Karnataka High Court
The Chairman Of Vpc vs Sri. Tirakreddy on 8 December, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 8TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO. 4034 OF 2013 (PAR-)
C/W
REGULAR FIRST APPEAL NO. 4023 OF 2013
REGULAR FIRST APPEAL NO. 4160 OF 2013
REGULAR FIRST APPEAL NO. 100069 OF 2014
RFA CROSS OBJ NO. 100003 OF 2016
IN RFA.NO.4034/2013
BETWEEN
1. SMT.YAMUNAVVA
W/O GOVINDRADDI BUDHIHAL
AGE:60 YEARS, OCC:HOUSEHOLD WORKS,
R/O : SHISHWINAHALLI,
TAL : NAVALAGUNDA,
DIST DHARWAD-580001
2. RAVI S/O GOVINDRADDI BUDHIHAL
AGE:42 YEARS,OCC:AGRICULTURE,
R/O: SHISHWINAHALLI,
TAL : NAVALAGUNDA
DIST DHARWAD-580001
-2-
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
3. SRINIVAS S/O GOVINDRADDI BUDHIHAL
AGE:34 YEARS,OCC:AGRICULTURE
R/O SHISHWINAHALLI,
TAL : NAVALAGUNDA
DIST DHARWAD-580001
...APPELLANTS
(BY SRI. MALLIKARJUNSWAMY B HIREMATH, ADVOCATE)
AND
1. SMT. KASTURIBAI W/O TIRAKRADDI BUDHIHAL
AGE: 72 YEARS,OCC:HOUSEHOLD
WORKS, R/O : SHISHWINHALLI,
TAL : NAVALAGUND 580001
NOW R/AT MARUTI COMPLEX,
2ND BLOCK, NEAR PLD BANK,
MUDHOL, DIST: BAGALKOT 580001
DIED ON 22/08/2022
SINCE RESPONDENT NO.6 IS ONLY
LEGAL HEIR AND ALREADY ON RECORD.
2. SMT SHASHIKALA @ YALLAMMA
W/O ASHOK PATIL
AGE:50 YEARS,OCC:HOUSEHOLD WORK,
R/AT MARUTI COMPLEX, 2ND BLOCK,
NEAR PLD BANK, MUDHOL
DIST: BAGALKOT 580001
3. RITIKA D/O TIMMARADDI INAMATI
AGE: MAJOR, OCC: STUDENT,
R/O : SHISHWINAHALLI,
TAL : NAVALAGUND
DIST DHARWAD. 580001
4. SILPA D/O TIMMARADDI INAMATI
AGE: MAJOR, OCC: STUDENT,
R/O : SHISHWINAHALLI,
TAL : NAVALAGUND
-3-
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
DIST DHARWAD-580001
5. SMT. SUMANGALA @ SUMA
W/O KRISHNARADDI CHAPPARDAR
AGE: 40 YEARS,
OCC: HOUSEHOLD WORKS,
R/O : YARAGATTI, TAL : SAUDATTI,
DIST BELGAUM-580001
6. SMT SHASHIKALA
W/O HANUMARADDI GANGARADDI
AGE: 46 YEARS, OCC: HOUSEHOLD WORKS,
R/O : YARAGATTI, TAL : SAUDATTI,
DIST BELGAUM -580002
SOLE LEGAL HEIR OF RESPONDENT NO.1
7. SMT. PADMAVATI
W/O HANUMATGOUDA JEEWANAGOUDAR
AGE: 70 YEARS, OCC: HOUSEHOLD WORKS,
R/O : MAIDUR, TAL : RANEBENNUR
DIST HAVERI-5800032
SINCE DECEASED REP. BY HER LR'S
7A. SHRI HANUMANTHAGOUDA S/O PUTTANAGOUDA
JEEWANAGOUDAR ALIAS JEEVANGOUDAR
AGE 82 YEARS, OCC AGRICULTURE,
R/O MAIDUR, RANEBENNUR TALUK
HAVERI DISTRICT.
RESPONDENT NO.7A DIED AND LR'S
ARE ALREADY ON RECORD AS
RESPONDENT NOS.7(B) ATO 7(E)
7B. SHRI RAJU ALIAS RAJAPPA S/O HANUMANTHGOUDA
JEEWANAGOUDA ALIAS JEEVANGOUDAR
AGE 56 YEARS, OCC AGRICULTURE,
R/O MAIDUR RANEBENNUR TALUK
HAVERI DISTRICT.
7C. SMT. GEETA W/O. LAXMAN SAUKAR
-4-
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
AGE 53 YEARS, OCC AGRICULTURE,
R/O MAIDUR RANEBENNUR TALUK
DIST HAVERI.
7D. RAGHUNATH S/O HANUMANTHGOUDA
JEEWANAGOUDAR ALIAS JEEVANGOUDAR
AGE 48 YEARS, OCC AGRICULTURE,
R/O MAIDUR RANEBENNUR TALUK
HAVERI DISTRICT.
7E. SHASHIKALA W/O RAVI BUDIHAL
AGE 46 YEARS, OCC HOUSEHOLD WORK,
R/O @ POST SHISHVINAHALLI
TQ NAVALAGUND, DIST DHARWAD.
8. SUNIT S/O HANAMARADDI KIRESUR
AGE: 32 YEARS,OCC:AGRICULTURE,
R/O : SHISHWINHALLI, 58084
TAL : NAVALAGUND, DIST DHARWAD.
9. PRADEEP S/O HANAMARADDI KIRESUR
AGE: MAJOR, OCC:AGRICULTURE,
R/O: SHISHWINAHALLI,
TAL : NAVALAGUNDA
DIST DHARWAD-580001
10. THE CHAIRMAN OF VPC (GRAM PANCHAYAT)
SHISHUVINHALLI,
TAL : NAVALAGUND
DIST DHARWAD-580001
....RESPONDENTS
(SRI. N. P. VIVEKMEHTA, ADVOCATE
AND SRI.V.M.SHEELVANT, ADVOCATE FOR R2,
R2 IS LR OF DECEASED R1,
SRI. S. S. NIRANJAN, ADVOCATE FOR R3-R6,
MISS. SURABHI KULKARNI, ADVOCATE FOR R7(B-E),
R7(B-E) ARE LRS OF DECEASED R7(A),
SRI. S. S. PATIL, ADVOCATE
AND SRI.MAHANTESH PATIL, ADVOCATE FOR R8-R9,
SRI. D. L. LADKHAN, ADVOCATE FOR R10)
-5-
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
THIS REGULR FIRST APPEAL IS FILED UNDER SECTION 96
R/W UNDER ORDER XLI RULE 1 OF CPC., SEEKING TO SET ASIDE
THE JUDGEMNT AND DECREE DATED 13.11.2012 PASSED IN O.S.
NO. 197/2001 ON THE FILE OF I ADDL. SENIOR CIVIL JUDGE AND
CJM., DHARWAD SITTING AT NAVALGUND.
IN RFA NO.4023/2013
BETWEEN
1. THE CHAIRMAN OF VPC
(GRAM PANCHAYAT)
SHISHUVINAHALLI,
TQ: NAVALAGUND,
DIST: DHARWAD
...APPELLANT
(BY SRI. D. L. LADKHAN, ADVOCATE)
AND
1. SRI. TIRAKREDDY
S/O YALLAREDDY BUDHIHAL,
AGE: 65 YEARS, OCC: NIL,
RESIDENT OF SHISHWINHALLI,
TQ: NAVALAGUND, DIST: DHARWAD,
SINCE A PERSON OF UNSOUND MIND
REPP.BY HIS FRIEND
SMT. KASTURIBAI
W/O TIRAKAREDDY BUDHIHAL,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF SHISHWINHALLI,
TQ:NAVALGUND, DIST: DHARWAD
SINCE DECEASED BY HIS LRS
RESPONDENT NO.2 AND 3
2. SMT. KASTURIBAI
W/O TIRAKAREDDY BUDHIHAL,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF SHISHWINHALLI,
-6-
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
TQ: NAVALGUND, DIST: DHARWAD
NOW AT MARUTI COMPLEX
II ND BLOCK, NEAR P.L.D. BANK,
MUDHOL, DIST: BAGALKOT.
(DELETED AS PER ORDER DTD. 22.08.2022
IN CONNECTED RFA NO.100069/2014)
3. SMT. SHASHIKALA @ YALLAMMA
W/O ASHOK PATIL,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF MARUTI COMPLEX,
IIND BLOCK NEAR P.L.D. BANK,
MUDHOL, DIST: BAGALKOT.
4. SMT. YAMUNAVVA W/O GOVINDRADDI
BUDHIHAL, AGE: 60 YEARS,
OCC: HOUSEHOLD WORK,
RESIDENT OF SHISHWINHALLI,
TQ: NAVALGUND, DIST: DHARWAD.
5. RAVI S/O GOVINDRADDI BUDHIHAL
AGE: 43 YEARS, OCC: AGRICULTURE,
RESIDENT OF SHISHWINHALLI,
TQ: NAVALGUND, DIST: DHARWAD.
6. RITIKA D/O TIMMARADDI INAMATI
AGE: MAJOR, OCC: STUDENT,
RESIDENT OF SHISHWINHALLI,
TQ: NAVALAGUND,DIST: DHARWAD.
7. SILPA D/O TIMMARADDI INAMATI
AGE: MAJOR, OCC: STUDENT,
RESIDENT OF SHISHWINHALLI,
TQ: NAVALAGUND,DIST: DHARWAD.
8. SMT. SUMANGALA @ SUMA
W/O KRISHNARADDI CHAPPARADDAR
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF YARGATTI, TQ:SAUNDATTI,
DIST: BELGAUM.
-7-
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
9. SMT. SHASHIKALA W/O HANAMRADDI
GANGARADDI, AGE: 46 YEARS,
OCC: HOUSEHOLD WORK,
RESIDENT OF YARGATTI, TQ: SAUNDATTI,
DIST: BELGAUM.
10. SRI. SRINIVAS S/O GOVINDARADDI
BUDHIHAL,
AGE: 34 YEARS, OCC: AGRICULTURE,
RESIDENT OF SHISHWINHALL,
TQ: NAVALGUND, DIST: DHARWAD.
11. SMT. PADMAVATI,
W/O HANAM,ANTGOUDA JEEWANGOUDAR,
AGE: 80 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF MAIDUR,
TQ: RANEBENNUR, DIST: HAVERI.
SINCE DECEASED BY LRS.
11A. HANAMANTHGOUDA S/O PUTTANGOUDA
JEEVANGOUDAR @ JEEVANGOUDARA
AGE 82 YEARS,
OCC AGRIUCLTURE,
R/O MAIDUR, RANEBENNUR TALUK
HAVERI DISTRICT
RESPONDENT NO.11A DIED, HIS LEGAL HEIRS
ARE ALREADY ON RECORD.
11B. RAJU ALIAS RAJAPPA HANAMANTHGOUDA
JEEVANGOUDAR ALIAS JEEVANGOUDARA
AGE 56 YEARS,
OCC AGRIUCLTURE,
R/O MAIDUR, RANEBENNUR TALUK
HAVERI DISTRICT
11C. GEETA W/O LAXMAN SAUKAR
AGE 53 YEARS,
OCC HOUSEHOLD WORK
-8-
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
R/O MAIDUR, RANEBENNUR TALUK
HAVERI DISTRICT
11D. RAGHUNATH S/O HANAMANTHGOUDA
JEEVANGOUDAR ALIAS JEEVANAGOUDARA
AGE 48 YEARS,
OCC AGRICULTURE,
R/O MAIDUR, RANEBENNUR TALUK
HAVERI DISTRICT
11E. SHASHIKALA W/O RAVI BUDIHAL
AGE 46 YEARS,
OCC HOUSEHOLD WORK,
R/O @ POST SHISHUVINHALLI
TQ NAVALGUND, DIST DHARWAD
12 . SUNIT S/O HANAMARADDI KIRESUR,
AGE: 32 YEARS, OCC: STUDENT,
RESIDENT OF SHISHUVINHALLI,
TQ: NAVALAGUND,
13 . PRADEEP S/O HANAMARADDI KIRESUR,
AGE: MAJOR, OCC: STUDENT,
RESIDENT OF SHISHUVINHALLI,
TQ: NAVALGUND
....RESPONDENTS
(BY SRI. N. P. VIVEKMEHTA, ADVOCATE FOR R3,
MISS.SURABHI KULKARNI, ADVOCATE FOR R11(B-E),
SRI. S. S. PATIL, ADVOCATE
AND SRI. MAHANTESH PATIL, ADVOCATE FOR R12 AND R13,
R1 R/BY R3,
NOTICES TO R4 TO R10 SERVED,
R2 DECEASED, R3 IS LR OF R2,
R11(A) DECEASED, R11(B-E) ARE LRS OF R11(A)
THIS REGULR FIRST APPEAL IS FILED UNDER SECTION 96
READ WITH ORDER 41 RULE 1 AND 2 OF CPC, PRAYING TO SET
ASIDE THE JUDGEMNT AND DECREE DATED 13.11.2012 PASSED IN
O.S. NO. 197/2001 ON THE FILE OF I ADDL. SENIOR CIVIL JUDGE
AND CJM., DHARWAD SITTING AT NAVALGUND AND TO DISMISS
SUIT AGAINST DEFENDANT NO.11 (APPELLANT HEREIN).
