Karnataka High Court
Muniyappa S/O Nagappa vs N.Narayana S/O Nagappa on 15 May, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MAY 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.2203 OF 2012 (DEC/INJ)
BETWEEN:
MUNIYAPPA
S/O NAGAPPA
AGED ABOUT 65 YEARS
SINCE DEAD BY LRs.
1(a) SMT. AKKAYAMMA,
W/O MUNIYAPPA,
AGED ABOUT 64 YEARS,
CHUNCHE GOWDANAHOSAHALLI,
BELAVANGALA HOBLI,
DODDABALLAPUR TALUK,
BENGALURU RURAL DISTRICT.
1(b) SMT. NAGARATHNAMMA
W/O LAKSHMIPATHI @ RAM RAO,
AGED ABOUT 42 YEARS,
R/AT RAVI PUTHRA NILAYA,
#1, D.S.MAX LAYOUT,
NEAR SAMBRAM COLLEGE,
SINGAPUR VILLAGE,
BENGALURU-560 097.
... APPELLANTS
(BY SRI. K. SHRIHARI, ADVOCATE)
AND:
N.NARAYANA
S/O NAGAPPA
AGED ABOUT 63 YEARS
SINCE DEAD BY LRs.,
2
1(a) LAKSHMI
W/O LATE NARAYANA
AGED ABOUT 52 YEARS
1(b) PRASHANTH
S/O LATE NARAYANA
AGED ABOUT 18 YEARS
1(a) AND 1(b) ARE RESIDING AT
NO.67, 1ST MAIN ROAD,
3RD CROSS, APOORVA APARTMENT,
GEO LAYOUT,
SAMBHRAM COLLEGE,
CHIKKABETTAHALLI,
VIDYARANYAPURA POST,
BENGALURU-560097.
...RESPONDENTS
(BY SRI. GANESH SHENOY, ADVOCATE FOR
RESPONDENTS NOs.1(a AND b)
CAUSE TITLE AMENDED VIDE ORDER OF THIS COURT
DATED 15.07.2015)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE,
1908 AGAINST THE JUDGMENT AND DECREE DATED
22.08.2012 PASSED IN R.A.NO.30/2012 ON THE FILE
OF PRESIDING OFFICER, FAST TRACK COURT,
DODDABALLAPURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
17.12.2011 PASSED IN O.S.NO.298/2006 ON THE FILE
OF SENIOR CIVIL JUDGE AND JMFC,
DODDABALLAPURA.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.02.2020, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This Regular Second Appeal is filed by the plaintiff challenging the concurrent Judgments and Decrees of the Trial Court and First Appellate Court dismissing the suit filed by the plaintiff against his younger brother for declaration of title and perpetual injunction in respect of the suit property.
2. For the sake of easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellant herein was the plaintiff, while the respondent was the defendant before the Trial Court.
3. The plaintiff claimed in his suit that he was granted 04 acres of land in Sy.No.49 of Chunchegowdanahosahalli in terms of the Order dated 15.06.1979 passed by Deputy Commissioner. He contended that this survey number was later re- numbered as Sy.No.63. Out of the afore extent of land that was granted to the plaintiff, he gifted two acres of land to his daughter on 25.02.2000. He claimed to have 4 raised a loan from the Karnataka Scheduled Castes and Scheduled Tribes Development Corporation which he used to sink a borewell in the aforesaid land. He contended that when his daughter approached the Revenue office for change of khata in respect of the two acres of land that was gifted to her, she came to know that the remaining extent of 02 Acres in Sy.No.63 was already transferred to the name of the defendant. The plaintiff claimed that on 11.11.2006, the defendant trespassed and tried to forcibly take possession of 02 Acres in Sy.No.63 of Chunchegowdanahosahalli. The plaintiff contended that there was no partition between himself and the defendant as claimed by the defendant and therefore, he sought for a declaration of his title to the suit property and for consequential relief of perpetual injunction in respect of 02 Acres of land in Sy.No.63 of Chunchegowdanahosahalli, which shall henceforth be referred to as the "suit property".
4. The defendant filed his written statement and admitted his relationship with the plaintiff. He claimed that the plaintiff and the defendant were 5 members of a joint family and that the property that was granted to the plaintiff was treated as a joint family property. He claimed that on 02.03.1992, a division of the land in Sy.No.63 was effected in terms of which two acres of land fell to the share of the plaintiff and the remaining two acres fell to the share of the defendant. He contended that pursuant to such partition, revenue proceedings were initiated in M.R. No.6/1995-1996 and the mutation of the revenue entries to the name of the defendant was accepted. He claimed that the name of the plaintiff and the defendant were entered in the revenue records in respect of each of their holding and that both were in possession and enjoyment of the separate shares that were allotted to each of them. He therefore contended that the plaintiff was not entitled for the relief of declaration and injunction.
