Hindu Succession Act, 'Aliyasantana Law' means the system of law applicable to persons who, if this Act had not been passed, would have been governed by the Madras Aliyasantana Act, 1949 or by customary Aliyasantana law with respect to the matter for which provision is made in this Act. The Aliyasantana system is the system of inheritance through female line which gives property rights to the lady and all rights are centralized on her. The basic difference between the "Mitakshara Joint Family", "Marumakkattayam" and "Aliyasantana system" is that the former is based on patriarchal system while the latter is based on matriarchal system.
- 29 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016
28. The other significant aspect of Aliyasantana custom is the existence of "Kavaru" the meaning of which as provided in Sec.3(b)(I) of the Act is 'Kavaru' in relation to a female, means the group of persons consisting of that female, her children and all her descendants in the female line.
29. Sec.3(c) of the Act further defines the term "Kutumba" which means the group of persons forming a joint family with community of property governed by the Aliyasantana law of inheritance. Thus, what can be gathered from these definitions provided under the Act is that in this matrilineal system of inheritance, the woman is the propositus. All her children, male and female, along with the mother constitute one group and this group is the Kavaru. Further, a Kavaru, any more than a Kutumba, cannot be created by the act of parties. A woman and some of her children only, they being children of one father, cannot constitute a Kavaru. Kutumba is the unit.
- 30 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 The Kavaru being a sub-division of the Kutumba, the courts have recognized a Kavaru as legal entity.
30. The common feature of 'Kutumba' as well as 'Kavaru' is that each of these consists of a female and her descendants in the female line. Thus, Kutumba is the name given to the joint family consisting of males and females, all descended in the female line, from a common ancestress. In this matrilineal seniority of Aliyasantana law of inheritance, where the eldest sister is succeeded by her next eldest sister, etc., until the surviving sister have had their turns, at which point, the females of the next generation, daughters of these "original" sisters will have their turns, in order of seniority. In the backdrop of these customary provisions, it is to be seen as to "whether the plaintiffs in the instant case could satisfy these essentials in order to claim their right under this particular law of inheritance?"
31. It is material to note that in the genealogy furnished in the plaint, the propositus shown is admittedly
- 31 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 not a female but a male, by name Manja. Thus, as per the own case made out by the plaintiffs, the propositus or ancestress was not Manjakka. In none of Ex.P54 to P59, we find the name of Manjakka as the ancestress or the original holder of the suit property. On the contrary, as we have already discussed supra, the name of Marla is shown as the original mulagenidar and after his death, the name of Madoora is found for the first time in the year 1936.
32. Even Ex.P55 and P56 reveal the name of Marla. Thereafter, the name of Akkamma was entered to the records of the suit property as per Ex.P57 and Ex.P58, as the protected tenant. Thus, these documents which are the own documents of PW1 would disclose that, at no point of time, the original holder of the suit property was any female member of the family. Furthermore, PW1 himself has categorically admitted in his cross examination that, there was no varsa entry after the death of his father
- 32 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 or his maternal uncle under Aliyasantana law and he has no documents to prove the same.
33. It is further relevant to note that even PW3 who is the son of one of the landlords has categorically admitted in his cross examination that the original tenant of suit Sy No.136 was one Marla and from Marla it was inherited by Madoora and from him, the same was inherited by Bangari. He has further admitted that even the other suit Sy Nos.133 and 134 were also cultivated by the above persons. This material piece of his admission is found in his cross examination dated 29.07.2016 at para 4 which reads thus;
"It is true to suggest that Sy No.136 was belonging to one Marla as tenant. Thereafter the said property was inherited by Madura. It is true to suggest that from Madura the said property was inherited by Bangari. It is true to suggest that Sy No.133 and 134 were originally belonging to Marla and after him to Madur and thereafter leased to Krishna Nagappa Shetty and then to Bangari".
