Karnataka High Court
Shivappa Fakirappa Shetsanadi vs Kannappa Mallappa Shetsanadi on 27 May, 1987
Equivalent citations: ILR1987KAR3155
JUDGMENT K. A. Swami, J.
This appeal by defendants 1 and 4 is preferred against the judgment and decree passed by the Civil Judge, Haveri, in O.S.No.34/1971 on 6-8-1976.
2.1. The aforesaid suit was filed by respondent No. 1 for a declaration that he is the exclusive owner of the suit land bearing Sy.No. 112, measuring 27 acres 14 guntas situated at Devagiri Village, Haveri Taluk District: Dharwad and for a permanent injunction restraining the defendants from interfering with his possession. The trial Court has decreed the suit.
2.2. The parties in this Judgment will be referred to with reference to their position in the Trial Court.
3. Having regard to the contentions urged on both sides, the point that arises for consideration is :
"Whether the Trial Court is justified in Jaw in holding that the plaintiff is the exclusive owner of the suit land ?"
4.1. It is not in dispute that the suit land is Shet Sanadi Inam - otherwise known as Walikarki or Talwarki inam This is one of the inferior village offices as it is of lower degree than that of a Patel or Village Accountant. As per Section 2(h) of the Karnataka Village Offices Abolition Act, 1961 (hereinafter referred to as the 'Act'),'inferior village office' means every village office of lower degree than that of Patel or Village Accountant. This inferior village office along with all other village offices is abolished by Section 4 of the Act. All incidents including the right to hold office and the emoluments attached thereto, the right to levy customary fees or perquisites in money or in kind and the liability to render service appertaining to all the village offices are also extinguished. Further, subject to the provisions of Sections 5, 6, and 7 of the Act, all lands granted' continued in respect of or annexed to a village office by the State stand resumed and are subject to the payment of land revenue under the provisions of the Karnataka Land Revenue Code and the Rules and Orders made thereunder as if it were an un-alienated land or ryotwari land 4.2, The inferior service inam in question was granted to the original prepositus Mallappa who had two sons by name Fakirappa and Udachappa. After the death of Mallappa, Udachappa officiated as Shet-Sanadi for some time. His line became extinct. Fakirappa had four sons by name Mallappa, Shivappa, Guddappa and Basavanneppa. The plaintiff is one of the sons of Mallappa. Defendants 5, 6 and 7 are the children of Guddappa who is defendant-4. Defendant-1 is Shivappa and Defendants 2 and 3 are the sons of defendant-1. Basavanneppa the fourth son of Mallappa is not made a party.
4.3. The case of the plaintiff is that after the abolition of the inam, the land came to be regranted under Section 5 of the Act in his name on the ground that at the time of abolition of the village office, he was officiating as Shet Sanadi ; that the defendants also opposed the proceedings and claimed that they were also entitled to have the land granted along with the plaintiff and their objections were over-ruled and the land came to be regranted in his name. Therefore, it is the case of the plaintiff that he has become the absolute owner and he is entitled to be declared as such.
5. The defendants contested the suit and inter alia contended that the inferior village office in question was granted to the original prepositus of the plaintiff and the defendants by name Mallappa (great grand-father of the parties) and the land in question was assigned to the said village office and it was being enjoyed as a joint family property by all the members of the joint family; that Shivappa, the father of the plaintiff officiated as Shet-Sanadi on behalf of the joint family and that the suit land was not partitioned on the abolition of the village office; that the defendants and the plaintiff are entitled to have their respective shares in it; that merely because the land has been regranted in the name of the plaintiff, the right of the defendants to have a share in it as members of the joint family is not taken away and the regrant of the land under Section 5 of the Act does not give exclusive ownership to the plaintiff and as such it is the case of the defendants that they are entitled to a share in the suit property.
6. On these pleadings, the Trial Court framed the following issues :
1. Whether the plaintiff's father alone was in exclusive ownership and possession of the suit property ?
2. Has the suit property been regranted in the name of the plaintiff only ?
3. Is the plaintiff in lawful possession of the property ?
4. Did the defendant interfere with his possession ?
5. Whether the defendants prove that the suit property was the joint family property ?
6. Whether they further prove that it has been regranted to the plaintiff as well as the defendant ?
7. Whether they are also in possession of the suit property ?
8. To what reliefs ?
"Additional Issue No. 1 : Whether the regrant in - the name of the plaintiff enures for the benefit of the plaintiff and defendants, as well as under the provisions of the Karnataka Village Offices Abolition Act, 1961 ?