5. Based on the aforesaid contentions of the parties, the Trial Court framed the following issues:
"1. Whether plaintiff proves that he is absolute owner in possession of the suit schedule property as on date of the suit?6
2. Whether plaintiff further proves the illegal interference caused by the defendant?
3. Whether suit is properly valued and court fee paid is sufficient?
4. Whether plaintiff is entitle for relief as prayed by him?
5. What order or decree?"
An additional issue was framed on 30.05.2011:
"Whether the defendant proves that he has got 02 Acres of land through family partition dated 02.03.1992?"
6. The plaintiff was examined as PW.1 and he marked Exhibits P1 to P28. The defendant was examined as DW.1 and he examined a witness to the partition dated 02-03-1992 as DW.2 and his sister as DW.3 and the owner of the property lying on the western side of the suit property as DW.4 and he marked Exhibits D1 to D27.
7. The Trial Court impounded the palupatti at Exhibits D26 and D27 and directed duty and penalty to 7 be paid pursuant to which the defendant paid the duty and penalty.
8. The Trial Court after appreciating the evidence on record, held that the defendant had proved that Sy.No.63 of Chunchegowdanahosahalli was the joint family property and that the same was partitioned in terms of Exhibits D26 and D27, in terms of which the plaintiff derived two acres of land that was gifted by him to his daughter on 25.02.2000, while the defendant derived two acres of land in respect of which the revenue entries were entered in the name of the defendant. The Trial Court held that the property that was granted in Sy.No.63 of Chunchegowdanahosahalli was a property that was thrown in to the common hotchpot of the joint family and thus it dismissed the suit filed by the plaintiff.
9. The plaintiff aggrieved by the aforesaid Judgment and Decree of the Trial Court, filed a Regular Appeal No.30/2012 before the First Appellate Court. The First Appellate Court noticed the documents namely 8 Exhibits D26 and D27 and more particularly the wedding invitation of the daughter of the plaintiff at Exhibit D21 and the service record of the defendant (Ex.P28) and the transfer certificates of the plaintiff's daughter and defendant respectively at Exhibits D19 and D20 and held that the family was joint and abode of the joint family was at Chunchegowdanahosahalli. The First Appellate Court held that the documents at Exhibit D26 and D27 probabilized the fact that the suit property was held jointly by the plaintiff and the defendant and thus dismissed the appeal and confirmed the Judgment and Decree of the Trial Court.
10. The plaintiff aggrieved by the aforesaid Judgments and Decrees of Trial Court and First Appellate Court filed this Regular Second Appeal. This appeal was admitted by this Court to consider the following substantial questions of law:
1. Whether on mere pleading without any documentary evidence to the effect that the grant in favour of Muniyappa was for the benefit of joint family, would the Trial Court 9 deny the plaintiff's claim for partition? (This is corrected as for "declaration")
2. Whether the courts below are right in holding that the grant is for the benefit of joint family when the grant was made as the appellant Muniyappa was unauthorisedly cultivating the said land to the exclusion of the defendant?
3. Whether the Trial Court is right in receiving evidence, two documents marked as exhibits P26 and P27 evidencing partition without recording a finding as to whether it was a record of the partition effected in the past or was by those documents, partition was being effected?"
11. During the pendency of this appeal, plaintiff and defendant died and their respective legal representatives are brought on record in terms of the order dated 15.07.2015.