The above categorical statement of PW3 would once again falsify the claim of the plaintiffs that the
- 33 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 suit properties have been inherited under Aliyasantana custom through a female member of the family. It is further to be noted that the parties are the residents of North Kanara District and the suit properties are also situated in said district, wherein the Aliyasantana law of inheritance is not prevalent or followed. Though PW1 claims that his ancestors originally hail from South Kanara district, wherein this particular law is followed, but to substantiate this aspect, he has not placed any materials before the court. Hence, this claim of PW1 that they are governed by Aliyasantana law of inheritance, has no substance.
34. It is further relevant to note that in none of the Writ proceedings before this Court, the father of PW1 Hiriyanna had made any whisper with regard to the fact that they are governed by Aliyasantana custom. He had also not pleaded that the suit properties were originally tenanted lands inherited from their maternal grandmother Manjakka and from her, his mother Subbi and the mother
- 34 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 of Bangari, Akkamma inherited the said properties under Aliyasantana law of inheritance and hence, himself and Bangari being the sons of Akkamma and Bangari have got equal half share in these properties. On the contrary, from the appeal memo filed by him and as per Ex.D9, it is clearly revealed that PW1 had specifically pleaded his tenancy to an extent of half portion of the suit properties.
35. However, in his cross examination, PW1 has stated that in the Writ proceeding, they had claimed that their family was Aliyasantana family and he has also admitted that no positive finding has been given by the High Court in that regard and he has also admitted that though they had put forth such claim before the Land Tribunal, even the Tribunal has not affirmed it. Thus, for the first time, in this case, a desperate attempt appears to have been made by the plaintiffs to introduce a different plea that they are governed by this particular law of inheritance.
- 35 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016
36. Even PW1 has clearly admitted in his cross examination that after the death of his father or his maternal uncle, succession has not taken place as per Aliyasantana law and that he has no records to prove that the family was following this particular customary law of inheritance. Even PW2 who claims to be the relative of the plaintiffs has stated in his chief examination that the family of the plaintiffs and defendants was earlier following this custom and even their own family was also following it, but he could not even say as to how the properties would devolve under this law of inheritance. Therefore, viewed from any angle, it cannot be said that the plaintiffs could prove with cogent materials that their family was governed by Aliyasantana law.
37. Now the next material aspect which requires consideration is as to "whether the plaintiffs could prove that they constitute a Hindu Undivided Joint Family along with defendants No.1 to 11?" As we have already discussed supra, it is their specific case that even after the
- 36 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 death of their grandmother Subbi and the grandmother of defendants No.2 to 10 Akkamma, there was no partition in their family and hence, they all constitute undivided family. It is to be noted that in order to prove the jointness of the family of the plaintiffs and defendants No.1 to 11, the plaintiffs must prove that the children of Akkamma and Subbi were jointly residing in the matrimonial home of both Akkamma and Subbi and that they all together constituted a joint family.
38. As we have held above, at the first instance the plaintiffs have to prove that both Akkamma and Subbi continued the matrilineal system of inheritance in which the eldest female member was the propositus and that all her children, male and female, along with the mother constitute one group called 'Kavaru". The plaintiffs have to further prove as to who was their common ancestress in order to claim right under this customary law. The plaint is totally silent on these material aspects. It is not the case of the plaintiffs that the mother of Rama, Akkamma and
- 37 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 Subbi as shown in their genealogical tree was the common ancestress.
