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Karnataka High Court

Sri.Chandrashekar vs Smt.Kamaxi on 27 July, 2023

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                                                                RFA No.100201/2016




                                    IN THE HIGH COURT OF KARNATAKA,
                                              DHARWAD BENCH

                                   DATED THIS THE 27 DAY OF JULY, 2023

                                                  PRESENT
                                 THE HON'BLE MR JUSTICE ASHOK S. KINAGI
                                                     AND
                                 THE HON'BLE MR JUSTICE VENKATESH NAIK T

                                 REGULAR FIRST APPEAL NO. 100201 OF 2016

                            BETWEEN:

                            1.   SRI. CHANDRASHEKHAR S/O. GAJANANA HEGDE,
                                 ALESAR, AGED 74 YEARS, OCC: RETIRED,
                                 EMPLOYEE AND AGRICULTURIST,
                                 R/O. NARAYANPURA, DHARWAD-580008.

                            2.  SHREEDHAR S/O. GAJANAN HEGDE,
                                AGED 79 YEARS, OCC. MEDICAL PRACTITIONER
                                AND AGRICULTURIST,
                                R/O. NILEKANI, SIRSI (U.K)-581402.
                                                                     ...APPELLANTS
POOJA                       (BY SRI. SHREEVATSA HEGDE, ADVOCATE)
DEELIP
SAVANUR
Digitally signed by POOJA
DEELIP SAVANUR
Location: HIGHCOURT OF
KARNATAKA-DHARWAD
BENCH
                            AND:
Date: 2023.07.27 17:14:57
+0530



                            1.   SMT. KAMAXI W/O. LATE RAMACHANDRA HEGDE,
                                 AGED 74 YEARS, OCC. HOUSEHOLD,
                                 R/O. ALESAR TQ. SIRSI, DIST. (U.K)-581403.

                            2.   SRI. RAVINDRA
                                 S/O. LATE RAMACHANDRA HEGDE,
                                 AGED 59 YEARS, OCC: AGRICULTURIST,
                                 R/O. ALESAR TQ. SIRSI,
                                 DIST. NORTH KANARA-581403.
                            -2-
                                    RFA No.100201/2016




3.   SMT. KAMALA W/O. MAHABALA RAO,
     AGED 60 YEARS, OCC: HOUSEWIFE,
     C/O. DR. MAHABALA RAO, MARATIKOPPA,
     TQ. SIRSI, (U.K)-581401.

4.   SMT. HEMA W/O. RAMAKRISHNA HEGDE,
     AGED 56 YEARS, OCC: HOUSEWIFE,
     C/O. R.S. HEGDE, ADVOCATE,
     GOLDEN PARK 38, SUMAKH, VIJAYNAGAR
     EXTENSION, NEAR TIRUPAT BAZAAR,
     HUBBALLI, DIST: DHARWAD-580020.

5.   SRI. UDAY S/O. RAMAKRISHNA SHASTRI,
     AGED 40 YEARS, C/O. R. V. SHASTRI,
     SAHYADRI COLONY, SIRSI.
     DIST: UTTARA KANNADA-581401.

6.   INDUMATI W/O. DR. MARUTI HEGDE,
     AGED: 76 YEARS, OCC: HOUSE WIFE,
     SANJEEVINI SURGICAL NURSING HOME,
     POST: INDAPURA-413106,
     PUNE, STATE: MAHARASHTRA

7.   SMT. PRABHAVATI W/O. JAYANT HEDGE,
     AGED 74 YEARS, OCC. HOUSE WIFE,
     R/O: SAHYADRI COLONY, SIRSI (U.K) 581401.
                                         ...RESPONDENTS

(BY SRI. DINESH M. KULKARNI, ADV. FOR R1 & R2,
NOTICE TO R3, R4, R6 & R7 SERVED,
NOTICE TO R5 DISPENSED WITH)

     THIS RFA IS FILED UNDER SEC. 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DTD:27.04.2016 PASSED IN
O.S NO.31/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE,
SIRSI, DISMISSING THE SUIT FILED FOR DECLARATION AND
FOR PARTITION.

    THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, VENKATESH
NAIK T. J., DELIVERED THE FOLLOWING:
                                -3-
                                             RFA No.100201/2016




                          JUDGMENT

This appeal is filed by plaintiffs challenging the judgment and decree dated 27.04.2016 passed by the Senior Civil Judge, Sirsi (hereinafter referred to as 'the trial Court', for brevity), in O.S.No.31/2012, wherein the suit filed by the plaintiffs for partition and separate possession of the suit schedule properties came to be dismissed by the trial Court.

2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. Appellants are the plaintiffs and respondents are defendants before the trial Court.