-9-
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
IN RFA NO.4160/2013
BETWEEN
1. SUNIT S/O. HANAMARADDI KIRESUR
AGE: 32 YEARS,
OCC: BUSINESS
R/O. SHISHUVINHALLI, TQ: NAVALGUND,
DIST: DHARWAD 581209
2. PRADEEP S/O. HANAMARADDI KIRESUR
AGE: 30 YEARS,
OCC: BUSINESS
R/O. SHISHUVINHALLI, TQ: NAVALGUND,
DIST: DHARWAD 581209
...APPELLANTS
(BY SRI. S. S. PATIL, ADVOCATE
AND SRI.MAHANTESH R PATIL, ADVOCATE)
AND
1. KASTURIBAI W/O. TIRAKREDDI BUDIHAL
AGE: 72 YEARS,
OCC: HOUSEHOLD WORK
R/O. SHISHUVINHALLI,
TQ: NAVALGUND, DIST: DHARWAD
NOW AT R/O. MARUTI COMPLEX,
IIND BLOCK, NEAR PLD BANK, MUDHOL,
TQ:MUDHOL, DIST: BAGALKOT 583236
2. SHASHIKALA @ YALLAMMA W/O. ASHOK PATIL
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O.MARUTI COMPLEX, IIND BLOCK
NEAR PLD BANK, MUDHOL,
TQ:MUDHOL, DIST: BAGALKOT 583236
3. YAMUNAVVA W/O. GOVINDARADDI BUDIHAL
AGE: 60 YEARS,
OCC: HOUSEHOLD WORK,
- 10 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
R/O. SHISHUVINHALLI, TQ: NAVALGUND,
DIST: DHARWAD 581209
4. RAVI S/O. GOINDARADDI BUDIHAL
AGE: 43 YEARS,
OCC: AGRICULTURE
R/O. SHISHUVINHALLI, TQ: NAVALGUND,
DIST: DHARWAD 581209
5. RITIKA D/O. TIMMARADDI INAMATI
AGE: 20 YEARS, OCC: STUDENT
R/O. SHISHUVINHALLI, TQ: NAVALGUND,
DIST: DHARWAD 581209
6. SILPA D/O. TIMMARADDI INAMATI
AGE: 18 YEARS, OCC: STUDENT
R/O. SHISHUVINHALLI, TQ: NAVALGUND,
DIST: DHARWAD 581209
7. SUMANGALA @ SUMA
W/O. KRISHARADDI CHAPPARDAR
AGE: 39 YEARS,
OCC:HOUSEHOLD WORK
R/O.YARAGATTI, TQ: SAVADATTI
DIST: BELGAUM 591129
8. SHASHIKALA W/O. HANAMARADDI GAGARADDI
AGE: 46 YEARS,
OCC: HOUSEHOLD WORK
R/O.YARAGATTI, TQ: SAVADATTI
DIST: BELGAUM 591129
9. SHRINIVAS S/O. GOVINDRADDI BUDIHAL
AGE: 34 YEARS,
OCC: AGRICULTURE
R/O. SHISHUVINHALLI,
TQ: NAVALGUND, DIST: DHARWAD 581209
10. PADMAVATI W/O. HANAMANTHGOUDA
JEEVANGOUDAR
AGE: 80 YEARS, OCC: BUSINESS
- 11 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
R/O. MAIDUR, TQ: RANEBENNUR
DIST: HAVERI. 581115
10A. HANAMANTHAGOUDA S/O PUTTANAGONDA
JEEVANAGOUDAR
AGE 60 YEARS,
OCC AGRICULTURE,
R/O MAIDUR,
TQ RANBENNUR, DIST HAVERI.
10B. RAJAPPA ALIAS RAJU
S/O HANAMANTHAGOUDA,
JEEVANAGOUDAR
AGE 58 YEARS,
OCC AGRICULTURE,
R/O MAIDUR,
TQ RANEBENNUR,
DIST HAVERI.
10C. GEETA W/O LAXMAN SAWKAR
AGE 55 YEARS,
OCC HOUSEHOLD WORK,
R/O MAIDUR
TQ RANEBENNUR,
DIST HAVERI.
10D. RAGHUNATHA S/O
HANAMANTHAGONDA,
JEEVANAGOUDAR,
AGE 53 YEARS,
OCC AGRICULTURE,
R/O MAIDUR
TQ RANEBENNUR,
DIST HAVERI.
10E. SHASHIKALA W/O RAVI BUDIHAL
AGE 50 YEARS,
OCC: HOUSEHOLD WORK
R/O MAIDUR, TQ RANEBENNUR
DIST HAVERI.
- 12 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
11 . THE CHAIRMAN OF VPC
(GRAM PANCHAYAT),
R/O. SHISHUVINHALLI, TQ: NAVALGUND,
DIST: DHARWAD. 581209
...RESPONDENTS
(NOTICES TO R1 TO R7, R9 SERVED,
R8-NOTICE HELD SUFFICIENT,
R10 DECEASED, R10(B-E) LRS OF R10(A),
MISS. SURABI KULKARNI, ADVOCATE FOR R10(B-E),
SRI. D. L. LADKHAN, ADVOCATE FOR R11)
THIS REGULR FIRST APPEAL IS FILED UNDER SECTION 96
AND R/W ORDER 41 RULE 1 OF CPC., PRAYING TO ALLOW THE
APPEAL BY SETTING ASIDE THE JUDGEMNT AND DECREE DATED
13.11.2012 PASSED IN O.S. NO. 197/2001 ON THE FILE OF I ADDL.
SENIOR CIVIL JUDGE AND CJM., DHARWAD SITTING AT
NAVALGUND.
IN RFA NO.100069/2014
BETWEEN
1. SMT PADMAVATI W/O. HANUMANTGOUDA
JEEWANAGOUDAR
SINCE DECEASED BY HER LRS
1A. SHRI HANUMANTHGOUDA
S/O PUTTANAGOUDA
JEEWANAGOUDAR @ JEEVANAGOUDARA
SINCE DECEASED BY HIS LRS
APPELLANTS NO.1(B) TO 1(E) ARE TREATED AS
LRS OF DECEASED APPELLANT NO.1(A)
1B. SHRI. RAJU @ RAJAPPA
S/O HANUMANTHGOUDA JEEVANAGOUDARA
AGE 56 YEARS,
OCC AGRICULTURE,
R/O MAIDUR,
RANEBENNUR TALUK,
- 13 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
HAVERI DISTRICT.
1C. SMT. GEETA W/O LAXMAN SAUKAR
AGE 53 YEARS
OCC HOUSEHOLD WORK
R/O MAIDUR RANEBENNUR TALUK
HAVERI DISTRICT.
1D. RAGHUNATH S/O HANUMANTHGOUDA
JEEWANAGOUDAR,
@ JEEVANAGOUDARA,
AGE 48 YEARS,
OCC AGRICULTURE,
R/O MAIDUR,
RANEBENNUR TALUK,
DISTRICT HAVERI.
1E. SHASHIKALA W/O RAVI BUDIHAL
AGE 46 YEARS,
OCC HOUSEHOLD WORK,
R/O @ POST SHISHUVINAHALLI,
TQ NAVALGUND, DIST DHARWAD.
...APPELLANTS
(BY MISS. SURABHI KULKARNI, ADVOCATE)
AND
SRI.TIRAKAREDDY S/O. YALLAREDDY BUDIHAL
SINCE DEAD BY HIS LRS
1. SMT. KASTURIBAI W/O. TIRAKARADDI BUDIHAL
SINCE DECEASED BY HER LR
RESPONDENT NO.2 IS TREATED AS
THE LR OF DECEASED RESPONDENT NO.1
2. SMT. SHASHIKALA @ YALLAMMA W/O. ASHOK PATIL
AGE: 41 YEARS
OCC: HOUSEHOLD WORK
R/O. MARUTI COMPLEX, 2ND BLOCK
NEAR PLD BANK MUDHOL,
- 14 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
DIST: BAGALKOT
3. SMT. YAMUNAVVA W/O. GOVINDRADDI BUDIHAL
AGE: 61 YEARS, OCC: HOUSEHOLD WORK
R/O. SHISHWINHALLI, TQ: NAVALGUND,
DIST: DHARWAD
4. SRI. RAVI S/O. GOVINDRADDI BUDHIHAL
AGE: 44 YEARS
OCC: AGRICULTURE
R/O. SHISHWINHALLI, TQ: NAVALGUND,
DIST: DHARWAD
5. RITIKA D/O. TIMMARADDI INAMATI
AGE: MAJOR, OCC: STUDENT
R/O. SHISHWINHALLI, TQ: NAVALGUND,
DIST: DHARWAD
6. SILPA D/O. TIMMARADDI INAMATI
AGE: MAJOR, OCC: STUDENT
R/O. SHISHWINHALLI, TQ: NAVALGUND,
DIST: DHARWAD
7. SUMANGALA @ SUMA
W/O. KRISHNARADDI CHAPPARADAR
AGE: 41 YEARS,
OCC: HOUSEHOLD WORK
R/O. YARGATTI, TQ:SAUNDATTI,
DIST: BELGAUM
8. SMT.SHASHIKALA
W/O. HANAMARADDI GANGARADDI
AGE: 47 YEARS, OCC: HOUSEHOLD WORK
R/O. YARGATTI, TQ:SAUNDATTI,
DIST: BELGAUM
9. SRI.SRINIVAS S/O. GOVINDRADDI BUDHIHAL
AGE: 35 YEARS,
OCC: AGRICULTURE
R/O. SHISHWINHALLI, TQ: NAVALGUND,
DIST: DHARWAD
- 15 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
10. SUNIT S/O. HANAMARADDI KIRESUR
AGE: 33 YEARS, OCC: STUDENT
R/O. SHISHWINHALLI,
TQ: NAVALGUND, DIST: DHARWAD
11. PRADEEP S/O. HANAMARADDI KIRESUR
AGE: MAJOR OCC: STUDENT
R/O. SHISHWINHALLI, TQ: NAVALGUND,
DIST: DHARWAD
12. THE CHAIRMAN OF (GRAM PANCHAYAT)
SHISHUVINHALLI, TQ: NAVALGUND,
DIST: DHARWAD
...RESPONDENTS
(SRI. N.P. VIVEKMEHTA, ADVOCATE
AND SRI. V. M. SHEELVANT, ADVOCATE FOR R2,
R1 DECEASED, R2 IS THE LR OF R1,
NOTICES TO R3 TO R12 SERVED)
THIS REGULR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC., SEEKING TO SET ASIDE THE JUDGEMNT AND DECREE DATED
13.11.2012 PASSED IN O.S. NO. 197/2001 ON THE FILE OF I ADDL.
SENIOR CIVIL JUDGE AND CJM., DHARWAD SITTING AT NAVALGUND
AND TO DISMISS SUIT AGAINST DEFENDANT NO.8 (APPELLANT
HEREIN) BY ALLOWING THE APPEAL.
IN RFA CROB. NO.100003/2016
BETWEEN
1. SMT.KASTURIBAI
W/O TIRAKAREDDI BUDIHAL,
AGE: 75 YEARS,
OCC: HOUSE HOLD WORK,
R/O: SHISHWINHALLI,
TQ: NAVLGUND, DHARWAD.
NOW AT MARUTI COMPLEX,
II BLOCK, NEAR PLD BANK,
MUDHOL, DIST: BAGALKOT-587101
- 16 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
DIED ON 22.08.2022 AND HER ONLY DAUGHTER
SMT.SHASHIKALA APPELLANT NO.2
IS ALREADY ON RECORD
2. SMT.SHASHIKALA ALIS YALLAMMA,
W/O ASHOK PATIL,
AGE: 52 YEARS,
OCC: HOUSE HOLD WORK,
R/O: MARUTI COMPLEX,
II BLOCK, NEAR PLD BANK,
MUDHOL,
DIST: BAGALKOT-587101.
...CROSS OBJECTORS
(SRI. N. P. VEIVEKMEHTA, ADVOCATE)
AND
1. SMT.PADMAVATI
W/O HANUMANTGOUDA JEEWANAGOUDAR,
AGE: 83 YEARS, OCC: HOUSE HOLD WORK,
R/O: MAIDUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
DIED ON 15.12.2015 HER LRS
ARE BROIUGHT ON RECORD AS PER ORDER
DATED 01.08.2018
1A. SHRI HANUMANTHGOUDA S/O
PUTTANGOUDA,
JEEWANGOUDAR @ JEEVANAGOUDARA
AGE 82 YEARS,
OCC AGRICULTURE
R/O MAIDUR, RANEBENNUR TALUK,
DIST HAVERI.
SINCE DIED ON 07.01.2019 AND
RESPONDENT R1(B) TO R1(E) ARE HIS LRS
AND ALL ARE ON RECORD ALREAY
1B. SHRI. RAJU @ RAJAPPA
- 17 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
S/O HANUMANTHGOUDA
JEEWANAGOUDAR @ JEEVANGOUDARA
AGE 56 YEARS, OCC AGRICULTURE,
R/O MAIDUR, RANEBENNUR TALUK
DIST HAVERI
1C. SMT. GEETA W/O LAXMAN SAUKAR
AGE 53 YEARS, OCC HOUSEHOLD WORK
R/O MAIDUR, RANEBENNUR TALUK
DIST HAVERI.
1D. RAGHUNATH S/O HANUMANTHGOUDA
JEEWANAGOUDAR
@ JEEVANAGOUDARA
AGE 48 YEARS, OCC AGRICULTURE,
R/O MAIDUR RANEBENNUR
TALUK DIST DHARWAD.
1E. SHASHIKALA W/O RAVI BUDIHAL
AGE 46 YEARS, OCC HOUSEHOLD WORK,
R/O @ POST SHISHUVINHALLI
TQ NAVALGUND, DIST DHARWAD.
2. SMT.YAMUNAVVA
W/O GOVINDARADDI BUDIHAL,
AGE: 63 YEARS, OCC: HOUSEHOLD WORK,
3. RAVI S/O GOVINDARADDI BUDIHAL,
AGE: 46 YEARS, OCC: AGRICULTURE,
4. RITIKA D/O TIMMARADDI INAMATI,
AGE: MAJOR, OCC: STUDENT,
5. SILPA D/O TIMMARADDI INAMATI,
AGE: MAJOR, OCC: STUDENT,
RESPONDENT NOS.2 TO 5 ARE
R/O: SHISHWINHALLI, TQ: NAVALGUND,
DIST: DHARWAD-582208.
6. SMT.SUMANGALA @ SUMA
- 18 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
W/O KRISHANARADDI CHAPPARADAR,
AGE: 43 YEARS, OCC: HOUSE HOLD WORK,
7. SMT.SHASHIKALA
W/O HANUMARADDI GANGARADDI,
AGE: 49 YEARS, OCC: HOUSE HOLD WORK,
RESPONDENT NOS.6 AND 7 ARE
R/O YARAGATTI, TQ: SAUNDATTI,
DIST: BELAGAI 591126
8. SRINIVAS S/O GOVINDARADDI BUDIHAL,
AGE: 37 YEARS, OCC: STUDENT,
9. SUNIT S/O HANAMARADDI KIRESUR,
AGE: 35 YEARS, OCC: STUDENT,
10. PRADEEP S/O HANAMARADDI KIRESUR,
AGE: MAJOR, OCC: STUDENT,
RESPONDENT NOS.8 TO 10 ARE
R/O: SHISHWINHALLI,
TQ: NAVALGUOND,
DIST: DHARWAD-582208.
11. THE CHAIRMAN OF VPC
(GRAM PANCHAYAT)
SHISHWINHALLI,
TQ: NAVALGUND,
DIST: DHARWAD-582208.
...RESPONDENTS
(MISS. SURABHI KULKARNI, ADVOCATE FOR R1 (A TO E),
SRI. MALLIKARJUNSWAMY B HIREMATH, ADV. FOR R2-R3, R8,
SRI. S. S. NIRANJAN, ADVOCATE FOR R4 TO R6,
SRI. S. S. PATIL, ADVOCATE
AND SRI. MAHANTESH PATIL, ADVOCATE FOR R9, R10,
NOTICE TO R7 SERVED,
SRI. D. L. LADKHAN, ADVOCATE FOR R11)
- 19 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013,
RFA No. 4160 of 2013,
RFA No. 100069 of 2014,
RFA.CROB No. 100003 of 2016
THIS RFA CROSS-OBJECTION IN RFA NO.100069/2014 IS
FILED UNDER ORDER 41 RULE 22 OF CPC PRAYING TO MODIFY THE
JUDGEMNT AND DECREE DATED 13.11.2012 PASSED IN O.S. NO.
