Karnataka High Court
Vishnu vs Venkappa Pandu Mayekar on 23 April, 2026
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NC: 2026:KHC-D:5978
RSA No. 5114 of 2008
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 23RD DAY OF APRIL, 2026
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR SECOND APPEAL NO. 5114 OF 2008 (PART & POSSN.)
BETWEEN:
SHRI. VISHNU
S/O MAHADEV MAYEKAR,
AGE: 56 YEARS, OCC: TEACHER,
R/O: MANICKWADI VILLAGE,
TQ: KHANAPUR, DIST: BELGAUM.
...APPELLANT
(BY SMT. SURABHI KULKARNI, ADVOCATE)
AND:
SHRI. VENKAPPA S/O PANDU MAYEKAR,
SINCE DECEASED BY HIS LRS.
SHRI. VITHAL S/O VENKAPPA MAYEKAR,
SINCE DECEASED BY HIS LRS.
1. SMT. RUKMINI W/O VITHAL MAYEKAR,
GIRIJA A.
BYAHATTI AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAICKWADI, TAL: KHANAPUR,
Digitally signed by
GIRIJA A. BYAHATTI
Location: HIGH
DIST: BELGAUM.
COURT OF
KARNATAKA,
DHARWAD BENCH
2. KUMAR MALHARI S/O VITHAL MAYEKAR,
AGE: 21 YEARS, OCC: STUDENT,
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
3. SMT. YEELUTAI W/O VENKAPPA MAYEKAR,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
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RSA No. 5114 of 2008
HC-KAR
SHRI. DHANAPPA S/O PANDU MAYEKAR,
SINCE DECEASED BY HIS LRS.
4. SMT. YASHODA W/O DHANAPPA MAYEKAR,
SINCE DECEASED BY HER LEGAL HEIRS.
5. SHRI. GOPAL S/O DHANAPPA MAYEKAR,
SINCE DECEASED BY HIS LRS.
SHRI. GANGARAM DHANAPPA MAYEKAR,
SINCE DECEASED BY HIS LRS.
(SINCE DECEASED
R6 TO R8 ARE TREATED AS LR'S
OF DECEASED R5)
6. SMT. YELLUBAI W/O GANGARAM MAYEKAR,
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
7. SHRI. PARASHRAM S/O GANGARAM MAYEKAR,
AGE: 15 YEARS, REPRESENTED BY
HIS NATURAL GUARDIAN-MOTHER
SMT. YELLUBAI,
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
8. SHRI. SATERI DHANAPPA MAYEKAR,
AGE: 42 YEARS, OCC: AGRICULTURISTS,
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
9. SMT. VIMAL W/O PANDU HUNDRE,
SINCE DECEASED BY HER L.RS.
SHRI BABU S/O PANDU MAYEKAR,
SINCE DECEASED BY HIS L.RS.
10. SMT. BHARITATHI W/O BABU MAYEKAR,
SINCE DECEASED BY HIS L.RS.
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RSA No. 5114 of 2008
HC-KAR
(SINCE DECEASED
R11 TO 14 & 16 ARE
TREATED AS LR'S OF DECEASED
R10)
11. SHRI. KALLAPPA S/O BABU MAYEKAR,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
12. SHRI. BABAJI S/O BABU MAYEKAR,
AGE: 49 YEARS, OCC: SERVICE,
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
13. SHRI. PUNDALIK S/O BABU MAYEKAR,
AGE: 60 YEARS, OCC: SERVICE,
R/O: CASTLE ROCK, TAL: SUPA (JOIDA),
DIST: NORTH KANARA.
14. SHRI RAVALU S/O BABU MAYEKAR,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
15. SMT. KAMALABAI W/O MAHADEV GHADI,
SINCE DECEASED BY HIS L.RS.
(SINCE DECEASED
R11 TO 14 AND 16
ARE TREATED AS LR'S OF DECEASED R15)
16. SMT. MAREKKE PARASHRAM NANDURKAR,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O: BALLOGE, TAL: KHANAPUR,
DIST: BELGAUM.
SHRI. GOVIND S/O PANDU MAYEKAR,
SINCE DECEASED BY HIS LRS.
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HC-KAR
17. SMT. SHANTA W/O GOVIND MAYEKAR,
SINCE DECEASED BY HIS L.RS.