7. The Trial Court, came to the conclusion that the inferior Village office in question was granted to the original prepositus Mallappa-great-grand father of the parties and the suit land in question was assigned to the said village office and was enjoyed by all the members of the joint family ; however, in view of the fact that the suit land was regranted to the plaintiff, it held as follows :
"In my view, if the land is assigned for the remuneration of the officiator, it is well established that the land always remains with the person who officiates as Sanadi. For the present, I may state, that the contentions of the defendants cannot survive in view of the regrant order because all those contentions have been over-ruled by the District Judge in the appeal. The plaintiff alone has paid the occupancy price and got the suit land regranted in his name. There is material evidence to show that even before the regrant order, the plaintiff's father alone was the officiator and after his death, the plaintiff became officiator. In view of the fact, the land has vested in the State Government and the State Government has every right to regrant the land to the persons considered eligible and that regrant order cannot be assailed in the Civil Court."
It also distinguished the decision 01 the Supreme Court in The Mate of U.P. -v.- Rukmini Raman, AIR 1971 SC 1687 and held as follows :
"In my opinion, the facts are distinguishable and the decision relates to transfer by way of gift of a part of the estate which consisted of certain Inamindari villages. In the present instances, the suit land is not an estate inherited as an ancestral property, but it is the service inam land given to the holder of the office. The rule of law laid down in Rukmini Rama's case cannot apply to the fact of the present case. In the result, I hold that the plaintiff's father alone was the exclusive owner of the suit property and the property has been regranted only to the plaintiff. The delendants have failed to prove that it is the joint family property and that the regrant enures to the benefit of plaintiff and defendants. Hence Issues land 2 are answered in the affirmative and Issue No. 5, 6 and Additional Issue No. 1 are answered in the negative."
8. At the outset it may be mentioned that the Trial Court has failed to appreciate the correct position of law. As far as the enjoyment of the suit land is concerned, P.W. 2 has deposed that formerly the plaintiff's father was serving as a walikar and after his death plaintiff has been serving as a walikar. During the cross-examination, he has admitted that the suit land was the only land of the joint-family and the plaintiff and his brothers were all cultivating jointly and maintaining themselves from the income of the suit land. He has further stated that the land was not divided because it was a service inam. He has also admitted that Udachappa, uncle of the plaintiff's father also officiated as walikar for some time. Thus it is established in this case that the inferior village office in question was granted to the original prepositus-Mallappa, great-grand-father of the parties. The suit land was assigned to the said office and it was being enjoyed by the members of the joint family consisting of the parties to the suit and their predecessors -in- title.
9. The position of law as to the right of members of a Joint Hindu Family with regard to the village offices governed by the Mysore Village Offices Act, 1908, The Madras Hereditary Village Offices Act, 1893, The Bombay Hereditary Offices Act, 1874, as amended by the Bombay Hereditary Offices (Amendment) Act, 1886, the Madras Proprietory Estates Village Service Act, 1894 and the Madras Karnams Regulation, 1802, which are abolished by the Act (Karnataka Act No. 14/1961) and the lands assigned to the said offices is well-settled.
In Pushpavathi Viziaram Gajapathi Raj -v.- Pushpavathi Visweswara Gajapathi Raj, AIR 1964 SC 118 the Supreme Court while dealing with the question as to the impartible Zamindari has held, thus :
"Since the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Devi 59 Ind. App 331 (AIR 1932 PC 216), it must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family. In the illuminating judgment delivered by Sri Dinshah Mulla for the Board, the relevant previous decisions bearing on the subject have been carefully examined and the position of law clearly stated. In the case of an ordinary joint family property, the members of the family can claim four rights : (1) the right of partition ; (2) the right to restrain alienations by the head of the family except for necessity ; (3) the right of maintenance, and (4) the right of survivorship. It is obvious that from the very nature of the property which is impartible, the first of these rights cannot exist. The second is also incompatible with the custom of impartiality as was laid down by the Privy Council in Kauri (1888) 15 Ind. App. 51 and the First Pittapur case Venkata Survya v. Court of Wards (1898) 26 Ind App. 83 (PC). Even the right of maintenance as a matter of right is not applicable as laid down in the second Puttapur case - Rama Rao v. Raja of Puttapur 45 Ind. App. 148 (AIR 1918 PC. 81). The 4th right viz., the right of survivorship, however, still remains and it is by reference to this right that the property, though impartible, has, in the eyes of Jaw, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successions. Unlike spes successions, the right of survivorship can be renounced or surrendered."
