Karnataka High Court
Smt V Chandu vs Sri V Panju on 15 January, 2021
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 15th DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO.2049 OF 2005 (PAR)
BETWEEN:
1. SMT.V.CHANDU,
W/O LATE V.SADIYA,
AGED ABOUT 63 YEARS,
OCC:COOLIE,
2. SRI V.ANANDA,
S/O LATE V.SADIYA,
AGED ABOUT 43 YEARS.
3. SRI V.KESHAVA,
S/O LATE V.SADIYA,
AGED ABOUT 42 YEARS.
4. SRI V.ARAVINDA,
S/O LATE V.SADIYA,
AGED ABOUT 41 YEARS.
5. SRI V.SURYANARAYANA,
S/O LATE V.SADIYA,
AGED ABOUT 39 YEARS.
6. SRI V.CHITTARANJANA,
S/O LATE V.SAIDYA,
AGED ABOUT 37 YEARS.
7. SMT.V.YASHODA,
D/O LATE V.SADIYA,
AGED ABOUT 35 YEARS.
8. SRI V.ARUNKUMAR,
S/O LATE V.SADIYA,
AGED ABOUT 29 YEARS.
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9. SRI V.VASUDEV,
S/O LATE V.SADIYA,
AGED ABOUT 27 YEARS
APPELLANTS 1, 2 & 4 TO 9
REPRESENTED BY THEIR GPA HOLDER
APPELLANT NO.3
ALL ARE R/O
HANGLOOR VILLAGE & POST,
TALUKA KUNDAPUR,
DISTRICT UDUPI - 576 217. ... APPELLANTS
(BY SRI GURURAJ, ADVOCATE FOR
SRI VIGHNESHWAR S. SHASTRI, ADVOCATE)
AND:
1. SRI V.PANJU,
S/O LATE RUKKU HENGSU,
AGED ABOUT 69 YEARS,
R/O BHARATHAKALLU,
VADERHOLBI VILLAGE,
KUNDAPUR TALUK
UDUPI DISTRICT - 576 201.
2. SRI V.DEVDAS,
S/O V.PANJU,
AGED ABOUT 35 YEARS,
R/O BHARATHAKALLU,
VADERHOLBIVILLAGE,
KUNDAPUR TALUK
UDUPI DISTRICT - 576 201.
3. SMT.M.R.BHAGEERATHI,
W/O LATE HARIJAN RAMA,
AGED ABOUT 68 YEARS,
R/O VAMANJOOR HOUSE,
HOSANGADI, MANJESHWARA POST,
KASARAGOD TALUK,
KERALASTATE - 671 321.
4. SRI VIJAYA,
S/O LATE V.RAMA,
AGED ABOUT 42 YEARS,
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R/O VAMANJOOR HOUSE,
HOSANGADI, MANJESHWARA POST,
KASARAGOD TALUK,
KERALASTATE - 671 321.
5. SRI JEEVAN,
S/O LATE V.RAMA,
ABED ABOUT 28 YEARS,
R/O VAMANJOOR HOUSE,
HOSANGADI, MANJESHWARA POST,
KASARAGOD TALUK,
KERALASTATE - 671 321.
6. SRI PUSPARAJ,
S/O LATE V.RAMA,
AGED ABOUT 25 YEARS,
R/O VAMANJOOR HOUSE,
HOSANGADI, MANJESHWARA POST,
KASARAGOD TALUK,
KERALASTATE - 671 321.
7. SRI PRAKASH,
S/O LATE V.RAMA,
AGED ABOUT 23 YEARS,
R/O VAMANJOOR HOUSE,
HOSANGADI, MANJESHWARA POST,
KASARAGOD TALUK,
KERALASTATE - 671 321.
