Karnataka High Court
Smt. Phulabai W/O Kallappa vs Balu Babaji Magadum on 19 July, 2013
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 19th day of July 2013
Before
THE HON'BLE MR.JUSTICE N.KUMAR
Regular Second Appeal No.339/2002
C/w
R.S.A. Crob No.4/2003
In R.S.A. No.339/2002
Between:
1. Smt. Phulabai, W/o Kallappa,
Since deceased by her L.R.,
Appellant No.2 already on record
2. Smt. Sushila,
W/o Balu Gunake @ Khot,
Age: Major, R/o Shamnewadi,
Tql: Chikodi, District Belgaum. ...Appellants
(By Sri. Ravi S. Balikai, Advocate)
And:
1. Balu Babaji Magadum,
Since deceased by his L.Rs.,
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1(a) Smt. Rangubai,
W/o Dhanapal Lengade,
Age: 50 years,
Occ: Household work,
R/o Kallol, Taluk: Chikodi
Dist. Belgaum.
1(b) Prakash, S/o Balu Magadum
Age: 40 years, Occ: Agril.,
R/o Shiragaonwadi,
Tal. Chikodi, Dist. Belgaum.
1(c) Ravasaheb, S/o Balu Magadum
Age: 38 years, Occ: Agril.,
R/o Shiragaonwadi,
Tal: Chikodi, Dist: Belgaum.
2. Nemanna Babaji Magadum
Age: Major, R/o Shiragaon
Tql. Chikodi, Dist. Belgaum
3. Bhupal Bandu Sham,
Age: Major,R/o Shiragaon
Tal. Chikodi, Dist. Belgaum.
4. Babu Rayappa Sham,
Age: Major,R/o Shiragaon
Tal: Chikodi, Dist. Belgaum. ...Respondents
(By Sri D. Ravikumar Gokakakar, Adv., for 1(a) to 1(c);
Sri R.M. Kulkarni, Advocate for G. Balakrishna
Shastry, Advocate for R2)
(R3 and 4 are served)
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This appeal is filed under Section 100 of Civil
Procedure Code against the judgment and decree dated
15-12-2001 passed in R.A. No.3 of 1996 on the file of
the I Additional District Judge, Belgaum, disposing the
appeal and confirming the judgment and decree dated
02-12-1995 passed in O.S. No.17 of 1990 on the file of
the Prl. Civil Judge, Chikodi.
In R.S.A. CROB. No.4 /2003
Between:
1. Balu Babaji Magadum
aged 75 years, r/o Shiragaon,
Taluka Chikodi,
District: Belgaum.
2. Nemanna Babaji Magadum
Age: Age 65 years
R/o -do- ...Cross Objectors
(By Sri R. M.Kulkarni for Sri G. Balakrishna Shastry
Advocates)
And:
1. Smt. Phulabai, W/o Kallappa,
Since deceased by her L.R.,
Respondent No.2
2. Smt. Sushila,
W/o Balu Gunake @ Khot,
Age: Major, R/o Shamnewadi,
Tq: Chikodi, District Belgaum.
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3. Bhupal Bandu Sham,
Major, R/o Shiragaon,
Tal. Chikodi, Dist. Belgaum.
4. Babu Rayappa Sham,
Age: Major, R/o -do- ...Respondents
(Respondents 2 to 4 are served)
This RSA cross objections is filed under order 41
Rule 22 of CPC against the judgment and decree dat3d
15-12-2001 passed in RA No.3 of 1996 on the file of the
I Additional District Judge, Belgaum, granting 1/3rd
share in 'B' Schedule House properties in favour of the
plaintiffs and granting decree for recovery of Rs.2500/-
insurance amount.
This RSA and RSA CROB coming on for hearing
this day, the Court delivered the following:
JUDGMENT
This is plaintiffs' appeal against the judgment and decree of the lower Appellate Court which has partly decreed the suit of the plaintiffs.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. :5:
3. The subject matter of the suit is agricultural lands which are clearly set out in 'A' Schedule, house properties which are clearly set out in 'B' Schedule and moveable properties which are clearly set out in 'C' Schedule. They are hereinafter referred to as schedule properties 'A', 'B' and 'C' respectively.
