Karnataka High Court
Beerappa S/O Yallappa Bandrolli vs Fakirappa Beerappa Bandrolli And Ors. on 31 October, 2006
Equivalent citations: ILR2006KAR4170, 2007(1)KARLJ477, 2007 (1) AIR KAR R 129
Author: Subhash B. Adi
Bench: S.R. Bannurmath, Subhash B. Adi
JUDGMENT
Subhash B. Adi, J
1. This is an appeal by plaintiff No. 2, questioning the judgment and decree dated 21.9.2005 in O.S. No. 108/2002 on the file of the Civil Judge (Sr. Dn.), Saundatti.
2. The suit is one for partition and separate possession. Case of the plaintiff is that, Fakirappa, son of Gadigeppa Bandrolli and Smt. Mayawwa, daughter of one Kanappa Mangasuli were the original prepositus for both the families of plaintiffs and defendants-1 to 3. Fakirappa had two sons namely, Beerappa and Yallappa. Defendants-1 to 3 are the children of Beerappa. Plaintiff No. 1 is the wife of Yellappa, plaintiff No. 2 is the son. Original propositus Fakirappa died in the year 1927 leaving behind Beerappa and Yellappa. Beerappa died in the year 1946 at Saundatti. His wife also died subsequently. Defendant No. 1 is the son of Beerappa, Defendants-2 and 3 are daughters. Second son of Fakirappa namely, Yellappa also died in the year 1989 leaving behind first plaintiff Smt. Dyamawwa, the wife and Beerappa, the son. Yellappa had another son by name Fakirappa. However, Fakirappa has gone in adoption to Ningappa Pattadakal family. The propositus Fakirappa was rendering Gram Chakaraki (Halabaki) and the lands were inam lands attached to that office. After the death of Fakirappa, the Chakari was continued by his two sons namely Beerappa and Yellappa. Defendant No. 1 Fakirappa is settled in the village Halagatti in Ramdurg taluk. Defendant Nos. 2 and 3 are given in marriage. The suit CTS property bearing Nos. 2223, 2226 are standing in the name of plaintiff No. 2, CTS No. 2225 is standing in the name of the plaintiff No. 2 along with defendant Nos. 4 to 6. Defendants-4 to 6 are owners in possession to the extent of 1/3rd portion on the northern side of CTS No. 2225 and plaintiffs have not made any claim to the said portion. However, only for formality, defendants - 4 to 6 have been impleaded.
3. The suit properties are joint family properties in the enjoyment of plaintiffs and defendant Nos. 1 to 3. There is no partition at any point of time and they are all governed by principles of Hindu Law. Plaintiffs demanded for partition, however, the defendant No. 1 refused to the same, stating that the plaintiffs have no right to seek partition of the suit schedule property and also claimed that the lands belong to him. As such, plaintiffs were constrained to file the suit for partition.
4. Defendant No. 1 filed a written statement interalia alleging, that the suit is frivolous and capricious and not maintainable in the eye of law. Defendant No. 1 claimed that his father Beerappa was doing Halabaki Chakari of Saundatti and therefore, he was rendering the service and lands were granted to him as a Chakari inam land as per M.E.No. 3951 dated 11.5.1942. The name of Beerappa was ordered to be kept under suspension in respect of the suit landed property under the order of the Controller dated 22.4.1942 and as per the order of Tahsildar dated 30th April 1942, a mutation was effected and ordered to recover the amount from 25.8.1940. In view of the provisions of the Village Offices Abolition Act, 1961, the Chakari inams were cancelled and further under Sections 5 and 6 of the Village Offices Abolition Act, the inam land was regranted in favour of defendants. The entry is effected as per the mutation entry No. 9760. Further, defendant No. 1 claimed that he has paid three times of the assessment of the land as per the order of the Asst. Commissioner, Bailhongal and got his name entered to the suit land by M.E.No. 9879 dated 27.2.1968 and the same was certified on 29.5.1968. Defendant No. 1 claimed that he is the absolute owner of land bearing Block No. 413 measuring 27 acres 6 guntas of Saundatti town.