3. The brief facts leading rise to the filing of this appeal case as under:

Late Gajanan Hegde was the propositus of plaintiffs and defendants. He died on 15.02.1975 and he survived by four sons namely, Mahabaleshwar, Ramachandra and three daughters by names Indumati, Prabhavati and -4- RFA No.100201/2016 Kalyani. Among his sons, Ramachandra died in the year 1996 and defendant No.1, is the wife of late Ramachandra and defendant No.2 is the son of late Ramachandra. Defendants No.3 and 4 are daughters of deceased Kalyani. Defendant No.5 is son of deceased Kalyani. Defendants No.6 and 7 are the daughters of late Gajanan. Plaintiffs No.1 and 2 are sons of late Gajanan. The eldest son of the propositus Gajanan, i.e., Mahabaleshwar died in the year 2009 and he was a bachelor and had no issues. It is contended that suit A schedule properties are tenanted lands and suit B schedule properties are properties in possession of the plaintiffs and defendants. The propositus Gajanan died on 15.02.1975, at that time, plaintiff No.1 was employed and plaintiff No.2 was serving as Medical Practitioner in Sirsi. The plaintiff's brother Ramachandra Hegde was living in the ancestral house and after the death of propositus Gajanan Hegde, with the consent of the plaintiffs, name of Ramachandra Hegde was entered in -5- RFA No.100201/2016 the property records as undivided family manager. Based on this arrangement, Mutation Entry No.1031 of Manajavalli village, Taluk Sirsi, was certified. Pursuant to this arrangement, brother of the plaintiffs, Ramachandra Hegde was acting as a family manager. It is further contended that, suit A schedule properties were tenanted lands and occupancy right in respect these properties were granted to the brother of plaintiffs by name, Ramachandra Hegde, in his capacity as undivided family manager and the same was recorded in Mutation Entry No.1187 of Manajavalli village, Taluk Sirsi. It is further contended that, the brother of the plaintiffs by name, Mahabaleshwar Hegde was a bachelor and he lived along with his brother deceased Ramachandra Hegde till the year 1996 and after 1996, subsequent to the death of Ramachandra Hegde, Mahabaleshwar Hegde continued to live in the joint family house till his death in the year 2009. The properties at Sl.Nos.15 to 18 of A schedule properties were granted in joint names Ramachandra -6- RFA No.100201/2016 Hegde and Mahabaleshwar Hegde and based on occupancy grant, Mutation Entry No.1162 of Manajavalli village, Taluk Sirsi, was certified. It is further contended that, these four properties in Sl.Nos.15 to 18 of A schedule properties are also the joint family properties cultivated and enjoyed jointly by all the plaintiffs and defendants. The income earned from these properties was also blended with the income from the other properties and the properties in Sl.Nos. 15 to 18 of A schedule properties are always treated as the joint family properties.

4. It is further contended that, suit B schedule properties are the betta lands in possession of the family since the time of propositus Gajanan and the name of Ramachandra Hegde has been entered in the records of these properties in his capacity as manager of the family and these properties were cultivated and developed from the income of suit A schedule properties. The income from suit A schedule properties were more than sufficient -7- RFA No.100201/2016 to take care of family needs and from utilizing portion of the savings, suit B schedule properties were developed. It is further contended that, suit C schedule properties were also acquired from the income of suit A and B schedule properties. Therefore, suit C schedule properties are also joint family properties. It is contended that, the elder brother of plaintiffs, Mahabaleshwar Hegde died in the year 2009. After his death, the share held by him in the suit properties devolved upon the plaintiffs and the defendants. Defendant is presently managing the properties. He is not disclosing any information with the plaintiffs relating to the income and expenditure of the suit schedule properties. It is further contended that, plaintiff No.1 was earlier working as a professor in Dandeli and after his retirement, he is presently staying in Dharwad. Plaintiff No.2 is the Medical Practitioner staying in Sirsi. Defendants No.1 and 2 are residing in the suit schedule house and deriving the income from the suit schedule properties. It is contended that, Defendants -8- RFA No.100201/2016 No.1 and 2 are not sharing the income from the suit schedule properties though they are managing the suit schedule properties belonging to the joint family. It is contended that, suit schedule properties are fertile areca and coconut garden yielding huge income. That being the facts, plaintiffs demanded share in the suit schedule properties from defendants No.1 and 2, but defendants No.1 and 2 did not make any partition. Hence plaintiffs have obtained records pertaining to suit properties in the month of July, 2012 and noticed that, defendant No.2 got a relinquishment deed executed in his name from Mahabaleshwar Hegde with respect to the suit Sy.No.162/1A, 162/1B and 162/2 of Manajavalli village. It is contended that, Mahabaleshwar Hegde had no intention to relinquish his share in the joint family properties in favour of defendant No.2. In fact Mahabaleshwar Hegde was aged and was not possessing sound state of mind and health during the last three years of his life. Moreover, Mahabaleshwar Hegde had no -9- RFA No.100201/2016 absolute right to execute relinquishment deed in favour of defendant No.2 without the consent of the plaintiffs and other sharers. Thus, the alleged relinquishment deed dated 27.09.2009 is not binding on the plaintiffs. It also contended that, on perusal of the records of suit schedule properties, defendant No.2 has raised huge loan over the suit schedule properties and the plaintiffs never consented before raising loan and in fact there was no need to raise loan and part of alleged loan was utilized for the benefit of the joint family of plaintiffs or defendants. Therefore, defendant No.2 is alone responsible for the said loan. Hence the plaintiffs had filed the suit for declaration and for partition in respect of suit schedule properties.