4. The genealogy of the family of the parties is set out in para 2 of the plaint. One Menappa is the propositus. He had a son by name Babaji. Babaji, in turn, had three sons viz., Balappa, Kallappa and Nemanna. Menappa and Babaji are no more. Kallappa died on 25.11.1968. The 1st plaintiff herein is the widow of Kallappa and the 2nd plaintiff is their daughter. The 1st defendant is Balappa and 2nd defendant is Nemanna.
5. The case of the plaintiffs is, all the schedule properties are ancestral joint family properties of the 1st plaintiff's husband viz., Kallappa and defendants No.1 :6: and 2; Kallappa had 1/3rd share in the schedule properties, he died on 25.11.1968 as a member of the joint hindu family leaving behind him the plaintiffs as his legal heirs. The plaintiffs succeeded to the said 1/3rd share of Kallappa in all the schedule properties.
6. After the death of Babaji, the 1st defendant being the eldest member of the family, began to manage the family affairs as manager. He got his name entered as manager of the joint family to the suit lands situated at village Nej. The suit lands situated at village Shiragoan were got entered in the names of all the three brothers. Now the name of the 1st plaintiff is duly entered to 1/3rd share of Kallappa as per M.E.No.3993 of Shiragaon.
7. The suit lands bearing R.S.No.84/1A measuring 5 acres 37 guntas, along with well situated in R.S.No.84/2 of village Shiragaon, originally belonged to :7: one Shri.Sangoram family. The said land was cultivated by the husband of the 1st plaintiff and defendant Nos.1 and 2 and one Shri.Annappa Bhima Haragapur jointly. The said suit lands are the joint family tenancy lands and their joint family has got ½ share in the said land. However, the name of defendant No.1 alone was entered in the record of rights being the manager of the joint family. Subsequently, the land bearing R.S.No.84/1A was sub-divided. Family of the plaintiffs and defendants No.1 and 2 got 3 acres 9 guntas out of the said survey number. The said Shri. Haragapure got 2 acres 28 guntas. Both the separate pot-hissas are shown as part of R.S.No.84/1A. After the amendment to the Karnataka Land Reforms Act, defendant No.1 got occupancy rights in his name alone in respect of the above said land on behalf of the joint family of plaintiff and defendants. Even though defendant No.1 alone was registered as an occupant, the said grant enured to the benefit of all the :8: members of the joint family of the plaintiffs and defendants No.1 and 2. The plaintiff got 1/3rd share in the said lands.
8. Defendant No.3 is the cousin-brother of the plaintiff and is also related to the 1st plaintiff's husband and defendant No.1 and 2. He is in no way concerned with the suit lands or any of the properties of the joint family of plaintiffs and defendant Nos.1 and 2 even though he is the co-owner of remaining half share of some lands at Shiragaon. The plaintiff is an illiterate women and simpleton by nature, so taking advantage of her helpless situation, defendant No.1 in collusion with other defendants have purported to create some false revenue records by getting their names entered to the suit lands bearingR.S.No.65/2 and 70/1 of Nej as per M.E.No.6189 by giving a false wardi behind the back of plaintiff No.1 stating that there was a partition in their :9: joint family and defendant No.3 and the suit lands were given to them in the partition. In fact, there was no partition at any time in the joint family of the plaintiffs and defendant No.1 and 2. Moreover the plaintiff was never issued with any notices of the alleged mutation entry bearing M.E.No.3189. Defendants No.1 and 2 have got entered the name of defendant No.3 along with them to R.S.No.65/2 of Nej village by purporting to create false records showing formation of three different pot-hissas in the said old survey number in R.S.No.65/2 as R.S. Nos. 65/2A, 65/2B and 65/2C. Defendant No.3 has no manner of right, title or interest in any of the suit land bearing R.S.No.65/2 belonging to the plaintiffs and defendants No.1 and 2 and as such he could not claim and obtain any share in the suit land R.S.No.65/2A. All the said entries are void and illegal and not binding on the plaintiffs as they were not effected in accordance with law and prescribed : 10 : procedure by the revenue authorities. These documents are all created with an intention to defeat the right of the plaintiffs. Defendant No.1 has also received the insurance amount ofRs.2,500/- of deceased Kallappa by fraud and misrepresentation. The plaintiffs have got 1/3rd share in all the schedule properties. Their demands for partition and separate possession is not acceded to and, therefore, the plaintiff were constrained to file a suit for partition and separate possession of their legitimate share in the schedule properties.