12. The learned counsel for the legal representatives of the plaintiff / appellant contended that there was no proof placed before the Trial Court and First Appellate Court to indicate that the suit 10 property was ever treated as a joint family property and or that the defendant had contributed for the acquisition of the suit property. He also contended that there was nothing on record to show that the suit property was ever treated as joint family property. He contended that exhibits D26 and D27, which were not registered in accordance with Section 17 of the Registration Act were not admissible in evidence and the defendant could not rely upon exhibits D26 and D27 to contend that the suit property was derived by him at the partition. He would contend that the revenue records would not confer any right, title or interest in the defendant and therefore, reliance on the revenue records to indicate the partition of the suit property would not be of any consequence. In support of his contention, he relied upon the following Judgments:
1. A Judgment of this Court in Regular First Appeal No.683/2003 (S.P. Subba Rao and others vs. M.Lakshmana Rao and others and disposed of on 19.02.2013);11
2. Judgment of the Patna High Court in the case of Sasibala Dasi And Anr. vs Chandra Mohan Dutta And Anr. reported in 56 Ind Cas 937;
3. Mst. Rukhmabai vs. Lala Laxminarayan and others reported in AIR 1960 SC 335;
4. Prema and Others vs. Deva Rao and others reported in (2011) 4 SCC 303;
5. Modinsaheb Peersaheb Peerzade and others vs. Meerabi and others reported in ILR 2000 Kar 3716;
6. Shub Karan Bubna vs. Sita Saran Bubna and Others reported in (2009) 9 SCC 689;
7. Lakkireddy Chinna Venkata Reddi vs. Lakkireddy Lakshmama reported in AIR 1963 SC 1601;
8. Ramesh Srinivasa Jannu vs. Srinivas Vittoba Jannu and others reported in 2000(4) KCCR 2609;
9. Shivaji vs. Parvathibai and others reported in 2007 (3) KarLJ 323;
10. Sita Ram Bhama vs. Ramvatar Bhama reported in AIR 2018 SC 3057;
11. The Judgment of this Court in the case of K.T.Prakash vs. K.T.Govardhan in Writ Petition No.7503/2010 ;12
12. Hallera Dyamappa and others vs. Tarihalli Karibasappa reported in ILR 2011 Karnataka 5713;
13. Shiromani and others vs. Hem Kumar and others reported in AIR 1968 SC 1299;
14. The Judgment of High Court of Mysore in the case of G.B. Mallikarjuniah vs. J.S.Kanniah Setty and others reported in AIR 1961 Kant 64;
15. Kale and others vs. Deputy Director of Consolidation and others reported in AIR 1976 SC 807; and
16. N.Muniswamy vs. M.Lalitha in RFA No.543/2002 reported in 2008(6) Kar L J 100;
17. Ibrahim vs. Ismail and others in RSA No.288/2002 reported in ILR 2008 Karnataka 1539;
18. Mohandas Dattaram Prabhu and others vs. U.F.M Mukund Honnappa Naik reported in ILR 2003 Kar 2420; and
19. Demanagouda and another vs. Smt.Ranawwa and others reported in ILR 1999 KAR 222.13
13. On the other hand, the learned counsel for the legal representatives of the defendant / respondent would contend that there is a presumption in law that a family is joint. Though there is no presumption that joint family possessed property, yet the circumstances following the acquisition of the property could be looked into to ascertain whether the family treated the property as joint family property.
14. I have given my anxious consideration to the submissions made at the bar. I have perused the records of the Trial Court and the First Appellate Court as well as their respective Judgment and Decree. I have also perused the grounds of the appeal filed by the appellant / plaintiff.
15. The facts that are not in dispute are that the plaintiff and the defendant are full blood brothers. The plaintiff indicated his age to be 60 years as on the date of filing of the suit and therefore his date of birth would be in the year 1946. The service records of the defendant which are enclosed as Exhibit P28 would 14 indicate his date of birth as 22.12.1951. It is not in dispute that both the plaintiff and the defendant were born and brought up at Palpaldinne and after the death of the father of the plaintiff and the defendant, the plaintiff shifted to ChunchegowdanaHosahalli to stay with his uncle. It is found in the evidence of the plaintiff that, after the marriage of the sister of the plaintiff and defendant, the mother and sister shifted to ChunchegowdanaHosahalli and were living in the same house. The transfer certificate of the defendant (Ex- D20) would indicate that the defendant had studied upto SSLC at Government High School, Doddaballapur and was residing at ChunchegowdanaHosahalli. Exhibit P28 would disclose that the defendant joined service somewhere in the year 1975. The address mentioned in exhibit P28 is "c/of Sri.C.Ramaiah, No.3(1), 8th Main Road, Palace Guttahalli, Bangalore-560003". The permanent address of the defendant is shown to be Palpaldinne, Doddaballapur Taluk. Exhibit-D19 is the transfer certificate of the daughter of the plaintiff which indicates that the plaintiff's daughter was studying at 15 K.N.Geetha High School, Nandini Extension, Kanteerava Nagar, Bangalore-96. Exhibit D21 is the wedding invitation of the daughter of the plaintiff and this indicates that the plaintiff's daughter was fostered by the defendant and that the defendant got her married on 23/24.02.1991 at Samudaya Bhavana, BDA, Krishnananda Nagara, Police Quarters, Bangalore. After the marriage of the daughter of the plaintiff, the suit property seems to have been divided in terms of Exhibits D26 and D27 in terms of which two acres of land fell to the share of plaintiff, while the remaining two acres of land fell to the share of the defendant. Revenue proceedings were initiated in M.R. No.6/1995- 1996 in terms of which, the partition that was entered into between the plaintiff and the defendant was given effect to and the mutation was accepted and the revenue records stood changed from the name of the plaintiff to the joint names of the plaintiff and the defendant as is evident from exhibits D3, D4, D5, D6, D7, D8, D9 to D14. Long thereafter, the plaintiff gifted his share of the property to his daughter in terms of 16 Exhibit P19 on 25.05.2000. In order to prove that the defendant was not living in ChunchegowdanaHosahalli but was living in Bangalore, the plaintiff has sought to place on record exhibits P20, P21, P22, P23, P24 and P25, which are the voters list and the enumeration in the voters list concerning the defendant to indicate that he was residing in Bangalore. He has also placed on record the service book of the defendant which would indicate that the defendant was residing in Bangalore at the relevant point of time.