5. After the institution of the suit, suit summons were issued by the trial Court to defendants. Defendants 1 and 2 appeared through their counsel, however defendants No.3 to 7 remained exparte. Defendants No.1 and 2 filed their written statement and contended

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that, the suit filed by the plaintiffs is not at all maintainable in law or facts. Defendants denied the entire claim of plaintiffs. The existence of C schedule properties is also denied. However, the genealogy furnished by the plaintiffs is admitted. Defendants No.1 and 2 specifically denied that, suit A schedule properties are tenanted properties and suit B schedule properties are in possession of the plaintiffs and defendants.

6. It is contended that, A schedule properties are the ownership properties, but B schedule properties are the exclusive properties of the defendants No.1 and 2, over which the plaintiffs and other defendants have no right. It is denied that, after the death of propositus with the consent of the plaintiffs, the name of the Ramachandra Hegde was entered to the records as undivided manager of the family as alleged in the plaint and they have also denied that deceased Ramachandra was acting as a family manager.

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7. It is further denied that, occupancy rights with respect to A schedule properties was granted to the deceased Ramachandra Hegde in the capacity as the joint family manager. The fact that Mahabaleshwar Hegde was a bachelor and died issueless is admitted. But it is denied that, after the death of Ramachandra Hegde, Mahabaleshwar Hegde continued to live in the joint family house and it is also not denied that item Nos. 15 to 12 were jointly granted in the names of deceased Ramachandra Hegde and deceased Mahabaleshwar Hegde, but it is not admitted that, these four properties, which were being cultivated jointly by the plaintiffs and defendants were the joint family properties as alleged in the plaint.

8. It is further contended that, B schedule properties are the betta lands and were in possession of the family is admitted. However it is contended that the suit properties were cultivated by the deceased Ramachandra Hegde independently. Defendants No.1 and

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2 further denied that, his name was entered in the records as joint family manager and it is also denied that these properties were cultivated and developed by utilizing the income of the A schedule properties.

9. It is further contended that, B schedule properties were developed and cultivated exclusively by the deceased Ramachandra Hegde and he had given application for grant of the these properties in his name and accordingly they were transferred in his name and therefore these properties are his self acquired properties which are devolved on these defendants after his death. Defendants No.1 and 2 further denied that, after the death of Mahabaleshwar Hegde, his share has been devolved on both the plaintiffs and defendants and it is also denied that Mahabaleshwar Hegde had no exclusive right over the properties. It is further contended by the second defendant that, since plaintiffs are not members of the joint family of these defendants, there is no question of these defendants furnishing particulars about

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the income and expenditure of these properties. Defendants Nos.1 and 2 denied that, they are deriving the income of the suit properties and they are not sharing the income with the plaintiffs and that the suit properties are fertile lands as alleged in the plaint. The alleged demand made by the plaintiffs for partition is also denied.

10. It is contended by the second defendant that, the deceased Mahabaleshwar Hegde voluntarily executed a relinquishment deed with respect to Sy.No.162/1A, 162/1B and 162/2 in his favour and as such, it is a legal and valid document. Defendants Nos.1 and 2 further denied to have availed any loan on the suit properties without the knowledge of the plaintiffs as alleged by plaintiffs. The alleged attempt of these defendants to create encumbrance on the suit properties is also denied. The sale of property in Achanalli village by these defendants is also denied. It is contended that, these properties exclusively belonged to the father of defendant No.2, Ramachandra Hedge, who gifted it in the names of

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defendant Nos.1 and 2 during his lifetime and the same was entered in the revenue records and after 16-17 years of this gift deed, second defendant sold the suit properties and as such the plaintiffs have no right over these properties.

11. It is further contended that, father of second defendant Ramachanda Hegde filed Form No.VII for confirmation of the occupancy rights and at that time his elder brother was also living with him and Ramachandra Hegde had sought for grant of occupancy rights in his individual name on behalf of his own family consisting of his wife and children as well as his elder brother Mahabaleshwar Hegde and accordingly the occupancy rights were granted in his name as prayed for, which is also confirmed by the Hon'ble High Court by holding of such grant of occupancy rights in the joint names of deceased Ramachandra Hegde and deceased Mahabaleshwar Hegde. As such, these properties are said to be the exclusive properties of the deceased

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Ramachandra Hegde and his brother Mahabaleshwar Hegde and after the death of Ramachandra Hegde the name of second defendant appeared in the revenue record as family manager consisting his mother and sister.

12. It is further contended that, deceased Mahabaleshwar Hegde during his lifetime relinquished his joint right over A schedule properties in favour of the second defendant by way of three registered relinquishment deeds during the months of June and July in the year 2009 and this relinquishment was according to defendants No.1 and 2 said to be a valid deed and thus the entire A schedule properties are said to be standing in the name of defendant No.2 and hence the plaintiffs have no right to claim share in these properties and even B schedule properties are said to be the absolute properties of deceased Ramachandra Hegde and after his death, his wife, son and daughters are said to be the absolute owners of these properties. It is further

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contended that, the father of these defendants Ramachandra Hegde, had given amount for education purpose of the plaintiffs and accordingly these defendants have contended that, even he had assisted in acquiring the properties by the plaintiffs and also for putting up clinic at Sirsi for the second plaintiff and the second plaintiff also said to have purchased the landed properties at Isloor village with the financial assistance of deceased Ramachandra Hegde and thereafter second plaintiff said to have sold the said properties for huge consideration amount. The maintainability of the claim of declaratory relief by the plaintiffs is also questioned as it is contended that, the plaintiffs have no locus standi to question the relinquishment deed executed by Mahabaleshwar Hegde in favour of the second defendant. The claim of the plaintiffs is also questioned on the ground that it is barred by law of limitation and also for improper valuation of the suit properties. On all these grounds, defendants prayed for dismissal of the suit.

