Karnataka High Court
Bhimappa Ramappa Ghasti vs Arjan Laxman Ghasti on 14 August, 1992
Equivalent citations: ILR1992KAR3594, 1993(2)KARLJ179
JUDGMENT
K.A.Swami, Ag. C.J.
1. R.S.A. No. 737/1977 is preferred against the decree dated 23.4.1977 passed in R.A.No.243/1972 and R.A.No. 253/1972 by the IV Additional Civil Judge, Belgaum partly affirming and partly reversing the decree dated 31.8.1972 passed by the Principal Munsiff, Athani, in O.S.No. 94/1969.
2. The appellants are defendants-1 to 3 and respondents-1 to 3 are plaintiffs-1 to 3, and respondent-4 is defendant No. 4.
3. Respondent-1 to 3 instituted the aforesaid suit for partition and separate possession of their share in the suit properties bearing S.No. 119/A/2 measuring 14 acres assessed at Rs. 37.24, S.No. 156/A/2-3 measuring 2 acres 21 guntas assessed at Rs. 6.72 and S.No. 119 measuring 1 acre 26 guntas assessed at Rs. 4.39 and the house bearing V.P.C. No. 378 situated at Shegunshi village, Athani Taluk.
4. This Second Appeal is referred to a Division Bench on the ground that the Decision in CHANDRABAI AND ORS. v. LAXMIBAI AND ANR. rendered by a Division Bench of this Court requires to be reconsidered.
5. In Smt.Chandra Bai's case, a Division Bench of this Court has held that a suit for partition in respect of the properties governed by the Karnataka Village Offices Abolition Act, 1961 (Hereinafter referred to as the 'Act') before the regrant is premature. The Division Bench has observed thus;
"It is common case of the parties that the suit lands have not been regranted under Section 5 of the Act. The Village Office to which the Watan appertains has been abolished. The lands have been resumed and vested in the Government under Sub-section (3) of Section 4 of the Act. When regrant is made under Section 5 of the Act to the holder of the village office, the lands will be held on ryotwari tenure. Until the regrant is made, the holder of the village office has merely a right to obtain regrant subject to the conditions specified in Section 5. We asked the learned Counsel for the appellants as to how the plaintiffs can seek the relief of partition of the suit properties before regrant is obtained from the Government. The learned Counsel was unable to give any satisfactory reply in this regard. He, however, submitted that the plaintiffs may be granted a declaration that they are members of a joint family and are entitled to regrant of the suit properties..... Since the Scheme of the Act is also the same as the Watans Abolition Act, a regrant of the land resumed under Section 4 to the holder of the village office has to be regarded as compensation to the holder of the village office. Until the lands are regranted to the holder of the village office, the plaintiffs derive no title, assuming that the watan was family property which was impartible until its abolition. It is too premature for the plaintiffs to institute a suit for partition before regrant is obtained by the holder of the village office...."
6. When this Appeal came up for hearing before this Bench, on 8.8.1990, we took a view that it was not necessary to decide the correctness of the view taken in Chandra Bai's case because the regrant proceedings were at a final stage. Therefore, we postponed the hearing of the Appeal for a period of six months and directed the Registry of this Court to despatch all the records pertaining to regrant proceedings which were submitted by the Tahsildar, Athani to the Court of the Munsiff, to enable the Tahsildar, Athani to decide the regrant proceedings within 4 months from 24.9.1990 and submit the records along with his order to this Court within two weeks thereafter.
The parties were directed to appear before the Tahsildar, Athani on 24.9.1990.
7. Accordingly, the Tahsildar decided the regrant proceedings. However, an appeal against the order of the Tahsildar was preferred by the plaintiffs in the suit out of which the Regular Second Appeal in question arises, before the District Judge, Belgaum, under Section 3(2) of the Act The said appeal was numbered as M.A. No. 24/1991.
8. When this was brought to our notice, on hearing both sides, we passed an order on 6.9.1991 withdrawing M.A.No. 24/1991 from the file of the District Judge, Belgaum, and directed it to be posted for hearing along with this Second Appeal. Accordingly, M.A.No. 24/1991 came to be posted along with this appeal.
9. Both the Appeals are heard together.
10. While directing the Tahsildar to decide the regrant proceedings, we also decided the other points involved in the appeal leaving aside the points relating to lands bearing Sy.No. 119/A/2 measuring 14 acres assessed at Rs. 73.24 and Sy.No. 156/A/2-3 measuring 2 acres 21 guntas assessed at Rs. 6.72 situated in Shegunshi village of Athani Taluk as these two lands were the subject matter of the regrant proceedings. In our Judgment dated 8.8.1990 we have held as follows:
"4. The relationship between the parties is not in dispute. One Yellappa was the original propositus. He had three sons by name Ramappa, Shiddappa and Satteppa. Ramappa and Satteppa died unmarried and without issues. Shiddappa had three sons viz., Ramappa, Yallappa and Laxman. On the date of the suit, Siddappa was no more. Yallappa son of Siddappa was also not alive on the date of the suit. The plaintiffs and the defendant-4 are the sons of Laxman and defendant No. 1 is the son of Ramappa and defendant-2 is the son of defendant No. 1 and defendant No. 3 is the wife of defendant No. 1, We may also point out here that on the-date of the suit, Ramappa and Laxman, sons of Siddappa were also not alive.
