Karnataka High Court
Bhuvaneshwari vs Smt. Shakunthala on 3 June, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO.1368 OF 2015 (PAR)
BETWEEN:
1 . MRS.BHUVANESHWARI
AGED ABOUT 65 YEARS,
D/O SMT BHAVANI,
W/O K K DAS
2 . MR.TEJ KAMAL DAS
AGED ABOUT 41 YEARS,
S/O K.K. DAS,
3 . MR.RAJ KAMAL DAS
AGED ABOUT 39 YEARS,
S/O K. K. DAS,
4 . MRS.POORUNIMA
Digitally signed AGED ABOUT 34 YEARS,
by RAMESH
MATHAPATI W/O SRI PRASHANTH
Location: HIGH
COURT OF ALL ARE R/A FLAT NO.301,
KARNATAKA
COZY CORNER, HOIGE BAZAR,
MANGALORE 575 001.
...APPELLANTS
[BY SRI VISHWAJITH RAI M., ADVOCATE]
AND:
1. SMT.SHAKUNTHALA
D/O BHAVANI, AGED ABOUT 79 YEARS,
RESPONDENTS NO.2 TO 4 ARE
LEGAL REPRESENTATIVES OF RESPONDENT
NO.1 AMENDED AS PER COURT ORDER
DATED 05.01.2021.
2. MR.JAYA PRAKASH
S/O SMT.SHAKUNTHALA
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AGED ABOUT 60 YEARS,
3. MS.VEENA
D/O SMT.SHAKUNTHALA
AGED ABOUT 55 YEARS,
4. MR.PRADEEP KUMAR
S/O SMT SHAKUNTHALA,
AGED ABOUT 52 YEARS,
RESPONDENTS 1 TO 4 ARE
R/O DWARAKA PRASAD NILAYAM,
MARREPALLI,
SECUNDERABAD-03.
5. MR.ROYCHAND
H/O LATE SUCHARITHA
AGED ABOUT 72 YEARS,
R/O UNGILAKOTE,
OLD KENT ROAD,
MANGALORE 575001.
RESPONDENTS 6 TO 11 ARE
LEGAL REPRESENTATIVES OF
RESPONDENT NO.5 AMENDED AS PER
COURT ORDER DATED 05.01.2021.
6. MRS.NAYANATHARA
D/O SUCHARITHA,
W/O U MOHAN ROAD,
AGED ABOUT 50 YEARS,
7. MR.PARIKSHEET
S/O NAYANATHARA
AGED ABOUT 28 YEARS,
8. MS.VANDANA
D/O SUCHARITHA
AGED ABOUT 47 YEARS,
R/O 5/74, KANNAMVAR NAGAR,
VIKHROLI , BOMBAY 83.
9. MS.RADHIKA
D/O SUCHARITHA
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AGED ABOUT 47 YEARS,
R/O UNGILAKOTE,
OLD KENT ROAD, MANGALORE 1.
10 . MR.SAI GIRIDHAR
S/O SUCHARITHA
AGED ABOUT 41 YEARS,
R/O UNGILAKOTE,
OLD KENT ROAD, MANGALORE 1.
11 . MR.SURAJ KUMAR
S/O SUCHARITHA
AGED ABOUT 37 YEARS,
R/O UNGILAKOTE,
OLD KENT ROAD, MANGALORE 1.
12 . MR.VAMAN
H/O LATE ROHINI,
AGED ABOUT YEARS,
RESPONDENTS 13 TO 15 ARE
LEGAL REPRESENTATIVES OF RESPONDENT
NO.12 AMENDED AS PER COURT ORDER
DATED 05.01.2021.
13 . MS.VINDYA
D/O LATE ROHINI
AGED ABOUT 45 YEARS,
14 . MS.KAVITHA
D/O LATE ROHINI
AGED ABOUT 43 YEARS,
15 . MS.BASITHA
D/O LATE ROHINI,
AGED ABOUT 41 YEARS,
RESPONDENTS 12 TO 15 ARE
R/O FLAT NO.301, ROSHINI RESIDENCY,
OFFICERS COLONY, NEAR HANUMAN
TEMPLE, SECUNDARABAD 03.
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16 . MS.ANANDI BAI
W/O LATE LAXMAN,
AGED ABOUT 90 YEARS
R/O 4/1, SAUNDERS RAOD,
BANGALORE -5.
RESPONDENTS 17 TO 22 ARE
LEAGAL REPRESENTATIVES OF
RESPONDENT NO.16 AMENDED AS
PER COURT ORDER DATED 27.06.2023.
17 . MRS.MALATHI YASHWANTH
W/O YESHWANTH KUMAR,
AGED ABOUT 86 YEARS,
18 . MR.RAJIV YASHWANTH
S/O YESHWANTH KUMAR
AGED ABOUT 50 YEARS,
19 . MRS PRIYA SANDEEP
D/O YESHWANTH KUMAR
AGED ABOUT 49 YEARS,
RESPONDENTS 17 TO 19 ARE
R/O A-002, AKRUTHI SILVER LINE,
36/4, 27TH MAIN, SECTOR-2,
H S R LAYOUT, BANGALORE 560102.
20 . MRS.NIRUPAMA PILLAI
D/O MRS ANANDI BAI
AGED ABOUT 70 YEARS,
C/O VASUDEVA PILLAI
ADVOCATE, MALAKPET, HYDERABAD-07.
21. MR.PRAVEEN KUMAR
S/O MRS ANANDI BAI,
AGED ABOUT 67 YEARS,
R/AT 5/1, SUNDAR NAGAR,
S V ROAD, MALAD (WEST)
MUMBAI-64.
DEAD BY LRs.
21(a) MR.NIKHIL PRAVIN KUMAR,
S/O LATE PRAVIN KUMAR,
AGED ABOUT 51 YEARS,
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R/A LOURDES HERITAGE, ORLEM,
MALAD WEST, MUMBAI-400 064.