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13. The trial Court on the basis of the above pleadings, framed the following issues:

1. Whether the plaintiffs prove that plaint A and B schedule properties are their joint family properties consisting of themselves defendants? (Recasted issue)

2. Whether the plaintiffs prove that plaint B schedule properties are also belongs to their joint family, consists of themselves and defendants?

3. Whether the plaintiff's prove that plaint C schedule movables are available for partition?

4. Whether the plaintiffs prove that the Relinquishment Deed dated 27.9.2009 executed by late Mahabaleshwar Hegde in respect of item Nos.1 to 4 of plaint A schedule, in favour of defendant No.2 is not binding on them?

5. Whether the defendants No.1 and 2 prove that the suit is barred by law of limitation, for the reasons stated at para No.19 of their written statement?

6. Whether the defendants No.1 and 2 prove that the Court Fee paid on the reliefs, is insufficient?

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7. Whether the plaintiffs are entitled to get the relief's as prayed?

8. What decree or order?

14. In order to substantiate the case of plaintiffs, plaintiff No.1 was examined on oath as PW1 and got marked 18 documents as per Exs.P1 to P18. On the other hand, defendant No.2 was examined as DW1 and examined one witness as DW2 and got marked 37 documents as per Ex.D1 to D37.

15. Based on the above pleadings, issues and evidence on record, the trial Court answered issues No.1 to 6 in the negative and consequently, dismissed the suit filed by the plaintiffs.

16. Learned counsel for the plaintiffs Sri.Vishwanath Hegde contended that the suit 'A' schedule properties were originally tenanted properties and the said properties were allotted to the share of Gajanan Hegde in the family partition, which took place in 1945. Gajanan Hegde died in 1975 leaving behind

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plaintiffs and his two sons Mahabaleshwar, Ramachandra and 3 daughters namely Kalyani, Indumati and Prabhavati. After the death of Gajanana Hegde, name of Ramachandra is mutated in property records as undivided family manager comprising plaintiffs, Ramachandra and Mahabaleshwar and mutation was entered in M.E. No.1031 as per Ex.P1. This document is undisputed and has not been challenged by any person and therefore the plaintiffs have 1/3rd share in suit A schedule properties. It is contended that defendants No. 1 and 2 did not plead and prove the partition either before filing of Form No.7 or after filing of Form No.7, and therefore, the suit for partition would not have been dismissed by the trial Court. It is contended that the reasoning of the trial court is erroneous and the trial court has erroneously held that, "in view of the fact that father filed Form No. 7, 28 days subsequent to Form No. 7 filed by sons, filing of Form No. 7 by sons is not for benefit of the family". In fact the trial Court ought to have held that, Form No. 7

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filed by the father is for the entire family. The trial Court has not appreciated the fact that Ramachandra was cultivating the suit A schedule properties for and on behalf of his entire family compromising plaintiffs and defendants. It is contended that the trial Court ought to have held that defendants No.1 and 2 have not established acquisition of tenancy in respect of A schedule properties, on the other hand the plaintiffs have established that tenancy of A schedule properties are ancestral properties acquired on the death of Gajanan Hegde. It is further contended that, Form No. 7 filed by Ramachandra Hegde and Mahabaleshwar Hegde is for the benefit of joint family comprising plaintiffs. 17. It is contended that, defendants No.1 and 2 have not pleaded and proved that tenanted lands were acquired by Ramachandra and Mahabaleshwar on their own. It is contended that, tenancy being heritable right, devolved upon all 4 sons of Gajanan Hegde including plaintiffs. It is contended that the trial court has not all

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considered the provision of Section 24 of the Karnataka Land Reforms Act, as all the 4 sons of Gajanan Hegde would inherit the tenancy. Unless and until the tenancy is surrendered to the landlord or co-tenant in the manner known to law, Mahabaleshwar and Ramachandra cannot cliam exclusive tenancy in respect of A schedule property. It is contended that Section 4 of the Hindu Succession Act provides that, Hindu Succession Act has no application to devolution of tenancy in view of bar contained in Sub-section 2 of Section 4 of Hindu Succession Act. On these grounds, he prayed to allow the appeal.

18. Learned counsel for the defendants Sri. Dinesh M. Kulkarni vehemently argued that the suit schedule properties are not the joint family properties. In fact, Mahabaleshwar Hegde and Ramachandra Hegde submitted Form No.7 for and on behalf of their individual family and therefore, plaintiffs cannot claim suit A schedule properties as if the said properties are ancestral

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properties. It is contended that suit B schedule properties are also not the joint family properties consisting of plaintiffs and defendants. It is contended that the relinquishment deed dated 27.09.2009 executed by late Gajanan Hegde in respect of items No.1 to 4 of plaint A schedule in favour of defendant No.2 is in accordance with law and the plaintiffs have no right to challenge the said deed. It is contended that the suit of the plaintiff is barred by law of limitation and the plaintiffs are not entitled for any relief as sought by them. Hence counsel for defendants justify the judgment and decree passed by the trial Court.