5. He also claimed that he is in actual possession and enjoyment of the suit land and he has paid the revenue regularly and has availed loan to the tune of Rs. 43,500/- and the land was hypothecated to Canara Bank, Saundatti and the said loan was repaid by the defendant No. 1. He also alleged that CTS Nos. 2223 and 2226 open space and house property is concerned, defendant No. 1 is having half share in the said property, plaintiffs have got half share in respect, of CTS 2225. Plaintiffs and defendant No. 1 together have 2/3rd share and out of which, defendant No. 1 is having half share. The husband of the plaintiff No. 1 and father of plaintiff No. 2 Yellappa had purchased some lands in his name beating R.S.No. 520/2A/2 measuring 4 acres and R.S.No. 424/2A measuring 8 acres of Saundatti village and the same were sold to one Ishwarappa Irappa Angadi and Sannafakirappa Mahadevappa Hanamaraddi. He also alleged that the said properties were purchased independently and sold by them independently. Based on these pleadings, defendant No. 1 claimed that he is the absolute owner of the said land and the plaintiffs have no right to seek partition.
6. Based on the pleadings, the trial court framed the following four issues:
1. Do the plaintiffs prove that the suit properties are the joint family properties of defts and themselves?
2. Do the plffs further prove that they are entitled for partition and separate possession to the extent of half share over the suit scheduled properties?
3. Do the deft-1 proves that the suit schedule property is his self-acquired property, as contended in para-5 of the WS?
4. What order or decree?
Plaintiff No. 2 got himself examined as PW-1 and he also examined one witness namely, Yellappa Tippanna Pattadakal - adoptive father as PW-2 and got marked Exs.P1 to P15. Defendant No. 1 got himself examined as DW-1 and got examined witnesses namely, Ramachandra Venkatesh Karikatti as DW-2 and one Satteppa as DW-3. Exs.D1 to D12 were got marked in the evidence of defendants' side.
7. The trial court on appreciation of the evidence on record found that the plaintiffs have proved that the suit properties are joint family properties of the defendants and themselves. It also found that plaintiffs have proved that they are entitled for partition and separate possession to the extent half share over the suit schedule property except R.S.No. 413. The trial court rejected the claim of the plaintiffs for partition in respect of R.S. No. 413 measuring 27 acres 6 guntas.
8. Plaintiff No. 1 is stated to be dead. Plaintiff No. 2 who is the son of the deceased plaintiff No. 1 has filed this appeal as against the rejection of the decree for partition in respect of R.S. No. 413 measuring 27 acres 6 guntas.
9. The learned Counsel Sri. R.S. Balikai appearing for the plaintiff No. 2 / appellant herein submitted that the land in question is a Chakari inam land and was given to the grand father namely, Fakirappa for rendering the services. The grand father Fakirappa died in the year 1927 and till 1946 his uncle Beerappa was holding the office and performing the chakari. His father died in the year 1989. However, as lineal primogeniture, Fakirappa - defendant No. 1 continued the Chakari. He submitted that as per Ex.P6, the name of the grand father Fakirappa has been entered in the year 1927 itself, showing that he was rendering the Chakari. He also submitted that the land in question was impartiable and in view of the abolition of the inam and in view of the regrant of the same, it became partiable and became available for partition. He submitted that the trial court having decreed the suit for partition in respect of joint family property, was not justified in rejecting the suit of the plaintiffs in respect of R.S. No. 413 measuring 27 acres 6 guntas, on the ground that the same is regranted in favour of defendant No. 1. He further submitted that the lands in question being inam land covered under the Karnataka Village Offices Abolition Act 1961 (hereinafter referred to as the 'Act), after the regrant, it became partiable land and became available for partition. It is his contention that till the lands were regranted, they were impartiable lands and not available for partition. He also submitted that the abolition of inam did not affect the personal law of the parties i.e., Hindu Law of Succession. Neither Section 4 of the Act affects the personal law nor deprives the junior members of the family to claim partition in the land in question. Holder of a village office means a person having an interest in a village office under an existing law relating to such office. An interest in the village office means and includes the right of survivorship of the members of the joint family. The members of joint family even though they may be belonging to junior branch, have a right to succeed to the office in the event of non-availability in the senior branch, to succeed to the office. This right of survivorship is one of four rights of the members of the Hindu Joint Family in respect of joint family property and it is this right, which is not excluding by the Act. He further submitted that the junior members of the family had an interest in the village office and as such, they must also be considered as holders of village office. It is the right, which is indicated the interest of junior member of the family in the village office under the existing law relating to such office.