197/2001 ON THE FILE OF I ADDL. SENIOR CIVIL JUDGE AND CJM.,
DHARWAD SITTING AT NAVALGUND AND DECREE THE SUIT OF
PLAINTIFFS AS PRAYED FOR BY ALLOWING THIS CROSS-OBJECTION.
THESE REGULAR FIRST APPEALS AND RFA CROSS-OBJECTION
HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON
FOR 'PRONOUNCEMENT OF JUDGMENT', THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:
JUDGMENT
1. In RFA No.4034/2013, the appellants who are defendant Nos.1, 2 and 7 in O.S.No.197/2001 are before this Court challenging the judgment and decree passed therein by the I Additional Senior Civil Judge and JMFC, Dharwad sitting at Navalgund dated 13.11.2012.
2. Respondent No.1 was plaintiff No.2, respondent No.2 was plaintiff No.3, plaintiff No.1 having expired
- 20 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 during the pendency of the proceedings before the trial Court. Respondent No.1 expired during the pendency of the present matter and respondent No.2 is the sole legal heir of respondent No.1. respondent Nos.3, 4, 5, 6 were defendant Nos.3 to 6 before the trial Court. Respondent No.7 was defendant No.8 and expired during the pendency of the above matter. Respondent Nos.7(A to E) were brought on record as legal heirs of respondent No.7. Respondent No.7A having expired during the pendency of the above appeal, respondent Nos.7(B to E) were treated as legal representatives of deceased respondent No.7A. Respondent Nos.8, 9 and 10 were defendant Nos.9 to 11 before the trial Court.
3. By way of the aforesaid judgement and decree, the trial Court decreed the suit partly and held that plaintiff Nos.2 and 3 were together entitled to get
- 21 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 1/3rd share in the immoveable suit schedule properties by way of partition and separate possession by metes and bounds as also mesne profits to the extent of their share from defendant Nos.1 to 8 as regards which a separate enquiry was directed to be held as per order 20 Rule 12 of CPC.
4. Sri.Mallikarjunswamy B Hiremath, learned counsel appearing for the appellants (defendant Nos.1, 2 and
7) in RFA No.4034/2013 has submitted that:
4.1. The trial Court has given a go by to all the documents which have been produced by the defendants.
4.2. The trial Court has not taken into consideration the mutation entries which reflected that partition of the year 1954 has been acted upon.
- 22 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 4.3. The declarations before the Land Tribunal having been filed in pursuance of the partition of the year 1954, the same cannot be reopened after a period of nearly 50 years, the suit having been filed in the year 2001. 4.4. The partition having occurred prior to even the marriage of plaintiff No.1 with plaintiff No.2, plaintiff No.2 cannot make any allegations insofar as the said partition. Plaintiff No.1 having expired on 11.11.2008 had not challenged the partition of the year 1954. Plaintiff No.1 had not challenged the partition from the year 1954 to 1961 when even according to plaintiff No.2 plaintiff No.1 became insane. Plaintiff No.1 having accepted the said partition, the suit has been filed only after the
- 23 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 expiry of Govindraddi and is barred by limitation.
4.5. Plaintiff No.1 continued to reside with the defendants. Neither plaintiff No.2 nor plaintiff No.3 took care of the interest of plaintiff No.1 and it is only for the purpose of share in the properties, a suit came to be filed in the year 2001 making false allegations and statements by Plaintiff no.2 who had deserted her husband in the year 1964.
4.6. Plaintiffs have not produced any document to establish the insanity of plaintiff No.1 nor have the relevant provisions under CPC been complied with for appointment of plaintiff No.2 as natural guardian of plaintiff No.1.
- 24 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 4.7. Unless plaintiffs were to establish that plaintiff No.1 was insane, none of the allegations made in the plaint could be considered. 4.8. Plaintiff No.1 had enrolled himself for I year MBBS. He was a well educated person and he knew of the world and was worldly wise and hence the contention of the plaintiffs that plaintiff No.1 was of unsound mind is completely false.
4.9. Plaintiffs have not produced any documents to establish the insanity of plaintiff No.1. 4.10. The plaintiffs themselves have admitted in Ex.D.46 (newspaper publication) that it is only the properties which came to the share of plaintiff No.1 under the partition deed of the year 1954 which is in their ownership. Even in
- 25 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 the said public notice, there is no averment or allegation made as regards the ownership of plaintiff in respect of the entire properties subject matter of the suit.
4.11. The public notice itself having been issued subsequent to the filing of the suit, it is clear that even according to the plaintiffs the claim is only as regards the property subject matter of the partition deed.
4.12. He relies upon decision reported in AIR 1988 SC 881 in the case of ROSHAN SINGH AND OTHERS VS. ZILE SINGH AND OTHERS, more particularly para No.9 thereof, which is reproduced hereunder for easy reference:
"9. It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a
- 26 -RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 change of legal relation to the property divided amongst the parties to it, requires registration under s. 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Sec. 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, s. 49 of the Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason of s. 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in
- 27 -RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 evidence even though they are unregistered, to prove the fact of partition:"
4.13. By relying upon the above decision he submits that the Deed of 1954 recording the partition, and having been acted upon, does not require registration as held by the trial court. 4.14. He relies upon decision reported in 1995 Supp (2) SCC 428 in the case of DIGAMBAR ADHAR PATIL VS. DEVRAM GIRDHAR PATIL (DIED) AND ANOTHER, more particularly para Nos.5 and 6 thereof, which are reproduced hereunder for easy reference:
"5. We find no force in the contention. Section 32B clearly postulates that the land held as an owner or as a tenant alone should be taken into consideration to determine ceiling limit and if the land held as owner or tenant is within the ceiling limit, he shall be entitled to purchase the land held by him as a tenant. Admittedly, the respondent held the land as an owner to the extent of 36 acres 1 guntas. The area of dispute
- 28 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 is only in respect of the land held by his minor son and the land allotted at a partition to his brother Ram Chander. With regard to the land held by the son, even assuming that it is a joint family property for the purpose of the Act and it is incuudible in his holding yet he is within the ceiling limit, namely, 43 acres 35 guntas. As rightly held by the High Court he cultivated it on behalf of his minor son. As to the land allotted to the brother of the respondent, the Tribunals below negatived it on two grounds, namely, in the cultivation column of the Revenue records, it was shown that the respondent had cultivated the land and no documentary evidence of partition was produced before the authorities. The Tribunals below did not advert to the entries in the Record of Rights or to the factum of partition, while the High Court has taken this factor into consideration, which in our considered view had rightly been taken into account. The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given, by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he dearly stated that there was a partition but he could not give the date and year in which the partition was effected nor the deed of the partition was produced. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition
- 29 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 was evidenced by entries in the Record of Rights, which was maintained in official course of business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it.
6. The High Court, therefore, was right in its conclusion that the land allotted to the brother of the respondent, namely, Ram Chander should be excluded. If that land is excluded necessary conclusion is that the respon- dent was within the ceiling limit. Consequently, he is entitled to purchase the land of the appellant who is the owner under the provisions of the Act as he is a deemed tenant on the tiller date under s32 of the Act. Whether the respondent is in excess of the land or not would be considered while computing the holding as ordered by the High Court in its remand order. The appeal, therefore, does not warrant interference. It is accordingly dismissed." 4.15. By relying on the above decision he submits that whatever be the reason for partition, the fact is that there is a partition which has been acted upon, if not the entire family would have been considered as one unit and the excess land forfeited, this itself establishes that the
- 30 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 transaction of the year 1954 is in the interest of all family members and not against the interest of the Plaintiff or anyone else.
4.16. He relies upon the decision reported in AIR 1938 PC 65 in the case of ANURAGO KUER, MST. VS. DARSHAN RAUT AND OTHERS, more particularly para Nos.4 to 6 which are reproduced hereunder for easy reference:
"4. The Courts below are not agreed on the question whether Sitaram was joint with, or separate from, his brother Kesho and his descendants in estate at the time of his death. It is a well-settled rule of the Hindu law, as followed by the Mitakshara School, by which Sitaram and his brother were admittedly governed, that the partition of the joint estate consists in defining the shares of the coparceners in the joint property, and that it is not necessary that there should be an actual division of the property by metes and bounds.
5. The definition of shares may be proved, inter alia, by an entry in the record of rights showing the share of each member of the family. Such an entry will be evidence of the severance of the joint status.
- 31 -RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
6. In the light of this rule of Hindu law their Lordships have examined the evidence produced by the plaintiff. They observe that not only is there no document to prove that Sitaram was entered as owner of a moiety of the land leased to Ganesh Raut, but that there is nothing to show that he had any interest in the land in question at the time of his death. The property originally belonged to one Bhawani Dutt Missar, who, in January, 1900, sold it to Rijhawan, a son of Mahesh, and Baldeo, a son of Mahesh's brother. The transferees were members of Kesho's family, and his descendants alone subsequently dealt with the property."
4.17. By relying on the above decision he submits that the properties have been divided as per the partition deed, the same has been acted upon, the properties coming to the share of Fakeerappa has been bequeathed by him, the bequest is accepted by all, revenue entries have been made, which categorically establish a partition between the family members.
- 32 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 4.18. He also relies upon decision reported in HCR 2011 Kant. 801 in the case of RATHNAMMA VS. K.RAJAPPA, more particularly para No.11 thereof, which is reproduced hereunder for easy reference:
"It is by now well settled that it is open to the members of the co-parcenery to arrange amicably separate possession and enjoyment of the family properties without effecting partition or disruption of the joint family, but at the same time whether the co-owners in exclusive possession of different portions of joint family property held the same in the partition or under an agreement as to the possession, depend upon the intention of the parties which has to be gathered from the facts and circumstances of each case. Where direct evidence of intention is available there is no difficulty in determining the question. In cases where such direct evidence of intention is wanting, the fact that the members have been living separately and enjoying the properties, separately may be taken into consideration in arriving at the conclusions but that is not conclusive. A provisional arrangement which for some reason continued for a long time without objections does not take away its provisional character and make it permanent. There must be some other evidence indicating that the parties have not been living separately
- 33 -RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 under a permanent arrangement or partition. It is also by now well settled that to prove the factum of partition between the brothers, the entries in the record of rights maintained in the official course of business is a relevant piece of evidence. It is not necessary that the partition should be affected by registered partition deed. It could be even oral also."
4.19. Relying on the above judgement, he submits that it is upon for the members of a coparcener to arrange amicably separate possession and enjoyment of the family properties. In the present case, due to various reasons there has been partition in the year 1954 and there have been various reorganization in the year 1973- 74 which are in the interest of the family and as such the same has to be given due effect to. 4.20. He relies upon the decision reported in (2020) 9 SCC 1 in the case of VINEETA SHARMA VS.
RAKESH SHARMA AND OTHERS, more
- 34 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 particularly para No.129(v) thereof, which is reproduced hereunder for easy reference:
"129. Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given
- 35 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."
4.21. Relying on the above decision, he submits that even in relation to oral partition if public documents are in support of such partition, the same would have to be accepted to satisfy the explanation to Sub-section (5) of Section 6 of Hindu Succession Act, 1956. In the present case, it is a written partition which has been acted upon and mutation entries made in
- 36 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 furtherance of the same. Thus, this partition of the year 1954 would have to given due effect and weightage coming within the preview of the explanation to Sub-section (5) of Section 6 of Hindu Succession Act, 1956.
4.22. He relies upon the decision reported in (1976) 1 SCC 214 in the case of RATNAM CHETTIAR AND OTHERS VS. S.M.KUPPUSWAMI CHETTIAR AND OTHERS, more particularly para No.19 thereof, which is reproduced hereunder for easy reference:
"19. Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge:
(1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.
- 37 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.
(3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.
(4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times. If it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.
The facts of the present case, in our opinion, fall squarely within propositions Nos. (3) and (4) indicated above."
- 38 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 4.23. By relying on the above decision he submits that there is a presumption that the partition is valid, it is for the person alleging invalidity to prove the reasons for the same, in the present case except for vaguely stating that the partition is not in the interest of Plaintiff No.1 and that it was not acted upon there is nothing which is averred and proved, as such the partition of the year 1954 cannot be set aside and re-opened.
4.24. He submits that it was for the plaintiffs to establish the insanity of plaintiff No.1. An exparte order had been passed by the trial Court appointing plaintiff No.2 as the next friend and natural guardian of plaintiff No.1 without following the requirements of law under
- 39 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 the Code of Civil Procedure and or the Mental Health Act.
4.25. It is for this reason that defendant No.2 had filed I.A.No.7 for being appointed as the next friend and legal guardian of plaintiff No.1. However, the same came to be rejected. The trial Court ought to have appreciated that the interest of plaintiff Nos.2 and 3, more particularly plaintiff No.2 was adverse to that of plaintiff No.1 inasmuch as the allegations made in the plaint were against the actions of plaintiff No.1 himself.
4.26. By relying on Ex.D.19 being a letter addressed by plaintiff No.2 to plaintiff No.1, he submits that reading of the said letter indicates that as on 1966 when the said letter was written, plaintiff No.1 was in sound state of mind. If not,
- 40 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 plaintiff No.2 should not have written a letter to an insane person.
4.27. Plaintiff No.2 has categorically stated in the said letter that she is residing at Mudhol and she will come back only after achieving a purpose. Such a writing in the letter could only be understood by a person who is sane in his mind and not by an insane person. Thus, the claim of plaintiff No.2 that plaintiff No.1 was insane is false. 4.28. As regards the order of mesne profits, he submits that the mesne profits cannot be ordered in a partition suit when the plaintiffs claim to be in joint possession. It is only when the plaintiffs were to contend that the plaintiff has been excluded from the possession that mesne profits can be claimed and if that were to be the submission to be made by the Plaintiff
- 41 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 then court fee would be required to be paid in terms of Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1959 and not in terms of Section 35(1) thereof.
4.29. By relying on Section 67(1)(d) of the Land Reforms Act, 1974, he submits that there is finality which has been reached by way of the declarations made by Govindraddi and Tirakareddy (plaintiff No.1) being accepted by the Land Tribunal which cannot be opened now. Thus, there cannot be any partition sought for of the entire properties contrary to the partition of the year 1954 and the declaration which has been filed before the Land Tribunal. 4.30. In the above background he submits that the judgement of the trial court is the be set aside and the suit dismissed.