... RESPONDENTS
(BY SRI AJITH ANAND SHETTY, ADVOCATE FOR
SRI A.ANAND SHETTY, ADVOCATE FOR R1 & R2;
R3 TO R7 ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE, 1908, CHALLENGING THE JUDGMENT AND
DECREE DATED 09.11.2005 PASSED BY THE CIVIL JUDGE
(SENIOR DIVISION), KUNDAPURA, IN O.S.NO.43/2002.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Sri.R.Gururaj, learned counsel appearing on behalf of Sri.Vighneshwar S.Shastri, for appellants has appeared in-person. Sri.Ajith Anand Shetty, learned counsel appearing on behalf of Sri.A.Anand Shetty, for respondents 1 and 2 has appeared through video conferencing.
2. This is an appeal from the Court of Civil Judge (Sr.Dn.), Kundapura.
3. For the sake of convenience, the parties are referred to as per their rankings before the trial Court.
4. The short facts are as under : - Plaintiffs filed the simple suit for partition claiming ½ share. It is stated that the property detailed in 'A' schedule originally belonged to the Government. The said land was granted to one Harijana Nagu by the Government on darkhast for her individual and personal benefit. The said Harijana Nagu never possessed any joint family property. As such, the said Harijana Nagu enjoyed the suit property as her individual and personal property.
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The said Harijana Nagu had left behind two daughters as her sole legal heirs namely, Govindu and Rukku. The said two daughters succeeded to the suit property in equal moiety after the death of aforesaid Harijana Nagu.
It is stated that both Govindu and Rukku are dead. Plaintiff No.1 is the only son and legal heir of Late Rukku. As such, plaintiff No.1 became entitled to the undivided half right of Late Rukku by right of succession in the suit schedule property. On that basis, the name of plaintiff No.1 was also incorporated in the columns of RTCs relating to the suit property. Plaintiff No.2 is the son of plaintiff No.1 and he has been managing the suit property on behalf of mother of plaintiff No.1. Hence, plaintiff No.2 is also added in the suit as a proper party.
Late Govindu had left behind two sons namely, Sadiya and Rama. Both of them are dead. Defendant No.1 is the wife and defendants 2 to 9 are the sons and daughters of Late Sadiya. Defendants 10 to 14 are the legal heirs of Late Rama. Defendant 1 to 14 jointly are 6 entitled to claim the half undivided right of Late Govindu in the suit property.
It is stated that late Sadiya had filed a suit in O.S.No.764/87 on the file of Civil Judge (Sr.Dn.) Kundapura, objecting to the entry of the name of the plaintiff No.1 only in the RTC of the suit property. It was decreed on 09.01.2001 and the Court was pleased to incorporate the name of the legal heirs of Late Sadiya in the columns of the said RTC. It was not a suit for declaration of the title of any parties. Hence, the rest of the findings given in the said suit are beyond the scope of the said suit and not binding upon the parties to the said suit.
It is stated that that the RTC of the suit property stood mutated in the name of plaintiff in accordance with the said decree. The title and shares of the parties will have to be decided in this suit. The first plaintiff has also filed an earlier suit in O.S.No.407/1986 on the file of Civil Judge (Sr.Dvn.), Kundapura. But in view of the decree in O.S.No.764/1987, the said suit was dismissed. 7
Therefore, plaintiffs contended that the suit schedule property is in joint possession of the parties to the suit. Hence, the same is required to be divided into two equal share and plaintiff No.1 is entitled to one share. The defendants jointly are entitled to the remaining one share. There are no movables worth the name to be partitioned. They also stated that the suit schedule property is free of any debt charges or encumbrances.
As matter stood thus, plaintiff No.1 demanded partition of the suit property and for grant of his share. But in vain. Therefore, plaintiffs sought the aid of the Court and sought for appropriate reliefs.
On service of summons, defendants entered appearance and defendant No.3 filed the written statement. He denied the plaint averments. He has stated that in O.S.No.764/1987 on the file of the Principal Civil Judge (Junior Division), Kundapur, has held that suit 'A' schedule property is the joint family (Aliyasantana) property of plaintiffs and defendant therein and accordingly, the RTC entries were directed to be changed 8 by the Court and the revenue Authorities have changed the RTC entries accordingly. Plaintiff No.1 who was the defendant in the said suit is bound by the judgment and decree. Therefore, he stated that the present suit is barred by principles of res judicata. Further, plaintiffs are also estopped from contending otherwise.