19. In view of the forgoing submissions made by the counsel for the parties to the lis, the following points arise for our consideration:

i. Whether the plaintiffs prove that suit schedule A B C properties are joint family properties of plaintiffs and defendants?

ii. Whether plaintiffs further prove that the relinquishment deed dated 27.09.2009

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executed by late Mahabaleshwar Hegde in respect of item Nos. 1 to 4 of plaint A schedule, in favour of defendant No.2 is not binding on them?

    iii.     Whether the appellants have made out a
             ground    to     entertain   I.A   No.1/2023      for
             production of additional documents ?

    iv.      Whether the judgment and decree passed by

the trial Court calls for interference?

v. What order or decree?

Point No.1 and 2: In order to avoid repetition of factor, their two points are taken up together for common discussion.

20. It is the case of the plaintiffs that, suit schedule A, B and C properties are joint family properties of themselves and defendants and no partition was effected in the family. On the other hand, according to defendants, suit schedule properties were the separate properties of Mahabaleshwar Hegde and Ramachandra Hegde and the Land Tribunal granted schedule A

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properties in favour of Mahabaleshwar Hegde and Ramachandra Hegde for and on behalf of their family and not the family of plaintiffs, or to the profit of Shreedhar (plaintiff No.2) and Chandrashekar (plaintiff No.1).

21. In order to substantiate the claim of the plaintiffs, plaintiff No.1 Chandrashekar Gajanan Hegde was examined on oath as PW1. In his chief examination, he has reiterated the averments made in the plaint. In support of his oral evidence, he relied upon Ex.P1 - certified copy of M.E. No.1031; Ex.P2 - certified copy of M.E.No.1187; Ex.P3 - certified copy of M.E.No.1162; Exs.P4 to P17 - RTC extracts of suit schedule properties and Ex.P18 - original letter written by Gajanan Hegde addressing to PW1. PW1 has undergone intensive cross- examination by the counsel for defendants. In the cross- examination, PW1 admitted that Mahabaleshwar Gajanan Hegde is his brother. On 04.06.2009, Mahabaleshwar Gajanan Hegde executed relinquishment deed in favour of defendant No.2. He further admits that, he has been

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residing in Dharwad since 2003 till date and he was residing outside the Sirsi since 1980. He further admits that, since 1964, 2nd plaintiff is working as Medical officer and was residing at Sirsi since 1964. He further admitted that, the lands situated at Manajavalli village are tenanted lands and as on the date of filing of the suit, the schedule A and B properties were standing in the name of Ramachandra Gajanan Hegde. He further admits that, all the suit schedule properties are joint family properties comprising of plaintiffs and defendants and Ramachandra Gajanan Hegde was the manager of the joint family. PW1 further admits that, now the suit schedule properties stands in the name of 2nd defendant, who is the son of Ramachandra Gajanan Hegde and 2nd defendant got transferred the said properties within two years from the date of death of Ramachandra Gajanan Hegde. He came to know about the transfer of mutation in respect of schedule A and B properties, but he did not file any appeal before the jurisdictional court for cancellation of

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mutation entries. But PW1 voluntarily submitted application to the concerned authorities for change of mutation contending that the suit schedule A and B properties are joint family properties and the name of all brothers shall be entered in the revenue records. But he has not produced any copy of the said application or endorsement to that effect. He denied that the suit schedule A and B properties stands in the name of Ramachandra Gajanan Hegde and then properties are self-acquired properties of Ramachandra Gajanan Hegde. He further admits that, deceased Mahabaleshwar Hegde submitted Form No.7 along with Ramachandra Gajanan Hegde and at that time, he was residing with Ramachandra Gajanan Hegde. He further admits that, on the basis of Form No.7 submitted by Mahabaleshwar Gajanan Hegde and Ramachandra Gajanan Hegde, the Land Tribunal passed an order as per Form No.10 on the basis of Form No.7 and therefore, the name of Mahabaleshwar Gajanan Hegde and Ramachandra

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Gajanan Hegde is shown jointly in the RTC extracts. He further admits that, aggrieved by the order passed by the Land Tribunal, as per Form No.7, the writ petition was filed before the High Court of Karnataka. He further admits that, aggrieved by the order passed by the Land Tribunal, the plaintiffs have not filed any writ petition or appeal before any forum. He further admits that Mahabaleshwar died issueless and he was unmarried. He further admits that, he has not produced any documents to show that schedule A and B properties are joint family properties and Ramachandra Gajanan Hegde was the manager of the joint family and hence the Land Tribunal granted suit property in favour of Mahabaleshwar Gajanan Hegde and Ramachandra Gajanan Hegde.