10. He also submitted that till the abolition of village offices and resumption of the land annexed to the village office, the land was attached to the village office and as such, it was not available for partition. After the abolition, it became Ryotwari land only on regrant. The regrant made under Section 5 of the Act in the name of a person, who was the holder of the village office immediately prior to the appointed day, did not take away the right of the junior member to seek partition in the land as per their personal law.
11. In support of his contention, learned Counsel for the appellant - plaintiff No. 2 submitted that just because the regrant order is passed in the name of defendant No. 1, it does not by itself deny the rights of the junior members of the family to seek for partition. He further submitted that as long as the land was attached to the village office, the partition could not have been sought as it was not available for the partition. The lineal primogeniture stood abolished only on regrant of the land and any such inam property held by any Hindu is always held for himself and on behalf of other members of the Hindu Joint Family. On these contentions, he submitted that all the members of the joint family became entitled to claim partition by survivorship.
12. In this regard, he relied on a decision in the matter of Shivappa Fakirappa Shetsanadi v. Kannappa Mallappa Shetsanadi and submitted that after the abolition of village offices and resumption of the suit land, it became a Ryotwari land only on regrant and came to be released from the nature of its impartiability. He relied on paragraphs-13 and 14 and submitted that a Division Bench of this Court in the matter of Village Offices Abolition Act has held that though the regrant is made in the name of one of the members of the Hindu Joint Family, on regrant the junior members of the family are also entitled for share in the said property. He also relied on judgment in the matter of Nagendra Bisto Desai, Etc., v. Khando Tirmal Desai, Etc., and submitted that mere fact that an estate is impartible does not make it the separate and exclusive property of the holder, where the property is ancestral and the holder has succeeded to it, it will be part of the joint estate of the undivided family. The grant to eldest member of the family, does not make the inam property as exclusive property of the person, who is the holder of the office for the time being. He also submitted that at no point of time, a junior member of the family has given up his right to seek partition. In this regard, he submitted that, very fact that the decree has been passed for partition in respect of other properties shows that the family continued to be joint and at no point of time, the plaintiffs had either impliedly or expressly had abandoned or relinquished their right to claim partition in respect of land regranted. He also relied on a judgment reported in AIR 1989 SC 1042 in the matter of Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil and Ors., Etc.,. He also relied on another judgment of the Apex Court in the matter of Annasaheb Bapusaheb Patil and Ors. v. Balwant Alias Balasaheb Babusaheb Patil (Dead) By Lrs and Heirs, Etc., in support of his case. He referred to Ex.P6 and the evidence of PWs-1 and 2 and submitted that Ex.P6 clearly proves that the grand father of the appellant was holding the office, and thereafter his paternal uncle Beerappa was holding the office, as lineal primogeniture, Fakirappa, son of Beerappa was holding the office and submitted that the village office being held by the family, the plaintiffs are entitled for the partition. He further submitted that the defendants are claiming their right on the basis of the regrant order in the name of defendant No. 1. Based on these submissions, learned Counsel for the appellant submitted that the trial court was not justified in rejecting the claim of the plaintiffs in respect of the land bearing R.S. No. 413 measuring 27 acres 6 guntas situated at Saundatti.
13. Learned Counsel for the respondents submitted that the suit schedule property bearing R.S. No. 413 exclusively belongs to the respondents - defendants as the said land was regranted in favour of respondent No. 1. He also submitted that it is Beerappa, who was performing the services in the village office and after the death of Beerappa, it is Fakeerappa - defendant No. 1 succeeded to the office as well as to the property. He further submitted that it is only Fakirappa, who made application for regrant of the land under the provisions of Karnataka Village Offices Abolition Act 1961. Nextly he contended that the plaintiffs were never in possession of the suit schedule property nor they had made any application for regrant of the land. The plaintiffs have abandoned their claim over the suit schedule property. In this regard, he submitted that the name of the father of the defendants namely, Beerappa was entered in the revenue records and after the death of Beerappa, it is the first defendant's name has been entered. He further submitted that at no point of time, the plaintiffs had performed the services of the village office. On these submissions, he submitted that the trial court was justified in dismissing the suit insofar as this land is concerned. He further submitted that the plaintiffs have admitted that, there are some other properties and the said properties were sold by them and have not been included in the suit. He further submitted that non-inclusion of all the properties would disentitle the plaintiffs from claiming the partition in the suit property. He further submitted that since 1968, the defendant No. 1 has been in possession and enjoyment of the suit property, which has been granted exclusively in the name of defendant No. 1. In view of the regrant of the suit land in favour of defendant No. 1, the said property has become self-acquired property of the defendant No. 1. On these submissions, the learned Counsel for the respondents sought for dismissal of the appeal.