Defendants denied that the grant of the land in favor of Nagu was for her individual and personal benefit and that she never possessed any joint family property and that she enjoyed the suit property as her individual and personal property. It was stated that plaintiff No.1 is only one among the many members of the Aliyasantana family and hence, the question of his becoming entitled to undivided half right over the suit property does not arise at all. He denied the contention that his name was incorporated in the RTC columns. At any event, the said entry no longer holds good since it has become changed in view of the judgment and decree in O.S.No.764/1987. He stated that plaintiff No.2 has nothing to do with the suit property as he does not get any right in the suit property as per Aliyasantana Law of Succession to which the family 9 of plaintiff No.1 and defendant belong. Since the plaintiffs were never in possession of the suit property, the question of plaintiff No.2 managing the suit property on behalf of the plaintiff No.1 does not arise.
It is further stated that defendants 1 to 9 are the only persons in possession and enjoyment of the suit property and having right over it. Defendants 10 to 14 have nothing to do with the suit property nor do they have any right over the suit property. He denied that defendants 1 to 14 are jointly entitled to half undivided right in the suit property.
It was averred that so called Rama had no right at all. He had left the family long back and gone to Surathkal. At any event, defendants 10 to 14 having been residing at Vamanjoor quite away from the suit property and having not participated in the possession and enjoyment of the suit property not having shown any interest in the property and since the defendants 1 to 9 have been enjoying the property as of their own excluding the defendants 10 to 14 and by openly ousting them for the last over 20 years, their rights, if any, in the suit 10 property is lost and destroyed by such adverse possession, ouster and exclusion and defendants 10 to 14 have no rights to claim any share or partition. He also stated that they are not necessary parties to the suit. Among other grounds, he prayed for dismissal of the suit.
On the basis of the above said pleadings, the trial Court framed the following issues: -
"1. Whether plaintiffs prove that they and the defendants are the members of the undivided Hindu Joint Family and the suit schedule property is the said joint family property?
2. Whether plaintiffs prove that the plaintiff No.1 is having right of half share in the suit schedule property?
3. Whether plaintiffs prove that they are entitled for partition and separate possession of their share by metes and bounds?
4. Whether defendants 1 to 9 prove that the suit claim is barred by res judicata in view of the judgment in O.S.No.764/1987?
5. Whether defendants 1 to 9 prove that the plaintiffs are estopped from claiming any relief 11 in the suit in view of the judgment and decree in O.S.No.764/1987?
6. Whether this court has no jurisdiction to entertain the suit?
7. Whether the suit is not properly valued and the court fee paid is incorrect?
8. Whether the plaintiffs are entitled for a decree as prayed for?
9. What order or decree?
Addl. Issue:
1. Whether defendant Nos.1 to 9 prove that they have perfected their title over suit property by means of adverse possession, ouster, exclusion?"
In support of the case, plaintiff No.2 was examined as PW-1 and produced two documents which were marked as Exs.P1 and P2. On behalf of defendants, two witnesses were examined as DWs-1 and 2 and produced sixteen documents which were marked as Exs.D1 to D16.
On trial of the action, the suit came to be decreed holding that plaintiff No.1 is having half share in the suit 'A' schedule property and defendants 1 to 9 and 10 to 14 12 are having half share in the suit 'A' schedule property. It is this judgment which has been challenged in this appeal. Hence, this regular first appeal under Section 96 of CPC.
5. Sri.R.Gururaj, learned counsel submitted that the judgment and decree of the trial Court is un- sustainable in law and same is liable to be set aside.
Next, he submitted that the trial Court has failed to note that the suit filed by the plaintiffs is barred by principles of res judicata in view of the judgment passed in O.S.No.764/1987 and the same ought to have been dismissed.
A further submission was made that the trial Court ought to have noted that the parties are governed by Aliyasantana Law of Succession as such the question of daughters of Nagu succeeding in equal moiety does not arise at all.
It has been contended that the trial Court ought to have noted that defendants 1 to 9 have been enjoying the land in question as their own, excluding defendant Nos.10 to 14 openly and exclusively for over 20 years as such, 13 defendants 10 to 14 have no right to claim any share or partition.