(SINCE DECEASED
R18 TO 20 ARE TREATED AS LRS OF
DECEASED R17)
18. SHRI. PARASHRAM S/O GOVIND MAYEKAR,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
19. SHRI. APPAJI S/O GOVIND MAYEKAR,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
20. SHRI. PANDU S/O GOVIND MAYEKAR,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
SMT. AVALABAI W/O BALAPPA DEMAN,
SINCE DECEASED BY HIS LRS.
21. SMT. KAMALABAI M. BARGURKAR,
SINCE DECEASEDE BY HIS L.RS.
22. SMT. AMBABAI W/O MASANU GHADI,
SINCE DECEASED BY HIS L.RS.
(SINCE DECEASED,
R1 TO R4, R6 TO R9, R11 TO R14, R16,
R18 TO R20 AND R23 TO R26 ARE
TREATED AS LR'S OF DECEASED
R21 AND R22)
23. SMT. SUBHADRA
W/O MAHADEV MAYEKAR,
AGE: 85 YEARS,
OCC: HOUSEHOLD WORK,
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RSA No. 5114 of 2008
HC-KAR
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
24. SHRI. SHANKAR
S/O MAHADEV MAYEKAR,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: MANICKWADI, TAL: KHANAPUR,
DIST: BELGAUM.
25. SHRI. MALHARI
S/O MAHADEV MAYEKAR,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: MANICKWADI VILLAGE,
TAL: KHANAPUR, DIST: BELGAUM.
26. SMT. YELLUBAI
W/O NARAYAN BAWEKAR,
AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
R/O: SANGARGALLI, TAL: KHANAPUR,
DIST: BELGAUM.
...RESPONDENTS
(BY SRI. R.H. ANGADI, ADVOCATE FOR R18, 19 & R20;
R1-R3- SERVED BUT UNREPRESENTED;
R5 TO R8- SERVED BUT UNREPRESENTED;
R10 TO R16- SERVED BUT UNREPRESENTED;
R21-R26-SERVED BUT UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED
27/3/2008 PASSED IN R.A.NO:27/1992 ON THE FILE OF THE III
ADDL. CIVIL JUDGE (SR.DN) BELGAUM AT KHANAPUR,
REVERSING THE JUDGMENT AND DECREE DATED 10.01.1992 IN
O.S. NO. 213/1982 ON THE FILE OF THE COURT OF MUNSIFF,
KHANAPUR AT KHANAPUR, THE SAID SUIT BE DECREED AND
THIS APPEAL BE ALLOWED WITH COSTS THROUGHOUT.W
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.
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RSA No. 5114 of 2008
HC-KAR
ORAL JUDGMENT
This is the appeal filed under Section 100 of C.P.C. by the appellant/one of the legal representatives of plaintiff challenging the judgment and decree dated 27.03.2008 in R.A.No.27/1992 on the file of III Additional Senior Civil Judge, Belgaum sitting at Khanapur (hereinafter referred to as 'the First Appellate Court', for short) and to confirm the judgment and decree dated 10.01.1992 passed in O.S.No.213/1983 on the file of the Court of the Munsiff, Khanapur sitting at Khanapur (hereinafter referred to as 'the Trial Court', for short) and decreed the suit.
2. Parties would be referred with their ranks, as they were before Trial Court for sake of convenience and clarity.
3. Originally the plaintiff has filed the suit before Trial Court praying for partition and separate possession of 1/5th share in suit schedule property; for mesne profits from -7- NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR 1980-1981 to 1982-1983 and for future mesne profits; for Court costs and for such other reliefs.