5. It is also not in dispute that out of the aforesaid three lands, the land bearing S.No. 119A/2 is a Ghasti inam and S.No.156A/2-3 is a Sanadi inam. Both lands are governed by the provisions of the Karnataka Village Offices Abolition Act.
6. As far as land bearing S.No. 119 and the house bearing V.P.C.No. 378 are concerned, it was contended by defendants-1 to 3 that the same were the self-acquired properties of Ramappa, as such, the plaintiffs were not entitled to any share in them. Both the courts below have concurrently held that these two properties were also the joint family properties. That finding is a finding of fact.
7. Even though it is contended on behalf of the appellants that these two properties are the self-acquired properties of Ramappa, in the light of the evidence on record and the finding recorded by the two courts below, we are of the view that there is no scope for interference with this finding in this second appeal.
8. The next question that arises for consideration is as to whether the plaintiffs are entitled to a share in the other two lands bearing S.No. 119A/2 and 156/A/2-3.
9. There is no regrant made. These two lands come under the provisions of the Karnataka Village Offices Abolition Act (hereinafter referred to as the 'Act'), It is not in dispute that the applications for regrant have been filed in time. The records of the case reveal that entire records pertaining to regrant proceedings were called for by the trial Court by issuing summons to the Tahsildar, Athani. In obedience to the summons the Tahsildar, Athani had by the communication dated 22.7.1970 bearing No. WTN-R-SR-5138 and 6088 (found at page 373 of the records of the Trial Court) submitted all the records pertaining to regrant proceedings. Consequently, the regrant proceedings could not be proceeded with.
10. One of the contentions of the defendants is that as the regrant had not taken place, the suit for partition is premature. The contention is fully supported by two Division Bench Decisions of this Court in Hiregouda Yallappagouda Hiregoudar and Ors. v. Venkatesh Kallo Kulkarni and Ors. - R.F.A. NO. 92/62 D.D.9.7.1968; and Chandra Bai and two others v. Laxmibai and Anr. - R.F.A. NO. 42/1972 D.D. 19.6.1974. It is a disagreement with these two decisions, the second appeal has been referred to a Division bench by the order dated 23rd August 1977. We do not consider it necessary to go into the correctness of the view expressed in the referal order. The controversy between the parties in this appeal can very well be settled if the regrant proceedings are allowed to go on and are completed within a specified period. Under these circumstances and in the light of the fact that the suit is of the year 1969 and the appeal is pending for the least 13 years, instead of driving the parties to the necessity of filing another suit after the regrant takes place, we consider it necessary to postpone the hearing of this appeal for a period of six months and direct the Registrar of this Court to despatch all the records pertaining to regrant proceedings which were submitted by the Tahslidar, Athani to the Court of the Munsiff with his letter dated 22.7.1970 found at page 373 of the records of the trial Court. Accordingly, hearing of this appeal is adjourned by six months. The records relating to regrant proceedings of the office of the Tahsildar, Athani, be despatched to the Tahsildar, Athani within a fortnight. We also further direct the parties to appear before the Tahsildar, Athani on 24.9.1990 to avoid further delay in service of notice by the Tahsildar.
11. In view of the facts stated above, the Tahsildar, shall see that the proceedings relating to regrant are completed within a period of four months from 24.9.1990 and the order is submitted to this Court within two weeks.
12. We also make it clear that this order shall not be construed as a direction to the Tahsildar to regrant or not to regrant. He shall have to consider the regrant proceedings in accordance with law."
11. In the light of the findings recorded by the lower appellate Court and also by us, in our Judgment dated 8.8.1990, relevant portions of which have already been extracted above, and in the light of the arguments advanced before us, the following further Points arise for our consideration in both these appeals:-
(i) Whether the plaintiffs and defendant No. 4 together are entitled to a half share in the lands bearing Survey No. 156/A/2-3 (old No. 187) and Survey No. 119/A-2 (old No. 300) of Shegunshi viSlage? And
(ii) What is the effect of the order of regrant made by the Tahsildar, which is the subject matter of M.A.No. 24 of 1991 on the right of the plaintiffs to claim half share in the lands mentioned in Point No. (i) ?
Point No. (i):-
12. It is contended by Sri K.l.Bhatta, learned Counsel for the appellants, that the aforesaid two lands have been granted in favour of Ramappa Bhimappa Ghasti (defendant No. 2 - the son of defendant No. 1); therefore, the plaintiffs are not entitled to any share in these properties. On the contrary, it is contended by Sri K.S.Savanur, learned Counsel for respondents (plaintiffs and defendant No. 4) that these lands are Shet-sanadi lands appurtenant to the village office of Shet-sanadi, that the office of Shet-sanadi was granted to the common ancestor of the plaintiffs and the defendants; that as long as the village office continued, the lands were to be enjoyed by the holders of the Village Office, that after the abolition of the village office, as the plaintiffs and defendant No. 4 together and defendants 1 to 3 representing the two branches of the joint family, are entitled to half share in the lands in question.