22. To rebut the claim of plaintiffs, defendant No.2 Ravindra was examined on oral as DW1. In his evidence, he has reiterated the averments made in the written statement. In support of his contention, DW1 relied upon Exs.D1 to D37. Ex.D1 and D2 are the two relinquishment

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deeds alleged to have been executed by deceased Mahabaleshwar in favour of DW1; Ex.D3 is the Will dated 04.06.2009; Exs.D4 and D5 are the copies of Form No.VII and order of the Land Tribunal respectively; Exs.D6 and D7 are Form No.10 issued by the Land Tribunal; Ex.D8 is the copy of compromise petition submitted before the High Court of Karnataka in W.P.No. 507/1995 and Ex.D9 is the order passed in that proceeding; Ex.D10 is the Gift deed; Ex.D11 is the relinquishment deed; Ex.D12 is the Survival certificate; Ex.D13 is an endorsement issued from the Revenue Department to the father of the DW1 in respect of schedule B properties; Exs.D14 and D15 are the mutation extracts and record of rights of the suit properties; Exs.D16 to D22 are the record of rights of suit properties; Exs.D23 and D24 are the RTC extracts of suit properties; Exs.D25 and D26 are RTC extracts of suit Sy.Nos. 7/A and 18; Ex.D27 is the survival certificate. Exs.D28 and D29 are the RTC extracts of suit properties;

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Ex.D30 is survival certificate in respect of family members of deceased Ramachandra Hegde; Ex.D31 is the endorsement issued from Tahasildar in respect of schedule B properties; Ex.D.32 is mutation extract of suit Sy.No.18 and 159; Ex.D33 is the copy of the plaint in O.S.No.79/1996, filed by DW1 and the first defendant against one Mohan Shetty and others with respect to B schedule properties; Ex.D.34 is the copy of the written statement filed by the defendants; Ex.D35 is the Form No.6; Ex.D.36 is the proceeding before the Deputy Tahasildar, Sirsi with respect to the change of katha with regard to Sy.No.233/3 and 233/4 and Ex.D37 is the copy of affidavit filed by DW1 in O.S.No.79/1996.

23. DW1 is undergone intensive cross-examination by the counsel for plaintiffs. He has admitted that the original propositus is one Gajanan Hegde, he had four sons namely, Mahabaleshwar, Ramachandra and three daughters namely, Indumati, Prabhavati and Kalyani. Ramachandra died in the year 1996 and original

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propositus Gajanan died in the year 1975. After the death of Gajanan Hegde, whether partition was held between the plaintiffs and defendants, he do not know the said aspect. He further admits that, in the year 1975, as on the date of death of Gajanan Hegde, no properties stands in his name. He categorically admitted that, during thelife time of propositus Gajanan Hegde, he was cultivating the properties along with his father and his uncle in tenanted lands and those properties are situated in Manajavalli village, in Sy.No.3, 4, 202/3 and 208/1. He further admits that, his grand father was residing with his father at Manajavalli village. He has contended that the suit schedule house bearing G.P.No.5 of Manajavalli villagewas constructed by his father. It is true that I have not produced any documents to show that my father constructed house; it is true that I have not filed any appeal aggrieved by the Mutation Entry NO.1031 contending that the said mutation entry was wrongly entered in the revenue records of Manajavalli

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village and I do not know whether my father had filed any appeal in respect of the said mutation entry; he plead ignorance about any partition held between his father and plaintiffs in the year 1996; but he contends that there was no question of making any partition in respect of the suit schedule properties between the plaintiffs and his father and he further contend that the plaintiffs have no share in the suit schedule properties, as such, lands were granted in favour of his father and uncle Mahabaleshwar Hegde; he do know whether plaintiffs had filed any application before the Land Tribunal contending that they have share in the grand father's property; he admits that, during the year 2012, a dispute was arose in respect of the suit schedule properties. DW1 further admits that, I do not know whether the family was managed by Gajanan Hegde out of the agricultural source or agricultural income; he specifically admitted that A schedule properties are basically tenanted lands; he further admits that, after the death of his grand father

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Gajanan Hegde, name of Ramachandra Hegde was entered in the revenue records of A schedule properties; He specifically denied that, after 01.03.1974, his grand father Gajanan Hegde submitted Form No.7 before the Land Tribunal in respect of A schedule properties. DW1 further denied that, his father purchased one of the properties of A schedule properties at Achanalli village soon before the institution of the present suit, but he has not obtained any consent from the plaintiffs for alienation of the said properties. He further admits that, first plaintiff was lecturer and second plaintiff is doctor by profession. DW1 further admits that B schedule properties are Government batta lands and B schedule properties have been granted in favour of his father, but he denies that B schedule properties were granted in favour of his father for and on behalf of the entire joint family comprising of plaintiffs and defendants. He further admits that, his uncle Mahabaleshwar Hegde died unmarried and he was a part time radio artist. He further

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admits that, Mahabaleshwar Hegde has not received any consideration in respect of Exs.D1, D2 and D11.

24. In order to corroborate the defence of defendants, one Gururaj Ramachandra Raikar was examined as DW2. In his evidence, he has reiterated the averments made in the chief examination of DW1 and in the chief examination, he has stated that, he was witness to three relinquishment deeds and a Will executed by Mahabaleshwar Hegde as per Exs. D1, D3 and D11; he has signed all these documents and also identified his signature as Exs. D1(a)(b), D2(a)(b) and D3(a)(b) and D11(a)(b). He further stated that, at the time of execution of Ex.D3 - Will, one Gajanan Hegde had also affixed signature on the Will.