4. The case of plaintiff before Trial Court in nutshell is that suit schedule property bearing R.S.No.53 measuring 9 acres 14 guntas situated at Manikwadi Village, Khanapur Taluk, originally was Shet-Sanadi Inam land and father of plaintiff-Sri Pandu Venkappa Mayekar was the authorized holder of the same and was rendering service as Sanadi. The genealogical tree of plaintiff's family is narrated in the plaint as follows:
Pandu (propositus) Died in or about the year 1960 Mahadev Venkappa Dhannappa Babu Govind (plff) (Deft.1) (Deft.2) (Deft.3) (Deft.4) Parashram Appaji Pandu (Deft.5) (Deft.6) (Deft.7)
5. According to it, the father of the plaintiff has five sons and they are plaintiff and defendant Nos.1 to 4.-8-
NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR Defendant Nos.5 to 7 are sons of defendant No.4. The service of father of plaintiff was discontinued on account of his old age and his youngest son-defendant No.4 was appointed as Sanadi by the Prant Officer (Assistant Commissioner) under his Order bearing No.WTN/SR/104 dated 12.05.1955. Accordingly, name of defendant No.4 is entered in record of rights as per M.E.No.207 dated 19.05.1955. Defendant No.4 was rendering his services and also enjoying the suit schedule property. After coming into force of the Karnataka Village Offices Abolition Act, 1961 with effect from 01.02.1963, the services of defendant No.4 who was an inferior Village Officer were abolished and suit land stood resumed to the Government. It was regranted in favour of said defendant No.4 as per order dated 06.05.1980 by the Tahasildar, Khanapur. Suit property when standing in the name of Government, was transferred by defendant No.4 into the name of his three sons i.e. defendant Nos.5 to 7 by appointing himself as minor guardian as per M.E.No.331/A dated 04.10.1973. The suit -9- NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR schedule property is regranted in the name of defendant No.4 on behalf of joint family of plaintiff and defendant Nos.1 to 4 and it is in possession and enjoyment of joint family. Thus, plaintiff is entitled for 1/5th share in suit schedule property. In this regard, he issued notice to defendant Nos.4 to 7 through his advocate dated 08.11.1983 to carve out the share of plaintiff and to hand over its possession to him. Defendant No.4 has given untenable reply to it. Hence, the suit for appropriate reliefs.
6. After service of notice, defendant Nos.4 to 7 has filed their written statement, wherein they contended that suit in the present form is not maintainable in law. All the joint family properties ought to have been included in the suit schedule. Hence, suit for partial partition is not maintainable in law. They further contended that, defendant No.3 has acquired the suit land by independently rendering Sanadi services to the Government. In lieu of services rendered by him, the Assistant Commissioner has granted it to him. There were continuous and several grounds of
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR litigations between parties before revenue authorities and hence, the present suit is not maintainable in law.
7. The regrant order has reached its finality. Defendant No.3 is well within his right to transfer the land in question to his children in the manner in which they like. Plaintiff cannot object for it. He denied all other allegations made in the plaint and prayed for dismissal of suit with costs.
8. Afterwards defendant Nos. 4 to 7 got amended the written statement and inserted paragraph Nos.6 and 7 that suit is premature and it is bad for non-joinder of necessary parties.
9. Defendant No.2 filed his written statement, wherein he partly supported the contention of defendant No.4 regarding ownership of defendant No.4 about the suit schedule property. and contended that no joint family exists between plaintiff and defendant Nos.1 to 4. All the brothers separated themselves and partitioned prior to 1954. It is
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR not the property of family of brothers. Hence, prayed for dismissal of suit with costs.
10. During pendency of the suit, defendant No.1 died and his legal representative-defendant No.1A has filed the written statement, wherein he supported the contention of plaintiff. He further contended that till recently, they have reposed confidence in defendant No.4. Taking undue advantage of this position in the joint family, defendant No.4 managed to get the suit land granted in his name behind the back and without the knowledge of other defendants. Immediately, after these defendants came to know about illegal regrant order have challenged the same by filing an appeal before District Judge, Belagavi in MA No.44/1984 and the execution and operation of said regrant is stayed. Hence, prayed for allotting share to him also.
11. After filing the written statement of defendant Nos.4 to 7, taking the contention that suit is bad for non- joinder of necessary parties, the sister of plaintiff and
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR defendant Nos.1 to 4 is impleaded as defendant No.8 and she has filed her written statement wherein she admitted the genealogy furnished in the plaint and also the averments made in the plaint. She further stated that suit schedule property is the family property and plaintiff has got 1/5th share in it. She is well placed in her life and relinquished her share in the suit schedule property in favour of all her brothers i.e. in favour of plaintiff, defendant Nos.1 to 4 long back.
12. Based on these pleadings, the trial Court has framed the following issues, additional issues and recasted some of the issues:-
Issues:
1. Whether the genealogy relied on by the plaintiff is correct?
2. Whether the suit land was held by propositus Pandu for rendering Sanadi services?
3. If so, whether the plaintiff has 1/5th share in the suit property?
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4. Whether the plaintiff is entitled to mesne profits to the extent of 1/5th share for the years 1980-81, 1981-82 and 1982-83 from the defendant Nos. 4 to 7?
