Karnataka High Court
Chandrashekharayya Veerabhadrayya ... vs Veerabhadrayya A/F Chandrashekarayya on 2 August, 2012
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 2nd day of August 2012
Before
THE HON'BLE MR.JUSTICE N.KUMAR
REGULAR FIRST APPEAL No.944/2000
C/W
R.F.A CR.OB No. 3/2002
In RFA No.944/2000:
Between
1. Chandrashekharayya Veerabhadrayya
Kadadeveramath, R/O Jolada Oni, Hubli.
2. Girijadevi W/o Verabhadrayya Kadadevaramath,
Age: 35 Years, R/o Jolada Oni, Hubli.
3. Vijayalaxmi Veerabhdrayya Kadadevaramath,
R/O Jolada Oni, Hubli.
... Appellants
(By Sri Ashok R Kalyanashetty, Advocate)
And
1. Veerabhadrayya A/F Chandrashekarayya
Kadadevaramath, Major,
Occ: Nil of Jolada Oni Hubli,
Dead by LRS Appellant NO.1 and 3
are already on record amended as
per order dated 08.02.05
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2. Gurushiddayya Shiddeshwarayya
Kadadevaramath,
Since dead by LRS
2.A Smt Hemalat Kom
Gurushiddayya Kadadevaramath,
Major, Occ: Hosuehold Work
of Jolada Oni, Hubli.
2.B Vijaya Gurushiddayya Kadadevaramath,
Major, Occ: Student of do,
2.C Sunil Gurushiddayya Kadadevaramath,
Major, Student of do,
2.D Shivayougi Gurushiddayya Kadadevarmath,
Major, Occ: Student of do.
2.E Managla D/O Gurushiddayya
Kadadevarmath,
Minor by Guardian Mother
Smt Hemalat Kom Gurushiddayya
Kadadevaramath.
3. Kadadhiddeshwarayya Shiddeshwarayya
Kadadevaramath,
Major, Occ: Prof.Science College,
Jamakhandi, Dist: Bijapur.
4. Shivabai Kom Lingayya Kadadevarmath,
Major, Occ: Household Work of
Jolada Oni, Hubli.
5. Basavannayya Lingayya Kadadevarmath,
Major,
R/O Yaliwal now at Jolada Oni, Hubli.
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6. Kadayya Lingayya Kadadevarmath,
Major,
R/O Yaliwal now at Jolada Oni, Hubli.
7. Channbasayya Lingayya Kadadevaramath,
Major,
R/O Yaliwal now at Jolada Oni, Hubli.
8. Shiddeshwarayya Lingayya Kadadevaramath,
Major,
R/O Yaliwal Now at Jolada Oni, Hubli.
9. Shivashankarayya Lingayya Kadadevaramath,
Major,
R/O Yaliwal now at Jolada Oni, Hubli.
10. Pramila kom Malikarjun Hiremath,
Major, C/O M M Hiremath,
Civil Engineer Savadatti,
Dist: Belgaum.
11. Shakuntala kom Manohar @ Mohan Hiremath,
Household Work of Vijayanagar,
Hubli.
12. Shiddeshwarayya Madivalayya Keladimath,
Major, Occ: Motor Driver of Jolada Oni,
Hubli.
13. Shankuntala kom Shiddeshwarayya Keladimath,
Major, Occ: Household Work of Hubli.
14. Shivakumar,
Major,
S/O Shiddeshwarayya Keladimath
Jolada Oni, Hubli.
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15. Rajeshwar,
Major,
S/O Shiddeshwarayya Keladimath
Jolada Oni, Hubli.
16. Gurubasayya,
Major,
S/O Shiddeshwarayya Keladimath
Jolada Oni, Hubli.
17. Sri Guru Kadashiddeshwar Shishu Vihar,
President,
2nd Deft., Hubli.
18. Akkamma Kom Basavaraj Nidagundi,
Major, Occ: Household Work of Ganeshpet,
Hubli.
19. Prema D/O Adiveppa Mantur,
Major, Occ: Service of Annigeri Chawl
Ganeshpet, Hubli.
20. Shatrungna Venkatashing Mage,
Since Decd. By His LRS
20.A Shantawwa Chatursingh Magi,
Major, Household Work of Jolad Oni, Hubli.