9. Defendant Nos.1 and 3 filed written statement contesting the claim. They did not dispute the relationship setout in the plaint or the family genealogy or even the existence of the properties mentioned the schedule to the suit. They specifically contended that half share in R.S.No.79/6 measuring 1 acre 10 guntas and half share in R.S.No.79/8 measuring 3 acres 30 : 11 : guntas situated at Shirgaon in Chikodi Taluka previously belonged to Sri. Mallappa Nestti and Chandrappa Mallappa Nestti. They sold their share jointly to one Shri Bandu Jinnappa Sham, the father of defendant No.3 and Sri. Babaji Menappa Magadum, the father of the defendant No.1 under a registered sale deed dated 12.01.1953. the lands then purchased were given R.S.No.79/6B and 79/8B respectively. Similarly R.S.Nos.74/2, 74/4 and 74/5 of Shirgaon previously belonged to Shivabasav Laxman Pharale and Appanna Laxman Pharale. They also sold these lands jointly to Shri. Bandu Jinnappa Sham, the father of the defendant No.3 and Shri. Babaji menappa Magadum, the father of defendant No.1, under a registered sale deed dated 11.06.1954. The father of defendant No.1 and defendant No.3 were related to each other. The area of the lands referred to above were less than the fragments within the definition of the Prevention of : 12 : Fragmentation and Consolidation of Holdings Act. So legal difficulties were experienced at the time of effecting partition in these lands between the two families. So the entire lands -R.S. Nos.74/2, 74/4 and 74/5 of Shirgaon were allotted to the share of the family of Babji Menappa Magadum. But this partition or the arrangement was not effected in the record of rights as the relationship between the two families were cordial. They were cultivating the land as per the partition. Bandu, the father of defendant No.3 and Rayappa, the father of defendant No.4 were brothers. Bandu had therefore given half share in R.S.Nos.74/2, 74/4 and 74/5 to his brother Shri.Rayappa. Defendant No.4 and his father Rayappa have been dealing with their half share in R.S.Nos.74/2, 74/4 and 74/5 independently. Thus, the above partition was known to all the members of the family of Magadum and Sham and to the deceased husband of plaintiff No.1.
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10. Shri. Kallappa Babji Magadum was married to plaintiff No.1. but he was suffering from tuberculosis since several years. So plaintiff No.1 deserted him and was residing in her parents' house only. Her father Sri. Rayappa wanted to cause wrongful loss to defendant No.1 so he had filed a suit O.S.No.8/61 for permanent injunction against defendant No.1 restraining him not to obstruct the exclusive possession of Rayappa, the plaintiff's father in respect of R.S. Nos.84/1A and 84/2. The suit came to be dismissed holding that defendant No.1 was in exclusive possession of land R.S.Nos.84/1A and 84/2. So the status of defendant No.1 as the tenant of the suit lands was proved. So, defendant No.1 is the exclusive tenant of R.S.No.84/1A and it is his self- acquired property. Sri. Kallappa Babaji Magadum was admitted to the Hospital at Miraj for treatment. He had no capacity to work in the lands. He had to incur debts for payment of the medical expenses. He could not : 14 : discharge the debts. He had no other source except to sell his share in these lands which he had held jointly with his brothers. So he executed a registered sale deed dated 03.10.1968 transferring his entire share in all the family lands viz., R.S.Nos.70/A and R.S.No.65 of Nej and also in the lands R.S.No.79 and 26 of Shiragaon to Shri. Bhupal Bandu Sham, the defendant No.3. He was aware that the entire lands R.S.Nos.74/2, 74/4 and 74/5 were allotted to the share of family of defendant No.3. Hence he could not sell any share in these lands. Hence, no share in any of the suit lands was left with him at the time of his death which the plaintiffs could succeed as his heirs. It is true that husband of plaintiff No.1 died on 25.11.1968. The allegations of the plaintiffs that they have succeeded to the share of the deceased Kallappa are false and are denied by the defendants. As per law, in respect of the registered sale deed, no wardi is required to be given for mutating the : 15 : name of purchaser. So the defendants were under the impression that the transfer of the lands as per the registered sale deed dated 03.10.1968 was given effect to in the record of rights suo moto as per law, but the defendants have come to know now that the name of the deceased Kallappa still remained in the records of rights though he had transferred his entire share in all the properties and though he died in the year 1968. The plaintiffs were aware that the deceased Kallappa had transferred his entire share in all the properties. They were also aware that they had no right in the suit properties. So they had never given application to enter their names. But it seems that they came to know in 1989 that the name of deceased Kallappa is still appearing in the record of rights of some of the lands. So without the knowledge of the defendants, the plaintiffs appears to have given wardi in 1989 and got their names entered and now on the strength of the said : 16 : illegal entries, the plaintiffs have filed this suit. They have no right, title and interest in the suit properties and they have got no share in the same. They were never in possession of the suit properties. They have been living in the house of their parents only. They have never lived with defendants No.1 and 2. After nearly 23 years, they have come with the case that they are in actual possession on the strength of the illegal entries made behind the back of defendants in 1990. The entries do not confer any right or possession on the plaintiffs. Defendant No.4 is colluding with the plaintiff and the plaintiffs are residing with defendant No.4 in his house. It is defendant No.4 who has instigated the plaintiffs to file this false suit.