5. Whether the defendants Nos.4 to 7 prove that this court has no pecuniary jurisdiction to try this suit?
6. Whether the said defendants prove that the valuation of the suit property made by the plaintiff is improper?
7. Whether the defendant Nos. 4 to 7 are entitled to compensatory cost of Rs.3000/-?
8. What Decree or order?
Additional issues:
1. Whether the deft No. 4 to 7 prove that the suit is not tenable for it is premature?
2. Whether the defendant Nos.4 to 7 prove that the suit is bad for non-joinder of necessary parties and hence not tenable?
13. After recording evidence of both sides, the trial Court held that plaintiff has proved that suit schedule property was the joint family property and grant in favour of defendant No.4 on behalf of the joint family and thus
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR granting 1/5th share to plaintiff and also to defendant Nos.1 to 4.
14. Aggrieved by the said judgment and decree, defendants Nos.4 to 6 have filed the appeal before First Appellate Court.
15. After hearing arguments, the First Appellate Court came to the conclusion that defendant No.4 has not succeeded to the office of Sanadi as son of deceased Pandu, but has been appointed as Sanadi in his independent capacity and thus the suit schedule property which was attached to the said office of Sanadi as emolument was regranted to defendant No. 4 in his individual capacity, and thus dismissed the suit of plaintiff by allowing the appeal.
16. Aggrieved by said judgment of First Appellate Court, one of the legal representatives of original plaintiff i.e, plaintiff 1B has filed the present appeal.
17. While admitting the appeal, the following substantial questions of law arose for consideration:-
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1. Whether the lower appellate court has committed an error in law in so far as its conclusion that the 4th defendant had acquired independent right to the property as Sanadi?
2. Whether in the process of appreciation of materials and evidence on record, whether the lower appellate court had committed the error in the manner of understanding the case put forth by the parties considering that the trial court on appreciation of the very same evidence had come to the conclusion that the office of Sanadi was held for the benefit of the family?
18. Heard arguments of both sides.
19. Learned counsel for appellants Smt. Surabhi Kulkarni would submit that the suit was filed by plaintiff for the relief of partition and separate possession of his share in suit schedule property by metes and bounds, contending that suit schedule property was Shet Sanadi Inam Land and abolition of said Sanadi Service, Inam Land by implementing Inams Abolition Act, 1961(hereinafter for short as 'the Act') w.e.f., 06.01.1963, the suit schedule property was vested with the Government and then it is
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR regranted in the year 1980 to defendant No.4, the eldest brother of plaintiff on behalf of joint family.
20. Learned counsel for appellant would further submit that the Genealogical tree furnished in the plaint is not seriously disputed by the defendants. Only because of the old age of Pandu, he was relieved from service and defendant No.4 was placed in his place which is reflected in ME No.207 produced by plaintiffs as per Ex.P.2. Defendant No.4 even though took contention that the regrant was exclusively for him, he has not produced any material to substantiate the said contention. Considering these aspects, the trial Court has decreed the suit. But First Appellate Court has not properly appreciated the evidence and only on the ground that office of Sanadi is inheritable was not pleaded in the appeal has allowed the appeal. The settled proposition of law is that office of Sanadi is inheritable. In respect of other joint family properties there was family arrangement and it is not disputed by the defendants. At that time the suit schedule property was impartible because
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR already Karnataka Village Offices Abolition Act, 1961 was in force and the land in question was vested with the Government and before re-grant, it was impartible. Hence, prayed for allowing the appeal.
21. Further, defendant No.4 has not produced the appointment order or the application given by him for appointment of Sanadi and no publication or advertisement is given to call for the post of Sanadi. These facts establish that the Sanadi office was inherited by defendant No.4 on behalf of joint family and not on his individual capacity. Furthermore, before re-grant, defendant No.4 has partitioned these properties to his children, which is not permissible under law. But this partition made by defendant No.4 substantiates that this is the ancestral property. The plaintiff need not establish that the Sanadi office was inherited by defendant No.4 from his father or forefathers. It is sufficient that, if plaintiff establishes that this office of Sanadi was inheritable and after Pandu became incapable to make his service, it is being transferred to his son-
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR defendant No.4 and not to any third person. Pandu was not removed from service in the year 1952 as alleged by defendant No.4. But M.E.No.207 establishes that he was removed in the year 1955 and in his place defendant No.4 is entered for service of Sanadi. Ex.D.6 is pertaining to portion of the suit schedule property and according to it, in the year 1957, i.e., 2 years after, defendant No.4 came into the position of Sanadi. The property from tenant was handed over to defendant No.4 and thus, it will not take contention of defendant No.4. Hence, prayed for allowing the appeal.