20.B Shashikala Chatursingh Magi,
Major,
20.C Sapana Chatursingh Magi
20.D Sapana Chatursingh Mage
20.E Kalpana D/O Chatursingh Magi
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All are Majors,
R/O. Jolada Oni, Hubli.
21. Laxman Venkatashing Magi,
Since Decd. By LRS
21.A Smt Radhavva Kom Laxman Magi,
Major, Occ: Household Work
of Jolada Oni, Hubli.
21.B Manjunath Laxman Magi,
Major, Occ: Merchant of Jolada Oni,
Hubli.
22. Fakkirappa Hanamantappa Karigar,
Major, Occ: Goundi of Joladaoni
Kadedevaramath Chal, Hubli.
23. Basanagouda Rudragouda Patil,
Since Decd. by LRS
23.A Shantawwa Kom Basanagouda Patil
Major, Occ: Household Work of Jolada Oni,
Hubli.
23.B Gangadhar Basanagouda Patil,
Major, Goundi of Jolada Oni
Hubli.
24. Ningappa Dyamappa Hiregoudar
Major, Occ: Service of Hubli (given up)
25. Ayyanagouda Dyamappa Hiregoudar
Major, Jolad Oni, Hubli (given up)
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26. Hanamantappa Bhimappa Madiwal
Major, Occ: Hamali of Jolad Oni, Hubli
27. Mudakappa Bhimappa Madiwal
Major, Occ: Cooli of Jolad Oni, Hubli
28. Basawwa kom Fakkirappa Hagli
Since Decd. By LRS
28.A Siddalingappa Fakkirappa Hadli
R/O Jolada Oni, Hubli
28.B Mallwwa kom Mudakappa Hadli
R/O Jolada Oni, Hubli
29. Gangawwa Kom Shiddappa Talawai
Major, Since Decd. By her LRS
29.A Smt Laxmawwa D/O Shiddappa Talawai
Major, R/O Jolad Oni, Hubli
29.B Irawwa D/O Shiddappa Talawai
Major, R/O Jolad Oni, Hubli
30. Tippanna Sabanna Ambiger
Since Decd. By his LRS
30.A Narasamma Kom Tippanna Ambiger
Major, R/O Jolada Oni, Hubli
30.B Somanna Tippanna Ambiger
Major, R/O Jolada Oni, Hubli
30.C Malleshi Tippanna Ambiger
Major, R/O Jolada Oni, Hubli
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30.D Savanna Tippanna Ambiger
Major, R/O Jolada Oni, Hubli
31. Hushani Ramappa Madiwal,
Major, Occ: Cooli of Jolada Oni
Hubli.
32. Chandrappa Sabanna Ambiger,
Major, Occ: Cooli of Jolada Oni
Hubli.
33. Babu Basayya Hiremath,
Major, Occ:Service of Jolada Oni
Hubli.
34. Chanabasappa Ningappa Talikeri,
Major, R/O Jolada Oni
Hubli.
35. Rajeshwari Kom Shivanand Adavimathm,
Major, C/O Shivanand Adivimath
Vidyut Nagar, Hubli.
36. Veerabhadrappa Veerappa Sirigannvar,
Major, Occ: Trade of Jolada Oni
Hubli.
37. Mallappa Mahadevappa Aminger,
Major, Jolada Oni, Hubli.
38. Shri. Muresh Harjivandas Patadia,
Age: 45 Years, Occ: Business,
R/O. Adarsh Nagar, Hubli.
- Respondents
(By Sri. Mallikarjun.S. Mylar for R.1,
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Sri. Santosh D Naragund,
Sri. V.G Balannavar for R.2.A, R.2.C, R.2.D,
Sri. M Ram Bhat for R.2.A-E,
Sri. G.F Hunasikattimath and R.P Hosamani
For R.4-R.9, Sri. Ujjannavar for R.7,
Sri. V.R Datar for R.12, 14 to 16,
Sri. Sadiq N Goodwala for R.38,
R.3, 11, 18, 22, 23 A-B, R.2;5, R.28.A
R.29.A-B, R.30.A to D, R.31, R.34-37,
R.19, 32, 21.A, 27- notice dispensed with
Service held sufficient in R/o. R.17, 20. A-E,
21.B, 24, 26, R.30.B, and R.33,
R.10 Served)
This appeal is filed under Section 96 of CPC
against the judgment and decree dated 11.8.2000
passed in O.S No.51/88 on the file of the Prl. Civil
Judge (Sr.Dn.), Hubli, dismissing the suit for partition
and separate possession.