11. Defendant No.1 got his written statement amended by way of an amendment. It was pleaded that the deceased Kallappa Babji Magdum was the full : 17 : brother of defendant No.1. he had no male issues. So he was the only co-parcener in his branch. So his share in the joint family property was separate and exclusive property. Since the plaintiffs in the case were not the co-parceners, they had no right, title and interest in the properties excepting the claim of maintenance. The plaintiffs are not competent to challenge the alienation made by the deceased Kallappa. So the present suit which is indirectly challenging the alienation made by him is not maintainable, whether the alienations were for legal necessary or not. Further, it is pleaded that the deceased Kallappa babaji Magdum has executed the sale deed on 03.10.1968 and got it registered. The plaintiff No.1 was residing with her father at Shiragaonwadi. She had the notice of the sale deed, she was also aware of the death of her husband Kallappa. So the plaintiffs should have challenged the sale deed within a period of three years from the date of : 18 : alienation. The present suit is therefore barred by time and not tenable.
12. A further additional written statement came to be filed on behalf of the defendants. It is pleaded that the premium for the insured amounts were paid by defendant No.1 as the deceased was suffering from T.B. and was admitted in Miraj Hospital and defendant No.1 was meeting the expenses. So, defendant was named as a nominee. The plaintiff was not at all residing with the deceased Kallappa. The plaintiffs' suit is not maintainable and therefore, it is liable to be dismissed.
13. A reply by way of counter statement has been filed by the plaintiff to the amended written statement denying all the allegations in the additional written statement. However, they contend there was no legal necessity for Kallappa Babji Magadum to alienate his 1/3rd joint share in the suit properties and the said : 19 : alienation is not binding on the plaintiffs. The plaintiffs have no knowledge about the said alienation till the defendants filed the written statement in this suit. therefore, the question of seeking declaration by the plaintiffs as contended by the defendants did not arise at all. The names of the plaintiffs have been duly entered as kabjedar owner of some of the suit properties after the death of deceased Kallappa and therefore the defendants are now estopped from raising such false plea by way of additional defence in this suit.
14. On the basis of the aforesaid pleadings, the Trial Court framed as many as eight issues on 14.08.1991 which are as under:
"1. Whether the plffs prove that the suit properties belong to the joint family consisting deft nos.1 and 2 and deceased Kallappa?: 20 :
2. Whether the plffs prove that they have got 1/3rd share in all the suit schedule properties?
3. Whether the plffs are entitled for partition and separate possession of their 1/3rd share in all the suit properties?
4. Whether deft no.1 proves that he was the exclusive tenant of the lands R.S.No.84/1A and 84/2 and they are his self acquired properties?
5. Whether defts 1 to 3 prove that the deceased husband of plff no.1 had sold his share in all the family lands in favour of deft no.3?
6. Whether defts 1 to 3 prove that under a partition the entire lands R.S.No.74/2, 74/4 and 74/5 have been allotted to the share of family of sham and R.S.No.79/6B and 79/8B have been allotted to the share of family of : 21 : Magadum as contended in para 3 of their W.S.?
7. Whether defts 1 to 3 prove the partition between them in respect of R.S.No.70/1 and 65/2 of Nej village?
8. To what order or decree?"
Subsequently, on 12.08.1994, issue no.5 came to be recasted as under:
"5. Whether defts 1 to 3 prove that the alleged sale deed executed by deceased Kallappa - the husband of plff No.1 in favour of def No.3 is legal and valid?