39. It is significant to note that PW1 has categorically admitted that he has no documents to prove that his father and Bangari were jointly cultivating the suit lands. He has even admitted that he has not produced any documents to show that Bangari was their family member and even he has admitted that in the Form No.7 filed by Bangari, he had not made mention of the name of his father. This material piece of his admission is found in his cross examination dated 13.06.2016 in para No.4 which reads thus;
"zÁªÁ¹ÛUÀ¼À£ÀÄß £ÀªÀÄä vÀAzÉ ºÁUÀÆ §AUÁj EªÀgÀÄ dAnAiÀiÁV ¸ÁUÀÄ ªÀiÁqÀÄwÛzÀÝ §UÉÎ AiÀiÁªÀÅzÉà zÁR¯É E®è JAzÀgÉ ¤d. §AUÁj EªÀgÄÀ £ÀªÀÄä PÀÄAlÄA§zÀ ¸ÀzÀ¸ÀågÁzÀÝgÉAzÀÄ vÉÆÃj¸À®Ä zÁR¯É ºÁdgÀÄ¥Àr¹®è. CªÀgÄÀ vÀÄA©zÀÝ ¥sÁªÀÄð £ÀA.7 £À°èAiÀÄÆ PÀÆqÀ £ÀªÀÄä vÀAzÉ CxÀªÁ £ÀªÀÄä §UÉÎ G¯ÉèÃR E®è JAzÀgÉ ¤d. £ÀªÀÄä ¥ÀgÀªÁV PÀÆqÀ ¥sÁªÀÄð £ÀA.7 vÀÄA©zÀÝ §UÉÎ §AUÁj AiÀiÁªÀvÀÆÛ ºÉýPÉ ¤Ãr®è JAzÀgÉ ¤d."
The above categorical admission of PW1 once again clearly nullifies his claim that the family of Hiriyanna as well as that of Bangari were constituting a joint family and they were jointly cultivating the suit lands.
- 38 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016
40. One more material aspect which is to be noted here is that the mother of PW1, the defendant No.6 had also filed Form No.7 seeking grant of occupancy rights in her favour with respect to the suit Sy. No.133, 136 and 163 and the same was rejected by the Land Tribunal as per Ex.D3 which was admitted by PW1 when it was confronted to him by the defence counsel. He has also admitted that against the said dismissal order, his mother has not preferred any appeal. If really the family of Hiriyanna and Bangari were joint and were in joint possession and cultivation of the suit lands as per the claim of the plaintiffs, then a reasonable suspicion certainly arises as to what was the necessity for defendant No.6 to file such application separately. This is one such circumstance which would negate the claim of the plaintiffs regarding the jointness of parties as well as the properties.
41. The own documents of the plaintiffs Ex.P54 to 59 which have come into existence at an undisputed point of time right from the year 1936 would indicate that the
- 39 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 family of Subbi and Akkamma was never joint. However, the learned counsel for the plaintiffs vehemently argued that there was a clear admission by the present defendant No.2 as per Ex.D10 with regard to the existence of joint family of their family and that of Hiriyanna.
42. In this regard our attention has been invited to page No.2 of Ex.D2 which is statement of defendant No.2 before the Land Tribunal, wherein he has stated in his cross examination that their house and that of Hiriyanna are situated in the suit Sy. No.130. By pointing out this statement, it has been submitted that because both Hiriyanna and Bangari were in the joint family, their houses were abutting each other. Thus this line of argument canvassed on behalf of the plaintiffs cannot be accepted for the reason that, mere existence of houses abuting each other would not automatically prove that the families of both were joint. On the other hand, the existence of joint family will have to be proved with acceptable evidence, both oral as well as documentary.
- 40 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016
43. One more relevant aspect to be noted here is that admittedly the sister of Bangari, Keredevi had also filed a separate application for grant of occupancy rights with respect to the suit Sy. No.103 and the same was allowed and occupancy rights were granted to her. This order has also remained unchallenged by the parties. If really the families of Akkamma and Subbi were joint and they were jointly cultivating the suit lands, then the daughter of Akkamma Keredevi could not have been allowed by the other members of the family to file Form No.7 with respect to the said property. This aspect also clearly falsifies their claim.
44. However, the plaintiffs have relied much on Ex.P77 which is said to be an agreement dated 18.11.1970 alleged to have been entered into between Hiriyanna, Bangari and the landlord with respect to suit 'A' schedule Properties. This document which is styled as a "Geni Tahaname Kararu" has been seriously disputed by the defendants. According to their defence, the plaintiffs have
- 41 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 got up this document only to suit their purpose in this case which has seen the light of the day for the first time in the year 1999 and hence, the same cannot be relied on.