In R.F.A Cr.Ob No.3/2002:
Between:
1. Shivubai Kom Lingayya
Kadadevarmath,
Age: Major, Occ: household,
R/o. Jolada Oni, Hubli.
2. Basavannayya Lingayya
Kadadevarmath.
3. Kadayya Lingayya
Kadadevarmath.
4. Channabasayya Lingayya
Kadadevaramath.
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5. Shiddeshwarayya Lingayya
Kadadevaramath.
6. Shivashankrayya
Lingayya Kadadevaramath,
Age: Major,
R/o. S.I.T College,
Tumkur.
Cross Appellants No.2, 3 and 4
Are residing at Jolada Oni,
Hubli, appellant No.5
R/at Onayna Ganga High School,
Haveri.
- Cross Objectors
(By Sri. G.F Hunasikattimath, Advocate)
And:
1. Chandrashekharayya
Veerab Adrayya Kadadevarmath,
Age: Major.
2. Girijadevi
W/o. Veerabhadrayya Kadadevaramath,
Age: Major.
3. Vijayalaxmi Veerabhadrayya,
Kadadevaramath.
4. Veerabhadrayya
Chandrashekarayya Kadadevaramath.
5. Gurushiddayya Shiddeshwarayya,
Kadadevaramath,
Since deceased by his LR's:
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5.A Smt. Hemalat Kom Gurushiddayya
Kadadevarmath,
Age: Major.
5.B Vijaya Gurushiddayya
Kadadevaramath,
Age: Major.
5.C Sunil Gurushiddayya
Kadadevaramath,
Age: Major.
5.D Shivayougi Gurushiddayya
Kadadevarmath, Age: Major.
5.E Mangala
D/o. Gurushiddayya
Kadadevarmath, Age: Major,
Respondents No.1 to 4
R/at. Jolada Oni Hubli and
Respondents No.5(a) to 5(d) are
R/at Keshvapur, Hubli.
6. Kadadhiddeshwarayya
Shiddeshwarayya Kadadevaramath,
Age: Major, Occ: Prof. Science College,
Jamakhandi, Dist: Bijapur.
7. Shiddeshwarayya Madivalayya
Keladimath, Major,
Occ: Motor Driver of Jolada Oni,
Hubli.
8. Shankuntala Kom. Shiddeshwarayya
Keladimath, Age: Major,
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Occ: Household Work of Hubli.
9. Shivakumar,
10. Rajeshwar,
11. Gurubasayya,
Respondents No.8 to 11 are
Sons of Siddeshwarayya Keladimath,
R/at Jolada Oni, Hubli.
- Respondents
This R.F.A Cr.Ob filed under Order 41 Rule 22 of
CPC Read With Chapter VI Rule 9 to 11 of the
Karnataka High Court Rules against the judgment and
decree dated 11.08.2000 passed in O.S No.51/88 on the
file of the Prl. Civil Judge, Sr.Dn., Hubli, dismissing the
suit for partition and separate possession.
This RFA and RFA Cr. Ob. coming on for final hearing
this day, the Court delivered the following:
JUDGMENT
This is a plaintiffs' appeal challenging the judgment and decree of the trial Court dismissing the suit of the plaintiffs for partition and separate possession of their legitimate share in all the plaint schedule properties.