Again in Rajah Velugoti Kumar Krishna Yachendra Varu v. Rajah Velugoti sarvagna Kumara Krishna Yachendra Varu, , the Supreme Court while dealing with the question whether an impartible estate would go to the successors of the holders of the estate and not to the other members of the family by survivorship has held that impartiality is essentially the creature of custom. The Junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth and therefore, have no right of partition having regard to the very nature of the estate that is impartible. Therefore, they have no right to interdict alienation by the head of the family either for necessity or otherwise. It has further held that to the aforesaid extent, the general, law of Mitakshara applicable to joint family property has been modified by custom and an impartible estate, though it may be an ancestral joint family estate, is clothed with the incidents of self- acquired and separate property to that extent. However, with regard to the right of survivorship, it has held thus :
"The only vestige of the incidents of joint family property, which still attaches to the joint family impartible estate is the right of survivorship which, of course, is not inconsistent with the custom of impartiality. For the purpose of devolution of the property, the property is assumed to be joint family property and the only right which member of the joint family acquires by birth is to take the property by survivorship but he does not acquire any interest in the property itself. The right to take by survivorship continues only so long as the joint family does not cease to exist and the only manner by which this right of survivorship could be put an end to is by establishing that the estate ceased to be joint family property for the purpose of succession by proving an intention, express or implied, on behalf of the junior members of the family to renounce or surrender the right to succeed to the estate."
Similar view has again been reiterated by the Supreme Court in The State of U.P. -v.- Rukmini Raman1. In this decision, after referring to a decision of the Privy Council in Shiba Prasad Singh -v.- Rani Prayag Kumari Debi, AIR 1932 PC 216 which is also referred to in Pushpavati Viziaram Gajapathi Raj -v.- Pushpavathi Visweswara Gajapathi Raj which is already reproduced in the earlier portion of this Judgment, it is held that the right of maintenance and the right of survivorship, however, still remain and it is by reference to these rights that the property, though impartible has, in the eye of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successions. Unlike spes successionis the right of survivorship can be renounced or surrendered.
Again in Bhaiya Ramanuj Pratap Dev -v.- Lalu Mahaeshnuj Pratap Dev and ors., after referring to the decisions of the Privy Council and also its own earlier decisions in Pushpavathi Viziaram Gajapathi Raj2, Rajah Velugoti Kumara Krishna Yachendra Varu3 Chinnathayi -v.- Pandiya Naicker, , it is held that :
"To establish that an impartible estate has ceased to be joint family property for purposes of succession, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to give up their chance of succeeding to the estate. In each case, it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant's branch in the estate was determined so that it became the separate property of the last holder's branch. The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and an intention to impress upon the Zamindari the character of separate property. In Puspavathi Viziaram Gajapathi Raj Manne's case (A.I.R 1964 SC 118) (supra), this Court reiterated the same legal position."
Again in Nagesh Bisto -v.- Khando Tirmal, which arose out of the Judgment of this Court, after referring to all the previous decisions, the same legal position has been reiterated. It has been laid down in categorical terms that it is a trite proposition that property though impartible may be the ancestral property of the joint Hindu Family. The impartibility of property does not per se destroy its nature as joint family property or render it the separate property of the last holder, so as to destroy the right of survivorship; hence the estate retains its character of joint family property and devolves by the general law upon that person who being in fact and in law joint in respect of the estate is also the senior member in the senior line. It has also been further held that it has always been the accepted view that the grant of watan to the eldest member of a family did not make the watan properties the exclusive property of the person who is the watandar for the time being. It has also been further held that it is well settled that merely because an estate is impartible, it does not make it 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.
9. Thus till the village office came to be abolished by the Act, though the suit land continued to be annexed to the village office and enjoyed by the officiator ; but it never ceased to be the joint family property. The abolition of the village office and extinguishing of all incidents appertaining to the said village office and resumption and regrant of the land annexed to the village office, released the land from the category of impartibility and made it available for partition. The abolition did not affect, and could not be said to have affected the personal law of the parties i.e., the Hindu Law of 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 suit land on the abolition of the village office and resumption and regrant of the land.