- 42 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
5. Sri.D.L.Ladkhan, learned counsel appearing for the appellant (defendant No.11) in RFA No.4023/2013 would submit that:
5.1. In the plaint there has been no relief which has been sought for against defendant No.11.
5.2. By referring to Ex.P.46 (newspaper publication), he submits that the land which has been donated/gifted by Plaintiff No.1 to defendant No.11 is not part of newspaper publication.
Thus, even the plaintiffs have given up their claim insofar as property which has been gifted to defendant No.11.
5.3. There is no evidence led or documents marked to establish how the gift deed is non-est. 5.4. He therefore submits that insofar as item No.3 of suit i.e. Sy.No.247/3 measuring 30 guntas,
- 43 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 the declaration made by the trial Court would not be applicable and this Court ought to allow RFA No.4023/2013 filed by defendant No.11 and set aside the decree passed in the aforesaid suit insofar as item No.3 is concerned. 5.5. The suit was filed after 20 years of a registered gift deed as such is barred by the law of limitation.
5.6. The plaintiffs are deemed to have constructive knowledge of the registered document. Be that as it may, the actual possession having been handed over to the corporation on the date of registration of the gift deed on 19.02.1981 and a school building having been constructed on the said property by collecting donations from the villagers and Government expending monies, the suit is hopelessly barred by
- 44 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 limitation insofar as R.S.No.247/2 is concerned. This fact has not been taken into consideration by the trial Court.
5.7. All the witnesses have admitted as regards the existence of the school building in the year 1981 and the school being run in the said plot at that time.
5.8. PW.1 in the cross-examination has admitted that since 1981 school is being run in the same building. PW.3 in his cross-examination has admitted that the school building is constructed in the year 1982-83 and in the said building Class I-VIII are taken. PW.4 has also admitted that there is a Government Kannada Higher Primary School in Shishuvinahalli which has a building compound along with playground. PW.5 has also admitted that there is a
- 45 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 Government Higher Primary Kannada School constructed in the year 1981-82. These admissions would categorically indicate that the land in Sy.No.247/2 was not available for partition.
5.9. The gift being complete on the donor - plaintiff No.1 parting with possession and the donee accepting the possession, registration being a notice in rem has not been considered by the trial Court.
5.10. There is no relief sought for cancellation of the gift deed and or even for a declaration that the gift deed is not binding on plaintiff Nos.2 and 3, as such the said gift deed and the rights accrued thereunder to Defendant No.11 cannot be disturbed.
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 5.11. Plaintiff No.1 being a party to the gift deed, it was required that suitable reliefs of cancellation was required to be sought for.
5.12. There is a contradiction in the averments made by the plaintiffs inasmuch as the plaintiffs contend that plaintiff No.1 became a person of unsound mind, incapable of understanding the nature of his acts in the year 1961, but plaintiff No.3 was born in the year 1963.
5.13. In terms of issue No.10, the burden was on the plaintiffs to prove that the gift deed executed is not valid since it was executed by plaintiff No.1 when he was of unsound mind.
5.14. There are no documents produced by the plaintiffs to establish that plaintiff No.1 was unsound mind on 19.02.1981. No medical
- 47 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 evidence has been produced, no doctor or psychiatrist was examined. Plaintiff No.1 did not submit for medical examination. 5.15. In the absence of such material documentary evidence, the trial Court could not have held issue No.10 is answered accordingly. There is no meaning which can be attributed to the word 'accordingly'. The trial Court ought to have either held issue No.1 to be proved or disproved.
5.16. In the absence of a prayer being sought for, the trial Court could not have held that the gift deed executed by plaintiff No.1 is not binding on plaintiff Nos.2 and 3.
6. Miss. Surabhi Kulkarni, learned counsel appearing for the appellants in 100069/2014 which has been filed
- 48 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 by defendant No.8 Padmavati, who subsequently expired and her legal representatives have been brought on record submits that:
6.1. The decree insofar as Sl.No.1 of the suit schedule is concerned is not maintainable. The said property was acquired by Seetawwa in terms of Ex.D.41 by selling her jewelry and obtaining help from her brother. The consideration having been received in such manner, the property is individual property of Seetawwa and Seetawwa has gifted the property to her daughter-defendant No.8 who in turn has sold it to defendant Nos.9 and 10.
6.2. By applying the principles of Section 14 of Hindu Succession Act, the property standing in the name of a Hindu female namely Seetawwa is deemed to be her own individual property
- 49 -RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 and the finding of the trial Court that the said property is a joint family property on the ground that no separate funds were available, is completely misconceived, there being no evidence produced by the Plaintiffs in this regard.
6.3. The suit itself was not maintainable, the joint family having come to an end by severance by way of partition in the year 1954, the trial Court could not have considered the family to be joint and passed the judgement. The trial Court has not considered the pleading and evidence, which led to miscarriage of justice. 6.4. The severance having occurred even prior to the marriage of the Plaintiff No.1 with Plaintiff No.2, their daughter Plaintiff No.3 cannot claim to be a part of the severed joint family.
- 50 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 6.5. The contents of the written statement filed by defendant No.8 has not been considered in the impugned judgement.
6.6. The property admittedly having been purchased in the name of Seetawwa, the plaintiffs have not proved that the said property was purchased from and out of nucleus of the joint family property. The registration of the sale deed in favour of Seetawwa is a notice in rem. The burden of proof was on the plaintiffs to prove the above, which has not been done. 6.7. It is in furtherance of the sale deed in favour of Seetawwa that mutation entries have been carried out which are also notice in rem. Thus, the trial Court ought to have considered both the sale deed and the mutation entries which have been carried out.
- 51 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 6.8. The finding of the trial Court that the original of the Will was not produced is not correct when a certified copy of the registered Will had been produced.
6.9. The initial burden of the plaintiffs not having been discharged, the burden did not shift to defendant No.8 to prove the Will. 6.10. The contention of the plaintiffs that when the Will was executed Seetawwa was unsound mind was required to be proven by the plaintiffs themselves.
6.11. She submits that without prejudice to the contention that the same is contradictory in nature inasmuch as if the objection is only as regards the Will, the ownership of Seetawwa is admitted, then the plaintiffs could not have laid
- 52 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 any claim over the property. The same being individual property of Seetawwa, the trial Court has not considered the matter in the right perspective and has misapplied itself in coming to the conclusion that it was joint family property.
7. Sri.S.S.Patil, learned counsel for the appellants in RFA 4160/2013 who are defendant Nos.9 and 10 before the trial Court, by reiterating the submissions made by Miss.Surabhi Kulkarni, submits that:
7.1. Defendant Nos.9 and 10 are bonafide purchasers for value of item No.1 of suit from defendant No.8 having paid valuable consideration and sale deeds having been registered in terms of Exs.D.68 and 69.
- 53 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 7.2. The trial Court has not taken into account the manner of acquisition of the property by Seetawwa resulting in injustice being caused to defendant Nos.9 and 10 and as such submits that the said judgement and decree is required to be set aside insofar as item No.1 of the suit schedule is concerned.
7.3. The trial Court having in para No.13 observed that it appears that the partition might have taken place in the year 1954 and that the same has been acted upon by making entries in the record of rights, could not have disbelieved Ex.D.1-the partition deed and not taken the same into consideration merely because it was unregistered and unstamped. The said Ex.D.1 is not compulsorily registerable in terms of Section 17 of Indian Registration Act.
- 54 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 7.4. The title of defendant No.8-Padmavati insofar as item No.1 of the suit schedule is concerned, is very clear. There is no cloud over her title. The property having been purchased in the name of Seetawwa, who had subsequently bequeathed the property to defendant No.8. The evidence led by Padmavati ought to have been considered in favour of defendant Nos.9 and 10. It was not required for defendant Nos.9 and 10 to examine Padmavati separately when she had contested the suit independently and had categorically stated that she has sold the property to defendant Nos.9 and 10. 7.5. The sale deeds having been executed upon defendant No.1 deriving title in the year 1997, there being no challenge made to the sale deed either by seeking for cancellation or declaration
- 55 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 that it is not binding on the plaintiffs, the reliefs as sought for could not haven granted.
8. Sri.N.P.Vivek Mehta, learned counsel for the cross-
objectors in RFA CROB.No.100003/2016 who are plaintiff Nos.2 and 3, plaintiff No.2 having expired during the pendency of the above appeal, submits that:
8.1. The judgement and decree passed by the trial Court is proper and correct. There being no infirmity in the same, the trial Court has rightly recognized the right of plaintiff Nos.2 and 3, plaintiff No.3 being the sole legal representative of plaintiff No.2 upon her death.
8.2. The 1954 partition is a sham, concocted one which had been executed for the purpose of overcoming the lands ceiling requirements in
- 56 -RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 terms of the Bombay Tenancy and Agricultural Lands Act, 1948, which is applicable to Navalgund in the year 1954 being under the impression that if proceedings in terms of 1948 Act were initiated much of the land would be taken over by the State.
8.3. The partition of the year 1954 was executed so as to distribute the properties between Fakkiraddi the grandfather, Yallaraddi the son, Tirakaraddy, Govindraddi, the grandsons. It was never intended to be acted upon and was not acted upon. The family members continued to reside together as a joint family. 8.4. By relying on the commentary Mulla Hindu Law, 18th Edition, at Section 322 at Page 513, he submits that the grandfather could not partition the joint family property with grandchildren and
- 57 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 as such in the present matter Fakkiraddi having partitioned the property with grandchildren more so when Govindraddi was a minor is nonest and as such is not binding on the parties.
8.5. DW.1 has categorically admitted in his cross-
examination that Fakkiraddi was looking after the family affairs and he was the manager of the family thereby establishing that it was a joint family.
8.6. He refers to Ex.P.4 being the newspaper publication dated 21.08.2001, wherein a notice was issued as regards the insanity of plaintiff No.1, which was not objected to by the defendants. As such, he submits that no other arguments to the contrary could be raised by the defendants herein.
- 58 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 8.7. By referring to various documents produced by the plaintiffs namely, the mutation entries from Exs.P.30 to P.63, as also the resolutions passed by Shishuvinahalli Gram Panchayat from Exs.P.64 to P.67, he submits that various mutation entries which have been carried out post 1961 when plaintiff No.1 became insane. All these entries have been carried out for the benefit of the defendants to the detriment of plaintiff No.1. These entries are not binding and as such the entire properties not being partitioned are available for partition as held by the trial Court.
8.8. By referring to Exs.P.5 to P.23 being record of rights, he submits that the lands covered therein are joint family properties. By referring to Exs.P.24 to P.29, he submits that these are
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 the house properties which are also part of the joint family properties.
8.9. The trial Court fell in error in coming to the conclusion that succession opened upon the death of Fakkiraddi on 16.08.1963. In fact, the succession opened on the death of Yallaraddi on 03.10.1964. Hence, equal share could not have been allotted to Padmavati daughter of Yallaraddi she having been born prior to 1956. 8.10. In the above background, he submits that the plaintiffs have proved their case and established that they are members of joint family, entitled for partition which has been taken into consideration by the trial Court in a proper and required manner and this Court ought not to interfere in the reasoned judgement of the trial Court.
- 60 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
9. It is in the background of the above submissions that we are called upon to reappreciate the pleadings and evidence on record to ascertain if the judgement of the trial Court is proper or not.
10. The suit in O.S.No.197/2001 was filed by the plaintiffs claiming that 10.1. the propositus of the family was one Fakkiraddi who expired on 16.08.1963. His son Yallaraddi expired on 03.10.1964. Yallaraddi's wife Seetawwa expired on 16.08.1963 leaving behind plaintiff No.1, Govindraddi who subsequently expired on 28.04.2000 and Padmavati-defendant No.8 and their children as their legal heirs.
10.2. Plaintiff No.2 is the wife of plaintiff No.1, plaintiff No.3 is daughter of plaintiff Nos.1 and
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
2. Govindraddi expired on 28.04.2000 leaving his wife Yamanavva-defendant No.1 and his children Ravi-defendant No.2, Shantavva who subsequently expired on 19.04.2001, Sarwamangala-defendant No.5, Shashikala- defendant No.6, Srinivas-defendant No.7, Shantavva's children Ritika and Shilpa who were arrayed as defendant Nos.3 and 4. 10.3. The suit properties consisting of 19 immoveable properties, three house properties, three open sites and about 10 moveable properties are the ancestral properties of the plaintiffs and defendant Nos.1 to 8. During the lifetime of Fakkiraddi, he was managing the suit properties as manager of the joint family consisting of his son Yallaraddi and grandsons and granddaughter namely plaintiff No.1,
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 Govindraddi and defendant No.8. Plaintiff No.1 was studying I year MBBS in Hubballi, but discontinued his studies and married plaintiff No.2 in the year 1960. Plaintiff No.2 started residing in the joint family. Plaintiff No.3 was born on 16.04.1963. However, it is alleged that in the year 1961 plaintiff No.1 became a person of unsound mind, incapable of understanding his actions.
10.4. In the meanwhile, Fakkiraddi expired on 16.08.1963 and Yallaraddi expired on 03.10.1964. It is contended that Govindraddi married defendant No.1 in the year 1968 and had two sons defendant Nos.2 and 7, three daughters namely defendant Nos.5, 6 and mother of defendant Nos.3 and 4 and that the plaintiffs, defendant Nos.1 to 8 lived and
- 63 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 messed together under a common roof as members of Hindu Undivided Family. 10.5. Defendant No.1 took the daughter of defendant No.8 in marriage to her son defendant No.2 in the year 1997 and the deceased Shantavva who was given in marriage to the brother of defendant No.1 namely Timmaraddi. It is on that basis that it was alleged that defendant Nos.1 to 8 had become very close to one other and plaintiff No.2 being outsider being isolated and in that background Govindraddi and defendant Nos.1 to 8 taking undue advantage of insanity of plaintiff No.1, conspired and gulped the entire share of the plaintiffs and thereafter started harassing and ill-treating the plaintiffs. Plaintiff No.2 was not allowed to partake in the joint family affairs, she was kept
- 64 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 in dark about all aspects of the matter except cooking and doing household work. Govindraddi and defendant Nos.1 to 8 as also mother of defendant Nos.3 and 4 dominated over the plaintiffs but somehow plaintiff No.2 continued in the family along with her insane husband and minor daughter.
10.6. At this stage, taking note of the difficulties being faced by the plaintiffs, the brother of plaintiff No.2 married plaintiff No.3 in the year 1995. Thereafter, plaintiff No.3 went to stay with her husband. Plaintiff No.2 continued to reside in the joint family until the death of Govindraddi in the year 2000. After his death, the harassment by defendant Nos.1 to 8 increased and as such she started living with her daughter in Mudhol.