11 : 12 :
2. The propositus is one Gurusiddayya. He had 2 sons by name Channabasayya and Kadayya. Channabasayya had 4 sons by name Gurusiddayya, Veerabhadrayya, Kadayya and Lingaiah. Kadayya had no issues. Therefore, he took Channabasayya's son Lingayya in adoption. Thus, Lingayya, son of Channabasayya went out of the family of Channabasayya. It appears there was a partition between Channabasayya and Kadayya during their lifetime. There was no partition between Channabasayya and his sons during his lifetime. After the death of Channabasayya, among his 3 sons Gurusiddayya went out of the family by taking his share in the joint family properties on 12.1.1876 which is not in dispute. Towards his share, he took the property bearing Municipal No. 3236 and 3237. The property bearing Municipal Nos. 3234 and 3235 was held in joint by Veerabhadrayya and Kadayya. In fact in the said document it was made clear that property bearing 12 : 13 : Municipal No. 3238-Kadadeveramatha and the property at Chindanur were not partitioned. On 20.9.1888 as per Ex.D55 - by registered partition deed, Veerabhadrayya and Kadayya effected a partition in respect of property bearing Nos. 3234 and 3235 which they had held jointly. In the said partition, property bearing Municipal No. 3235 fell to the share of Veerabhadrayya and property bearing Municipal No. 3234 fell to the share of Kadayya. The property which was kept in joint by the three brothers, i.e., Kadadeveramatha, property bearing No. 3238 and vacant space and the property at Chindanur continued to be joint. It is relevant to notice that Gurusiddayya died issue less on 3.11.1915. Veerabhadrayya had 3 sons by name Chandrashekarayya, Siddeshwarayya and Channabasayya. His son Channabasayya died issue less, his son Siddeshwarayya was given in adoption to Gurusiddayya. Therefore, Chandrashekarayya alone represented the branch of 13 : 14 : Veerabhadrayya and thus inherited all the properties which fell to the share of Veerabhadrayya in the partition as per Ex.D55. Though the aforesaid partition took place, necessary mutation entries were not effected and all the properties continued in the name of Kadayya who was the sole surviving sons of Channabasayya. Siddeshwarayya, the adopted son of Gurusiddayya filed suit O.S. No. 886/1927 claiming property Nos. 3236 and 3237 which exclusively fell to the share of Gurusiddayya in the partition deed dated 12.1.1876 and other properties as the name of Kadayya continued even in respect of the said properties. His claim was denied. Suit was dismissed. Aggrieved by the said judgment and decree dismissing the suit, he preferred an appeal. Appeal was allowed and suit was decreed. Thereafter he sued out execution and took possession of the property as per Ex.P44. On 21.6.1933 Kadayya died, as aforesaid issue less. Veerabhadrayya had died somewhere in 1902.
14 : 15 :
3. Lingayya, son of Gurusiddayya who had gone in adoption to Kadayya had a son by name Basavannayya. Basavannayya had a son by name Lingayya and one daughter by name Smt. Adiveyva. Adiveyva was married to Madiwalayya Keladimath, who was the brother of Gurubasavva, wife of Kadayya. After the death of Kadayya, on 1.8.1933 her name was entered in the mutation register. Adiveyva and Madiwalayya Keladimath had a son by name Siddeshwarayya Madiwalayya Keladimath. He was taken in adoption by this Gurubasavva on 25.10.1936. There was a partition on 2.1.1947 between Gurubasavva and Lingayya which is oral. From the pleadings as contained in the plaint, it is clear the parties are not clear about these relationships, the properties which belong to the family, the events that have transpired and probably on misinformation given, the Advocate who has drafted the plaint is not clear 15 : 16 : about what the case of the plaintiffs is. That is the reason why without going into the pleadings as contained in the plaint, after hearing the learned counsel for the parties, looking into the admitted positions, we have clearly set out the relationship between the parties, the properties which originally belong to the joint family, the properties which are divided and properties which are continued to be held jointly.
4. The plaintiffs before the Court represents Veerabhadrayya's Branch. In the plaint they have included nearly 12 items of the properties. Subsequently, they have filed a memo deleting the properties shown in para 4(b) and item no. 8 and 9 in 4A. Therefore when the plaintiffs are not claiming any share in the aforesaid properties, the said properties go out of the suit. In the body of the plaint there is a reference to the Wills, partitions, etc. all of which has 16 : 17 : been denied by the defendants. However, it is in these circumstances plaintiffs without knowing what exactly their rights are, what is the status of the parties, have sought for the relief of partition and separate possession and seeking ½ share in all the plaint schedule properties and in the alternative 1/3 share in the plaint schedule properties. In fact in the suit, Veerabhadrayya has been made as the first defendant. The contesting defendant is Gurusiddayya. Therefore, virtually he has no objection for the suit being decreed. The second defendant has filed a detailed written statement, denying the various allegations in the plaint there is no serious contest. Defendant no. 2(a) also has filed a separate written statement admitting the partitions referred to above; admitting the adoptions referred to above and has made allegations against defendant nos. 4 to 9. They have denied the Gift Deed set up which is dated 19.03.1964 as a got up document and sought for 17 : 18 : dismissal of the suit. However, it is the defendant nos. 4 to 9, who are the contesting defendants in the suit.