21(b) MRS.VANAJA PRAVIN KUMAR,
W/O LATE PRAVIN KUMAR,
AGED ABOUT 82 YEARS,
R/A LOURDES HERITAGE, ORLEM,
MALAD WEST, MUMBAI-400 064.
(AMENDED AS PER ORDER DTD 20.08.2024)
22. MS.VINITHA
D/O MRS ANANDI BAI
AGED ABOUT 64 YEARS,
R/AT 4/1, SAUDERS ROAD,
BANGALORE 05.
SINCE DEAD BY HER LRs.
22(a) MR.ABHINANDAN NATH
S/O LATE SATHYA NATH & VINITHA NATH
AGED ABOUT 57 YEARS
R/A BALIPAGUTHU MANE,
YEYYADI, MANGALURU-575 004.
22(b) MRS.BHANU NATH,
W/O BARATH NATH,
AGED ABOUT 48 YEARS,
R/A MATHRUDHAMA CHILDRESN HOME
BOMMASANDRA - JIGANI LINK ROAD,
BOMMASANDRA, BENGALURU-560 009.
22(c) MR.KANISHKA NATH,
S/O BHARATH NATH,
AGED ABOUT 15 YEARS,
REP BY HIS MOTHER AND NATURAL
GUARDIAN BHANU NATH
W/O BHARATH NATH
AGED ABOUT 48 YEARS
R/A MATHRUDHAMA CHILDRESN HOME
BOMMASANDRA-JIGANI LINK ROAD,
BOMMASANDRA, BENGALURU-09.
(AMENDED ASPER ORDER DTD 20.08.2024)
MRS.PADMAVATHI
W/O LATE NARNAPPA
SINCE DEAD
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23 . MS.SUVASINI
D/O PADMAVATHI
AGED ABOUT 79 YEARS,
24 . MS.SACHIDEVI
D/O PADMAVATHI
AGED ABOUT 75 YEARS,
25 . MS.CHANDRAMATHI
D/O PADMAVATHI
AGED ABOUT 65 YEARS,
25(a) MOHANCHANDRA R. MAROLI,
S/O U. CHANDRAMATI,
AGED ABOUT 31 YEARS,
R/A NO.450/G, SHELLAR ROAD,
RATHAN NAGAR, TRIPURI,
PATIALA-147001, PUNJAB,
AMENDED AS PER COURT ORDER
DATED 04.04.2024.
26. MS.SURYAKUMARI
D/O PADMAVATHI ,
DEAD BY LRs
26(a) MR.GIRISH
S/O LATE SURYA KUMARI,
AGED ABOUT 43 YEARS,
R/A NO.18-7, 252, UNGILAKOTE HOUSE,
TELECOM HOUSE ROAD, PANDESHWAR,
MANGALURU - 575 001.
(AMENDED ASPER ORDER DTD 20.08.2024)
27. MR.SRINIVAS
S/O PADMAVATHI ,
AGED ABOUT 61 YEARS,
RESPONDENTS 24 TO 28 ARE
R/O C/O SRINIVAS ENGINEERING WORKS
MOODABIDRI 02.
28. MS.RAMEELA
D/O LATE RAMANI MOHAN,
AGED ABOUT 50 YEARS,
HIGHLANDS, FALNIR,
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MANGALORE 01.
29 . MS.LAILA
W/O LATE LAXMINARAYANA
AGED ABOUT 67 YEARS,
30 . MS.ROSHNI
D/O LATE LAXMINARAYANA
AGED ABOUT 44 YEARS,
31 . MS.RESHMA
D/O LATE LAXMINARAYANA
AGED ABOUT 43 YEARS,
RESPONDENTS NO.30 TO 32 ARE
R/AT PREMDIL, C/O G.R. WALIA
HIGHLANDS, MANGALORE 575 001.
...RESPONDENTS
[BY SMT.ANANYA RAI, ADVOCATE FOR R11 (AB);
SRI SANATH KUMAR SHETTY, ADVOCATE FOR R17 & R24 - R28;
V/O DATED 05.01.2021 R2 TO R4, R6 TO R11 & R13 TO R15 ARE
TREATED AS LRs OF DECEASED R1, R5 & R12 RESPECTIVELY;
R2 TO R4, R6 TO R9, R13 TO R15, R18 TO R19, R29 TO R31 ARE
SERVED AND UNREPRESENTED;
V/O DATED 27.06.2023, R17 TO R22 ARE TREATED AS LRs OF
DECEASED R16;
V/O DATED 04.04.2024, R24 TO R27 ARE TREATED AS LRs OF
DECEASED R23 AND NOTICE OF R20 TO R22 IS D/W;
V/O DATED 06.03.2025, BRINGING LRs OF DECEASED R10 ON
RECORD IS D/W]
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 23.03.2015 PASSED IN R.A
NO.93/2008 ON THE FILE OF THE 2ND ADDL. SENIOR CIVIL JUDGE,
MANGALORE, D.K, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 18.01.2008 PASSED IN O.S
NO.546/1989 ON THE FILE OF THE I ADDL. CIVIL JUDGE (JR.DVN.),
MANGALORE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.03.2025, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
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CAV JUDGMENT
Challenging judgment and decree dated 23.03.2015 passed by II Addl. Senior Civil Judge, DK, Mangalore, in R.A.no.93/2008 and judgment and decree dated 18.01.2008 passed by I Addl. Civil Judge (Jr.Dn.), DK, Mangalore in O.S.no.546/1989, this appeal is filed.
2. Brief facts as stated are appellants were defendants no.15 to 18 in OS no.546/1989 filed by respondents no.1 to 4 (plaintiffs) for partition and separate possession of 1/22nd share each, in land bearing Sy.no.376, measuring 30 cents, situated in Athavara, Mangaluru ('suit property', for short) and for mesne profits etc.
3. In plaint, it was stated, plaintiffs and defendants no.1 to 18 constituted undivided Aliyasantana Family governed by Madras Aliyasantana Act, 1949, as amended by Karnataka Aliyasantana Act, 1961 ('Act' for short). It was stated, suit property was ancestral property and defendants no.19 to 31 were made parties as they were legal representatives of deceased male members of family and entitled to per capita share of deceased member.