14. In the light of the submissions made by both the Counsel, the questions that arise for consideration are:
1. Whether by virtue of resumption and regrant of the land under the provisions of Karnataka village Offices Abolition Act, 1961, the junior member loose the right for partition?
2. Whether the regrant of the land under the provisions of Section 5 of the Karnataka Village Offices Abolition Act 1961 would exclude the other members of the family from claiming the partition in the said land?
15. It is not in dispute that as per Ex.P6 - a mutation entry, the name of Fakirappa i.e., grand father of defendants and plaintiff No. 2 was entered in the revenue record in respect of the suit schedule property on the basis of service rendered by him to the village office. It is also not in dispute that after the death of Fakeerappa, the father of defendants namely, Beerappa was rendering the services in the village office and he died in the year 1946. It is also not in dispute that after the death of Beerappa, it is the name of the defendant No. 1 Fakeerappa has been entered. Defendant No. 1 claims that as he was performing the services in the village office, he became the exclusive owner of the property by virtue of regrant in his name.
16. It is not in dispute that the deceased plaintiff No. 1 is the wife of Yellappa, who is none other than the brother of Beerappa i.e., uncle of defendant Nos. 1 to 3 and father of plaintiff No. 2. As far as relationship between the parties is concerned, there is no dispute inasmuch as Fakeerappa had two sons namely, Beerappa and Yellappa. Defendants are the children of Beerappa and plaintiff No. 2 is the son of Yeallappa. Ex.P6 shows that Fakeerappa was rendering the service in the village office. It is well settled law that the land was attached to the village office, the lineal primogeniture stood continued and accordingly, the senior branch of the family i.e., after the death of Fakeerappa, Beerappa continued the village office and after the death of Beerappa, his son Fakeerappa continued the village office. The Karnataka Village Offices Abolition Act, 1961 came into force and by virtue of the provisions of Section 4 of the said Act, the lands attached to the village offices stood vested in the State and a provision is made under Section 5 for regrant of the land. In this case, there is no dispute that the regrant of the lands has been made under Section 5 of the Act in favour of defendant No. 1. It is also a settled law that abolition of the village offices does not affect the personal law of the parties. In this case, the parties are governed by Hindu Succession Act. It is also a settled law that till the village office was abolished, the suit land was attached to the village office and was impartiable.
17. As far as holders of village office is concerned, 'holder' means a person having an interest in the village office under the existing law relating to the said office. An interest in the village office means and includes the right to survivorship of the members of the joint family. In the joint family even though the plaintiffs belong to junior branch, their right to succeed to the office in the event none is available in the senior branch to succeed would survive. The right to succession by survivorship is a right accrued to the members of the joint family in respect of joint family property. Therefore, the junior members of the family had the interest in the village office and they have to be considered as the holders of the village office.
18. It is not in dispute that till the land continued to be attached to the village office and till it became Ryotwari, the land was not available for partition. Now in the light of the abolition of the village office, in the light of the resumption of the land in the State and regrant of the same in favour of one of the members of the joint family, succession by survivorship, the junior branch of the joint family would also become entitle to share in the land regranted to the family.
19. A mere fact that an estate is impartiable does not make it separate or exclusive property of the holder. In this case, Ex.P6 makes it clear that the property attached to the office is ancestral and the holder has succeeded to it, as such, it became joint estate of the undivided family. Just because the office was held by the eldest member of the family, it does not make the property attached to the office as an exclusive property of the said person.
20. There is no evidence on record to show that at any point of time, the junior branch has expressed its intention to cease to be member of the joint family or to cease to have any interest in respect of the suit schedule property. In turn, the decree passed in favour of the plaintiffs in respect of the other properties of the joint family, establishes that plaintiffs and defendants continued to be joint family members and the properties also continued as joint family property.
21. Till the land was not regranted, it remained as impartiable land and not available for division. As such, till 1968 it continued to be impartiable land being not available for partition, question of defendant No. 1 exclusively holding the land to the exclusion of the plaintiffs does not arise.