5. Their specific case is, the propositus Channabasayya had four sons Gurusiddayya, Veerabhadrayya, Kadayya and Lingayya. These defendants are the descendents of the said Lingayya son of Channabasayya, who went in adoption. The said Lingayya had a son Basavannayya and his son was also Lingayya. The defendant no. 4 is the wife of the said Lingayya, son of the said Basavanneyya. Defendant nos. 5 to 9 are the sons of said Lingayya. They produced a genealogical chart, which according to them shows the correct particulars of the ancestors of the plaintiffs and the defendants and relations to one another. The plaintiffs claim to be the descendents of one Gurusiddayya who was the another son of Channabasayya. The said Gurusiddayya was separated from his other brothers long time ago, his relationship 18 : 19 : whatsoever with the members of the other branch has ceased long time ago, i.e., at least 50 years ago. Therefore the possession of the suit property is adverse since more than 50 years, i.e., since 1927. Therefore the plaintiffs have no right, title or interest in the suit property. Even assuming that he had right, title and interest in the suit property, the same have become extinct. For more than 12 years the possession of the property is adverse to that of the plaintiff and his predecessors in title and consequentially the suit is not in time. The suit is therefore barred by limitation. They contended that the plaintiffs shall first establish they were and are in possession of the suit properties next within 12 years after the filing of the suit. On the other hand, the plaintiffs have been kept out of the possession of the suit property for more than 50 years. The possession of the suit properties is adverse to the plaintiff. Hence the suit is liable to be rejected in limine. According to them, the true facts are, original 19 : 20 : propositus had sons, i.e., Veerabhadrayya, Kadayya, Gurusiddayya and Lingayya. Veerabhadrayya and Gurusiddayya separated from the family almost 8 years ago. Only Kadayya and Lingayya had continued to remain joint. Lingayya predeceased Kadayya. After the death of Veerabhadrayya, his adopted son Veerabhadrayya, his adopted son Siddeshwaryya who was given in adoption to Gurusiddayya had filed a suit against Kadayya for possession of the suit property bearing no. 2395, 2885, 2916 and 2923. The same came to be dismissed. Subsequently, Sri Kadayya died in or about the year 1933 leaving behind him, his wife; Gurubasavva who adopted one Siddeshwarayya Keladimath, i.e., defendant no. 12 grandson of Basavanneyya. Properties were standing in the name of Kadayya as representing the undivided family of Kadayya and heirs of Lingayya. After the death of Kadayya, the name of his wife was entered in the property register record. Basavanneyya alone 20 : 21 : representing the branch of Lingayya. Subsequently Basavanneyya also died and he had only one son Lingayya and daughter called Advivevva. Advivevva also died leaving behind defendant no. 12 and another person Lingayya also died leaving behind him these defendants. Subsequently on 02.01.1947 there was a partition between Gurubasavva and Lingayya, the father of defendant nos. 5 to 9. In the said partition these defendants got the properties bearing CTS No. 2888, 2895 and 2885A of Ward No. 2, Jolada Oni, Hubli. Since the date of partition these defendants and their predecessors, Basavanneyya, are in exclusive possession and enjoyment of the above properties. Gurubasavva had adopted Siddeshwaryya son of Veerabhadrayya and consequently Gurubasavva has made gift of all her properties to the adopted son Siddayya @ Siddeshwaryya. In the said Gift, the property bearing CTS No. 2885A had fallen to the share of the defendants branch. Still then, in the gift deed it 21 : 22 : was wrongly mentioned that this property was also gifted to Siddeshwaryya. Subsequently this defendant had filed O.S. No. 195/1982 against the said Siddeshwarayya and in the said suit, a compromise decree was passed wherein Siddeshwaryya acknowledged that these defendants alone are the absolute owners of the suit properties and accordingly in pursuance of the compromise decree the names of these defendants came to be entered in the CTS record. Thus, these defendants are in absolute possession and enjoyment of the three properties mentioned above exclusively in their right. These defendants have been collecting rents from the various tenants in the said properties. The plaintiffs and other persons who represent different branches of the sons of Channabasayya, have no right, title or interest whatsoever in the suit properties. Hence the suit as against these defendants in the family property, is liable to be dismissed.