12.1) It is not in dispute that these lands were not divided among the members of the joint - family. The village office came to be abolished on the coming into force of the Act. The holder of the village office was entitled to the regrant of the lands appertaining to the village office. The expression "Holder of a Village Office" as per the definition of the said expression contained in the Act, includes all those persons who are entitled to succeed to the office in the absence of the senior members of the family. As such, every one who was entitled to succeed to the village office in the absence of the senior members of the family became entitled to claim a share in the land as per the personal law governing the parties as to inheritance and succession. This aspect of the matter has been dealt with by a Division Bench of this Court, in detail, in SHIVAPPA FAKIRAPPA SHETSANADI V. KANNAPPA MALLAPPA SHETSANADI, . Therefore, we do not consider it necessary to deal with this question in detail. In paras 9, 12, 13 and 14 of the said Decision, it has been held that the abolition of the inam did not affect and could not be said to have affected the personal law of the parties i.e., the Hindu Law of the Succession, There is nothing in Section 4 of the Act, which can be held to affect the personal law of the parties so as to deprive the Junior members of the family of their right to claim partition of the land on the abolition of the village office and resumption and regrant of the land. It is also further held in that Decision that the expression 'holder of a village office' and 'holder' are defined as meaning a person having an interest in a village office under an existing law relating to such office. Again the expression 'interest in the village office' is also considered and it has been held that it includes the right of survivorship of a member of a joint family, In other words, a member of a joint family even though, he may belong to a junior branch has a right to succeed to the office in the event none is available in senior branch to succeed to the office. It has also been further held that the right of survivorship is one of the four rights of the members of a Hindu Joint Family, in respect of a joint family property. It is this right which is not excluded by the Act. Therefore, the junior members of the family have an interest in the village office and as such, they may also be considered as the holders of the village office, It is this right which indicates the interest of the junior members of the family in a village office under an existing law relating to such office. In that Decision, it is however held that until the abolition of the village office and resumption of the land annexed to the village office, the land has to go with the village office and as such, it is not available for partition and that after the abolition of the village office and resumption of the land, it becomes a ryotwari land only on regrant and as such, it would be released from the nature of its impartiality and becomes available for partition.
12.2) In the light of the aforesaid Decision with which we agree, we see no reason to hoid that the plaintiffs and defendant No. 4 together are not entitled to equal share in the aforesaid two inam lands.
12.3) Shri KJ.Bhatta learned Counsel for the appellants, placed reliance on a Decision of the Supreme Court in SHIDDAPPA SATAPPA MURUGUDE AND ORS. V. RAMAPPA SHIVAUNGAPPA MURUGUDE AND ORS., C.A.No. 944 of 1 973 DD 25.11.1986 In that case, the Supreme Court was concerned with the lands governed by the Kolhapur Vat-hukum, whereas, the case on hand is governed by a Decision of the Supreme Court in KALGONDA BALGONDA PATIL v. BALGONDA KALGONDA PATIL AND ORS., In Kalgonda's case, the law laid down by the Supreme Court, in NAGESH BISTO DESAI ETC. v. KHANDO TIRMAL DESAI ETC., has been reiterated. A Division Bench of this Court in S.F.Shetsandi's case has followed the Decision in Nagesh Bisto Desai's case. Therefore, we are of the view that the judgment and decree passed by the lower appellate Court do not call for modification.
12.4) For the reasons stated above, Point No. (i) is answered in the affirmative.
POINT NO (ii):
13. The order dated 26th November 1990 passed by the Tahsildar, Athani, in No. VTN/R/SR/5138-6088 regranting the lands bearing Sy.No.119/A and Sy.No. 156/A/2+3 of Shegunshi village, in favour of Ramappa Bhimappa Ghasti enures to the benefit of the plaintiffs and defendant No. 4, and defendants Nos 1 to 3. The regrant does not give the exclusive title to the regrantee as held in the aforesaid Decision in S.F.Shetsandi's case. Accordingly, Point No. (ii) is answered as follows:
The order of the Tahsildar which is the subject-matter of the appeal in M.A.No. 24 of 1991 on the file of the District Judge, Belgaum, has made the Shet-sanadi lands as raitwari lands as such, the lands have ceased to be impartible and have become available for partition. The order does not affect the right of the plaintiffs and defendant No. 4 together to claim their one half share in the said lands, and it enures to their benefits also.
14. For the reasons stated hereinabove, the Second Appeal is dismissed. Miscellaneous Appeal No. 24 of 1991, is also disposed of, in terms of the decree passed in this Second Appeal, as the regrant enures to the benefit of the plaintiffs and defendant No. 4. Accordingly, it is held that defendant No. 2 cannot and is not entitled to claim exclusive right to hold the lands bearing Sy.No.156/A/2-3(Old No. 187) and Sy.No. 119/A-2 (Old No. 300) of Shegunshi village. The plaintiffs and defendant No. 4 together are entitled to one half share in them.
However, in the facts and circumstances of the case, there will be no order as to costs.