On 20.01.1995 an additional issue was raised as under:
"1. Whether the suit is barred by time?"
15. The plaintiffs, in order to substantiate their claim, did not step into the witness box. It is the husband of plaintiff No.2 who is examined as P.W.1. They produced 43 documents which are marked as : 22 : Exs.P.1 to P.43. On behalf of the defendants, 1st defendant was examined as D.W.1, 3rd defendant was examined as D.W.2 and two other witnesses by name Mahadevappa G. Halingali and Laxman Narasu Khot were examined as D.Ws.3 and 4 and 14 documents were produced which are marked as Exs.D.1 to D.14.
16. The Trial Court, on appreciation of the aforesaid oral and documentary evidence on record held that, except the tenanted properties all other properties as joint family properties of the plaintiffs and defendants No.1 and 2. As there was no evidence to show that Kallappa paid premium for the insurance policy and that defendants established their case that they paid the premium for the insurance policy, the Trial Court held that the claim of the plaintiffs in respect of the properties described in 'C' Schedule properties does not survive for consideration. Insofar as : 23 : 'B' Schedule properties are concerned, it held that Section 23 is a bar to the claim of the plaintiffs as they are entitled to a share only at the time of partition. Insofar as 'A' schedule properties are concerned, it held that 1/3rd share of Kallappa has been sold under a registered sale deed as per Ex.D.4 dated 03.10.1968 and therefore, plaintiffs have no right in the said properties. Insofar as the land R.S.No.84/1A is concerned, it recorded a finding and the said tenancy was not joint tenancy and, therefore, it exclusively belonged to defendant No.1 in whose favour occupancy rights had been granted. It also held that the suit of the plaintiffs is barred by time. The partition pleaded by defendants No.1 and 3 is beyond the scope of the suit and therefore, it declined to record any finding thereon. Thus, the suit of the plaintiffs came to be dismissed. : 24 :
17. Aggrieved by the said judgment and decree of the Trial Court, plaintiffs preferred a regular appeal. The lower Appellate Court, after hearing the parties framed the following points for consideration:
"(1) Whether the plaintiffs have proved that suit schedule A, B and C properties are the joint family properties in which they are entitled to 1/3rd share by partition and separate possession?
(2) Whether the defendants have prove that Sy.Nos.84/1A is the self acquired property of defendant no.1, in partition Sy.Nos.74/2, 74/4 and 74/5 were allotted to the share Bandu Sham and Sy.Nos.79/6B and 79/8B were allotted to the share of Magadum and Kallapa has sold his 1/3rd share in favour of defendant no.3 and plaintiffs are not entitled for any share?: 25 :
(3) Whether the judgment and decree under appeal call for interference?"
It held that the plaintiffs are entitled to the insurance amount of Rs.2,500/- from defendant No.1, but they are not entitled to any interest. It upheld the sale deed dated 03.10.1968 as per Ex.D.4 and held the claim of the plaintiffs claiming their 1/3rd share in those properties cannot be accepted. Insofar as R.S.No.84/1A is concerned, it was held that tenancy rights were not that of the joint family and therefore, the Land Tribunal granted occupancy rights in favour of defendant No.1 and it was his exclusive property and plaintiffs are not entitled to a share in the said property. It held that the plaintiffs have not challenged the sale deed. It also held that there was no specific pleading about the fraud and misrepresentation and therefore as long as sale deed stands, the property is transferred to the purchaser and : 26 : thus Kallappa lost his right and consequently, the plaintiffs also have no right in the said property. Insofar as 'B' schedule properties are concerned, it upheld the case of the plaintiffs that they are entitled to 1/3rd share in 'B' schedule properties. It is held that even if they are entitled to a share in metes and bounds they are entitled 1/3rd share of Kallappa in the said properties. To that extent the appeal was partly allowed. It held that the plaintiffs are entitled to 1/3rd share in the house property either by partition or separate possession or value of 1/3rd payable by defendant No.1. it further held that plaintiffs are entitled to recover Rs.2,500/- from defendant No.1.