Counsel further submitted that the trial Court ought to have noted that the finding given in O.S.No.764/1987 are binding upon the plaintiffs.
In the last resort, counsel contended that the Court below erroneously held that plaintiffs are entitled to get mesne profits. He submitted that the suit schedule properties are vacant land and defendants 1 to 9 have been in exclusive possession and enjoyment of the suit property as their own and affected various improvements by putting their hard-earned money.
He submitted that viewed from any angle, the judgment and decree are unjust, illegal and opposed to all cannons of law and the same are liable to be set aside.
6. Per contra, Sri.Ajith Anand Shetty, learned counsel sought to justify the judgment and decree of the trial Court.
Next, he submitted that the trial Court in extenso referred to the material evidence on record and is justified 14 in holding that plaintiffs are entitled for half share in the suit schedule property.
A further submission was made Harijan Nagu had two daughters by name Govindu and Rukku. Plaintiff is the son of Rukku. The said Harijana Hengasu died intestate.
Counsel submitted that plaintiff's mother Rukku died after coming into force of the Hindu Succession Act, 1956. Hence, parties to the lis are governed by the provisions of Hindu Succession Act, 1956. Accordingly, the property left behind by late Hariajana Hengasu will have to be divided equally into two shares.
It has been contended that the Aliyasantana Law of Succession is not applicable to the facts and circumstances of the case. Counsel vehemently urged that the issue relating to Aliyasantana law is no longer res-integra as the same has been settled by the Apex Court .
Learned counsel for respondents relied upon the following decisions.
1. AIR 1980 SC 198- SUNDARI AND OTHERS v. LAXMI AND OTHERS.
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2. AIR 1982 KAR 270 - RAMANNA RAI AND ANOTHER v. JAGANNATHA AND OTHERS.
3. JUDGMENT DATED: 29.01.2020 PASSED BY THE HON'BLE HIGH COURT OF KARNATAKA IN R.S.A. NO. 2131 OF 2016 - SMT. SEETHA S.SHETTY v. SRI. B. VIJAYADAS ADYANTHAYA AND OTHERS
4. JUDGMENT DATED: 16.04.2020 PASSED BY THE HON'BLE HIGH COURT OF KARNATAKA IN R.S.A. NO. 2211 OF 2020 - JAGANANATH SHETTY (DECEASED BY LRS) RATHNAVATHI SHEDTHI AND OTHERS v. SUNIL KUMAR SHETTY AND OTHERS.
Among other grounds, he submitted that the judgment and decree is un-sustainable in law. Appellants have not made out any good grounds to interfere with the same. Accordingly, he prayed for dismissal of the same.
7. I have carefully heard the contentions urged on behalf of appellants and respondents and perused the records with care.
8. The points that would arise for consideration is 16
1. Whether plaintiffs are entitled for half share in the property?
2. Whether the suit is barred by res-judicata?
The facts have been sufficiently stated. It is the specific case of plaintiffs that they are entitled for half share in the property.
For the sake of convenience, the genealogy is referred to as under.
Genealogical Tree
Harijana Nagu
GOVINDU RUKKU
V. PANJU
(PLAINTIFF NO. 1)
SAIDYA RAMA
V. DEVADAS
(PLAINTIFF NO. 2)
V. CHANDU 1.M.R. BHAGEERATHI
(W/O RAMA
2.SMT. VIJAYA
3.JEEVAN
V. ANANDA 4.PUSHPARAJ
V. KESHAVA 5.PRAKASH
V. ARAVINDA (DEF NO. 10 -14
V. SOORYANARAYANA
V. CHITTARANJANA
V. YASHODA
V. ARUNKUMAR
V. VASUDEV (DEF NO. 1 TO 9)
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In the present case, plaintiff has filed a suit claiming half share in the suit 'A' schedule property. On the other hand, defendants 1 to 9 specifically contended that plaintiffs and defendants 1 to 9 and 10 to 14 are governed by Aliyasantana Law of Succession and therefore, at the most, plaintiff No.1 is entitled for 1/15th share.