22. Learned counsel for respondent Nos.18 and 20 Sri.R.H.Angadi, who is representing the legal representatives of defendant No.4, would submit that there is no proper pleading about the office of Sanadi in the plaint. This Office of Sanadi is not inheritable and the Court cannot presume the things which were not pleaded. After relieving Pandu from the Office, defendant No.4 entered into said Office of Sanadi in his independent capacity and
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR not in the capacity of one of the sons of Pandu. Defendant No.4 is not the eldest son. But he was the youngest son of deceased Pandu. Hence, the office of Sanadi cannot be presumed as inherited by defendant No.4. The suit schedule property which was attached to said Sanadi service was re- granted to defendant No.4 in his individual capacity. This was challenged by some of the family members before District Court and it attained finality that the grant in favour of defendant No.4 is proper on his individual capacity. According to defendant Nos. 4 to 7, Pandu retired from service in the year 1952 and not in the year 1955. Further, defendant No. 4 was appointed as Sanadi in the year 1955 in his individual capacity. Learned counsel for the respondent would further submit that Ex.D.6 amply clarifies that suit schedule property was granted to defendant.No.4 in his individual capacity, because, 1/3rd portion of it was got vacated in favour of defendant no.4 as per order of revenue officials. Furthermore, defendant No. 4 has partitioned this property with his minor children because
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR this property was his exclusive property and it was not enjoyed by the joint family. Plaintiff failed to establish that the suit schedule property attached to Sanadi Office was enjoyed on behalf of joint family by defendant No.4 and other sons of deceased Pandu. Hence, prayed dismissal of appeal.
23. In this regard, learned counsel for appellant relied on the following citations to substantiate her contention:-
i) Nagesh Bisto Desai and others Vs. Khando Tirmal Desai and others reported in (1982)2 SCC 79.
ii) Shivappa Fakirappa Shetsanadi
Vs. Kannappa Mallappa
Shetsanadi reported in ILR 1987
KAR 3155.
iii) Bhimappa Ramappa Ghasti Vs.
Arjun Laxman Ghasti reported in
ILR 1992 KAR 3594.
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iv) Patel Verrabasappa Vs. Basamma reported in ILR 1996 KAR 1435.
v) Beerappa Vs. Fakirappa Beerappa Bandrolli and others reported in ILR 2006 KAR 4170.
24. Having heard arguments of both sides, verifying the appeal papers along with trial Court records, findings of this Court and the above substantial questions of law are as under for the following:-
REASONS:
25. The relationship between parties is not in dispute. According to the genealogical tree furnished in the plaint and admitted by both sides, one Pandu was the original propositus and was holding the office of Sanadi and as an emolument to said office; he was enjoying the suit schedule property. According to the genealogical tree, plaintiff, defendant Nos. 1 to 4 are sons of said Pandu.
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26. According to plaintiff, Pandu was relieved from his office in the year 1955 and said office was given to defendant No.4 at the same time. But according to defendant No.4 his father was relieved from the office in the year 1952 and he was given said office in the year 1955.
27. To substantiate this contention, defendant No.4 has not produced any material to show that his father was relieved from the office in the year 1952, except a bald admission from plaintiff. On the other hand, plaintiff has produced Ex.P.2 i.e., M.E. No.207-mutation entry. Defendant No.4 admitted that as per Ex.P.2-M.E.207, the suit property was mutated into his name and till then name of his father was continued. This mutation entry is in Marathi language and it is translated to English and translated copies are available in 'B' file of the trial Court. As per recitals of it, Re.sy.No.53 is Sanadi Inam Land. One Pandu Veerappa Mayakkad (father of plaintiff) has been relieved of his duty and in his place his son has been appointed. The name of Pandu Venkappa Mayankar
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR appearing in respect of said land has been deleted and the name of said Govind (defendant No. 4) has been entered as per order of the Assistant Commissioner, under No.WTN/SR-164 dated 12.05.1955.
28. This document is not opposed by the defendants. But, they also took contention that only in the place of Pandu, defendant No.4 was appointed.