18. Aggrieved by the said judgment and decree of the lower Appellate Court, the plaintiffs have preferred this appeal.
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19. The learned counsel for the appellants assailing the impunged judgment and decree contends that existence of the joint family is not in dispute; all the schedule properties except the tenanted properties is admitted to be the joint family properties; during the lifetime of Kallappa, there was no partition and now, the plaintiffs are denied their legitimate share in the schedule properties on the ground that Kallappa executed a registered sale deed selling his undivided 1/3rd share in all the schedule properties and therefore, the plaintiffs have right claim share in the said schedule properties; the said sale deed is not proved; a recital of the sale deed shows that consideration has been paid to clear debts which fact is not proved; the said sale deed did not see the light of the day for nearly 23 years; no mutation entry was passed on basis of the sale deed even after the execution of the sale deed till his death and even thereafter, the name of Kallappa finds a place : 28 : in the mutation register till 1990 when the 1st plaintiff's name was mutated, in other words, the sale deed was not acted upon. Therefore, he submits that the said sale deed did not convey any right, title or interest of the schedule properties and therefore the plaintiffs are entitled for the decree of partition and separate possession in respect of the 1/3rd share. Insofar as tenanted property is concerned, evidence on record shows that tenancy belongs to the joint family. the 1st defendant being kartha of the family filed Form No.7 and it is granted to him. The said grant is in favour of the joint family and therefore, plaintiffs are entitled to 1/3rd share in the tenanted land. Therefore, he submits that the Courts below committed a serious illegality in not properly looking into the oral and documentary evidence on record and in not decreeing the suit of the plaintiffs. In the alternative, he submitted even if the sale deed is held to be proved and because of the sale : 29 : deed, plaintiffs have no right in the property, insofar as Sy.No.65 is concerned, the 1st plaintiff's husband had a share in the said land to the extent of 5 acres 29 guntas, what is sold under the sale deed is only an extent of 1 acre 10 guntas and therefore remaining extent of 4 acres 19 guntas belongs to Kallappa and the plaintiffs are entitled to the same.
20. Per contra, learned counsel appearing for the defendants supporting the impugned judgments and decrees contended that the material on record shows Kallappa was a tuberculosis patient; he was not able to work; he never cultivated the joint family land. It was the 1st defendant who was a tenant of the said land, he was in joint family and, therefore, on coming into force of the Karnataka Land Reforms Act, he applied for grant of occupancy rights and it was granted to him. In the sale deed executed by Kallappa, he has not sold his : 30 : share in the said property because he had no share in the said property. Similarly, his name is not entered in the mutation register. Under these circumstances, the claim of the plaintiffs in respect of the tenanted land is misconceived. Insofar as the other lands are concerned, they are sold by kallappa during his lifetime under a registered sale deed. The said sale deed has remained unchallenged till the initiation of these proceedings. The plaintiffs have not taken any steps to get the said sale deed cancelled or annulled in the manner known to law and therefore, the plaintiffs have no right, title or interest over the said properties which have been sold by her husband under a registered sale deed dated 03.10.1968. Plaintiffs have not stepped into the witness- box; it is the husband of 2nd plaintiff, who is stranger to the family, who has deposed, who has no personal knowledge about the personal matters of the family prior to his marriage with the 2nd plaintiff; he has no : 31 : personal knowledge about the circumstances of the family when Kallappa was alive and at the time of Kallappa executing the sale deed. Therefore, he submits that no case for interference is made out.
21. This appeal came to be admitted on 05.03.2003 to considering the following substantial question of law:
" Whether the lower appellate Court has committed an error in dismissing the suit for partition in respect of 'A' schedule property on the ground that the land vested with the respondent No.1 absolutely, in view of declaration filed by him?"
22. The defendants have preferred cross-
objections. Admitting the cross-objections, the following substantial questions of law were framed:: 32 :
"a. As to whether the Lower Appellate Court was justified in modifying the decree passed by the trial Court, in part to the extent of excluding the operation of Section 23 in respect of suit schedule 'B' properties which are all ancestral house properties and not granting a share in favour of female members of the family in favour of Section 8 of the Hindu Succession Act, 1956, when Section 23 of the Act is a special provision in respect of the dwelling houses only?
b. What will be the impact of amendment to the Hindu Succession Act by Central Act 39/05 whereby under Section 4 of this amending Act, Section 23 of the Hindu Succession Act, 1956, has been omitted w.e.f. 9.9.2005?"