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4. It was stated, suit property was purchased on 11.05.1914 by Smt.Birmaye Hengasu from Channaya Maistry. After her death, it devolved on her daughter Smt.Devi who was plaintiff no.1's grandmother and great grandmother of plaintiffs no.2 to 4. It was stated Smt.Devi died on 21.04.1936 leaving behind children namely, Laxman, Narnappa, Mohan and Smt.Bhavani. It was stated, her three sons died long back. As their per capita share devolved on their children, they were made parties to suit. It was stated, Smt.Bhavani died on 22.09.1983.
5. It was stated, suit property was joint family property of plaintiffs and defendants and they had per capita share in it. Suit property consisted four residential houses, one shop premises, bhootasthana and some trees. It was stated defendants no.2 to 10 occupied premises bearing Door no.18- 7-248, two premises were occupied by tenants and one residential premises was occupied by defendants no.24 to 29. It was stated since possession of property was for and on behalf of family, plaintiffs were in joint possession of suit property. It was further stated, suit property was yielding net income of
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR Rs.1,224/- per year and plaintiffs would be entitled to their share of income from date of suit till delivery of their share. It was stated, suit property was situated within Mangaluru Urban Agglomeration including house site and there was no impediment under law to divide same. It was stated, though plaintiff made attempts for amicable division, it proved futile. Hence suit was filed.
6. On appearance, defendants no.2, 7, 15, 30 and 31 filed written statement admitting genealogical tree, but stating that even defendants no.1 to 18, 30 and 31 were also entitled for separate share in suit property. Defendant no.2 denied any income from property on ground that he had to spend large sum for filing cases for eviction of tenants for non payment of rents etc. and also that he had spent Rs.50,000/- for repair and renovation of old house. Therefore, she was entitled for said amount apart from allotment of said house to her share in equity.
7. It was further stated, Sushant - born to defendant no.6 on 10.03.1995, but not shown in genealogy and claimed him also to be entitled for share in suit property. Defendant
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR no.2 also claimed to be paying property tax of Rs.262/- per half year claimed re-imbursement. It was lastly stated Smt.Devi, had executed Will dated 05.03.1949 bequeathing all properties in favour of her daughter Smt.Bhavani. Therefore, branch of plaintiffs and defendants no.1, 2, 11 to 15 and their branch were entitled for share in suit property.
8. In their written statement, defendants no.19, 20 and 23, denied claim by each of plaintiffs for 1/22nd share in suit property. They stated description of suit property was incomplete, incorrect age of defendants were shown in plaint and even genealogical tree was incorrect. Income from suit property as alleged was denied, and it was utilized by defendant no.2, same had to be accounted for.
9. It was stated four children of Smt.Devi namely Laxman, husband of defendant no.19, father of defendants no.20 to 23, Narnappa, Mohan and Smt.Bhavani died after come into force of Hindu Succession Act, 1956 ('HSA' for short). Therefore, four children would be entitled 1/13th share as per Section 7 of HSA, and Aliyasantana Act would not apply. Therefore, plaintiffs' claim was untenable. On above grounds,
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR sought for allotment of 1/13th share of Laxman to defendants no.19 to 23.
10. In their written statement, defendants no.24 to 29 denied description of suit property and genealogical tree as well as claim of plaintiff for 1/22nd share. It was alleged plaintiffs purposely underestimated annual income of suit property and undervalued suit property to cause loss to defendants. It was stated Court fees paid was not correct. It was stated four children of Smt.Devi namely Laxman, husband of defendant no.19 and father of defendants no.20 to 23, Narnappa and Mohan along with one sister Smt.Bhavani died after HSA come into force. As succession was governed by HSA, claim for larger share under Act was untenable, and sought dismissal of suit.
11. It was also stated that suit property consisted of six independent buildings and plaintiffs were collecting rent from tenants in occupation. They further stated there were 36 yielding coconut trees, 2 mango trees and 2 jack fruit trees and entire usufructs are utilized by plaintiffs and defendants were entitled for rightful share in said income. It was stated they were legal heirs of Narnappa and in possession of house since
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR 60 years and spent huge amount for its improvements. Therefore, they were entitled for inclusion of their residential house in their share which under HSA would be 1/4th. They also alleged that barbed wire fence put up by them around house and appurtenant land was destroyed by defendant no.2 and 15 on 26.12.1985 causing loss to them. On above grounds sought dismissal of suit.
12. In their additional written statement, they stated when defendants no.19 to 23 filed written statements admitting 1/4th share under HSA, they would be estopped from taking plea against provisions of HSA. It was stated since all children of Smt.Devi passed away after coming into force of HSA and Smt.Devi died on 21.04.1956 and their children would be entitled equal share of suit property and not 1/13th share as claimed by them in their amended written statement.
13. Defendants no.1, 3, 4, 5, 6, 8, 9, 10, 11 to 14, 16 to 18 filed memo adopting Written Statement filed by defendants no.2, 7, 15, 30 and 31. Defendants no.32 to 34 filed memo adopting written statement filed by defendant no.2. Defendants
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR no.21 to 22 filed memo adopting written statement filed by Defendants no.19, 22 and 23.
14. Based on pleadings, trial Court framed following.
ISSUES
1) Whether the plaintiffs prove the correctness of the genealogy produced along with the plaint?
2) Whether the plaintiffs prove that they description of the plaint B schedule property is correct?
3) Whether the plaintiffs prove that plaintiffs four in number and defendants 1 to 18 alone are entitled to 1/22 shares each in the B schedule property on per capita basis under the Aliya Santhana law as alleged?
4) Whether the defendants prove that the property is to be divided into 4 shares on the four issues of Devi and that these issues died after coming into force of Hindu Succession Act 1956 and the rest have to claim through their respective branches?
5) Whether the children of 21st, 23rd and also of defendant Nos.20, 22 and new born to 6th defendant are necessary parties to the suit?