45. It is to be noted that the tenancy issue with respect to the suit lands under Ex.D6 or under Ex.P76, Writ proceedings have been settled, because there cannot be any dispute to the settled law that the issue as to who is the tenant of the land has to be necessarily decided by the Land Tribunal and that the issue has been now settled in the present case. Even the plaintiffs cannot deny the fact that the occupancy rights have been exclusively granted in favour of Bangari in exclusion of Hiriyanna. Now all that is to be considered by this court as per the order of High Court as per Ex.P76 is as to "whether this grant was in the exclusive and individual capacity of Hiriyanna" or "whether it was for and on behalf of the family consisting of Hiriyanna and Bangari".
46. Ex.P77 has been produced by PW1 to prove that his father Hiriyanna and Bangari were jointly cultivating
- 42 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 the suit 'A' schedule properties till the year 1970 and thereafter with the consent of the landlords, they started cultivating half extent of the properties each under this document. How far this document could be relied upon, is the material aspect which needs consideration. The learned defence counsel has pointed out so many infirmities in this document so as to disprove the claim of the plaintiffs. The first infirmity pointed out by the defence counsel is with regard to the assertion of the plaintiffs in this suit regarding the alleged joint cultivation by Hiriyanna and Bangari, whereas this document reveals their alleged separate cultivation. This is the first inconsistency crept in the case of plaintiffs to disbelieve this document.
47. The second circumstance which would cast cloud on Ex.P77 is its non-production by the plaintiffs in all the earlier proceedings. As has been rightly argued by the learned defence counsel, the first revenue proceeding was held in the year 1977 after submission of Form No.7 in the
- 43 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 year 1974 and in that proceeding, the father of PW1 failed to refer Ex.P77. However, the plaintiffs relied upon Ex.P77, for the first time in the year 1999 before the Land Tribunal. When Ex.P77 according to the plaintiffs had come into existence in the year 1970 itself then there would not have been any impediment to Hiriyanna to assert his rights before the Land Tribunal on the basis of his document.
48. It is further relevant to note that even Hon'ble High Court in Ex.D6 order had made material observations on page No.12 of its order that this document is not reliable on the grounds which has been referred to supra. The Hon'ble High Court has clearly observed that the belated production of this document exposes the document to serious doubt regarding its authenticity and integrity. Even it is observed that the landlords who had participated in the enquiry in the year 1977 had not referred to this document when as per the claim of the plaintiffs, the landlords were also parties to this document. Ultimately, the High Court held that no credence could be
- 44 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 attached to this document so also to the statement of the land owner made in the year 1999.
49. However, the learned counsel for the plaintiffs urged with some vehemence that the observations made by the High Court in Ex.D6 order would not come in the way of deciding the validity of Ex.P77 since in Ex.P76 Writ appeal which were filed against the very same order at Ex.D6, the Division Bench of the High Court has opined that the claim of common tenancy under Ex.P77 could be agitated before this court. No doubt, such observations are made in Ex.P76 appeals, but that observations of the High Court would not absolve the plaintiffs from proving the genuiness of Ex.P77 since those observations made in Ex.D6 order with regard to Ex.P77 have not at all been disturbed or set aside. In other words, the observations made in Ex.P76 cannot be construed as conclusive findings as regards the validity of Ex.P77.
50. One more material aspect which would nullify the genuineness of Ex.P77 is the statement of the landlord
- 45 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 before the Land Tribunal as per Ex.D7. In this statement, he has clearly stated that since the Land Tribunal has granted occupancy rights in favour of Bangari with respect to suit Sy No.134, the application seeking occupancy rights by Hiriyanna be rejected. This document is a certified copy of his statement which has been obtained by the defendants from the concerned authority. Moreover, the son of the very same landlord PW3 has categorically admitted this statement given by his father as per this document as well as the signature of his father on it.
51. It is material to note that Ex.D7 is the statement of one of the landlords Anant Nadig who is shown to be one of the parties to Ex.P77 and the Sy. No.134 referred by him in Ex.D7 is also included in Ex.P77 . Under such circumstances, when the landlord himself has stated before the Land Tribunal affirming the right of Bangari alone over the said property which was accepted by the Tribunal, then it is highly improbable to believe that the very same person would have entered into such
- 46 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 agreement as per Ex.P77 acknowledging the alleged tenancy of Hiriyanna to the half extent.