16. As rightly contended by the learned counsel for the appellants, there is a presumption that a family is joint but there is no presumption that a property owned by any member of that family is a joint property. This Court is thoroughly conscious of the fact that a person who alleges that a property belongs to the joint family, must prove the joint nucleus and if such nucleus is proved, then it is for the person who claims self acquisition to prove it. The string of Judgments relied upon by the learned counsel for the legal representatives of the plaintiff / appellants, all reiterate 17 the above settled position in law. In so far as the Judgment in AIR 1960 SC 335 is concerned, the Apex Court held that an unregistered document can effect separation in status. However, the facts of that case were entirely different from the one on hand. In that case there was enormous documentary evidence that pointed that the properties were all joint and the defendants had set up documents to claim that some properties were allotted to their share and that they were all separate properties. The Apex Court held that the creation of documents to give the status of self - acquisition was only to defeat the rights of the plaintiff.
17. In the case on hand, the oral and documentary evidence indicate that the plaintiff was though born in Palpaldinne, he as a fatherless child went to Chunchegowdanahosahalli and grew up with his uncle. The mother, sister of the plaintiff / defendant shifted residence to Chunchegowdanahosahalli. The defendant was admitted to school during 1965-66 and pursued his SSLC at Doddaballapur Government High School. The transfer certificate of the defendant at Ex- 18 D20 would also indicate that the defendant too was living at Chunchegowdanahosahalli and that the defendant did not clear his SSLC examination. This would thus indicate that the plaintiff and the defendant along with their mother, sister were all living at Chunchegowdanahosahalli. The defendant was not employed elsewhere between 1965-66 till the year 1975. The defendant thereafter seemed to have landed a job with the Department of Mines and Geology as a Group 'D' employee during the year 1975. The defendant was residing at Palace Guttahalli in Bengaluru which incidentally was the place of one of his uncles and this is evident from the service record of the defendant at Ex-P28. Later, the defendant had his residence at Kanteerava Nagar, Bengaluru during the year 1982. The daughter of the plaintiff who perhaps had completed her higher primary was admitted to K.N.Geeta High School, Kanteeravanagara during the year 1985-86 and she studied there till SSLC and last attended the class on 10-03-1988, which is evident from Ex-D19. Her marriage was solemnised by the defendant with his 19 brother in law on 24-2-1991. The marriage invitation card that was marked as Ex-D21 which was not disputed by the plaintiff would indicate that the daughter of the plaintiff was fostered by the defendant and that he had performed her marriage. Thus, one point that is certain is that the plaintiff and the defendant continued to live in a joint family although with separate establishments due to obvious reasons, namely that the defendant was employed in Bengaluru and thus could not reside in Chunchegowdanahosahalli. The evidence of DW.3, who is the sister of both the plaintiff and the defendant, indicates that both the plaintiff and the defendant were cultivating the land in question.
18. It is no doubt true that the unauthorised cultivation of the suit property was regularised in the name of the plaintiff. Consequently, all revenue documents are bound to be made out in the name of the plaintiff. But the fact that the plaintiff, defendant, their mother and sister all resided at Chunchegowdanahosahalli cannot be lost sight off. 20 Though, it is stated in the evidence that when the suit property was granted to the plaintiff, the defendant was still studying, the documentary evidence indicates otherwise. He faced his SSLC examination in the year 1967 but failed. Thus, between 1967 and 1975 when the defendant was employed, in the absence of any proof to show that the defendant was otherwise engaged, it is impossible to accept that the defendant, then a 16 year old boy would not have ploughed in his labour to cultivate the suit property. Further, there is no material on record to indicate that the plaintiff had the requisite wherewithal to pay any premium for the grant of the land in the year 1979. The aforesaid circumstances indicate that the plaintiff and the defendant had constituted a joint family and were cultivating the suit property. The grant of the suit property in the name of the plaintiff was therefore merely tactical as by then the defendant was already employed with the Government and was ineligible to seek regularisation. The acts following thereafter, namely, the plaintiff and the defendant partitioning the 21 property, allowing the defendant to get his name entered in the revenue records based on the partition, allowing such entries to remain for more than ten years, gifting away only that portion of the land in favour of his daughter that fell to the share of the plaintiff at the partition etc, all invariably indicate that the plaintiff and the defendant had acknowledged the fact that the suit property and the land gifted to the daughter of the plaintiff were joint properties. The plaintiff did not take any steps to get his signature found on Exs.D26 and D27 compared with his admitted signatures.