22. Any person holding the office will be holding the said office on his behalf and also on behalf of other members of the joint family. The question as to whether the inam lands granted to the family would enure to the benefit of the other members of the joint family has been set at rest by various decisions of this Court as well as by the Apex Court. In a judgment reported in ILR 1987 Kar 3155 (supra), this Court has held, that the junior members of the family are also the holders of village office and after the abolition of village office and resumption on regrant under Section 5, land becomes available for partition, the junior members are entitled to seek partition as per personal law. This Court has also referred the earlier decisions and has held that, merely because the regrant is made in favour of one of the members of the joint family, it does not exclude other members of the joint family and does not even amount to relinquishment or abandonment of their right. Similarly, the Apex Court in a judgment reported in AIR 1995 SC 895 (supra) has held that:
By operation of Section 3 Watans have been abolished and all the incidents attached to the watandari including the pre-existing custom, operation of law or any decree or order of the Court were nullified by statutory operation. Thereby, the incidents attached to the watan i.e., liability to render service as patel became extinct and the lands became ryotwari lands, office of watan stood extinguished, the lineal primogeniture stood abolished and the land on regrant became the Hindu joint family property held by the watandar for and on behalf of the members of the joint Hindu family. All the members of the family became entitled to claim right to partition by survivorship.
The Apex Court in the matter of Maharashtra Revenue Patels (Abolition of Office) Act 1962 has held that abolition of pre-existing customs and incidents attached to the watan i.e., liability to render services as Patel became extinct, land became ryotwari land and office of watan stood extinguished and thereby on regrant the land became the Hindu joint family property and became available for partition.
23. In the same line, in the matter of Anant Kibe and Ors. v. Purushottam Rao and Ors. , the Apex Court has held that the estate which was importable on abolition of the office, it became available for partition. Similarly, the Apex Court has held in a judgment (supra).
24. On facts, it is clear that the plaintiff No. 2 belongs to junior branch of the family and defendants belong to the senior branch of joint family. The land is the service inam land, is also not in dispute and it is also found from the evidence that the grand father of the plaintiff-2 and defendants was holding the office. It is also not in dispute that after regrant of the land, the land is available for partition. The trial court has decreed the suit in respect of other properties of the joint family. The trial court only on the ground that the land was exclusively granted in favour of defendant No. 1, it has held that it is self-acquired property. In the light of the decisions referred to above, it is clear that even though the land is regranted in favour of one of the members of the joint family, it enures to the benefit of other members of the joint family. Even the office held by the defendant No. 1 is also for and on behalf of the other members of the joint family. The trial court without considering the well settled law of succession by survivorship in respect of inam lands has erred in dismissing the suit insofar as the land bearing R.S.No. 413 is concerned.
25. As far as the contention of abandonment or relinquishment of the light by the plaintiffs on the ground of not cultivating the land nor performing any service in the village office, does not exclude the plaintiffs' branch from claiming the partition of the land attached to the village office. Admittedly, the land was not available for partition till it was regranted and on regrant, the defendants have not shown that there has been any partition amongst the joint, family members. The other contention raised by the defendants that the plaintiffs had other properties acquired out of the joint family fund and said properties are not included in the suit, is concerned, it is the case of the defendants in the written statement, that the said properties were acquired by the plaintiffs and sold by them. Defendants have not pleaded that these lands were acquired out of the joint family fund and they are joint family properties, but in turn, the defendants in their written statement have stated as follows:
...So, it is clear that the above said persons have purchased the above properties independently and sold them independently to the above said persons. So, it is clear that above said properties were the individual properties of husband of plff-1 and father of plff-2 and accordingly, they have sold them as per their will and wish.
From the pleading, it is clear that, those properties were not claimed as joint family properties by the defendants themselves. As such, the contention of the defendants that some of the properties are not included by the plaintiffs is not acceptable. The defendants - respondents have not urged any other ground.
In the light of the above discussion and also in the light of the well settled law, the plaintiffs-appellants are entitled for half share in the suit schedule property bearing R.S. No. 413.
The appeal is allowed. The judgment and decree dated 21.9.2005 in O.S.No. 108/2002 on the file of the Civil Judge (Sr. Dn.), Saundatti insofar as rejection of suit in respect of R.S. No. 413 is concerned, the suit is decreed, declaring that the plaintiff No. 2/Appellant is also entitled for half share in the suit schedule property bearing R.S.No. 413 of Saundatti town.