25. DW2 has been cross-examined. In the cross- examination, he admits that, he knows Mahabaleshwar Hegde, who was visiting his father to discuss in respect of books. He do not know about the habit and personal information of Mahabaleshwar Hegde. He admits that, I

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do not know where Ex.D3 Will was prepared and I do not know where Exs.D1 to D3 and Ex.D11 were prepared; he admits that, s on the date of execution of Exs.D1, D3 and D11, the age of Mahabaleshwar Hegde was between 75 years to 80 years. He further admits that, he do not know the brothers of the father of defendant No.2; he do not know why Mahabaleshwar Hegde executed three relinquishment deeds in favour of defendant No.2; he did not enquire with Mahabaleshwar Hegde as to why he has not executed one relinquishment deed in respect of suit schedule properties in stead of executing three deeds.

26. On the basis of the above pleadings, the trial Court dismissed the suit of the plaintiffs holding that the plaintiffs failed to prove that A and B schedule properties are their joint family properties consisting of themselves and defendants and that the suit schedule properties are not available for partition. The trial Court also held that the plaintiffs failed to prove that relinquishment deed dated 27.09.2009 executed by the late Mahabaleshwar

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Hegde in respect of items No.1 to 4 of suit A schedule properties as per Exs. D1, D3 and D11, in favour of defendant No.2 is not binding on them. Hence the trial Court declined to grant decree.

27. Admittedly, one Gajanan Hegde is the propositus, who died on 15.02.1975. Plaintiffs No.1 and 2 and one Ramachandra Hegde and Mahabaleshwar Hegde are sons of Gajanan Hegde and Indumati, Prabhavati and Kalyani are daughters of Gajanan Hegde. It is admitted fact that, during the life time of Gajanan Hegde, he was cultivating suit A and B schedule properties along with Mahabaleshwar Hegde and Ramachandra Hegde. After the death of Gajanan Hegde, Ramachandra Hegde and Mahabaleshwar Hegde had submitted Form No.7 to the Land Tribunal, as plaintiffs No.1 and 2 were working as lecturer and doctor respectively and they were not residing in Manajavalli village of Sirsi Taluk.

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Learned counsel for the plaintiffs contended that, Section 133 of the Land Reforms Act categorically states that it is the Land Tribunal constituted under the Act, which has the jurisdiction to decide the question whether the said land is or is not agricultural land and whether the person claiming to be in possession is or is not in a tenant of the land prior to 01.03.1974. The counsel further submits that the occupancy right was admittedly granted in favour of Mahabaleshwar Hegde and Ramachandra Hegde after the death of their father Gajanan Hegde, for and on behalf of the entire family including the plaintiffs and it enure to the benefit of other members of the family and therefore, plaintiffs are entitled to their legitimate share in the said joint family property.

28. In the instant case, the undisputed facts are, plaintiffs No.1 and 2 are brothers of deceased Ramachandra Hegde and Mahabaleshwar Hegde and they are sons of Gajanan Hegde. Gajanan Hegde, Ramachandra Hegde and Mahabaleshwar Hegde filed Form No.7 claiming occupancy rights in respect of entire extent of A schedule properties, on behalf of the joint

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family, whereas Ramachandra Hegde and Mahabaleshwar Hegde filed Form No.7 claiming occupancy rights jointly on the ground that they are cultivating it jointly. In the evidence of DW1, DW1 has clearly admitted that, during the life time of Gajanan Hegde, he was cultivating the suit A and B schedule properties along with Ramachandra Hegde and Mahabaleshwar Hegde. Accordingly, they were submitted Form No.7 to the Land Tribunal and considering their Form No.7, the Land Tribunal granted occupancy rights in favour of Mahabaleshwar Hegde and Ramachandra Hegde. But defendants No.1 and 2, the sons of Ramachandra Hegde claiming their independent right contending that occupancy right was granted in favour of Ramachandra Hegde and Mahabaleshwar Hegde on their own on behalf of their family alone, for the exclusion of plaintiffs No.1 and 2 and sisters of plaintiffs. In the instant case, the genealogy furnished by the plaintiffs and the documents produced by them in evidence clearly establishes that there exists the joint

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family compromising of plaintiffs and defendants. In the joint family, nature of tenancy and their right to the land in question pertains to the joint family alone. In fact, the existence of joint family and whether the tenancy pleaded by Ramachandra Hegde and Mahabaleshwar Hegde is a joint family tenancy or an individual tenancy in a summary proceedings before the Tribunal, held the Tribunal cannot go into outside the rights of the parties in joint family properties and the Civil Court get jurisdiction to decide the rights of the parties as held in the case of Sri. Parushuram N.K. and Others Vs. Smt. Shantabai R. K. and Others reported in ILR 2004 KAR 3355.

29. Therefore, the occupancy rights granted in favour of Ramachandra Hegde and Mahabaleshwar Hegde in respect of suit A and B schedule properties for and on behalf of the entire family and the benefit enure to the entire family, but the trial Court has failed to consider this aspect. However, it wrongly dismissed the suit of the plaintiffs.