6) To what shares the parties are entitled for?
7) Who is in possession of what property and who is liable to amount for the income?
8) What is the correct income of the suit property?
9) Whether the 2nd defendant proves that she has spent Rs.50,000/- for renovation and
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improvements and is entitled to
reimbursement as alleged?
10) Whether defendant Nos.24 to 29 prove that they are spent any amount for the improvements of the property in their possession?
11) Whether defendant Nos.24 to 29 prove that there are 36 coconut trees yielding and 2 mango and 2 jack fruit trees and the plaintiffs are collecting the rents and also usufructs of the trees as alleged?
12) What are the shares of the defendant Nos.24 to 29?
13) Whether defendant No.2 proves that Will dated 5.3.1949 executed by Smt. Devi and that plaintiffs defendant Nos. 1, 2, 11 and15 and their branches alone are entitled to share and none others?
14) To what reliefs parties are entitled?
ADDITIONAL ISSUES
15) Whether 14th defendant proves the alleged improvements? If so, what is its value?
16) Whether 15th defendant is entitled for the value of improvements?
17) Whether 15th defendant is entitled to be allotted a share in the portion of the land over which improvements were made?
15. In trial, plaintiff no.1 was examined himself as PW.1 and got marked Exhibits P1 to P3. In rebuttal, defendant no.27 was examined as DW.1 and got marked Exhibits D1 to D20.
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16. On consideration, trial Court answered issues no.1 to 3 and 13 in negative; issue no.4 in affirmative; issue no.5 as not surviving for consideration; issues no.7 to 11 and additional issues no.15 to 17 about improvements made by defendants no.14 and 15 were kept open for consideration at time of drawing final decree; issues no.6, 12 and 14 by partly decreeing suit, rejecting plaintiffs' claim for 1/22nd share each and holding plaintiffs no.1 to 4 together for 1/20th share, defendants no.19 to 23 for 1/20th share each in 1/4th share of Laxman, defendants no.24 to 29 for 1/24th share in 1/4th share of Narnappa, defendants no.30 and 31 for 1/8th share each in 1/4th share of Mohan, defendants no.1, 2, 11 and 15 each for 1/20th share in 1/4th share of Smt.Bhavani, defendants no.32 to 34 for 1/60th share each in 1/20th share of defendant no.1, defendants no.12 to 14 for 1/60th each in 1/20th share of defendant no.11, defendants no.16 to 18 for 1/60th share each in 1/20th share of defendant no.15, defendants no.3, 6 to 10 each for 1/120th share in 1/20th share of defendant no.2 and lastly defendants no.4 and 5 each for 1/240th share in 1/120th share of defendant no.3. And keeping open mesne profits to be determined separately.
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17. Aggrieved plaintiffs filed RA no.76/2008, defendants no.15 to 18 filed RA no.93/2008 and defendants no.2 to 8 filed RA no.106/2008 on various grounds, based on which following points were framed:
1. Whether the plaintiffs prove that the suit schedule property belongs to Aliya Sanathana Joint Family and they are entitled for share as per the provisions of Aliya Sanathana Law?
2. Whether the defendants prove that the parties are entitled for partition of the sit schedule property as per Hindu Successions Act?
3. Whether the appellant in these three appeals proves that the impugned judgment and decree passed by the learned 1st Addl.
Civil Judge (Jr. Dn.) Mangalore in O.S.nos.546/1989 is illegal, capricious and opposed to law. Therefore, the interference of this Court is necessarily required for setting aside the said judgment and decree?
If so, to what extent?
4. What Order?
18. On consideration, first appellate Court answered points no.1 and 3 in negative; point no.2 in affirmative and point no.4 by dismissing appeals. Aggrieved only defendants no.15 to 18 have preferred this second appeal.
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19. Sri Vishwajith Rai M., learned counsel for defendants no.15 to 18 submitted that plaintiffs had filed suit for partition and separate possession of their 1/22 share each over suit property. It was submitted, plaintiffs and defendants no.1 to 8 belong to Kutumba governed by Aliyasantana Law of Inheritance ('ALI', for short) as per genealogy in plaint schedule 'A'. It was submitted suit property was ancestral property purchased by Smt.Birmaye Hengasu under sale deed dated 11.05.1914. It was submitted, on death of propositus property devolved on her daughter - Smt.Devi, who was grandmother of plaintiff no.1 and great grandmother of plaintiffs no.2 to 4. It was stated, Smt.Devi died on 21.04.1936 leaving behind three sons Laxman, Narnappa and Mohan and one daughter Smt.Bhavani who died on 22.09.1983. It was submitted, suit property was liable for division as per ALI with each of parties entitled for per capita share and therefore, plaintiffs were entitled for 1/22nd share in suit property.
20. It was submitted, trial Court passed preliminary decree rejecting claim for partition as per ALI and granting notional share to Smt.Bhavani under HSA. Against preliminary decree RA no.116/1990, RA no.117/1990 and RA no.168/1990
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR were filed. First appellate Court allowed appeals on 16.03.1996 and remanded matter back to trial Court for fresh disposal by giving opportunity to parties to lead evidence. Though, same was questioned in MSA no.178/1996, it was dismissed on 22.02.1999.
21. After remand, trial Court passed preliminary decree rejecting plaintiffs' claim as per ALI and declaring shares as per HSA. Aggrieved by said decree, defendants no.15 to 18 had filed RA no.93/2008. It was submitted, even plaintiffs filed RA no.76/2008, while defendants no.2(a), 3, 5 to 8 and 10 filed RA no.106/2008. But same were dismissed without reference to oral and documentary evidence in mechanical manner.
22. Aggrieved by dismissal of RA no.93/2008, defendants no.15 to 18 filed this appeal, firstly on ground that as per order of remand, trial Court was required to consider evidence led earlier along with evidence led after remand. But, first appellate Court considered only evidence led after remand, which was totally illegal and contrary to decision of Hon'ble Supreme Court in case of United Bank of India, Calcutta v.