- 65 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 10.7. It is alleged that plaintiff Nos.1 to 3 have a right and interest in the suit schedule properties. Plaintiff No.1 was incapable of protecting his interest as also the interest of plaintiff Nos.2 and 3. Defendant Nos.1 to 8 have dealt with suit properties contrary to the interest of plaintiffs. Left with no alternative, plaintiff No.2 demanded partition on behalf of plaintiff No.1 which was refused by defendant Nos.1 to 8. 10.8. Plaintiff no.2 claiming that she being the wife was the one who was entitled to safeguard the interest of plaintiff No.1 and that is no interest adverse to the interest of her husband. Apart there from, it was contended that there are no other proper and suitable person to take care of plaintiff No.1. Hence, the aforesaid suit was
- 66 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 filed by her acting as next friend of plaintiff No.1.
10.9. She had approached the revenue and village panchayat authorities to secure necessary documents. When she came to know of various illegal and various unwanted transactions effected behind the back of the plaintiffs in respect of joint family properties, it is only then that she came to know of a partition said to have been effected in the year 1954, but however she contended that the entire family lived together as a members of Hindu Undivided Family without severance. The partition of the year 1954 was not intended to be acted upon and was not acted upon. 10.10. Apart there from, it was contended that Sl.No.1 of Item No.1 immoveable property was
- 67 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 purchased by Seetawwa W/o Yallaraddi in the year 1962 from and out of joint family funds. Therefore, any transaction entered into in relation thereto was invalid and the property is a joint family property. Similarly, allegations were made with regard to several other properties where transactions had been effected stating that the said transactions were invalid and only to defeat the legitimate rights of the plaintiffs over the suit properties, plaintiff No.1 being of unsound mind, defendant Nos.1 to 8 and deceased Govindraddi used plaintiff No.1 as a puppet to carry out the above transactions, which are illegal and contrary to law. The plaintiffs are not parties to the said changes and in some cases defendant Nos.1 to 8 have forged the signature of plaintiff Nos.1 to
- 68 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 3 and got their names entered in the concerned revenue records. The entries made in the revenue records are not based on valid legally enforceable documents and in that background it is claimed that the plaintiffs have filed suit for partition and separate possession. 10.11. The cause of action attributed was in the month of May-2000 when defendant Nos.1 to 8 had refused to effect partition on 19.01.2001 and when plaintiff No.2 came to know that defendant Nos.1 to 8 got created illegal entries in both revenue and VPC records in order to defeat the legitimate rights of the plaintiffs and it is in that background that the plaintiffs claimed to have 4/9th share in all the suit properties and sought for partition by metes and bounds and separate possession of their
- 69 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 share as also future mesne profits in respect of 4/9th share in the suit profits.
11. Defendant Nos.1, 2 and 7 filed a common written statement contending that 11.1. The suit is not maintainable and is liable to be dismissed. It is contended that at Sl.No.1 of the plaint schedule property block No.164 (R.S.No.102) measuring 12 acres 7 guntas of Shishuvinahalli village is not a property concerned to the family of the plaintiffs and defendants.
11.2. The description of the moveable properties at Sl.Nos.26, 28, 30, 31, 32, 33, 35 are not at all concerned to plaintiff Nos.1 to 3. There was no tractor belonging to the family. 500 tolas of gold was not there. The revolver and banduk
- 70 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 were exclusive property of defendant Nos.2 and
7. 11.3. Though the contentions of the plaintiffs were denied, it was admitted that the plaintiff Nos.2 and 3 are wife and daughter of plaintiff No.1. 11.4. It is denied that the suit properties are ancestral properties and or that they were managed by Fakkiraddi as manager who continued to live. As such, during the life time without there being any severance. It is contended that Fakkiraddi was the manager of the joint family of the plaintiffs, father of defendants and late Yallaraddi till the year 1954. when the partition effected among the members of the joint family. It was denied that the plaintiff No.1 was a person of unsound mind, but however stated that he suffered from
- 71 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 mental illness which used to attack in intermittently. He was mostly of sound mind and only on some days he would suffer an attack of mental disease.
11.5. It was further denied that the plaintiffs and defendant Nos.1 to 8 lived and messed together under one common roof, which continued till the date of filing of the suit. It is contended that the joint family of the plaintiffs and defendants was severed in the year 1954 even much prior to the date of marriage of plaintiff No.2 with plaintiff No.1. Plaintiff Nos.2 and 3 have never lived in Shishuvinahalli since 1964 from which year plaintiff No.2 along with her daughter went back to her parents house by deserting plaintiff No.1 and that plaintiff
- 72 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 No.2 did not look after plaintiff No.1 even during his illness.
11.6. It was denied that marriage of defendant No.2 took place in the year 1997 but it was clarified that the marriage of defendant No.2 took place in the year 1996 and not in 1997.
11.7. It was denied that plaintiff No.1 was minor in the year 1954 when the partition has said to have been taken place and that there was no severance of joint family. It is stated that plaintiff No.1 was born on 28.09.1936 and as such was a major as on the date of which the partition deed was executed. Plaintiff No.2 not having been married to plaintiff No.1 as on that date, she not having any personal knowledge of the facts, could not make any allegations insofar as the said partition deed is concerned.
- 73 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 11.8. Fakkiraddi being the propositus has effected partition in that family. Plaintiff No.1 has enjoyed the properties falling to his shares and filed a declaration under Form No.11 before the Land Tribunal, Navalgund on coming into force the amended Land Reforms Act during 1974. 11.9. It was denied that plaintiff No.1 was an insane person. Plaintiff No.1 started suffering from mental infirmity during the year 1963 and was taking regular treatment from which he has recovered and the mental illness used to attack him intermittently. During the times of such attacks, he used to behave like an insane person but during other times he used to be in normal and sound state of mind.
11.10. Plaintiff Nos.2 and 3 had deserted plaintiff No.1 during the year 1964-65 and started residing in
- 74 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 a village named as Soragaon of Mudhol taluk which is at a distance of 180 k.m. from Shishuvinahalli. Plaintiff No.1 continued to reside in Shishuvinahalli. Thereafter, there was no contact between plaintiff Nos.2 and 3 and other members of the family.
11.11. It is Seetawwa, the mother of plaintiff No.1 and Govindraddi, the younger brother of plaintiff No.1 who was taking care of him and looking after him till their death. Subsequent thereto, defendant No.2 was taking care of plaintiff No.1. It was alleged that plaintiff No.2 had absolutely no right to call herself as next friend of plaintiff No.1 and on this ground it was claimed that the suit is liable to be dismissed. 11.12. It is contended that subsequent to the partition of the year 1954, the respective parties have
- 75 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 acted on the partition and enjoyed their share and as such there was a severance in the family status. On the coming into force of amended Land Reforms Act, 1974, all the parties had filed their respective declarations before the Land Tribunal, Navalgund. Thereafter due enquiries were made on the declarations. Plaintiff No.1 had also filed his declaration, participated in the hearings before the Tribunal. The Land Tribunal which ultimately concluded that there was land of 2½ acres in excess held by Plaintiff No.1, which was surrendered by him to the Government. This declaration was filed on the basis of the partition effected in the year 1954 and as such it was contended that the parties having acted on the partition deed on
- 76 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 the partition of 1954, the suit was not maintainable.
11.13. As regards court fee it was contended that the court fee was to be paid in terms of Section 35(2) of Karnataka Court Fees and Suits Valuation Act, 1956 and the same not having been done, the suit ought to be dismissed.
12. Defendant No.8 Padmavva @ Padmavati filed a separate written statement denying the allegations made in the plaint and contended that 12.1. Sl.No.1 of the plaint schedule is not the property of the family. Sl.No.26, 28, 30, 31, 32, 33, 35 are also not properties concerned with plaintiff Nos.1 to 3. Plaintiff No.1 used to suffer from mental illness which used to attack intermittently and he was of sound mind at all
- 77 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 times except some days when there was mental attack.
12.2. From the year 1964-65 plaintiff No.2 along with her daughter Plaintiff no.3 went back to her parents house by deserting plaintiff No.1 and neither came back to reside in the matrimonial home or take care of plaintiff No.1. She has reiterated the submissions made by defendant Nos.1, 2 and 7 in their written statement. 12.3. She has detailed out the transaction relating to Sl.No.1 of suit schedule lands covered under Block No.164 which she submits was purchased by her mother Seetawwa. She denies that Seetawwa had no source of independent income and or that joint family funds were used for such purchase and she was holding property on behalf of joint family. She has submitted
- 78 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 that property was acquired by Seetawwa and bequeathed to defendant No.8 and the documents relating thereto are proper and correct documents. She denies that Seetawwa was not in sound state of mind to bequeath the property by executing a Will. She has also denied that the Will of Seetawwa is forged and or not attested by witnesses.
12.4. Defendant No.8 has claimed that she is the owner of Sl.No.1 of plaint schedule property. She has further stated that she has sold the said property to defendant Nos.9 and 10 for valuable consideration under a registered sale deed.
12.5. She has contended that plaintiff No.1 has gifted/donated certain properties to defendant No.11 for establishment of a school in the
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 interest of the villagers. When he did so, he was in sound state of mind and the said donation cannot be faulted with. 12.6. Insofar as the mutation entry bearing No.1832 she has stated that the said entry has been created by plaintiff Nos.2 and 3 since no varadi had been given by Govindraddi in respect of the land covered under block No.201 stating that there was a partition between plaintiff No.1 Govindraddi and plaintiff No.3. She has also spoken of the desertion by plaintiff Nos.2 and 3, declarations filed before the Land Tribunal and reiterates the statement made by defendant Nos.1, 2 and 7.
13. Defendant Nos.9 and 10 filed their written statement stating that
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 13.1. they are bonafide purchasers of the land in R.S.No.164 (Sl.No.1) from defendant No.8 having made payment of consideration and reiterated the statements made by defendant No.8 in her written statement insofar as the said property is concerned.
14. Defendant No.11 filed its separate written statement stating that 14.1. Plaintiff No.1 had executed Daanapatra/gift in respect of the property bearing R.S.No.247/2 in the year 1995 when plaintiff No.1 was in a sound state of mind. The allegations that he was insane person and that donation made was abinitio void was denied.
14.2. Defendant No.11 stated that plaintiff No.1 was healthy during the year 1980-81. He had great
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 love for education and was concerned about education facility towards poor and other children of the village. The Government school was being run in a dilapidated temple in the village. Hence, plaintiff No.1 donated 30 guntas of land for the purpose of constructing a primary school.
14.3. After taking possession, defendant No.11 has constructed a primary school with the aid and help of the villagers and many children are studying in the said school which has been run from last more than 20 years.
15. It is in the background of the above pleadings, the trial Court formulated the following issues:
1. Whether the plaintiff proves that suit properties are joint family properties and ancestral properties of plaintiffs and defendants?
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
2. Whether the plaintiff proves that plaintiff No.1 is unsound mind?
3. Whether the defendant proves that there is already a partition in the family in the year 1954?
4. Whether plaintiffs prove that transactions regarding Block No.164 and illegal and not binding on them and Block No.164 is an ancestral property?
5. Whether the plaintiff proves that the Will executed by Smt.Seethavva is a forged and created document and all the properties which were in the name of Seetavva are joint family properties?
6. Whether the defendant proves that plaintiff No.2 has no right to call herself as next friend?
7. Whether the court fee paid is insufficient?
8. Whether the defendants 9 and 10 are the bonafide purchasers of the properties as stated in their W.S.?
9. Whether plaintiff proves that gift deed executed by plaintiff No.1 is not valid since it was executed by him when he was in unsound mind?
10. What relief parties are entitled to?
11. What order?
16. After hearing the parties, the trial Court passed the impugned judgement and decree which is under challenge in these proceedings.
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
17. During the pendency of the above appeal I.A.No.1/2014 has been filed by appellants who are defendant Nos.1, 2 and 7 in RFA No.4034/2013 seeking for production of certified copy of order passed in Writ Petition No.18657/1982 as an additional document.
17.1. Sri.Mallikarjunswamy B Hiremath learned counsel for the applicants submits that the said writ petition was filed by Govindraddi, plaintiff No.1, Seetawwa and defendant No.8-Padmavva being aggrieved by the order of the Land Tribunal in the enquiry conducted under Section 67(1)(b) of Karnataka Land Reforms Act. 17.2. The Tribunal having coming to the conclusion that there was an excess of 44 acres had directed surrender thereof, which was challenged.
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 17.3. This Court in the aforesaid writ petition allowed the said writ petition, quashed the impugned order and remitted the matter for fresh consideration after holding a fresh enquiry taking into account the respective shares of each of the petitioners with reference to the partition said to have taken place under the partition deed of the year 1954 which had not been taken into consideration by the Tribunal. 17.4. He submits that the said order being passed by this Court and a certified copy having been produced, is a material evidence which can be considered by this Court. He further submits that plaintiff No.1 being petitioner No.2 in the said writ petition having derived the benefit of the order, it is not for plaintiff No.2 to contend
- 85 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 on behalf of plaintiff No.1 that there was no partition in the year 1954.
17.5. It is taking into consideration all the transactions including the partition, Will, mutation entries, etc., that subsequently the Land Tribunal came to a conclusion that there was only an excess of 2 acres and had directed surrender of the same. If not for the partition, there would have been much larger extent of land which would have stood vested with the State in view of the excess land holding and infact there was an order for surrender of 44 acres, which had been challenged. 17.6. He therefore submits that the partition having been acted upon and relied upon by plaintiff No.1 as petitioner No.2 in Writ Petition No.18657/1982, it is now not open to contend
- 86 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 that there is no partition and the finding of the trial Court in this regard is required to be set aside.
18. Another application in I.A.No.1/2018 has been filed by defendant Nos.1, 2 and 7 to produce the following 14 documents:
Sl.No. Particulars 1 Statement given before Special Tahashildar dated 26.10.1981 2 Order of the Land Tribunal dated 18.02.1982 3 Form No.A issued under Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 4 Form No.A issued under Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 5 Form No.A issued under Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 6 Form No.A issued under Bombay Prevention of Fragmentation and
- 87 -RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 Consolidation of Holdings Act, 1947 7 Registered partition deed dated 11.04.1977 8 Memorandum of Revision Petition in RTS.RA.CR-11/2011-12 9 Statement of objections in RTS.RA.CR-
11/2011-12 10 Written arguments of respondent 1 and 2 in RTS.RA.CR-11/2011-12 11 Order passed in RTS.RA.CR-11/2011-12 12 Written statement in O.S.No.84/2009 13 Deposition of DW.1 in O.S.No.84/2009 18.1. Sri.Mallikarjunswamy Hiremath learned counsel for the Applicants submits that the above documents are statements made before the Land Tribunal, the order of the Land Tribunal, notices issued to respective sharers under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 Act, 1947, which were recently traced having been kept in the cupboard of Govindraddi who had since expired.