23. The facts are not in dispute. The 1st plaintiff's husband, defendant No.1 and defendant No.2 are brothers. All the plaint schedule properties except the : 33 : tenanted property are admittedly the joint family properties. There was no partition in the family during the lifetime of Kallappa. That is the reason why, when Kallappa sold properties, his right in the properties is described as undivided 1/3rd share. The evidence on record shows that Kallappa was suffering from tuberculosis, he was unable to work, and he never cultivated the agricultural lands. Though the 1st plaintiff married him, lived with him and they had a daughter i.e., the 2nd plaintiff, she deserted him about 10 years prior to his death. It is defendant Nos.1 and 2 who took care of him prior to his death for 1½ years. He was admitted to the hospital at Miraj. Plaintiffs did not even visit the said Kallappa. On the contrary, it is defendant Nos.1 and 2 who took care of him. The recitals of the sale deed shows that Kallappa incurred loans for his maintenance and for his medical expenses which he could not discharge because he had no income. : 34 : Therefore, Kallappa sold his undivided share in the joint family properties in favour of the 3rd defendant, his cousin, who, in turn, undertook to clear the debts incurred by the said Kallappa. However, a sum of Rs.950/- was given to Kallappa at the time of registration before the Sub-Registrar. The sale deed is duly registered. One of the attesting witnesses to the sale deed has been examined. Till today, the said sale deed is not challenged by the plaintiffs. The explanation, however, is that they were not aware of the said sale deed. Even after the defendant set up the sale deed in the suit to contend that Kallappa had lost his right by virtue of the sale deed, no steps are taken to get the said sale deed cancelled. Assuming that the said sale deed is without consideration or it is obtained by the 3rd defendant taking advantage of the helpless situation of the deceased Kallappa, unless the said sale deed is cancelled, it is a valid sale deed. It was violable at the : 35 : instance of the plaintiffs; it is not void. Therefore, when no steps are taken to avoid the said contract, the sale deed stands. If the sale deed stands, the subject matter of the sale which originally belongs to Kallappa, after the sale, ceases to be his. The said sale deed equally binds the plaintiffs and therefore plaintiffs, in the light of the said sale deed, still cannot contend that they have right, title and interest in the property. It was contended that the sale deed is not acted upon inasmuch as the purchaser did not get the mutation entries made in his name by virtue of the sale deed. In fact, upto 1990, the name of Kallappa continued and in 1990, the plaintiff got the mutation entries changed to her name. Merely, because the mutation entries were not changed, no inference of such a sale deed not being acted upon can be drawn by this Court. As is clear from the sale deed what is sold is, is the undivided share of Kallappa, he was not cultivating his land; the land was being : 36 : cultivated by defendant Nos.1 and 3. Once the registered sale deed is executed, an obligation is cast on the revenue authorities to enter the name of the purchaser in the mutation register. Merely, because the purchaser did not make an application to get his name entered in the mutation register, it cannot be said that the sale deed is not acted upon. Therefore, both the courts below were justified in upholding the sale deed.
24. Realising the difficulty, the learned counsel for the appellants contended that the if the sale deed is upheld what follows is, the subject matter of the sale ceases to be the property of Kallappa and to that extent plaintiffs cannot claim any share. He pointed out that insofar as R.S. No.65 of Nej village is concerned, which was acquired by the family of Kallappa along with family of Balu Kole, each family had half share. The total extent of land was 34 acres 11 guntas. Therefore, each : 37 : family had half share in it i.e., roughly about 17 acres 6 guntas. In that 17 acres 6 guntas share, the deceased Kallappa would be entitled to 5 acres 29 guntas. Now, the recital of the sale deed makes it clear that insofar as the survey number R.S.No.65 is concerned, what is sold is 1/3rd out of the half share. In the sale deed, what is mentioned is R.Sy.No.65 measures 7 acres 20 guntas. Therefore, in that extent of land, the share of Kallappa is only 1 acre 10 guntas, whereas he was entitled to 5 acres 29 guntas and, therefore, to the extent of 4 acres 19 guntas, the title of Kallappa continues to exist. On his death, under Section 8 of the Hindu Succession Act or under the unamended Section 6 of the Hindu succession Act, his share devolves upon the plaintiffs. Therefore, the plaintiff would be entitled to the extent of 4 acres 19 guntas. This aspect of the matter has been completely missed by both the Courts below. They proceeded on the assumption that Kallappa had sold his : 38 : 1/3rd share and the plaintiffs have no right to claim share in the said properties. This is factually incorrect. In that view of the matter, the said finding of the courts below is to be set aside. Accordingly, it is hereby set aside.