It would be relevant to refer to Section 7 of the Hindu Succession Act 1956 which reads as under;
SECTION 7 DEVOLUTION OF INTEREST IN THE PROPERTY OF A TARWAS, TAVRWAD, TAVAZHI KUTUMBA, KAVARU OR ILLOM-
Section 7 (2) of Hindu Succession Act, 1956 which reads as under;
"Section 7 (2) When a Hindu to whom the aliyasantana law would have applied if this Act had not been passed, dies after the commencement of this Act, having at the time of his or her death an undivided interest in the property of Kutumba or Kavaru, as the case may be, his or her interest in the property shall devolve by testamentary or intestate 18 succession, as the case may be, under this Act and not according to the aliyasantana law.
Explanation-For the purposes of this sub- section, the interest of a Hindu in the property of a kutumba or a kavaru shall be deemed to be the share in the property of the kutumba or kavaru as the case may be that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the kutumba or kavaru, as the case may be, then living, whether he or she was entitled to claim such partition or not under the aliyasanthana law, and such share shall be deemed to have been allotted to him or her absolutely."
A bare perusal of Section 7 (2) of the Hindu Succession Act, makes it very clear that where a Hindu die after the commencement of Hindu Succession Act his or her undivided interest in the property shall devolve by testamentary or intestate succession, as the case may be, under the Hindu Succession Act and not according to Aliyasantana Law.
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The Hon'ble Apex Court in SUNDARI v.LAXMI - AIR 1980 SC 198, referred to the salient features of the Aliyasantana law, and examined the scheme of the Hindu Succession Act in the matter of succession generally and particularly in the context of sub-section (2) of Section 7 and Section 17 of the Act. The sub-section (2) of Section 7 makes it abundantly clear that the provisions relating to succession in the Act would apply in case of succession to Aliyasantana Hindus.
Reverting back to the facts of the case, it is not in dispute that Harijan Nagu had two daughters namely, Govindu and Rukku. The suit schedule 'A' property was granted to Harijana Nagu by the Government under dharkhast . It is not in dispute that Harijana Nagu died intestate leaving behind her two daughters Govindu and Rukku. The daughters of Harijana Nagu are also dead.
The mother of plaintiff - Rukku died in the year 1975 leaving behind Panju his son - plaintiff as her legal heir. It is pertinent to note that the Rukku the mother of plaintiff died in the year 1975 after coming into force of Hindu 20 Succession Act, 1956. The parties to the lis are therefore governed by the provisions of the Hindu Succession Act.
The resultant position is that whenever a Hindu dies after the commencement of Hindu Succession Act and his or her undivided interest in the property shall devolve by testamentary or intestate succession, as the case may be, under the Hindu Succession Act and not according to Aliyasantana Law. Therefore, Plaintiff is entitled for half share to plaintiff in suit schedule A property.
While arguing the case, learned counsel Sri. Gururaj vehemently urged that the Aliya Santana law is applicable and hence, the grant of half share in unsustainable in law. I find myself unable to accept the said contention. The reasons obvious. As already observed above, the law is also well settled by the Apex Court way back in the year 1980 in this regard. There is nothing more than this in the case. It, therefore, seems to me this argument fails, and it is not possible to suggest any ground on which the share of plaintiffs could be denied.
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So far as the plea of res judicata is concerned, defendants 1 to 9 have specifically stated that the suit is barred by the principles of res judicata.
Ex.P3 is the certified copy of the judgment and decree passed in O.S.No.764/1987. The suit was filed objecting the entry of the name of the first plaintiff in the RTC extract and the Court on 09-01-2001 decreed the suit and ordered for incorporating the names of the legal heirs of Late Sadiya in the columns of RTC. It was not a suit for partition and declaration of title. Hence, the contention that the suit is barred by principles of res judicata is unsustainable. Hence, the argument therefore fails.
Accordingly, the points are answered. The appeal is dismissed. Parties to bear the cost of the appeal.
Sd/-
JUDGE VMB