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30. Admittedly, no partitions were held in the family of the plaintiffs and defendants. After the death of Gajanan Hegde, plaintiffs and defendants are all considered as co-parceners and in view of the ratio laid down by the Hon'ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma reported in (2020) 9 SCC 1, sons and daughters are equally entitled for share in the joint family properties. Therefore, the plaintiffs are entitled for share equally. Hence, we answer point No.1 and 2 in the affirmative.

Point No. (iii):

31. The appellants have filed I.A No.1/2023 for production of additional evidence. In support of the application, appellant No.1 - Sri.Chandrashekhar filed an affidavit contending that, the pass books and receipts were not produced before the trial Court and recently these documents were traced and these documents clearly establishes that, plaintiffs were given a small share out of the joint family income out of the suit

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properties, hence, the plaintiffs are producing pass book and receipt of account maintained by plaintiffs with co- operative society, to whom the areca nut crop was sold and the society in turn, gave money to the share holders. It is contended that, the plaintiffs have exercised due diligence in tracing these documents and there was no negligence on the part of the plaintiffs. These documents are very much necessary and important to adjudicate the matter involved in this appeal. Hence, if the application is allowed, no injustice, hardship and prejudice would be caused to the defendants and hence, prays to allow I.A No.1/2023.

32. The learned counsel for defendants submits that, the objections already filed in I.A No.1/2022, be adopted as objections to I.A No.1/2023 and contended that, the I.A No.1/2023 has been filed at the belated stage and the plaintiffs could have submitted these documents before the trial Court itself. Hence, the

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counsel for defendants prayed for dismissal of I.A. No.1/2023.

33. On perusal of these documents and plaint averments, it appears that, plaintiffs have not pleaded about the proposed documents sought to be produced, in the plaint. Further, the plaintiffs have not explained the reasons for not producing these documents before the trial Court. Further, the suit was filed in the year 2012 and suit came to be decreed on 27.04.2016 and the application is filed in the year 2023. Thus, there is a delay of 7 years in filing the application. Now, the plaintiffs have produced these documents only with an intention to fill up the lacuna.

34. The Hon'ble Apex Court in the case of Andisami Chettiar Vs. Subburaj Chettiar reported in AIR 2016 SC 79, held that, application for production of documents to fill up the lacuna cannot be entertained.

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35. The Hon'ble Apex Court in the case of Sri. Punny Akat Philip Raju, Since dead by his LRs Vs. Sri. Dinesh Reddy reported in ILR 2016 KAR 2252, held that, a party who had ample opportunity to produce certain evidence in trial Court had failed to do so or elected not to do so, cannot be permitted to adduce additional evidence in appeal.

36. The Hon'ble Apex Court in the case of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) by Lrs, reported in (2008) 8 SCC 511, held that, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits. Whereas in the instant case, the plaintiffs have not pleaded about the proposed documents in the plaint, but, now by way of filling up of the lacuna, they have filed present I.A No.1/2023 after laps of 7 years.

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37. The Hon'ble Apex Court in the case of N. Kamalam (Dead) and Another Vs. Ayyasamy and Another reported in (2001) 7 SCC 503, held that, the provision of Rule 27 are not designed to help parties to patch up weak points and make up for omissions earlier made and production of additional evidence in appellate Court particularly after long period, not permissible.

38. Whereas in the instant case, though the documents sought to be produced, were in the custody of plaintiffs, in spite of sufficient opportunity provided by the trial Court, the plaintiffs did not chose to file said documents. The plaintiffs have stated that, recently these documents were traced. Any how share is allotted to the plaintiffs along with defendants in the suit schedule properties, thus, production of additional documents also not required in this case. Thus, the plaintiffs have not full filled the requirements mentioned under Order 41 Rule 27 of CPC, we do not find any grounds to

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entertain I.A No.1/2023. In view of the above discussion, we answer point No.(iii) in the negative. Point No.(iv):

39. Since the plaintiffs able to prove that, plaintiff No.1, 2 and Ramachandra Hegde and 3 daughters of Gajanana Hegde are equally entitled for share of 1/6th each and Defendant No.1 and 2 got 1/6th share together in the share of his father Ramachandra Hegde. Therefore, there is no merits in the contention of plaintiffs. Looking into any angle the judgment and decree passed by the Trial Court is perverse and hence called for interference by this court. Hence, we answer Point No.(iv) in the affirmative.

Point No.(v).

40. In view of answering point No.1 to 3, we proceed to pass the following:

ORDER i. Appeal is allowed.

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ii. Judgment and decree dated 27.04.2016 passed by the Senior Civil Judge, Sirsi, in O.S.No.31/2012, is set aside.

iii. Plaintiff No.1, plaintiff No.2, Ramachandra Hegde and three daughters of Gajanan Hegde are equally entitled for share of 1/6th each.

            Defendants        No.1    and     2    got    1/6th   share
            together     in     the       share     of    his     father
            Ramachandra Hegde.

iv. Accordingly, Draw preliminary decree.

v. I.A No.1/2023 is rejected.

vi. No order as to the costs.

vii. All pending I.As, if any, do not survive for consideration and the same are disposed of.

Sd/-

JUDGE Sd/-

JUDGE gab