29. In this regard, defendant No.4 was examined. In the evidence, he has deposed that his father rendered Sanadi service till 1952. After 1952, his father gave up the Sanadi services. When his father left Sanadi services, the suit land remained barren as the same was not cultivated and it is remained so till 1957. However, said evidence of defendant No.4 is not proper because plaintiff has produced Record of Rights pertaining to suit schedule property for the years 1951-52 to 1960-61 as per Exs.P.11 and P.12. In these Record of rights, it is not stated that the property was kept barren from 1952 to 1957. On the other hand, it is
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR shown that paddy and sugar cane crops were grown in this property even in the year 1951-1952 and continued till 1954- 1955 and in the year 1955-1956 and in 1956-57, paddy crop was grown the; only, 10 guntas was kept barren in the year 1955-56 and 1956-57. Apart from this in all the other years there was some crop and except these 10 guntas, the entire other property was cultivated. Hence, the above contention of defendant No.4 that this property was kept barren from 1952 to 1957 is not correct and it was handed over to Government by his father is not correct.
30. Defendant No.4 contended that the post of Sanadi was given to him in his individual capacity and not in the capacity of the son of original office holder Sri.Pandu.
31. In this regard, in the cross-examination, defendant No.4 has deposed that after his father relieved from the office, no advertisement was given to call for the post of Sanadi and there was no such publication. Even though, defendant No.4 deposed that he has given
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR application to Tahasildar for appointing him as Sanadi and he has not produced any such document before Court to prove it. Furthermore, he admitted in his cross-examination that his father died on 10.02.1960.
32. Defendant No.4 mainly relies upon Ex.D.6 to show that suit schedule property is not joint family property but he possessed it in his individual capacity. Ex.D.6 is dated 12.01.1957. It is the panchanama drafted at the time of handing over possession of 1/3rd portion in suit schedule property to defendant No.4. According to it, the Circle Inspector of Binji Circle handed over 1/3rd portion of land in Sy.No.53 to defendant No.4, as per the order of Assistant Commissioner, Belagam N.W.S.N.10088 and WLR 374 dated 01.01.1957 and the Order of Thahasildar, Khanapur as per Order No.WTN.SR.855 dated 08.01.1957. At the time of giving possession Sannappa tukappa Mayekar was present.
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33. It is not in dispute that in the year 1957, defendant No.4 was serving as Sanadi. But, whether the office held by the Defendant No.4 was inheritable or not and whether he was serving as Sanadi in his individual capacity or not is the point to be decided in this case.
34. Admittedly, father of plaintiff and defendant Nos.1 to 4 was holding the office of Sanadi and enjoying suit schedule property as its emolument. He was not removed from the office for any misconduct. But, because of his old age, he could not continue service and hence in his place his son i.e., defendant No. 4 was brought and thus, service of Sanadi continued with defendant No.4 as son of Pandu and not in his individual capacity.
35. If, in fact, defendant No.4 has held the office in his individual capacity after relieving Pandu from the office, there would have been some documents to show that the Government had called for applications for appointment to the said post, and there would have been some publication
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR or advertisement, which is not forthcoming in the present case.
36. Even though there was a family arrangement in respect of other joint family properties, as the suit schedule property was impartible, there was no partition in respect of the suit schedule property.
37. Learned counsel for the appellants relied on the following authorities to contend that the office of Sanadi was inheritable:
i. Nagesh Bisto Desai and Ors. Vs. Khando Tirmal Desai and Ors1. (paras 18 and 19) ii. Shivappa Fakirappa Shetsanadi Vs. Kannappa Mallappa Shetsanadi2 (para 9 and 10) iii. Bhimappa Ramappa Ghasti Vs. Arjan laxman Ghasti3 iv. Patel Veerabasappa Vs. Basamma4 1 (1982) 2 SCC 79 2 ILR 1987 KAR 3155 3 ILR 1992 KAR 3594 4 ILR 1996 KAR 1435
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR v. Beerappa Vs. Fakirappa Beerappa Bandrolli5
38. The Hon'ble Supreme Court in Nagesh Bisto Desai's case (supra), at paragraph Nos.18 and 19 held as under:
"18. It is a trite proposition that property though impartible may be the ancestral property of the joint Hindu family. The impartibility of property does not per se destroy its nature as joint family property or render it the separate property of the last holder, so as to destroy the right of survivorship; hence the estate retains its character of joint family property and devolves by the general law upon that person who being in fact and in law joint in respect of the estate is also the senior member in the senior line.