18.2. The documents being public records and or pleadings filed before the revenue authorities as also a civil suit wherein the partition effected in the year 1954 has been admitted. He submits that these documents could not be produced as they were not traceable despite due diligence and these documents being necessary for adjudicating the real controversy between the parties they may be permitted to be produced.
19. Plaintiff Nos.2 and 3 have filed their objections to I.A.No.1/2014 contending that the said application has been filed only to delay the proceedings. Defendant Nos.1, 2 and 7 had enough and more
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 opportunities to produce them during the trial. The said documents are nowhere helpful to come to aid of the parties to resolve the dispute between the parties. The said documents have no bearing on the appeal.
20. Objections have been filed to I.A.No.1/2018 also making similar objections and that the application has been filed only to delay the proceedings.
21. In view of the above, the points that would arise for our consideration are:
i. Whether the plaintiffs have proved that plaintiff No.1 is a person of unsound mind and consequently whether plaintiff No.2 could have been appointed as his next friend?
ii. Whether the suit schedule properties including Item No.1 of the suit schedule properties are joint family properties or not?
iii. Whether in a suit for partition an order for mesne profits can be made?
iv. What order?
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
22. We answer the above points as under:
Answer to point No.1:
23. In the background of the above pleadings, the first issue that is required to be resolved is whether plaintiff No.1 was indeed a person of unsound mind and plaintiff No.2 can be said to be validly appointed next friend of plaintiff No.1.
24. The undisputed facts are that in the year 1960 plaintiff No.1 and plaintiff No.2 had married each other. The contention of plaintiffs is that plaintiff No.1 became unsound in the year 1961. It is undisputed that plaintiff No.3 was born on 16.04.1963. The grandfather Fakkiraddi expired on 16.08.1963. The father Yallaraddi expired on 03.10.1964. Brother Govindraddi expired on
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 28.04.2000 and the suit was presented on 29.08.2001.
25. In the plaint the address of Tirakaraddy was shown as that residing at Shishuvinahalli, Taluk Navalgund, District Dharwad. The address of plaintiff No.2 was also shown to be Shishuvinahalli, Taluk Navalgund, District Dharwad, but now at Maruti Complex, II Block, Near PLD Bank, Mudhol District Bagalkot. Plaintiff No.3 address was shown to be Maruti Complex, II Block, Near PLD Bank, Mudhol District Bagalkot.
26. Thus, from the cause title it is clear that Tirakaraddy-
Plaintiff no.1 was resident of Shishuvinahalli whereas his wife Kasturibai-plaintiff No.2 was residing at Mudhol along with her daughter plaintiff No.3. To put it in another words, plaintiff Nos.1, 2 and 3 were not
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 residing together at the time of filing of the suit or thereafter.
27. The contention of plaintiff No.2 representing plaintiff No.1 as his next friend is that plaintiff No.1 was of unsound mind. In order to support the same, there is no particular documentary evidence which has been produced by the plaintiffs. Though the plaintiffs have produced 69 documents, it is only Exs.P.1 to P.3 which could be said to be related to the unsoundness of mind of plaintiff No.1.
28. Exs.P.1 to P.3 are notices which have been issued on behalf of plaintiff No.2 through her advocate. Ex.P.1 is issued on 29.06.2001 to the Mental and Psychastry Section, Old Record Room, NIMHANS, Bengaluru, wherein it is stated that plaintiff No.1 had been hospitalized in the year 1961-62 with NIMHANS and as such the documents of admission and discharge
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 are required to be produced before the Court. Plaintiff No.1 having been hospitalized on 29.08.1961 and 16.10.1961 and again hospitalized on 06.02.1962 and discharged on 25.02.1962 and called upon NIMHANS to furnish those documents.
29. In Ex.P.2, the very same advocate on 29.06.2001 has written to Mental Hospital, Belagavi Road, Dharwad stating that plaintiff No.1 had been referred to the hospital as an outdoor patient from 1964 onwards and called upon the said hospital to furnish documents.
30. In Ex.P.3 which has again been issued on 29.06.2001 to IIMA hospital, Hubballi calling upon the said hospital to provide outdoor patient details of plaintiff No.1 from 1965 onwards.
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
31. Apart from those three documents, there are no other documents which are produced by the plaintiff Nos.2 and 3 to establish that plaintiff No.1 is of unsound mind or is insane.
32. It is trite law that whenever a person alleges something and or bases his/her case or claim on a particular fact, it is for that person to establish the same. In fact, the burden of proving issue No.2 was cast on plaintiffs, which reads "Whether the plaintiff proves that plaintiff No.1 is unsound mind". The very basis of the claim of plaintiff No.2 is that plaintiff No.1 was of unsound mind and it is misusing the said unsound mind that the defendants have carried out various actions to the detriment of plaintiff No.1 and his family members. Unless, plaintiff No.2 were to establish by cogent evidence that plaintiff No.1 was
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 of unsound mind, the burden would not shift to the defendants.
33. The suit was filed on 29.08.2001, when it was registered and made over to III Additional Civil Judge (Sr.Dn.), Dharwad for disposal, I.A.No.1 was filed under Order 32 Rule 3 of CPC. The matter was adjourned to hear about insanity on 05.09.2001. When I.A.No.5 came to be filed under Order 32 Rule 15 of CPC on 19.09.2001 four documents were produced along with a list and one witness was examined as PW.1 on I.A.No.5. Exs.P.1 to P.4 were marked. The aforesaid Exs.P.1 to P.3 were marked on 19.09.2001 while considering I.A.No.5.
34. In the affidavit in support of the I.A. sworn to by plaintiff No.2, plaintiff No.2 has alleged that it is plaintiff No.2 who got plaintiff No.1 admitted in the hospital on 29.08.1961 and he came to be
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 discharged on 16.10.1961, Plaintiff No.1 was again admitted on 06.02.1962 and discharged on 25.06.1962 when they secured a house in Laxasandra Bengaluru and stayed there for about 10 months.
35. After returning from Bengaluru Plaintiff No.1 was treated form 1964-65 at Mental Hospital, Dharwad and at KMC, Hubballi in 1965-66 in 1974-75 she took her husband to her native place stayed there with him for a period of six months and during that period he was treated for his mental ill-health from herbal country vaidya in a village called Gavanal near Sankeshwar village and later took treatment in Chittargi of Hunagund taluk and for the said treatment, she and her mother-in-law stayed for about 8 months in a rented house. She had taken her husband to Guntakal in Andharapradesh for his
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 mental ill-health treatment in the year 1964. She had further stated that her husband at present is at Shishuvinahalli in the custody of defendant Nos.1 and 2 and is a lifeless object suffering from mental infirmity for the last 42 years. In that background, she contended that defendants had kept her husband away from her with an object of grabbing the property and taking undue advantage of the mental infirmity and mental illness of plaintiff No.1.
36. She had before filing the suit, got published a public notice on 28.01.2001 informing the public at large that her husband is suffering from mental infirmity and defendants are effecting illegal transfers. She has stated that she has married with plaintiff No.1 and from last 42 years she is surviving as his wife without enjoying his conjugal company on account of mental infirmity of her husband. In that background
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 she has stated that she has demanded partition on behalf of her husband, herself and daughter to protect her interest when defendants refused to effect partition. She has further stated that she has no interest adverse to the interest of her husband. The affidavit was sworn to on 03.09.2001.
37. It is taking into consideration the said application and affidavit that the trial Court in its exparte order dated 01.10.2001 on I.A.No.5 accepting the submission made and taking into consideration Exs.P.1 to P.3 and the paper publication, being of the opinion that at that stage there was prima facie proof and incapability of plaintiff is sufficient but not conclusive, came to the conclusion that plaintiff No.1 (wrongly shown as defendant No.1) by reason of some mental infirmity was incapable of protecting his interest,
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 permitted plaintiff No.2 to sue on behalf of plaintiff No.1 as his next friend.
38. As noticed it is only Exs.P.1 to P.3 detailed hereinabove which were considered while passing orders on I.A.No.5. Apart from the notices issued by advocate of plaintiff No.2 on 29.06.2001, there were no other documents which were produced by the plaintiffs.
39. Much subsequently, I.A.No.7 came to be filed by defendant No.2 under Order 32 Rule 15 seeking to appoint defendant No.2 as a next friend of plaintiff No.1 by setting aside the order passed on I.A.No.5. The said affidavit is sworn to by defendant No.2 who has stated that plaintiff No.1 is his elder uncle who is residing at Shishuvinahalli and is of unsound mind intermittently. It is stated that mental disease attacks plaintiff No.1 intermittently requiring
- 100 -
RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 medication and physical care day to day. Plaintiff Nos.2 and 3 are not residing with plaintiff No.1- husband since 1965, they had never cared for him and as such it is contended that plaintiff No.2 cannot act as next friend of plaintiff No.1. It is contended that statements made by plaintiff No.2 that she had taken her husband to NIMHANS to Mental Hospital, Dharwad and KMC, Hubballi were false. It is further contended that plaintiff No.2 did not take plaintiff No.1 in the year 1974 to Herbal Country Vaidya or to Chittaragi Guntakal, etc. It is further categorically averred that plaintiff No.2 has only an interest in the properties of plaintiff No.1 which is adverse to the interest of plaintiff No.1. Plaintiff No.2 and 3 having deserted plaintiff No.1 in the year 1965 and residing in a village named Sorgoan in Mudhol Taluk and it is only defendant No.2 and his father who were taking
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 care of plaintiff No.1 and on that basis it was claimed that defendant No.2 was to be appointed as the next friend of plaintiff No.1.
40. Objections were filed to the said I.A. No.7 by plaintiff No.2 acting on behalf of plaintiff No.1 that there was an enquiry which was held on I.A.No.5 and thereafter an order was passed and as such I.A.No.7 could not have been filed two years thereafter. All the allegations made in the application were denied, it was alleged that the defendants were transacting on the property of plaintiff No.1 contrary to his interest.
41. The trial Court vide its order dated 12.07.2004 dismissed I.A.No.7 holding that plaintiff No.2 being legally wedded wife of plaintiff No.1 she is the proper and competent person to act as next friend of plaintiff No.1 who is her husband and there were no
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 compelling reasons to appoint defendant No.2 as the next friend of plaintiff No.1.
42. From the above, it is clear that plaintiff No.2 is the wife of plaintiff No.1 having been married in the year 1960 and within a short time in 1961 plaintiff No.1 started exhibiting mental infirmity. Though it is contended that plaintiff No.1 was treated at various hospitals, no documents to that effect have been produced. The notices which have been issued by the advocate of plaintiff No.2 to the hospitals do not by itself indicate that plaintiff No.1 is of unsound mind. On the one hand, plaintiff No.2 contends that she was taking care of plaintiff No.1 even as on 1974-75. In the affidavit sworn to on 02.09.2001 she has stated that for the last 42 years she has survived as wife of plaintiff No.1 without enjoying his conjugal company. It is not in dispute that plaintiff No.3 was
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 born in the year 1963. As contended by the counsel for the Appellants, Plaintiff no.1 has made fanciful allegations, if the period of 42 years is taken into consideration from 2001 it would go to 1959 when plaintiff No.1 and plaintiff No.2 were not even married. The number of years is not approximate as to say for last 40 years or 30 years but there is specific number of years being 42 years and the said statement has been made on oath, be that as it may, if Plaintiff No.2 was denied conjugal company of Plaintiff No.1 42 years ago then the question of the Plaintiff No.2 taking the Plaintiff No.1 for treatment in the year 1974 would not arise.
43. Though it is contended that plaintiff No.2 was taking care of plaintiff No.1 and had taken plaintiff No.1 to Mental Hospital, Dharwad in 1964-65 for treatment and KMC Hospital, Hubballi in the year 1965-66. A
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 perusal of Ex.D.19 which is a letter addressed by plaintiff No.2 to plaintiff No.1 which bears the postal seal of Mudhol Post Office having the date 05.09.1966 indicates that as on that date plaintiff No.2 was residing in Mudhol and she had written a letter to her husband plaintiff No.1 that she has gone there with a particular intention and purpose and it is after achieving the said purpose that she will return back to Shishuvinahalli where her husband was residing. The manner in which the said letter has been written, we are of the considered opinion that such a letter with such wordings could not have been written to a person of unsound mind. When the claim of plaintiff No.2 is that from 1961-66 she had taken plaintiff No.1 to various hospitals for treatment on account of unsoundness of mind as regards which no documents have been produced. If the said
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 averments and allegations are eschewed on account of lack of evidence, the only document which remains is Ex.D.19 which was sent on 05.09.1966 which does not indicate that as on that date plaintiff No.1 was of unsound mind. The further fact is that plaintiff No.3 was born in the year 1963 during which time plaintiff No.1 is said to be unsound and who did not know the implication of what he is doing.
44. We are constrained to make these unfortunate observations given the submissions made and pleadings on record.
45. In the above background, when no particular document has been produced and Ex.D.19 has been admitted to have been sent by plaintiff No.2 to plaintiff No.1 and plaintiff No.1 having continued to reside with his brother Govindraddi at Shishuvinahalli, plaintiff No.1 having no access to
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 plaintiff No.2 as claimed by plaintiff No.2 herself and having claimed that it is at the instance of defendants that various varadis were given and mutation entries were carried out, we are of the considered opinion that as on the date of filing of the suit, plaintiff No.2 has been unable to establish that plaintiff No.1 was of unsound mind.
46. The trial Court having framed the issue on this, ought to have appreciated that the finding on I.A.No.5 was tentative and prima facie and as such ought to have tendered a complete and final finding on the same.
47. Order 32 Rule 15 of CPC reads as under:
"15. Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind:
Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though
- 107 -RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 not so adjudged, are found by the court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued."
48. The above provision makes Rule 1 to 14 of Order 32 of CPC applicable to a person of unsound mind. In terms of Sub-rule 4 of Rule 3 of Order 32, it is stated that when there is no father, mother or natural guardian, notice has to be issued to a person in whose care the minor (in this case in whose care the unsound person) is. Objection to any application filed for appointment of a guardian would have to be considered and only thereafter an appointment has to be made.
49. Rule 3 of Order 32 of CPC is reproduced hereunder for easy reference:
"Guardian for the suit to be appointed by Court for minor defendant
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 (1) Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
(4) Order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or where there is no father or mother, to other natural guardian, of the minor, or, where there is no father, mother or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.
(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.
(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by
- 109 -RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.
3A. Decree against minor not to be set aside unless prejudice has been caused to his interests (1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.
(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor."
50. In the present case, there being no dispute as regards plaintiff No.1 being in the care of defendants, it was but required for the Court to have issued such a notice to the defendants before considering the
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 application under Order 32 Rule 15 of CPC. In terms of Rule 4A, the Court could have also if it would thought it fit, issued notice to minor including a person of unsound mind. Rule 4 of Order 32 reads as under:
"4. Who may act as next friend or be appointed guardian for the suit (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:
Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.