25. Insofar as the tenanted land is concerned, the evidence on record discloses, after the death of the father, the 1st defendant being the eldest member of the joint family was managing the affairs of the joint family. Further, it is his evidence that plaintiff and one Bandu took his land R.S.No.84/1A on lease from the previous owners and he was cultivating it exclusively. Further, the evidence on record shows, after coming into force of the Land Reforms Act as amended in the year 1974, it is he who filed an application for grant of occupancy rights. While granting occupancy rights, the Tribunal has observed that applicant is cultivating the land from : 39 : antiquity and as his name is recorded in the record of rights, he is entitled to grant of occupancy rights. Therefore, the question for consideration is, is that tenancy right is transferred to him exclusively or it belongs to the joint family. When once it is established from the evidence on record that the 1st defendant was cultivating all the joint family properties as kartha of the joint family, it is difficult to believe that this kartha was cultivating the said survey number exclusively as his separate property. It was contended that Kallappa was a tuberculosis patient. He never cultivated the joint family lands and therefore, it cannot be said that the tenancy belongs to joint family. It is not the law that to constitute a joint tenancy every member of the joint family should physically cultivate the land. what is required is existence of a joint family, existence of a family property and the cultivation of the land by the joint family. even if one person as a member of the joint : 40 : family cultivates the land, the benefit enures to all the members of the family. When once the existence of the joint family is not in dispute, cultivation of all the joint family properties by the 1st defendant is not in dispute, his status as a kartha of the joint family is not in dispute, if he is cultivating a particular land belonging to some other person, in the absence of any material placed on record to show that the lease, which is purely personal to him, the only inference that can be drawn is, it is a joint family tenancy. In fact the evidence of D.W.1 shows that he took it on lease, but there is no documentary evidence. In other words, there is no lease deed. As the joint family properties are also mutated in his name, merely because, the name of 1st defendant alone is entered in the mutation register in respect of the said properties, the other members of the family do not lose the right to claim share in the property. Both the Courts below have not property appreciated the : 41 : evidence on record and have recorded a finding that it is the exclusive property of the 1st defendant. The said finding cannot be sustained in the light of the aforesaid evidence on record. Therefore, the said finding is also set aside and even in that land, the plaintiffs are entitled to 1/3rd share.
26. Insofar as the right in 'B' schedule property is concerned, they are all dwelling house. As the law stood on the day the suit was filed, the Trial Court passed a decree holding that a female family member of the joint family had no right to maintain the suit for partition of dwelling house, if there is one dwelling house. But in the 'B' schedule, there are three dwelling houses. The trial Court on that wrong assumption denied right of plaintiff over the suit properties. But the lower Appellate Court granted the right holding that plaintiffs are entitled to 1/3rd share either by partition and separate : 42 : possession or the value of their 1/3rd share to be paid by defendants 1 and 2.
27. Now all these goes to the background because the said Section 23 is no more in statute and once Section 23 goes out of the statute book, when admittedly, the 'B' schedule properties are joint family properties and there is no partition and as the 1st plaintiff's husband has 1/3rd share, plaintiffs are also entitled to 1/3rd share in the suit 'B' schedule properties.
28. The first Appellate Court has rightly held that the plaintiffs are entitled to the amount realized from the Insurance policy as nomination only shows the hands to which it is to be paid. But it does not necessarily mean that hand alone has right to the said amount. The plaintiffs being wife and daughter of the deceased are entitled to the said amount they being : 43 : Class-I heirs under the Act. Therefore, for the aforesaid reasons, I pass the following:
ORDER
(i) Appeal is partly allowed.
(ii) The judgment and decree of the Courts below holding that the plaintiffs have no right in the properties covered under Ex.D.4-sale deed is affirmed.
(iii) However, insofar as Sy.No.65/2 which is also covered under the sale deed-Ex.D-4 what is sold is only 1 acre 10 guntas and as the plaintiff's husband owns 5 acres 29 guntas, they would be entitled to an extent of 4 acres 19 guntas in the said Sy.No.65/2 of Nej village.: 44 :
(iv) Plaintiffs shall be entitled to 1/3rd share in the half share of Sy.No.84/1A measuring in all 3 acres 9 guntas.
(v) Insofar as "B" schedule property is concerned, plaintiffs are entitled to 1/3rd share in the suit.
(vi) Cross appeal is dismissed.
(vii) Parties to bear their own costs.
Sd/-
JUDGE Kms/Kmv