22 : 23 :
6. Chandrasekharayya, the natural brother of Siddeshwarayya @ Siddayya son of Channabasayya has filed O.S. No. 160/1960 against Lingayya, the father of defendants 5 to 9 in which there was a clear admission of partition between the different branches. Plaintiffs are therefore bound by the admission made in the said suit.
7. The property bearing CTS No. 2855A, 2888 and 2893 are the exclusive properties belonging to these defendants. Further, ironical fact is, father of the defendant had themselves applied to the Assistant Charity Commissioner, Belgaum, to register the suit properties as the properties belonging to the public trust and the same was heard by the Assistant Charity Commissioner and thereafter the Assistant Charity Commissioner has held that there is no public trust in the name of Kadadevaramath and the said properties are the private properties and not the trust properties. 23 : 24 : Further, inclusion of the properties which are fallen to the share of these branch of these defendants, as the suit properties is totally misconceived and illegal. Further, averments made in 3(c) of the plaint, are also misconceived as there was a division in the family in or about the year 1927 itself. The allegation that there were only three branches is totally misconceived. As stated above there was fourth brother who is Lingayya and thus non mention of his name is misconceived and illegal.
8. The allegation that Gurusiddayya adopted Siddeshwarayya are true and correct. It is false to say that when Kadayya died, Gurubasavva managed the property on behalf of the joint family, of which, the plaintiff's predecessors were members. It is false to allege that the suit properties are in the joint possession and enjoyment of the plaintiffs and defendant nos. 1, 2 and 3. The three properties referred to above are the 24 : 25 : properties belonging exclusively to these defendants and the plaintiffs and the other defendants have no right, title or interest whatsoever over the properties. It is false to allege that these defendants do not have right, title and interest in the suit properties. The defendants in collusion with the Municipal Authorities and without notice to the plaintiffs and other defendants, got their names entered in the city survey records, is false. The plaintiffs are out of possession of the suit properties since 1930 and they are out of possession for almost a century.
9. Defendant nos. 12 to 16 have filed separate written statement. They contended that the genealogy given in the plaint is incomplete and subtle; in particular the propositus Channabasavayya had one more son by name Lingayya and he is not shown in the pedigree decree. Again this defendant no. 12 was adopted by Gurubasavva wife of Kadayya in 25 : 26 : Dwyamushayana form and purposely the defendant no. 12 is shown as the son of Madhivalayya and his wife defendant no. 3 and since defendant nos. 14 to 16 are called as Dwyamushayana. The adoption of defendant no. 12 by Gurubasavva is known to the plaintiff and other defendants and to the whole world. Defendant no.12 is enjoying the properties belonging to Gurubasavva and her husband Kadayya all along continuously, uninterruptedly, peacefully for more than 25 years, paying tax, etc. to the notice of the plaintiffs and other defendants and the whole world and without prejudice to his rights, has adopted the son to the property left by Kadayya and Smt. Gurubasavva. Defendant no. 12 has perfected his title by adverse possession. Gurubasavva to avoid technicalities of law, has made a valid gift of CTS no. 2889, 2892 and rights in CTS no. 2885A to this defendant no. 12 by a Registered Deed of Gift on 19.03.1964 and has reaffirmed that this defendant is adopted to her on or 26 : 27 : about 25.10.1936. The defendant alternatively submitted he is enjoying the said property as owner till today, continuously, uninterruptedly and peacefully, to the knowledge of the plaintiffs and other defendants and to the whole world. The gift is made by Smt. Gurubasavva was in sound disposing condition and according to law. Then he has denied all the allegations in the plaint.
10. The Trial Court on the aforesaid pleadings framed the following issues.
1. Whether the plaintiffs prove the genealogy one furnished by them is correct?
2. Whether the plaintiffs, prove that, the documents and decree got obtained through deceased Gurubasavva are illegal and not binding on them?
3. Whether the plaintiffs, are entitled to half share in the suit properties for its actual possession by metes and bounds from defendants 2 to 16?