19. Further in the case of Subraya M.N vs Vittala M.N and others reported in 2016 (8) SCC 705 held as follows:
"25. In his written statement defendant had averred that ".........he out of his own toil and sustained efforts encroached an area of 1.25 acre bearing S.No.69/5C2 in the year 1962 and converted the same into wetlands and revenue authorities had regularized his encroachment".
Father-Narayana died in or about 1962.
22After the death of Narayana, admittedly, defendant was running the family affairs. After death of Narayana, family must have continued the cultivation of item No.3. The defendant cannot claim that he had individually encroached upon item No.3 even in the year 1962 and was cultivating the same in his individual capacity by his own exertion. Evidence amply shows that possession and cultivation of item No.3 was by the family and patta was granted in the name of the defendant and it is to be held that the patta was granted for the benefit of the entire family.
26. As discussed earlier, there was division of status among the brothers, the defendant and plaintiffs No. 3 and 4 during the year 1995 or at the time when the defendant paid Rs.20,000/- to plaintiffs No.3 and 4 for relinquishment of their interest in items No.1 and 2 or on 18.03.1995 when before panchayat resolution (Ex.D22) was passed. As noticed earlier, appellant had given the application for grant of patta of item No.3 in 1989 and the same was renewed in 1991 during which time there was no 23 division of status among the defendant and plaintiffs No.3 and 4. Since the grant of item No.3 in the name of the defendant is for the benefit of the family, trial court and the High Court rightly recorded the concurrent findings that the plaintiffs are entitled to the share in item No.3."
20. It is thus not the mere pleadings but the circumstances that indicate that the land in Sy.No.63 was granted to the family and thus the substantial question of law nos.(i) and (ii) framed by this Court are answered accordingly. Consequently, the Courts below were right in holding that the grant of the land in Sy.No.63 of Chunchegowdanahosahalli was for the benefit of the joint family, though the grant was made in the name of the plaintiff.
21. In so far as the last substantial question of law framed by this Court, it is true that a document evidencing partition of the properties is compulsorily registrable under Section 17(1)(b) of the Registration Act as held by this Court and the Apex Court in the 24 Judgments cited by the learned counsel for the appellants. In the case of Subraya M.N vs Vittala M.N reported in 2016 (8) SCC 705, referred supra, the Apex Court while considering a document that was similar to the document at Exs.D26 and D27 held as follows:
"17. Even though recitals in the Ex.D22 is to the effect of relinquishment of right in items No.1 and 2, Ex.D22 could be taken as family arrangements / settlements. There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ex.D22 panchayat 25 resolution reduced into writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the money from the defendant in lieu of relinquishing their interest in items No.1 and 2".
However, such unregistered document of partition can be looked into only for the limited purpose of establishing the severance of status and the nature of possession as held by the Apex Court in the case of Sita Ram Bhama vs Ramvatar Bhama reported in 2018 (15) SCC 130. In the present case, though Exs-D26 and D27 were not stamped, the Court directed the collection of duty and penalty after impounding it. The defendant has paid the duty and penalty as determined. Even otherwise, a perusal of Exs-D26 and D-27 indicates that the said documents were a record of a partition and does not indicate that the land in Sy.No.63 was partitioned by that document. Notwithstanding the above, it is relevant to note that the plaintiff has filed the present suit for a declaration of his right, title and interest in the suit property based on the grant of land 26 in his name. The non-registration of Exs.D26 and D27 would have impacted if the defendant was before the Trial Court for declaration of his title in the suit property based on the unregistered partition. Now that this Court has held that there are clear circumstances which indicate that the land in Sy.No.63 of Chunchegowdanahosahalli was cultivated by all the members of the family and that they possessed an interest in unity, the plaintiff cannot usurp the entire land unto himself and deprive the other members of the family of their right in the property of the family.
Hence this Regular Second Appeal fails and is therefore dismissed.
Sd/-
JUDGE sma