52. If really the suit properties were commonly or jointly cultivated by both Hiriyanna and Bangari, then the said landlords would not have sought for rejection of the application of Hiriyanna as per Ex.D7. This is also one of the circumstances which could probabalise that it was Bangari alone who was cultivating these lands exclusively in his individual capacity. It is further pertinent to note that even the son of the said landlord PW3 has categorically admitted in his cross examination dated 29.07.2016 that from Marla and Madoora, the suit properties were inherited by Bangari. Even PW3 has clearly admitted in his further cross examination that since 1970 till 1999 neither his father nor his uncle had produced Ex.P77 before the Land Tribunal and they had also not referred to this document before the Tribunal.
53. The stand taken by the plaintiffs in this case to assert their right over the suit properties are mutually
- 47 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 destructive. At one stretch they claim that, though the occupancy rights were granted in favour of Bangari, it was for and on behalf of the family and in another stretch, they have sought for proving that this was joint tenancy of both and they were cultivating the lands to the extent of their respective half portions as per Ex.P77. All these circumstances are indicative of the fact that, the plaintiffs have brought up this document only with an intention to create some sort of arrangement inter-se between Hiriyanna and Bangari to claim their half right in the suit properties.
54. When the alleged joint family itself was not proved to be in existence, then there is no question of drawing any inference about the claim that the grant of occupancy rights in favour of Bangari enured to the benefit of the joint family. In case of Balagouda Alagouda Patil and Others Vs, Babasaheb Ramanagouda Patil reported in ILR 1999 KAR 831, this court held as under;
- 48 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 "The Occupancy rights granted to only one member. Where Tenancy rights have been acquired by a member of a family, such rights shall be held to be for the benefit of the entire family."
55. Further the defendants have disputed the relationship of plaintiffs with defendants, so also, the genealogy furnished by the plaintiffs. In cases where the plaint genealogy is the very basis of the plaintiffs case and since there is tendency on the part of an interested person or a party in order to grab, establish or prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends, the courts should endeavor to do justice on the materials and records uninfluenced and undaunted by any extraneous circumstances. The genealogies of the families concerned must fall within the four corners of section 32(5) or section 13 of the Evidence Act. Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstance under which the knowledge is acquired and this must be clearly and conclusively proved. The similar ratio is held in case of the
- 49 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 STATE OF BIHAR VS. RADHA KRISHNA SINGH AND OTHERS reported in (1983) 3 SCC 118.
56. In the light of the above discussion and submissions made at the Bar, a question arises to us, how Aliyasanthana law is applicable to this case: A special feature of South Canara District has been the prevalence of "Aliyasanthana or "Aliyakattu" which means the system of inheritance in which descends is traced in the female line. According to this custom, the property of a female descends in the female line. The line of descent is taken to be from the deceased holder to his sister's son. A legend describes the origin of this system of inheritance through the family line to a ruler called Bhutalapandya, who wanted to offer one of his sons as a sacrifice to the gods, but was thwarted by the maternal affection of his wife and had to resort to the sacrifice of his nephew given to him by his sister and in acknowledgement of this gesture, he decreed that all sons should thereafter forfeit their rights in favour of sisters' sons. However this story has no
- 50 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 historical basis. The custom has resisted all outside influence and it is obvious that it must have been firmly rooted since a long time. It gave the women importance and equality with men.