27 : 28 :
4. Alternatively whether the plaintiffs are entitled to 1/3rd share by metes and bounds in the suit properties?
5. Whether plaintiffs are entitled for mesne profits as prayed?
6. Does the defendant No.12 prove that the deceased Gurubasavva executed the registered gift deed dated 19.3.64 gifting CTS Nos.2889, 2891, 2892 and right in CTS No.2885-A?
7. Does the defendant No.12 further prove that, he has other wise perfected his title to the CTS Nos.2889, 2891, 2892 by way of adverse possession?
8. Whether the defendant No.12 has validly sold the CTS No.2889, 2891, 2892 to defendants 13 to 16?
9. Do, the defendant No.4 to 9 prove that, there was a partition between Gurubasavva and Lingaiah the father of D.5 to D.9 and the properties bearing CTS No.2888, 2893 and 2885A War No.II Hubli, fallen to their shares?
10. What order and what decree?
28 : 29 :
Addl. Issue:
1. Whether defendants 12 to 16 prove that Gurushiddappa Lingayya, Kadayya and Veerabhadrayya separated by taking their share in the joint family properties before 1900?
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11. The plaintiffs in order to substantiate their claim, examined the second plaintiff as PW1 and 5 witnesses were examined on behalf of the plaintiffs as PW2 to PW6. In all, 96 documents are marked as Ex.P.1 to Ex.P.96. On behalf of the defendants, 5th defendant is examined as DW1, 12th defendant is examined as DW3 and in all 103 documents were exhibited as Ex.D.1 to Ex.D.103 on behalf of defendants 5 and 12. No evidence is lead on behalf of defendant nos. 1 to 3 but the witnesses are cross examined on behalf of defendant nos. 1 and 2.
12. The Trial Court on appreciation of the aforesaid oral and documentary evidence on record held 29 : 30 : the plaintiffs have failed to prove the genealogy furnished as correct. They further failed to prove that the documents and decrees, which are passed against deceased Gurubasavva, are illegal and not binding on them. The plaintiffs are not entitled to ½ share or 1/3 share, consequently they are not entitled to any mesne profits. The defendant no.12 has proved that the deceased Gurubasavva executed a Registered Gift Deed dated 19.03.1964 gifting CTS No. 2889, 2891 and 2892 and rights in CTS 2885-A. The 12th defendant has failed to prove that he has perfected his title over the suit property by way of adverse possession. The Defendant no. 12 has validly sold CTS No. 2889, 2891 and 2892 to the defendant nos. 38. The Defendant nos. 4 to 9 have failed to prove that there was a partition between Gurubasavva and Lingayya, the father of defendant nos. 5 to 9 and properties bearing CTS no. 2888, 2893 and 2885-A, Ward No. 2, Hubli, as fallen to their shares. Further, it held the defendant nos. 12 to 30 : 31 : 16 have proved Gurusiddayya, Lingayya, Kadayya and Veerabhadrayya separated from the joint family by taking their share in the joint family properties before 1900. Thus, the trial Court dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree of the trial Court the plaintiffs are in appeal.
13. Sri Ashok R. Kalyanshetty, the learned counsel appearing for the appellants-plaintiffs, assailing the impugned judgment and decree of the trial Court contended, the trial Court has not properly appreciated the undisputed documentary evidence on record and thus committed a serious error in accepting the case of the 12th defendant and in dismissing the suit of the plaintiffs. He also submitted, during the pendency of this appeal, defendant nos. 12 to 16 have sold the most valuable properties which are the subject matter of the suit, which does not belong to them in favour of respondent no.38, the purchaser who is impleaded as a 31 : 32 : party in this appeal. Though the pleadings of the parties are not specific, all the parties because of passage of time, are not clear about what had transpired in the past, have pleaded and given evidence on the information they have, which is contrary to the registered documents which are produced in the case. Therefore he submits, to shorten the litigation, it is better, the Court focuses its attention on facts which are evidenced by the registered documents which is not in dispute and decide the rights of the parties in accordance with law.
14. The learned counsel appearing for the respondent nos. 2(a)(c) and (d) Sri Santhosh Naragund contended in property bearing no. 2885A their client also has acquired 1/3 share and it does not belong exclusively to the plaintiffs and therefore he submits this aspect has not been properly appreciated by the trial Court.