10. Section 4 of the Act, as it is already pointed out, abolishes all village offices and extinguishes all the incidents appertaining to the village office and resumes the land annexed to the village office subject to the provisions of Sections 5, 6, and 7 of the Act. Section 5 provides for regrant of the land resumed under Section 4 of the Act to the holder of the village office. It provides that the land resumed under clause (3) of Section 4 in case not falling under Sections 6 and 7 of the Act, shall be regranted to the person who was the holder of the village office immediately prior to the appointed date on payment by or on behalf of such holder to the State Government the occupancy price. It is this holder of the village office immediately prior to the appointed date who is referred to as the 'holder' in the latter portion of the Act. As to what would be the effect of regrant will be considered a little later.
11. A Full Bench of the Bombay High Court in Laxmibai -v.- Ganesh, considered the effect of similar provisions contained in Section 4 of the Bombay Merged Territories Miscellaneous Alienations Abolition Act (Act 22/1955) and held that the sole object underlying Section 4 is to abolish all alienations defined in the statute and to extinguish all rights legally subsisting on the appointed date in respect of such alienation and all other incidents thereof. This provision does not affect the normal rights of a member of a Hindu family under the personal law applicable to Hindus. Hence where the service inam was a grant to the joint Hindu family in the name of the senior member and the same was abolished it could not be contended that the right of the other members of the family relating to partition of joint family property was extinguished nor could it be contended that when the regrant was made under Section 7 the other members had no right to ask for a share therein by way of partition.
This decision of the Full Bench of Bombay High Court is approved by the Supreme Court in Nagesh Bisto -v.- Khando Tirmal7. In this decision, the Supreme Court has held thus :
"The Watan Act contemplated two classes of persons. One is a larger class of persons belonging to the watan families having a hereditary interest in the watan property as such and other a smaller class of persons who were appointed as representative watandars and who were liable for the performance of duties connected with the office of such watandars. As already indicated, it would not be correct to limit the word 'Watandar' only to this narrow class of persons who could claim to have a hereditary interest both in the watan property and in the hereditary office. Watan property had always been treated as property belonging to the family and all persons belonging to the watan family who had a hereditary interest in such watan property were entitled to be called "watandars of the same watan" within the Watan Act. That being so, the members of a joint Hindu family must be regarded as holders of the watan land along with the watandar for the time being and therefore the regrant of the lands to the watandar under Sub-section (1) of Section 4 of Act No. 60 of 1950 and under Section 3 of Act No. 22 of 1955 must enure to the benefit of the entire joint Hindu family."
12. The decision of the Supreme Court in Nagesh Bisto's case7 though rendered under the provisions of the Bombay Paragana and Kulkarni Watans Abolition Act, and Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955, having regard to the similarity of the provisions contained in the Act, it squarely applies to the case on hand. In the Act also, the expressions '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. The proviso therein is not relevant for our purpose. An 'interest in the village office' means and 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 the senior branch to succeed to the office. This right of survivorship is, as already pointed out, one of the four rights of the members of the Hindu Joint Family in respect of a joint family property. Thus' the result of the aforesaid discussion is that the inferior village office which was granted to the great-grand-father of the parties and the suit land which was annexed to the said office, on abolition of the village office and resumption of the suit land as a consequence of abolition of the village office became available for regrant under Section 5 of the Act. The plaintiff, who was officiating as Shet-Sanadi immediately prior to the appointed date became entitled to have the suit land regranted as per Section 5 of the Act Accordingly the regrant has been made in his name. But the village office and the suit land annexed to it did tot cease to be the joint family property nor there is any evidence to show that the junior members of the family i.e., the defendants, ever relinquished their right either in the village office or in the suit land so as to make the village office and the land annexed to it, the exclusive property of the plaintiff or his father. Thus the village office and the land annexed to it continued to be the joint family property till the appointed date on which date the village office was abolished and the land annexed to it was resumed.