57. ALIYASANTANA LAW AND MARUMAKKATTAYAM LAW: Marumakkattayam Law prevails among a considerable section of the people inhabiting the west coast of South India viz., the Indian States of Travancore and Cochin and the Districts of Malabar and South Canara. In South Canara District, the system is known as Aliyasanthana. The literal meaning of the word Marumakkattayam' is inheritance through nephews and nieces and same is the meaning of Aliyasanthana. The general castes in South Canara that follow Aliyasanthana Law are the Bunts, Billawas and the non-priestly classes among the Jains. It is said that Aliyasanthana is older than the Marumakkattayam system. Codified the customary Aliyasanthana Law and amended by the Madras was Aliyasanthana Act (Madras Act No. IX of 1949) which
- 51 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 defined and amended in certain respects the Law relating to marriage, maintenance, guardianship, intestate succession, family management and partition applicable to persons governed by the Aliyasanthana Law of inheritance. The Madras Aliyasanthana (Mysore Amendment Act), 1961 (Mysore Act of No. 1 of 1962) made some changes in provisions in regard to partition of properties and also provided that any male or female member of a Kutumba or Kavaru having undivided interest in its properties should be entitled to claim partition of his or her share and the claimant should be allotted the share that would fall to him or her if a division of properties were made per capita among all the members of the Kutumba or Kavaru.
58. One of the important judgments covering the entire Law relating to Aliyasanthana has been rendered by a Full Bench of the Hon'ble Mysore High Court in the case of Sundara vs. Girija -AIR 1962 Mysore 72. In the said case, it was held that, a share allotted to Nissanthathi Kavaru is only in the nature of life interest in the property
- 52 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 and such share is not enlarged by Hindu Succession Act and it does not become capable of being disposed of by will.
59. In Sundari vs. Lakshmi- reported in AIR 1980 SC 198, the Hon'ble Apex court held that the result of the explanation to Sec.7 (2) of Hindu Succession Act is that the undivided interest in the property of the Hindu in the Aliyasanthana Kattu or Kavaru, shall devolve as provided for under the Hindu Succession act and that the share of the Hindu shall be deemed to have been allotted to him absolutely. It was further held in this case that even though a Nissanthathi Kavaru might have a limited interest, as the devolution prescribed for in the Madras Aliyasanthana Act is no more applicable, the devolution will be under the Hindu Succession Act.
60. Whereas, in the instant case, the plaintiffs have failed to establish the relationship with defendants and genealogy furnished by them. Likewise, the claim of plaintiffs' is that, their ancestors and ancestors of
- 53 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016 defendant Nos.1 to 11 hail from South Canara and they are Governed by Aliyasanthana Law of inheritance. Further, the plaintiffs have failed to prove that Sri. Hiriyanna and Sri Bangari were cultivating suit schedule lands jointly and thereafter, cultivated their respective half portion separately and later both filed Form No.7 before the Land Tribunal, for grant of occupancy rights. On the other hand, as per the material available on record, defendants established that plaintiffs are not related to their family, nor their ancestor Sri. Hiriyanna ever cultivated the suit land as tenant along with Sri Bangari. Further, the defendants have established that, suit schedule 'A' properties were exclusively cultivated by their ancestor Sri Bangari and mother of defendant No.11 Smt. Keredevi jointly and both of them filed separate Form No.7 for grant of occupancy rights in their favour and thus, occupancy rights were granted in their names and suit schedule 'B' properties were exclusive tenanted property of Sri Bangari and occupancy rights were granted in his favour by the Land Tribunal.
- 54 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016
61. In the light of the decisions i.e., in Sundari's Case reported in AIR 1980 SC 198, the legal heirs of Sri Hiriyanna has no right over the suit schedule properties. Therefore, the trial Court has rightly dismissed the suit of the plaintiffs. On all these grounds and in view of the facts and circumstances of the case and provisions of law, the trial Court has rightly dismissed the suit, which in our opinion, is neither perverse, capricious nor illegal, which does not call for any interference by this Court. Hence, we answer point No.1 in the negative.
62. Point No.2:- In view of the foregoing discussions and the finding on point No. 1, the appeal filed by the plaintiffs - appellants deserve to be dismissed. Hence, we pass the following:-
ORDER
1. The appeal filed by the appellants -
plaintiffs is dismissed.
- 55 -
NC: 2023:KHC-D:13753-DB RFA No. 100310 of 2016
2. The Judgment and Decree passed by the learned Senior Civil Judge, Sirsi, in O.S. No.34/2013 dated 01.09.2016, is confirmed.
3. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE PJ/MN List No.: 19 Sl No.: 1