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR Abhijit Tea Co. Pvt. Ltd. and Ors., reported in 2000 (7) SCC 357, wherein it was held once matter is remanded, evidence recorded earlier would continue to be evidence after remand also.
23. Secondly, on ground that scope of suit could not be expanded after remand, by relying on decision of Hon'ble Supreme Court in Shivshankara and Anr. v. H.P. Vedavyasa Char, reported in AIR 2023 SC 1780. Elaborating same, it was submitted, initially, specific contention of defendants no.15 to 18 was Smt.Birmaye Hengasu purchased suit property under Ex.P1 - sale deed on 11.05.1914. However, after remand, trial Court ignored Ex.P1 and relied on Ex.D1 - Adangal register, a revenue document showing name of propositus was mutated in place of Sri Ugga and not Smt.Birmaye Hengasu. Thus, new case was set up by contesting defendants, without any pleadings to said effect in their written statement. It was submitted, in absence of pleadings, evidence led by parties cannot be looked into and for proposition that parties could not be permitted to travel beyond pleadings, relied on ratio laid down by Hon'ble Supreme Court in S.S. Sharma and Ors. v. Union of India and Ors., reported in AIR 1981 SC 588.
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24. Learned counsel further contended, Ex.D1 was only a revenue document and not document of title. Relying on ratio in Prahlad Pradhan and Ors. v. Sonu Kumhar and Ors., reported in 2019 (10) SCC 259 that mere entry of name in revenue records does not confer title, it was submitted as claim was based only on revenue document, trial Court ought to have dismissed suit.
25. It was further submitted, trial Court erred in relying on evidence of DW.1, even when said witness lied glaringly. It was submitted, when examined on 28.11.1989, she stated suit property belonged to Smt.Birmaye Hengasu, who had only one daughter. But, when she was examined again (after remand) on 28.10.2002, she stated suit property belonged to Sri Ugga and Smt.Devi was not daughter of Smt.Birmaye Hengasu. Due to above contradiction, her evidence was unreliable. It was therefore submitted, shares had to be declared as per provisions of Act and both Courts did not consider case in proper perspective. It was submitted following substantial questions of law would arise and prayed for allowing appeal by answering them in favour of appellants:
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR Proposed substantial questions of law:
1. Whether finding recorded by both Courts that plaintiffs are entitle for share in suit property is correct?
2. Whether finding recorded by both courts that ALI is not applicable is correct?
3. Whether finding recorded by both Courts that HSA applies is correct?
4. Whether finding recorded by both Courts below that evidence adduced prior to remand cannot be considered is correct?
26. On other hand, Sri Sanath Kumar Shetty, learned counsel for defendants no.24 to 29 reiterated progress of proceedings as narrated by learned counsel for defendants no.15 to 18.
27. First question that arises for consideration is whether plaintiffs proved correctness of genealogy. Plaintiffs in plaint contend that themselves and defendants no.1 to 18 belong to a Kutumba governed by ALI. According to them, suit property was Kutumba property, purchased by Smt.Birmaye Hengasu, inherited by her only daughter - Smt.Devi, who had children - Laxman, Narnappa, Mohan and Smt.Bhavani and that plaintiff no.1 was her daughter, while plaintiffs no.2 to 4 were
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR grandchildren, while defendants no.1, 2 and 15 were other children of Smt.Bhavani.
28. It was submitted, PW.1 is plaintiff no.1. She reiterated plaint averments. Defendants disputed genealogy. However, no evidence was led to substantiate same except producing genealogical tree. Even after remand, plaintiffs did not lead further evidence even when matter was remanded to provide opportunity to parties to lead evidence. It was further submitted, nature of order was open remand and trial Court was directed to hold de-novo trial. Consequently, evidence recorded prior to remand stood effaced and could not be looked into. After failing to utilize opportunity and when trial Court decided suit on basis of available material, it would not be open for challenge on ground of insufficient material for findings recorded.
29. It was alternatively submitted, there would be no impediment for this Court to take into account entire evidence available, record findings and determine whether impugned judgment and decree called for interference.
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR
30. It was further submitted, suit property was described in plaint as measuring 30 cents. But property purchased by Smt.Birmaye Hengasu under Ex.P-1 was only building and not land over which it was built. Therefore, Ex.P-1 would not prove plaintiffs case that suit property measuring 30 cents belonged to Smt.Birmaye Hengasu. On other hand, defendants no.24 to 29 contended suit property measuring 30 cents belonged to Sri Ugga and led evidence to establish their lineage to him. Admittedly there was dispute about lineage and plaintiffs were required to establish their lineage.
31. According to contesting defendants no.24 to 29, Sri Ugga was propositus. He had daughter by name Appu Hengasu, who in turn had two sons - Channayya Maestri and Poovappa and a daughter named Smt.Birmaye Hengsu. Said Birmaye Hengsu had no issues. Poovappa's son was one Kochappa whose wife was Smt.Devi. They had three sons Laxmana, Narnappa and Mohan and a daughter by name Smt.Bhavani. Plaintiff no.1 was daughter of said Bhavani, while other plaintiffs were her children. It was submitted, said genealogy was corroborated by deposition of Chandramati -
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR DW-1 and registered documents namely - Exs.D-4, D-6 and D-
20.
32. But according to plaintiff, suit property belonged to Smt.Birmaye Hengasu under Ex.P-1, which was only with respect to building and not land measuring 30 cents. If land is also required to be partitioned, plaintiffs were required to prove that it belonged to Aliyasantana Kutumba as propounded. As evidence led was lacking in this regard, suit had to fail.
33. On other hand, defendants no.24 to 29 contended that suit property does not belong to Kutumba as stated by plaintiffs. They also contended, property belonged to one Sri Ugga and plaintiffs/defendants were his descendants. They proved same by producing genealogy and corroborative documents. And as it was suit for partition, there would be no difference between plaintiff and defendant and evidence led by all could be considered for passing judgment and decree. Taking note of same and as defendants no.24 to 29 proved that property belongs to Sri Ugga and both defendants no.24 to 29 and plaintiffs were descendants of Sri Ugga, judgment and
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR decree by both Courts were fully justified and did not call for interference.