(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be.
(3) No person shall without his consent in writing be appointed guardian for the suit.
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 (4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested or out of the property of the minor, and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require."
51. In terms of Sub-rule (1) of Rule 4, any person who is of sound mind and had attained age of majority may act as next friend or as guardian for the suit. The stipulation under the proviso to Sub-rule (1) of Rule 4 would mandate therefore that a minor or a person of unsound mind cannot be represented by a person whose interest is adverse to that of the person of unsound mind and that he/she is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff in the suit. In the
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 present case, Plaintiff No.2 has been permitted to act as next friend of Plaintiff no.1, what was to be seen by the trial court was that the documents executed by Plaintiff No.1 were itself indirectly challenged by Plaintiff No.2, thus the interest of Plaintiff No.2 was adverse to the interest of Plaintiff No.1 and in a suit for partition, each of the parties being a plaintiff to the suit, qua each other they would also be defendants, coming within the mischief of proviso to Sub-rule (1) of Rule 4.
52. In the above circumstances, it was required of the trial Court to examine whether indeed plaintiff No.1 suffered from mental illness which could have been done suo moto by the Court. Though the order passed under Rule 15 of Order 32 is not final and is only prima facie the trial Court at the time of final adjudication ought to have considered the matter
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 and manner of the lunacy and not relied upon the earlier order to come to a conclusion that plaintiff No.1 is of unsound mind.
53. In the present case, plaintiff No.2 not only suing as a next friend of plaintiff No.1, but also claiming a separate interest for herself and for her daughter and not having been in the company of plaintiff No.1 at least from the year 1966 even as per the averments made in the plaint till the year 2001 for a period of 45 years it cannot be said that the interest of plaintiff Nos.2 and 3 is not adverse to that of plaintiff No.1. It was therefore required of the trial Court to have conducted a proper examination of the circumstances to determine as to who could protect the interest of plaintiff No.1 and if neither plaintiff No.2 nor other defendants could be appointed as the next friend, to appoint an officer of the Court to safeguard the
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 interest of unsound plaintiff No.1 if he were to be unsound. This being so, for the reason that the plaintiff No.2 has made various allegations against the action taken by plaintiff No.1 to be bad in law and or at the instance of defendants. Thus, it was required for the Court to come to an independent conclusion as regards the allegations made when defendants have contended that the plaintiff No.1 has acted in a proper manner of his own will and volition during the period he was intermittently of sound mind.
54. In the above background, we are of the considered opinion that the plaintiffs upon whom the burden of proving issue No.2 was cast upon has failed in discharging and proving the same, but however taking into consideration the averments made by defendant No.2 in the affidavit in respect of I.A.No.7
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 there being an admission that plaintiff No.1 was intermittently unsound, we have come to a conclusion that plaintiff No.2 has partially proved that plaintiff No.1 was intermittently unsound. This being solely on the basis of the admission made by defendant No.2. Plaintiff No.1 having expired during the pendency of the suit, this question has been rendered academic.
Answer to point No.2:
55. The next most important question to be addressed by us is whether the suit properties including Item No.1 of suit properties are joint family properties or not.
56. The allegations made by plaintiff No.2 is that plaintiff No.1 became a person of unsound mind in the year 1961 even if the same were to be accepted to be
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 true, the partition between Fakkiraddi, Yallaraddi, plaintiff No.1 and Govindraddi occurred in the year 1954 when plaintiff No.1 admittedly was not of unsound mind since if he was unsound mind on that date the marriage between plaintiff Nos.1 and 2 having occurred in the year 1960 would itself come under a cloud. Thus, prior to 1960 we can safely conclude that plaintiff No.1 was of sound mind. If that be so, any transaction carried out in the year 1954 would be one which was carried out by plaintiff No.1 during the period in which he was of sound mind. The partition deed though not registered, we are of the considered opinion that the same being executed nearly 50 years prior to filing of the suit in terms of Section 90 of Indian Evidence Act, the said document being more than 30 years old is considered to be valid. This is more so since the said
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 partition deed had been acted upon and a Varadi was submitted on 05.11.1954 in terms of which mutation entry No.1363 was effected as per Ex.P.49 produced by plaintiffs themselves indicating the extent of immoveable property which had been allotted to Fakkiraddi, Yallaraddi, plaintiff No.1 and Govindraddi.
57. A perusal of the said mutation extract indicates that it was Fakkiraddi Budihal who had partitioned his immoveable property, thereby indicating that it is his self acquired property. There is no evidence on record to indicate that Fakkiraddi acquired the property from his father or his ancestors. The evidence on record indicating that Fakkiraddi is the propositus it is clear that the acquisition of the property was made by Fakkiraddi by himself and as such constituted his self acquired property.
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
58. This mutation entry having been made in pursuance of varadi dated 15.11.1954 has remained unchallenged during the period in which plaintiff No.1 admittedly was of sound mind until 1961.
59. Apart from mutation entry No.1363, there is mutation entry No.334 at Ex.P.52, mutation entry No.695 at Ex.P.54, mutation entry No.997 at Ex.P.55, which refer to the partition of the year 1954. These mutation entries having been effected in furtherance of the partition deed of the year 1954. Thus, in terms of para 129 (v) of VINEETA SHARMA'S case in exceptional cases even a oral partition supported by public documents and partition is to be treated to be done in the same manner as if it had been effected by a decree of Court and may be accepted.
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
60. In the present case, a written partition deed supported by public documents namely the revenue entries and mutations in the form of mutation entries which have been in existence from the year 1954 have been produced which establish a partition having taken place. Though it is the contention of the plaintiffs that there was no actual partition and or separation, there is no evidence which has been produced to that effect to indicate that despite the partition there was a blending and or that the parties to the partition have put back their properties into a common hotchpotch.
61. There are two other reasons due to which we come to this conclusion in that in the event of the said partition of the year 1954 not being effected and acted upon then in terms of Bombay Tenancy and Agricultural Lands Act, 1948, the ceiling limit for a
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 family being 45 acres, the holding would have exceeded the same requiring the said lands to be forfeited and or order of surrender being made by the State leaving an extent of 45 acres with the family. The fact that the partition has been accepted by the Governmental authorities and no action has been taken would enure to the benefit of the entire family in the event of said partition is to be held to be sham it would in fact result in forfeiture of all lands except 45 acres since it would be deemed that proceedings had been initiated under 1948 Act, since it is only now that such a finding is given.
62. The other reason being that on coming into force the amendment to the Karnataka Land Reforms Act with effect from 01.03.1974 any lands in excess of the ceiling limit prescribed would stand forfeited to the Government of Karnataka. The proceedings having
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 been initiated in respect thereto have resulted in the partition deed, mutation entries being accepted by concerned Governmental authorities resulting in the said authorities holding that there is an excess of only 2 acres in the hands of Plaintiff No.1 and directing such surrender. If 1954 partition were to be held to be invalid then apart from the violation of 1948 Act there will be violation of 1974 Act requiring the forfeiture or surrender of excess land. Thus, if partition deed of 1954 is set aside, the same would act against the interest of the family or rather would not be in their interest.
63. The ceiling eligibility of the family under 1974 Act being only 54 acres, the rest of the land would have to stand forfeited to the Government. It is probably in view thereof that the family members have arranged their affairs in such a manner as to save
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 their lands from the rigor of amendment to Land Reforms Act and thereby were able to file declarations so that all the lands could be saved except for 2 acres. All these actions which have been taken by the family members though now contended by plaintiff No.2 who was not present at that time alleging that there are against the interest of plaintiff No.1, in our considered opinion was in the interest of plaintiff No.1 since otherwise if not for the forfeiture under 1948 Act there would have been forfeiture under the amended Land Reforms Act, 1974, under which proceedings had infact been initiated. The property of the family would have been reduced to 54 acres by which plaintiff No.1 and Govindraddi would have got 27 acres each, and since the partition is being effected now Defendant No.8 would also get a right, reducing the share to 18 acres each. Hence,
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 the allegation against the action of defendants made by plaintiff No.2 cannot be accepted by us. If that be so, when the partition of the year 1954 being established there is a severance in the family.
64. That apart the partition deed has not been challenged in the suit, no relief of cancellation having been sought for as regards the said document of which plaintiff No.1 is a signatory he having signed the same in the year 1954 when he was admittedly of sound mind and was major in age, there is no evidence produced as regards the properties being blended or thrown back into the hotchpotch either after 1954 or 1974.
65. The mutation entries made in the year 1954 reflect that the properties are the self acquired and/or individual properties of Fakkiraddi, the said Fakkiraddi had all right, title, interest to settle this
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 property among his son and grandsons. The commentary by the reputed author Mulla on Hindu Law relied upon by Sri. Vivek Mehta would be applicable only in the event of the property having been established to be joint family or ancestral properties, it is only then the embargo on the grandfather partitioning the properties with grandsons would be applicable.
66. There is no allegation made and or evidence adduced to establish that the partition which had been made was unequal or unfair. Merely because different extents of land have been allotted to different parties, the same cannot be said to be unequal or unfair. In that it is to be established by cogent evidence that the valuation of the land is different for different people. Be that as it may, as held supra, the property being the individual property of
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 Fakkiraddi and he having settled the properties on his son and grandchildren the question of presumption of jointness or otherwise among the grandchildren would not arise. Even if the partition was unequal or unfair, the same is required to be challenged, without challenging the said partition, on the basis of vague allegations, the partition which had been made in the year 1954 cannot be sought to be set aside in a suit filed in the year 2001 without even seeking for such a relief.
67. If a relief is available to a party for asking such party is required to ask/seek for such relief. In the present case, the plaintiffs have not sought for setting aside the partition of the year 1954 and or the various mutation entries which have been carried out thereafter. This, we are of the considered opinion that the partition by way of settlement effected by
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 the grandfather of his individual property cannot be set aside by ordering for fresh partition. We are of the opinion that the partition of the entire properties cannot be ordered without the plaintiffs having sought for setting aside the partition of the year 1954. The partition having taken effect there being severance it is only the properties which were allotted to plaintiff No.1 under the said partition which would enure to his benefit and after him to his wife and daughter.
68. That brings us to the next question of Sl.No.1 of the suit schedule property which has been highly contested. The contentions, pleadings, allegations and the evidence on record indicate that item No.1 of suit schedule property had been purchased by Seetawwa the wife of Yallaraddi and mother of Padmavati-defendant No.8. Even as per the
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 pleadings and evidence of PW.1 it is categorically stated that from the revenue records Sl.No.1 (Block No.164) was purchased by Seetawwa W/o Yallaraddi Budihal in the year 1962 reflecting in mutation entry No.1565 at Ex.P.36. Plaintiff No.2 herself states that in terms of mutation entry No.2248 at Ex.P.62 mutation entry was carried out in favour of defendant No.8 as per the Will executed by Seetawwa bequeathing the property purchased by her in the year 1962 and subsequently defendant No.8 had sold the property to defendant Nos.9 and 10 in the year 1997 reflected in mutation entry Nos.2281 and 2283, which mutation entries have not been produced by the plaintiffs.
69. It is trite law that mutation entry and or revenue document do not by itself confer any title on a party. The suit having been filed nearly 50 years after the
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 purchase by Seetawwa in the year 1962 and the mutation entry having been in existence from the year 1962 reflecting that the purchase of the property has been made in the name of Seetawwa, the said mutation entry not having been challenged or a declaration in respect of the mutation entry not being sought for, we are of the considered opinion that the same cannot be disturbed at this length of time.
70. The only allegation made is that Block No.164 is an ancestral property purchased out of joint family properties of plaintiffs family and defendant Nos.1 to
8. The said allegation cannot be countenanced either in law or on facts. The property having been purchased in the name of Seetawwa could never be said to be ancestral property. If at all the contention is that Block No.164 was purchased from and out of
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 joint family funds, the same would be hit by Section 14 of Hindu Succession Act, which is reproduced hereunder for easy reference:
"14. Property of a female Hindu to be her absolute property.-
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, Will or other instrument or the decree, order or award prescribe a restricted estate in such property."
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
71. A perusal of the above extracted Section 14 would indicate that when a property stands in the name of a female Hindu, the same would be her individual property. It is for the plaintiffs who challenge the nature of the property and or the ownership thereof to establish that the said property has been purchased from and out of joint family funds and in the absence thereof, a mere allegation that it was purchased from the joint family funds is not sustainable. The defence which has been set up by defendant No.8 in this regard is that the said Seetawwa had acquired the property from the sale of her jewelry and funds received from her brother. Thus, the burden has shifted to the plaintiffs to establish that it is not so and that the property was purchased from and out of joint family funds. In the absence of doing so, the plaintiffs cannot contend
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 that Seetawwa had no individual right or interest in the said land and or was holding the same for and on behalf of joint family.
72. That apart as observed earlier there is no relief which has been sought for specifically for a declaration that the property in Block No.164 is joint family property.
73. A further contradictory allegation has been made. In that firstly it is contended that Seetawwa had no power to execute a Will in favour of defendant No.8 and secondly it is contended that Seetawwa had not at all executed the Will in favour of defendant No.8 and thirdly it has been contended that Seetawwa was not possessing sound disposing state of mind at the time of execution of the Will, fourthly it is contended that writing of the Will is not that of Seetawwa, does not bear her thumb mark, the same is forged, got up
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 cooked, created one and not duly attested by witnesses.
74. The manner in which all these allegations have been made by plaintiff No.2 who had admittedly started living separately from her husband plaintiff No.1 from the year 1964 and she never resided with the family and had filed a suit only after the death of Seetawwa and Govindraddi, to our mind indicates that plaintiff No.2 by making wild unsubstantiated allegations by hook or crook seeks to derive title and interest over the properties. In the background of Section 14 of Hindu Succession Act, the property having been purchased in the name of Seetawwa and as per defendant No.8 by Seetawwa from sale of her jewellery and funds received from her brother, there being no evidence on record to establish that the said property was purchased from joint family funds,
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 no relief having been sought for specifically as regards the said sale deed in the name of said Seetawwa, there being no evidence to establish the unsoundness of mind of Seetawwa and or her infirmity in the Will, we are of the considered opinion that the said property cannot be said to be joint family property, was the individual property of Seetawwa which she was entitled to deal with and as such having right to bequeath it by a Will in favour of defendant No.8 who in turn sold it to defendant Nos.9 and 10 and as such the said transaction could not have been disturbed by the trial Court.
75. One other property which is hotly contested is as regards Sl.Nos.2 and 3 of the suit schedule i.e. Block No.247/1 and 247/2.