19. As observed by Sir Dinshaw Mulla in his celebrated judgment in Shiba Prasad Singh v. Rani Prayag Kumari Debi(AIR 1932 PC 216):
"The keynote of the whole position, in their Lordships' view, is to be found in the following passage in the judgment in the Tipperah case (Neelkisto Dab 5 ILR 2006 KAR 4170
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NC: 2026:KHC-D:5978
RSA No. 5114 of 2008
HC-KAR
Burmono v. Beerchunder Thakoor,
(1867-69) 12 MIA 523: 3 Bengal LR 13
(pc): 12 WR 21)
"Where a custom is proved to exist, it supersedes the general law, which, however, still regulates all beyond the custom." Impartibility is essentially a creature of custom. In the case of ordinary joint family property, the members of the family have: (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance; and (4) the right of survivorship. The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second is incompatible with the custom of impartibility, as laid down in Sartaj Kuari's case (Rani Sartaj Kuari v. Rani Deoraj Kuari, (1888) 15 IA 51: ILR (1888) 10 ALL 272 (PC)) and the First Pittapur case (Rama Krishna Rao Bahadur v. Court of Wards, (1899) 26 IA 83 : ILR (1899) 22 Mad 383 (PC): 3 Cal WN 415: 1 Bom LR 277); and so also the
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR third as held in the Second Pittapur case(Raja Ram Rao v. Raja of Pittapur, (1918) 45 IA 148: AIR 1918 PC 81: 47 IC 354). To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate, though ancestral is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right, therefore, still remains, and this is what was held in Baijnath's case (Baijnath Prashad Singh v. Tej Bali Singh, (1921) 48 IA 195: AIR 1921 PC 62: 60 IC 537). To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property. Though the other rights which a coparcener acquires by birth in joint family property no longer exist, the birth-right of the senior member to take by survivor ship still remains. Nor is this right a mere spes succession is similar to that of a reversioner succeeding on the death of a Hindu widow to her husband's estate. It
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR is a right which is capable of being renounced and surrendered. Such being their Lordships' view, it follows that in order to establish that a family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to the estate."
Since the decision of the Privy Council in Shiba Prasad Singh case (AIR 1932 PC
216), it is well-settled that an estate is impartible does not make it the separate and exclusive property of the holder:
where the property is ancestral and the holder has succeeded to it, it will be part of the joint estate of the undivided family."
39. The Coordinate Bench of this Court in Shivappa Fakirappa Shetsanadi's case (supra), at paragraph Nos.9 and 10 held as under:
"9. Thus till the village office came to be abolished by the Act, though the suit land continued to be
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR annexed to the village office and enjoyed by the officiator; but it never ceased to be the joint family property. The abolition of the village office and extinguishing of all incidents appertaining to the said village office and resumption and regrant of the land annexed to the village office, released the land from the category of impartibility and made it available for partition. The abolition did not affect, and could not be said to have affected the personal law of the parties i.e., the Hindu Law of Succession. There is nothing in Section 4 of the Act which can be held to affect the personal law of the parties so as to deprive the junior members of the family of their right to claim partition of the suit land on the abolition of the village office and resumption and regrant of the land.
10. Section 4 of the Act, as it is already pointed out, abolishes all village offices and extinguishes all the incidents appertaining to the village office and resumes the land annexed to the village office subject to the provisions of Sections 5, 6, and 7 of the Act. Section 5 provides for regrant of the land resumed under Section 4 of the Act to the holder of the village office. It provides that the land resumed under clause (3) of Section 4 in case not falling under Sections 6 and 7 of the Act, shall be regranted to the person who was the holder of the village office immediately prior to the appointed date on payment
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR by or on behalf of such holder to the State Government the occupancy price. It is this holder of the village office immediately prior to the appointed date who is referred to as the 'holder' in the latter portion of the Act. As to what would be the effect of regrant will be considered a little later."
40. In the above said citations, it is specifically held that till the Village Office came to be abolished, the land continued to be annexed to the village office, but it never ceased to be the nature of joint of family property; but not available for partition; after the abolition of Village Office and resumption of the land, it became a ryotwari land only on regrant, available for partition.
41. Thus, once it is held that the land in question is annexed to the office of Sanadi, and when it is established that this office of Sanadi is inheritable, then all the members of the joint family will get share in the joint family property after regarnt.