34. Elaborating same, it was submitted plaintiffs were required to establish suit property as Kutumba property. Plaintiffs also failed to establish suit property belonged to Smt.Birmaye Hengasu. Ex.P-1 does not support their claim. Defendants contended that, suit property belonged to Sri Ugga and produced Ex.D-1, certified copy of Adangal Register pertaining to suit property which clearly discloses that Sri Ugga was its pattedar. Said entry is an old entry and time-tested. Further, Ex.D-2 sale deed, Exs.D-16 to Ex.D-20 other registered deeds conclusively establish that suit property belonged to Sri Ugga and inherited by his children after his death. If it originally belonged to Male member, it cannot be treated as Kutumba property and Aliyasantana Law of Inheritance would not apply. Aliyasanthana Law of Inheritance is still prevalent in Dakshina Kannada and Udupi Districts of State and that HSA did not repeal ALI.
35. It was submitted, relying on Full Bench decision of this Court in case of Sundera Adappa v. Girija, reported in
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR AIR 1962 Mys. 72, this Court in Smt.Ratnamala v. State, reported in AIR 1968 Mys. 216, succinctly explained characteristic features of Kutumba governed by ALI as follows:
"As stated in Myne's Treatise on Hindu Law, Aliyasanthana Law is the customary law governing certain communities amongst Hindus in South Kanara District. 'Kutumba' is the name given to the joint family consisting of males and females, all descended in the female line from a common ancestress. Kutumba may consist of two or more branches known as 'Kavarus', each Kavaru or branch consisting of one of the female members of the Kutumba and her descendants in the female line. The outstanding feature of the Aliyasantana Kutumba is that like of Murumakkathayam Tarwad, it is governed by a matriarchal system, the devolution being through female line. In other words, while the children of the female members of the family are members of the Kutumba, the children of the male members are not."
36. In view of above legal position, suit property cannot be treated as Kutumba property and cannot be divided as per ALI. Suit property has to be treated as property belonging to a male Hindu and provisions of HSA would be applicable. Since plaintiffs are also hailing from one of heirs of deceased Ugga, they would be entitled for share in suit property. On other hand, if plaintiffs maintain that suit property belonged to Smt.Birmaye Hengasu then, they would not be entitled for any share in land measuring 30 cents. It was submitted Indian law recognized dual ownership i.e. ownership
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR of building and land on which it is constructed need not be same person, by relying on ratio laid down by Hon'ble Supreme Court in Dr.KA Dhairyawan and Ors. v. JR Thakur and Ors., reported in AIR 1958 SC 789. If Smt.Birmaye Hengasu had right only in building and plaintiffs were to be claiming partition of only building, they ought to have made such prayer, instead of claiming partition in respect of land. Plaintiff failed to discharge burden on them to establish that suit property was joint family property and they were entitled for share in it. Both Courts duly appreciated said aspect and passed preliminary decree declaring shares according to HSA. Hence, no substantial questions of law arose for consideration and sought dismissal of appeal.
37. Heard learned counsel, perused impugned judgment and decree and records.
38. This is second appeal by defendants no.15 to 18 against concurrent findings in suit for partition and separate possession of suit property.
39. Suit claim was based on assertion that plaintiffs and defendants no.1 to 18 constituted undivided Aliyasantana
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR family governed by ALI and suit property was joint family property purchased by Smt.Birmaye Hengasu on 11.05.1914 and after her death inherited by her daughter Smt.Devi, who had four children including sole daughter - Smt.Bhavani. After death of Smt.Devi, Smt.Bhavani inherited suit property and after her death on 22.09.1983, plaintiffs and defendants no.1 to 18 - her descendants were entitled for per capita share in suit property as per ALI. And as defendants no.19 to 31 were male members or descendants of male members of family, they would be entitled for per capita share in shares of their respective ancestor. And when they demanded share and refused, suit was filed.
40. On appearance, defendants no.2, 7, 15, 30 and 31 admitted schedule 'A' genealogical tree and claimed even defendants no.30 and 31 were entitled for share in suit property and alleged Sushant son of defendant no.6 was left out.
41. Defendants no.1, 3, 4, 5, 6, 8, 9, 10, 11 to 14, 16 to 18 as well as defendants no.32 to 34 filed memo adopting Written Statement filed by defendants no.2, 7, 15, 30 and 31 and supported plaintiffs' claim.
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR
42. Defendants no.19 to 23 (Descendants of Laxman) denied plaintiffs' claim for 1/22nd share in suit property on ground that Smt.Devi had four children namely Laxman, Narnappa, Mohan and Smt.Bhavani, who had all died after come into force of HSA and as per Section 7 of HSA, would be entitled for 1/13th share and ALI would not apply. They sought allotment of 1/13th share of Laxman to them.
43. Defendants no.24 to 29 (Descendants of Narnappa) denied genealogical tree, description of suit property as well as claim of plaintiff for 1/22nd share. They also stated all four children of Smt.Devi - Laxman, Narnappa Mohan and Smt.Bhavani died after HSA come into force and succession was governed by HSA and therefore they were entitled for share in 1/4th share of Narnappa.
44. Plaintiffs sought to substantiate suit claim by deposition of plaintiff no.1 as PW.1 who deposed in terms of plaint and production of sale deed dated 11.05.1914 as Ex.P1, Record of Rights of suit property for year 1983-84 as Ex.P2, death certificate of Smt.Devi as Ex.P3. In cross-examination, it was elicited that Smt.Devi died on 21.04.1956. Pleads
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR ignorance to suggestion that Laxman died on 02.03.1960. But, admits Narnappa died on 05.04.1971, Mohan died in August, 1968 and Smt.Bhavani died in September, 1983. Specific suggestion (by defendants no.19 to 23) that suit property was absolute property of Smt.Devi is admitted. PW.1 claims ignorance about defendants no.19 to 23 being entitled for 1/4th share in suit property.