76. The contention of the plaintiffs being initially the name of plaintiff No.1 had been entered in the
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 owners column of the record of rights but later on from time to time names were changed under the guise of partition and surrender. In this regard, reliance is placed by the plaintiffs on Ex.P.61 being mutation entry of 06.02.1996, wherein the land in Sy.No.247/1 was mutated in the name of defendant No.2 and plaintiff No.1. A perusal of the said mutation entry at Ex P. 61 indicates that both the lands in Sy.No.202/1 measuring 16.11 guntas and 247/1 measuring 11 acres 32 guntas are mutated in the name of defendant No.2 and plaintiff No.1. The said land in Sy.No.202/1 was earlier standing in the name of Shantavva kom. Timmaraddy and later on transferred in the name of defendant No.2 and in 1996 was mutated in the name of defendant No.2 and plaintiff No.1. Thus, in effect, plaintiff No.1 also became owner of Sy.No.202/1 measuring 16.11
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 guntas. Under Ex.P.61 though there are other mutation entries mentioned, in the affidavit filed in lieu of evidence those mutation entries have not been produced by the plaintiffs insofar as Sl.No.2 properties to the plaint schedule.
77. As regards properties at Sl.No.3, a mutation entry was made in the year 1992 reflecting the name of defendant No.11 in respect of the said land on the basis of Daanapatra/gift deed made in the year 1985 which mutation entry has been produced at Ex.P.40. This mutation entry having been in the public knowledge as a part of public record from the year 1985 and plaintiff No.1 being a party and signatory to the said document, the same has not been challenged in the suit. There is no relief either for cancellation or declaration sought in respect of the said gift deed. The allegation as against the gift deed
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 is that plaintiff No.1 was insane person and as such, the donation is void ab initio. This being the allegation, merely because an allegation is made, the document cannot be wished away by the plaintiffs. Once a document has been registered, it is required for a party to seek appropriate relief in respect of such a document. The said document has not also been produced by the plaintiffs. When no relief is sought against the said document and document continues to be in existence, the plaintiffs cannot claim a share in the property more so when plaintiff No.1 is a party to the said document.
78. Plaintiff No.1 having executed the gift deed, the gift deed being accepted by defendant No.11 a school having been constructed using the donations, funds of the villagers as also Government, the school admittedly operating and functioning for nearly 20
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 years, in a suit filed by the plaintiffs as regards the said property without seeking any relief in respect of the gift deed, we are of the considered opinion that the said gift deed cannot be set-aside by directing partition of the suit schedule properties including Sl.No.3 property.
79. As regards Sl.No.4 of suit schedule property, the plaintiffs allege that the said Block No.248 was in the name of Govindraddi and on the basis of the alleged partition the same came to be entered in the name of plaintiff No.1 Govindraddi and plaintiff No.3. The plaintiff cannot have a grievance against the said property since the property was in the name of Govindraddi having been derived in the partition of the year 1954.
80. As regards Sl.No.5 of suit schedule property, the said property was in the name of Govindraddi in terms of
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 partition of the year 1954. As such, we are of the considered opinion that the plaintiffs cannot have any grievance with the said property.
81. As regards Item Nos.6 and 7 properties, the said properties stood in the name of Fakkiraddi in terms of the partition of the year 1954. As per mutation entry No.1363 at Ex.P.49, the said properties fell to the share of Yallaraddi, plaintiff No.1 and Govindraddi on the basis of the Will executed by Fakkiraddi. In terms thereof, mutation entry No.1753 at Ex.P.45 was effected in the year 1963. After the death of Yallaraddi, the name of plaintiff No.1 and Govindraddi was entered vide mutation No.1707 at Ex.P.43. On the basis of the partition between plaintiff No.1 and Govindraddi, the names of Govindraddi and Seetawwa came to be entered in the revenue records as per mutation entry No.1922
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 in the year 1981 as per Ex.P.42. Thereafter, certain other entries have been made. By now seeking for partition as regards Item Nos.6 and 7 properties what the plaintiffs are seeking for is upsetting all the transactions from the year 1954 including 1963, 1970, 1981, etc. These mutation entries being made in the revenue records which are available in the public domain, any relief sought for is to be granted not at this length of time. Furthermore, plaintiff No.1 being a party to mutation entries at Ex P 49, P 45, P 43, no relief is sought for in respect of the said exhibits.
82. Similar is the situation as regards property at Sl.Nos.8, 9, 10 and 11.
83. Insofar as item Nos.12, 13, 14 and 15 are concerned, the name of Yallaraddi was entered into revenue records in terms of partition of the year
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 1954. Upon his death the names of plaintiff No.1 and Govindraddi came to be entered in the revenue records as per mutation entry No.913 in the year 1970 at Ex.P.31. Then the name of other defendants came to be entered into from time to time. None of these mutation entries have also been challenged by the plaintiffs.
84. There are various allegations made as regards properties at Sl.Nos.16 to 19 as regards mutation entries in relation to the said properties. However, these mutation entries have not been challenged by the plaintiffs. Not only for the last so many years but even in the suit which was filed.
85. As regards properties at Sl.Nos.20 to 25, even according to the plaintiffs there are panchayat resolutions which have been passed in respect of the said properties from time to time which have been
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 produced at Exs.P.64 to 67. Even these resolutions have not been challenged. The resolutions having been passed by the concerned panchayat at various points of time the resolutions are apparently made on the basis of the surrender being made by plaintiff No.1 as reflected in the resolution neither of the parties has produced these documents since it is the plaintiffs who are aggrieved by the same it was the duty of the plaintiffs to produce the same or call upon the defendants to produce the said documents and challenge them. Not having done so, we are of the considered opinion that mere allegation made by the plaintiffs would not enure to their favour.
86. In the above background, having come to a conclusion that the suit schedule properties are not joint family properties and or the ancestral properties but were the individual properties of Fakirappa,
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 having come to a conclusion that there is a partition effected among the family members in the year 1954, a few of the properties falling to the share of plaintiff No.1 under the said partition deed, plaintiff Nos.1 to 3 subsequently plaintiff Nos.2 and 3 and now only plaintiff No.3 on account of plaintiff Nos.1 and 2 having expired would not be entitled to any other properties apart from that coming to the share of plaintiff No.1 under the partition deed of the year 1954.
87. The property which had fallen to the share of Fakkiraddi being bequeathed under a Will, it is the terms of the said Will which would prevail. The properties would be distributed in terms of the said Will. Any properties received by plaintiff No.1 would be his individual properties.
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
88. The properties falling to the share of Yallaraddi on his demise would be succeeded to by plaintiff No.1, Govindraddi and defendant No.8 equally as per the principles of Indian Succession Act and in terms of Section 6 of Hindu Succession Act as amended from time to time.
89. Any transaction entered into by plaintiff No.1 in respect of the aforesaid properties during his lifetime not having been challenged, the said transaction would have to be held to be valid and binding on all parties.
90. The property covered under Sl.No.1 being Block No.164 having been purchased in the name of Seetawwa it would constitute her individual property which she could bequeath to defendant No.8 and defendant No.8 having succeeded to the said property had all right, title, interest to deal with the
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 same. As such, the sale in favour of defendant Nos.9 and 10 would be valid and binding on all parties.
91. The gift deed executed by plaintiff No.1 in favour of defendant No.11 would have to be considered valid and binding on all parties. Since plaintiff Nos.2 and 3 having not been able to establish that plaintiff No.1 was of unsound mind at the time when the gift deed was executed and there being no documents to establish the unsoundness of mind of plaintiff No.1.
92. Plaintiff No.2 having shifted to her maternal home in the year 1965 and not having resided with plaintiff No.1 till the time of his death in the year 2008 even if the suit was filed in the year 2001 plaintiff No.2 not having sought for the custody of plaintiff No.1 (assuming plaintiff No.1 to be of unsound mind), plaintiff No.2 not having made any attempts to take care of plaintiff No.1 and only having sought for
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 partition of the properties so as to get allotted properties not only to plaintiff No.1 but also to plaintiff Nos.2 and 3, we are of the considered opinion that the interest of plaintiff No.2 was adverse to that of plaintiff No.1 and the trial Court ought to have considered these aspects and ought not to have appointed plaintiff No.2 as the next friend of plaintiff No.1. Plaintiff No.2 being a co-plaintiff in the proceedings, where she has sought for being appointed as a next friend of a person alleged to be of unsound mind namely plaintiff No.1 there being an adverse interest, the trial Court ought to have appointed an independent third party to take care of the interest of plaintiff No.1 on the basis of the principles and duty of parens patriae the court being vested with a duty to safeguard the interest of any persons who is alleged to be unsound. The trial Court
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 ought to have suo moto called for production of plaintiff No.1 and cause his examination by a competent doctor to ascertain if he was indeed unsound.
93. The contention of the plaintiffs is that they have been deprived of the earning from the properties coming to their share and the entire earning has been taken by the defendants and as such they have sought for mesne profits. As regards which an enquiry has been directed by the trial Court.
Answer to point No.3:
94. Sri.Mallikarjunswamy B Hiremath, learned counsel for the appellants in RFA No.4034/2013 has contended that insofar as joint family properties is concerned, in a suit for partition and separate possession, the question of mesne profits would not
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 arise. A coparcener who is in possession of a joint family property will be liable to account for the profits derived from the joint family property in excess of his share. The mesne profits could be ordered only if there is unlawful possession which in this case is not.
95. In this regard, he relies upon the decision reported in ILR 1991 KAR 4506 in the case of THAMMEGOWDA VS. SIDDEGOWDA, more particularly para Nos.6 and 7 thereof, which are reproduced hereunder for easy reference:
"6. In the Judgment as well as in the preliminary decree drawn by the trial Court, it has been stated that the plaintiff is entitled to future mesne profits in respect of his share in the joint family properties. Therefore, an enquiry into future mesne profits has been ordered. In a suit for partition and separate possession, the question of mesne profits does not arise. The coparcener who will be in possession of the joint family property will be liable to account for the profits derived from the joint family property in
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 excess of his share. The possession of a coparcener of the joint family property is not unlawful because his right extends over the entire joint family property until it is divided by metes and bounds. The possession of a coparcener of the joint family property until it is divided by metes and bounds does not become unlawful so as to make him liable for mesne profits. Therefore, the question of mesne profits does not arise. Of course, he has to account for the income of the share of the plaintiff from the date of the suit till the date of delivery of possession. Therefore, the trial Court is not justified in directing that the plaintiff is entitled to future mesne profits from the date of suit. It ought to have directed that the plaintiff is entitled to accounts of the profits of his share from the date of the suit till the date of delivery of possession. Point No. 2 is answered accordingly.
7. For the reasons stated above, this Appeal is allowed in part. The decree of the trial Court in so far as it relates to moveables is set aside. In so far it relates to immoveable properties, it is affirmed. The Judgment and decree are further modified in so far they make the defendants liable for mesne profits. It is ordered that the plaintiff is entitled to the accounts of the profits of his share from the date of the suit till the date of actual delivery of possession. Accordingly, it is further directed under Order 20 Rule 18 of the C.P. Code that the defendants shall account for the profits in respect of the share of the plaintiff from the date of the suit till the date of actual delivery of possession. The actual division by metes and bounds in terms
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 of the decree be made; actual possession of the share of the plaintiff be delivered to him according to the nature of the property either through the Deputy Commissioner or the Court Commissioner as the case may be."
96. Having gone through the said judgement, it is clear that the possession of a coparcener of joint family property until it is divided by metes and bounds, does not become unlawful but ofcourse he would have to account for the income of the share of the plaintiffs from the date of suit till the date of delivery of the possession. In the present case, the partition having occurred in the year 1954, insofar as those properties are concerned, plaintiff No.1 was in separate possession of the said properties. Therefore, if there is any income derived from the said properties post the death of plaintiff No.1, the defendants who are now stated to be in possession
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 of the said properties would have to account for profits and not for mesne profits.
97. Insofar as other properties are concerned, which had been derived by plaintiff No.1 under either a Will or by intestate succession if plaintiff No.1 has not dealt with the said properties, the defendants would have to account for the profits as regards the said properties from the date of filing of the suit.
98. Needless to say that there would have to be an enquiry in relation thereto with both the parties being at liberty to produce such evidence as may be in their possession to establish possession of the land, utilization of the land, earning from the land, expenses on the land, etc. to arrive at the profits from the said land falling to the share of plaintiff No.1. Further, needless to say that as and when the said profits are determined the plaintiffs would have
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 to make payment of court fee on the amounts so determined.
Answer to point No.4:
99. In the above background, we pass the following:
ORDER
(ii) RFA No.4034/2013, RFA No.4023/2013, RFA No.4160/2013 and RFA No.100069/2014 are partly allowed.
(iii) RFA CROB. No.100003/2016 is dismissed.
(iv) The judgement and decree passed by the trial Court is modified in terms of the above by holding that the plaintiff No.3 would be entitled to the properties which came to the share of plaintiff No.1 under the partition deed of the year 1954, if not alienated or dealt with by plaintiff
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C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 No.1; Plaintiff No.3 would be entitled to the properties which came to the share of plaintiff No.1 under the Will of Fakkiraddi, if not already dealt with by plaintiff No.1; Plaintiff No.3 would be entitled to the properties which fell to the share of plaintiff No.1 on the death of Yallaraddi, if not already dealt with by plaintiff No.1. Any alienation made by plaintiff No.1 since most alienations are alleged to have been made by the plaintiff prior to filing of the suit in the year 2001, such alienations are protected in terms of proviso to Sub-section (1) of Section 6 and explanation to Sub-section (5) of Section 6 of Hindu Succession Act, 1956 and plaintiff No.3 would not have any right over the same.
(v) By way of abundant caution, it is declared that plaintiff No.3 would not have any right, title and
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016 interest over the property covered under Sl.No.1 of the suit schedule property as also the property gifted to defendant No.11 by plaintiff No.1.
(vi) The direction of the trial Court to order for enquiry and in terms of Order 20 Rule 12 of CPC for mesne profits is set aside.
(vii) The judgement of the trial Court is modified by holding that plaintiff No.3 is entitled to accounts for profits on the properties falling to the share of plaintiff No.1 from the date of the suit till the date on which the actual delivery of possession is effected. In this regard, an enquiry to be conducted under Order 20 Rule 18 of CPC. On the amount so determined, plaintiff No.3 to make payment of necessary court fee.
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RFA No. 4034 of 2013
C/W RFA No. 4023 of 2013, RFA No. 4160 of 2013, RFA No. 100069 of 2014, RFA.CROB No. 100003 of 2016
(viii) Registry is directed to draw up a modified decree in terms of the above.
(ix) I.A.No.1/2014 and I.A.No.1/2018 are not required to be considered and as such are rejected.
Sd/-
JUDGE Sd/-
JUDGE SH List No.: 1 Sl No.: 1