42. In the instant case, even though the property was not granted to the eldest son of Pandu, but was given
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR to defendant No.4 as the son of Pandu and not in any other capacity, this itself establishes that the office of Sanadi was inheritable and thus it was inherited by defendant No.4 on his behalf and also on behalf of other members of the joint family. The property in question, which was in joint possession till the father enjoyed the office of Sanadi, cannot become the exclusive individual property of defendant No.4 merely because he has been appointed as Sanadi.
43. In some of the citations relied on by learned counsel for the appellants, it is held that, merely because by virtue of resumption and regrant of the land under the provisions of the Karnataka Village Offices Abolition Act, 1961, the junior members will not lose their right for partition. In the instant case, the junior member was granted with the land and not the senior member and thus, senior member of the family will not lose his right over it.
44. Learned counsel for the appellants would submit that, before the First Appellate Court, defendant No.4 and
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR his sons have filed application under Order XLI Rule 27 CPC and produced some documents which throw light that plaintiff No.1 was handicapped and thus was not in a position to discharge the office of Sanadi, and hence he was not appointed, but defendant No.4 was appointed as Sanadi. There is no pleading on these points and no evidence. Hence, the aforesaid submission cannot be considered. However, it is not in dispute that the office of Sanadi was given to defendant No.4 in the place of his father. Except a stray sentence of the plaintiff that in 1952 defendant No.4 commenced his office of Sanadi, there is no documentary proof of it. On the other hand, documentary evidence produced in this case shows that defendant No.4 commenced his office of Sanadi in the year 1955 and not in the year 1952, and in the place of his father, he was appointed. Such replacement itself establishes that the office in question was inheritable in nature.
45. Learned counsel for the respondents would further submit that, Exs.D.1 to D.5 throw some light that
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR some of the family members have challenged the grant in favour of defendant No.4, and hence now plaintiff cannot contend that suit schedule property and the office of Sanadi were held on behalf of the joint family.
46. It is to be noted here that Exs.D.1 to D.5 are only copies of summons, appeal memo and order passed on I.A.No.1 in M.A.No.44/1984 before the District Judge, Belagavi. However, what was the final result in that case is not forthcoming from these documents. Hence, not relevant to decide the present case.
47. Learned counsel for the appellants would submit that the said miscellaneous appeal was dismissed, directing the parties to approach the Civil Court to get appropriate relief. In this regard, the Trial Court, in its judgment at paragraph No.18, has made an observation that, since the suit is pending in respect of the same property, claiming the relief of partition and separate possession by all the members, nature of the property and the rights of every member in that property can be determined by the Civil
- 37 -
NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR Court, and with that observation, the said miscellaneous appeal was closed.
48. It is only after regrant that the property in question becomes partible amongst the members of the family. Hence, keeping this property aside, plaintiff and other defendants have partitioned the other joint family properties. That does not mean that the suit schedule property loses its character of jointness. On the other hand, there are catenas of decisions to the effect that the property is impartible when attached to village office, and after it was resumed by the Government, only after regrant, it become partible. Hence, the plaintiff had every right to pray for partition in the suit schedule property after it was regranted to defendant No.4 in the year 1980. Therefore, the suit filed by the plaintiff cannot be thrown away.
49. Thus, the First Appellate Court has committed an error in coming to the conclusion, without any documentary evidence before it, that defendant No.4 has acquired the suit schedule property and the office of Sanadi in his
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NC: 2026:KHC-D:5978 RSA No. 5114 of 2008 HC-KAR individual capacity; thus it requires interference. The First Appellate Court has also committed an error in understanding the case put forth by the parties. Accordingly, the substantial questions of law are answered in the AFFIRMATIVE.
50. Hence, this Court proceeds to pass the following:
ORDER The appeal filed under Section 100 CPC is allowed by setting aside the judgment and decree dated 27.03.2008 in R.A.No.27/1992 on the file of III additional Senior Civil Judge, Belgaum sitting at Khanapur and by confirming the judgment and decree dated 10.01.1992 passed in O.S.No.213/1983 on the file of the Court of the Munsiff, Khanapur.
Draw preliminary decree accordingly.
SD/-
(GEETHA K.B.) JUDGE SSP:Para 1 to 6 HMB:Para 7 to 34 GAB:Para 35 to end List No.: 1 Sl No.: 23