45. Evidence on other side comprised of examination of defendant no.27 as DW.1, who deposed in terms of written statement filed by defendants no.24 to 29. After remand, DW.1 was examined again wherein she stated that suit property originally belonged to Sri Ugga who was its original pattadar. That prior to survey settlement, suit property was Sy.no.57. That Smt.Appu Hengasu was daughter of Sri Ugga, who had two children i.e. Poovappa and Smt.Birmaye Hengasu. And Sri Ugganna referred to in Exs.D2 and D3 - mortgage deeds is father of Smt.Appu Hengasu. Kochappa was Poovappa's son. Smt.Devi was wife of said Kochappa. Smt.Birmaye Hengasu was sister of Poovappa. And unlike claimed by plaintiffs, Smt.Devi was not daughter of Smt.Birmaye Hengasu, but was from Kudrolli. Names of children of Kochappa and Smt.Devi
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR were Laxman, Narnappa, Mohan and Smt.Bhavani. And that DW.1 was daughter of Narnappa. Stated that suit property was not Kutumba property and therefore, it could not be divided into 22 portions and Narnappa's share would be 1/4th as per HSA.
46. In cross-examination, suggestion that suit property was purchased by Smt.Birmaye Hengasu is denied and stated that suit property was inherited by Sri Ugga. And that Smt.Birmaye Hengasu did not have any children. That he belonged to Billava caste which was not governed by ALI. Documentary evidence led was Adangal register extract as Ex.D1, registered deeds in respect of suit property in 1884-85 as Ex.D2 and D3, death certificate of Narnappa as Ex.D4, Tax paid receipts of house no.235 dated 07.02.1940, 17.02.1940, 03.01.1947 and 21.01.1947 as Exs.D5 to D11, Demand notices as Ex.D12(a to j), Record of Rights from year 1987-88, 1993- 94 and 2000-2001 as Exs.D13 to 15 and registered documents of year 1885, 1888, 1891, 1893 as Exs.D16 to D20.
47. While passing judgment and decree, trial Court took note of pleadings, deposition and documentary evidence as well
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR as fact that suit was earlier disposed of and remanded back by first appellate Court for fresh disposal reserving liberty to parties to lead evidence in view of fact that main dispute between parties was about nature of suit property - whether as self acquired property or Kutumba property of Smt.Devi.
48. However, it observed that remand was for 'disposal afresh after permitting parties to adduce fresh evidence', as meaning that evidence lead prior to remand and findings recorded thereon could not be looked into. Thereafter, it observed that plaintiffs have not lead fresh evidence after remand and only contesting defendants (defendants no.24 to 29 - descendents of Narnappa) had led evidence. It noted controversy between defendants no.24 to 29 and others was nature of property and mode of succession. It observed genealogy as stated by defendants no.24 to 29 through evidence of DW.1 was virtually uncontested as plaintiffs or other defendants did nothing to dispute or contradict same. It observed there was no material to establish that Smt.Devi was daughter of Smt.Birmaye Hengasu and that Ex.D1 clearly referred to Sri Ugga as pattedar of suit property. It also noted Exs.D2 and D3 mentioned Kochappa grandson of Ugga as
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR husband of Smt.Devi, while Ex.D4 - death of certificate of Narnappa showed name of his father as Kochappa. It also observed contents of Exs.D16 to D20 would corroborate genealogy as stated by defendants no.24 to 29. It noted Ex.D19 as reciting Smt.Appu Hengasu as daughter of Sri Ugga, while Ex.D16 was executed by Kochappa in favour of his father Poovappa would further corroborate defendants' case. On said observations, it answered issue no.1 about genealogy as claimed by plaintiffs in negative.
49. While giving finding on issue no.2 correctness of description of suit property, it noted description of demised property in Ex.P1 was superstructure whereas subject matter of suit was 30 cents of land bearing Sy.no.367 along with buildings and trees etc. to conclude that description was improper. Insofar as issues no.3, 4, 6 and 12 about entitlement of shares whether as per ALI or under HSA. It noted plaintiffs' claim was based on their assertion that suit property was purchased by Smt.Birmaye Hengasu devolved on her daughter Smt.Devi and therefore, plaintiffs were entitled for share as per ALI while defendants no.24 to 29 claimed that property belonged to Ugga who had one daughter by name Smt.Appu
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR Hengasu and who had two children Poovapppa and Smt.Birmaye Hengasu and further as Smt.Birmaye Hengasu died issueless, Kochappa son of Poovappa succeeded to property.
50. It observed as per defendants, Smt.Devi was wife of Kochappa and not daughter of Smt.Birmaye Hengasu. Consequently, succession was through male lineage. It noted, though plaintiffs' were claiming per capita share in suit property as per ALI based entirely on Ex.P1. It also observed that there were no recitals in Ex.P1 supporting mode of succession as claimed by plaintiffs and property conveyed under Ex.P1 was only superstructure and not land. It noted that evidence led on other side, with stood cross-examination and documents marked corroborated oral evidence. While arriving at conclusion, it noted deposition of DW.1 insofar as suit property prior to remand contradicted with her deposition after remand but found explanation offered about realizing correct facts after obtaining Exs.D1 to D20 documents, as acceptable. It held merely claiming succession by ALI, without establishing suit property as Aliyasantana property would not entitled to relief. It noted that all four children of Smt.Devi had died after coming
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR into force of HSA, partition was to be effected applying provisions of HSA i.e. 1/4th to each of four children and to be divided between members of each branch accordingly.
51. Since subject matter of issue nos.7 to 11 and 15 to 17 pertains to mesne profits, same were kept open for determination in final decree proceedings. While issue no.13 was insofar as claim under testamentary Will dated 05.03.1949 was rejected for lack of evidence. On above conclusion, suit was decreed in part while rejecting plaintiffs' claim under ALI, but, it granted under HSA keeping open mesne profits etc. to be determined by final decree proceedings.