13. The next question for consideration is, whether in view of the fact that the suit land has been regranted in the name of the plaintiff, the defendants are deprived of their right to claim partition and separate possession of the suit property. The Learned Trial Judge has held that as the suit land has been regranted to the plaintiff the contention of the defendants that they are entitled to have a share in it does not survive because the plaintiff's father was the officiator and after his death, the plaintiff became the officiator. The learned trial Judge has further held that as the land had vested in the State Government, it had every right to regrant the land to the persons considered as eligible and that the regrant order cannot be assailed in the Civil Court. To say the least, the trial Judge has proceeded on a wrong assumption. In fact, the right to seek partition in the suit land accrued to the defendants only after the regrant. Until the abolition of the village office and resumption of the suit land annexed to the village office, the suit land was to go along with the village office and as such it was not available for partition. After the abolition of the village office and resumption of the suit land, it became a ryotwari land only on regrant and as such it was then that the suit land came to be released from the nature of its impartibility.
14. In Nagesh Bisto's case7 the Supreme Court has held that the members of a Joint Hindu Family must be regarded as holders of the watan land along with the watandar for the time being and therefore, the regrant of the lands to the watandar under Sub - section (1) of Section 4 of the Act (Bombay Act No. 60/1950) and under Section 3 of Bombay Act No.22/1955 must enure to the benefit of the entire Joint Hindu Family. The definition of the expressions 'holder of a village office' or 'holder' means a person having an interest in the said office under an existing law relating to such office and the expression "existing law relating to a village office" includes any enactment, ordinance, rule, bye-law, regulation, order, notification, firman, hukum, vat hukum or any other instrument or any custom or usage having the force of law relating to a village office which may be in force immediately before the appointed date [Section 2(f)]. The village office in question was governed by the Bombay Hereditary Offices Act which did not exclude the members of the joint family from succeeding to the office in the event of non-availability of a member in the senior branch of the family to succeed to the village office. Thus she law governing the village office on the appointed date did not prohibit the junior branches succeeding to the village office in the event of non-availability of a member to succeed to the village office in the senior branch. It is this right which is called the 'right of survivorship' which is one of the rights of the members of the Joint Hindu family. It is this right which is not excluded by the Act. Therefore, the junior members of the family had an interest in the village office and as such they must also be considered as 'holders of the village office' in question. It is this right which indicated the interest of the junior members of the family in a village office under an existing law relating to such office. The regrant was made in the name of the plaintiff under Section 5 of the Act because he was a person who was a holder of a village office immediately prior to the appointed date. Such a regrant did not take away the right of the junior members to seek partition in the suit land as per their personal law. That being the position, the Learned Trial Judge is not right in holding that the plaintiff is the exclusive owner of the suit land because it has been regranted to him.
15. It may also be pointed out at this stage itself that Sabhahit I. in Appanna -v.- Lakkappa Devappa, 1983 (1) KLJ 482 on consideration of the provisions contained in Section 5 of the Act pertaining to walikarki land has held that in the case of 'walikarki' properties, when a regrant is made in the name of one of the members of the family, who was performing the walikarki services, the grant enures to the benefit of all the holders of that office in the family, and the members of the family have a right to claim partition in the said regranted land. This view of Sabhahit J, accords with the view taken by us.
17. The Learned Trial Judge is also not correct in distinguishing the decision of the Supreme Court in State of U.P. -v.- Rukmini Raman1 to which a detailed reference has already been made. In the said decision, as already pointed out, while considering the rights of the members of a joint family in respect of an impartible estate, the four rights of the members of the joint family in relation to joint family property are pointed out and it has been further held that the right of maintenance and right of survivorship are available even with reference to the property which is impartible. The right of survivorship with reference to such property can be claimed by the members of the undivided family which owns an impartible estate. Such a right cannot be characterised as a mere spes successionis. For the reasons stated above, it is held that the trial Court is not justified in law in holding that the plaintiff is the exclusive owner of the suit land. The point raised for determination is answered accordingly.
18. For the reasons stated above, this appeal is entitled to succeed. It is accordingly allowed. The judgment and decree of the trial Court are set aside. It is held and declared that the plaintiff is not the exclusive owner of the suit land. The plaintiff and the defendants and Basavanneppa son of Fakirappa (if he or his children have not relinquished their right) and their lineal desendants are entitled to share the property as members of the Joint Hindu Family according to the personal law governing the parties. It is open to the parties to work out their shares and secure separate possession of their shares in an appropriate suit for partition. Subject to this, the suit is dismissed.