52. In appeal, first appellate Court took note of rival pleadings and material on record. While answering whether suit property was liable for partition under ALI or under HSA, it noted said burden would be on plaintiffs to establish same, referring to contents of Ex.P1 it concurred with observation of trial Court that property purchased thereunder was superstructure and not land. It further noted that as plaintiffs did not lead evidence after remand, whereas defendants led oral evidence to effect that suit property belonged to Sri Ugga
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR and was succeeded to through male lineage corroborated by documentary evidence concurred with trial Court findings that suit property was not liable for partition under ALI, but under HSA. It examined contention about findings of trial Court suffering from capriciousness, perversity etc. and after holding that it was due reference to material on record, dismissed appeals.
53. Main grounds urged are firstly error committed by both Courts in overlooking evidence led by plaintiffs prior to remand, secondly about contradictory deposition by DW.1 about nature of suit property prior to remand and thereafter and illegally denying share under ALI by granting it under HSA even when Smt.Devi died on 21.04.1956, prior to coming into force of HSA.
54. First contention about error committed in ignoring evidence led by plaintiffs prior to remand is more formal than actual. As noted above, only witness examined by plaintiffs was PW.1 and documents marked were sale deed dated 1914, RoR and death certificate of Smt.Devi as Exs.P1 to P3. It is apparent finding of both Courts about failure of plaintiffs to establish
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR their claim for partition under ALI is by considering subject matter of sale in Ex.P1 being superstructure constructed on suit property and apparent absence of reference to land as demised property. Further, Ex.P3 - death certificate discloses name of husband of Smt.Devi as Kochappa, which would fall in line with genealogy asserted by defendants no.24 to 29. Ex.P2 would not in any manner further case of plaintiffs. In view of above, ratio in United Bank of India's case (supra), though relevant would not benefit defendants no.15 to 18. Hence, contention about same giving rise to substantial question of law is rejected.
55. Insofar as next contention, indeed, prior to remand, DW.1 had admitted Smt.Birmaye Hengasu as owner of suit property under Ex.P1. However, one of their main contentions in appeal was that Ex.P1 concerned only buildings thereon and not suit property itself, which along with additional evidence about succession following male lineage weighed with appellate Court and therefore matter was remanded reserving both parties to lead fresh evidence and thereafter, DW1 was examined again. Trial Court observed explanation by DW.1 that admission about Smt.Devi being owner of suit property was prior to obtaining documents, as sufficient. Besides, it is seen
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR that DW.1 was aged 45 years and deposing about lineage much prior to her birth. In suit for partition, all parties would be plaintiffs/defendants simultaneously. When defendants no.24 to 29 were claiming share in suit property under HSA, consideration of material in that regard by both Courts cannot be questioned on ground of expansion of scope of suit relying upon Shivshankara's case (supra). Therefore said contention is rejected.
56. Insofar as contention whether suit property is liable for partition as per ALI or HSA, since, plaintiffs and defendants no.1 to 18 asserted that they formed Aliyasantana Kutumba and suit property was Kutumba property. Therefore, burden would be on them to establish same.
57. Apparently, only evidence available is deposition of plaintiff no.1 as PW.1 and documentary evidence virtually limited to Ex.P1. It is held above that plaintiffs failed to establish suit property was owned by propositus Smt.Devi as Kutumba property. Both Courts have appreciated evidence led by defendants no.24 to 29 and concurrently held suit property originally belonged to Sri Ugga succeeded to by his only
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR daughter Smt.Appu Hengasu and thereafter by her children Poovappa and Smt.Birmaye Hengasu and as Smt.Birmaye Hengasu did not have any issues, succeeded by Poovappa and in turn by his son Kochappa onto his four children with his wife Smt.Devi namely - Laxman, Narnappa, Mohan and Smt.Bhavani.
58. It was not case of plaintiffs that there was prior partition. Though, defendants no.7 to 15, 30 and 31 sought to plead testamentary succession on basis of Will dated 05.03.1949, no evidence was led. Therefore, such claim died down. Admittedly, suit property remained as undivided joint family property of plaintiffs and defendants, until filing of suit, which is after date of coming into force of HSA.
59. Taking note of peculiar provisions of Act, Division Bench of this Court in case of Chandrashekhara and Ors. v. Smt.Gouri and Ors., reported in NC: 2023:KHC-D:13753- DB, has held that failure to establish property being held by ancestress would dishevel claim of applicability of ALI, as follows:
"26. Therefore, it is to be seen as to how Ex.P54 to Ex.P59 is helpful to the case of the plaintiffs.
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR 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, 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 "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.
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
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR 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.
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 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
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR 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 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 suit properties have been
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR 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."
(emphasis supplied)
60. Thus, contention about applicability of ALI than HSA for succession to suit property would not arise for consideration.
61. Lastly, contention about reliance on Ex.D1 a revenue document to conclude that suit property belonged to Sri Ugga virtually treating it as document of title, even when plaintiffs had produced registered sale deed as Ex.P1, it is once again to be reiterated that both Courts have on appreciation of contents of Ex.P1 held same pertaining only to constructions on suit property and not suit property. Insofar as suit property i.e. land on which construction was put up, there was no better material than revenue records. Moreover, other contemporaneous registered deeds as well as later revenue
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NC: 2025:KHC:18990 RSA No. 1368 of 2015 HC-KAR records would establish contention of defendants no.24 to 29 by preponderance of probabilities than that of plaintiffs and defendants no.1 to 18. In this light, ratio in Prahlad Pradhan's case (supra) would not be attracted. Consequently, even said contention requires rejection.
62. When, application for additional evidence was allowed and there was specific remand of matter permitting parties to lead evidence about nature of suit property and challenge of order of remand was dismissed, it would be too late in the day for contending that parties travelled beyond pleadings. Therefore, in present facts, ratio in S.S. Sharma's case (supra) would not be attracted.
63. Wherefore, none of contentions urged give rise to any substantial question of law. Consequently, following:
ORDER Appeal is dismissed with costs.
Sd/-
(RAVI V HOSMANI) JUDGE GRD