32 : 33 :
15. The learned counsel for the purchaser-R38 contends, the property which he has purchased, no doubt, during the pendency of the proceedings, is a property which has fallen to the share of defendant nos. 12 to 16 under a registered Gift Deed, which was executed by a person who was the absolute owner of the said property and therefore he has acquired valuable title under the Sale Deed dated 17.7.2008, over which, neither the plaintiffs nor other defendants have any manner of right, title and interest over the same. Therefore the trial Court was justified in dismissing the suit of the plaintiffs and the said judgment and decree called for no interference.
16. The learned Counsel appearing for defendants-12 to 10, V.R. Datar submits that gift deed which is marked in the case as Ex.D-1A, under which defendants -12 to 16 claimed absolute title is in respect of the properties bearing Municipal No.2889, 2891 and 33 : 34 : 2892 as well as the undivided right in Municipal No.2885A. Therefore it cannot be said that they have no right in the said properties. Assuming for argument sake, if this Court were to hold that property bearing No.2885A is held by the erstwhile joint family in joint, the plaintiffs would be to at best entitled to 1/3rd share in the said property only. He also submitted that the adoption of Lingayya is not established. The proceedings in O.S.No.886/1927 had culminated in a decree in appeal and in execution the property was taken possession of, clearly shows that earlier partition were not the subject matter of the gift deed and therefore they are the absolute properties of defendants-12 to 16 in which the plaintiffs have not right. Therefore he submits that in respect of other properties there cannot be any decree and in fact having regard to the pleadings in Court and the evidence on record, it cannot be said that the trial Court committed any error in dismissing the suit of the plaintiffs.
34 : 35 :
17. In the trial Court judgment, there is an observation that the third respondent is dead. The third respondent is not dead, he is very much alive.
18. In the light of the aforesaid facts and rival contentions the points that arise for consideration in this appeal are as under:
(a) Who are the members who constitute a joint family?
(b) Which are the properties, which belong to the said joint family?
(c) What are the properties which are the subject matter of partition earlier and what are the properties which are not partitioned till today?
(d) Whether the plaintiffs have any right in any of these properties which are the subject matter of the suit? 35 : 36 :
19. In order to decide the aforesaid issues, no useful purpose would be served in relying on the oral testimony of the witnesses who have no personal knowledge. Therefore it is better to look into the admitted registered documents which have come into existence at an undisputed point of time and in particular Ex.D.55, the Registered Partition Deed dated 20.09.1888 which came into existence more than 100 years back.
20. From the evidence on record it is clear that one Gurusiddayya is the propositus. He had two sons by name Channabasayya and Kadayya. Kadayya had no issues. Channabasayya had four children, i.e., Gurusiddayya, Veerabhadrayya, Kadayya and Lingayya. The controversy is whether Lingayya continued to be the member of the joint family of Channabasayya's branch. The material on record discloses that this Lingayya was given in adoption to the Kadayya as he had no issues 36 : 37 : and therefore he ceased to be the member of the joint family of Channabasayya. The material on record also discloses, after the death of Channabasayya his three sons effected a partition on 12.01.1876 by way of a Registered Partition Deed. Though the said document was not marked as an exhibit, now it is available on record, which is admitted in evidence. This document is admitted by defendant no. 12 in his evidence. It discloses that Lingayya has gone in adoption to Kadayya and thus the remaining three sons are effecting a partition. Therefore it presupposes Channabasayya and Kadayya during their lifetime had effected a partition of all the joint family properties and they were separated members of the joint family. Because Kadayya had no issues, Channabasayya gave his son Lingayya in adoption to him. After Lingayya ceased to be the member of the family of Channabasayya and after the death of Channabasayya, it is only the remaining three sons who effected the said partition. The said partition 37 : 38 : deed also reveals, in the said partition Gurusiddayya took the property no 3236 and 3237 towards his share in the joint family properties and got himself separated from the joint family. However, the remaining two members, i.e., Veerabhadrayya and Kadayya, continued to be joint. The said document also makes it clear that when Gurusiddayya got two properties towards his share in 3236 and 3237, the remaining property 3234 and 3235 was held by Veerabhadrayya and Kadayya jointly. But at the same time the property described as Kadadevaramath bearing no. 3238 and Chinganur property was not the subject matter of partition and the said two items of the property were held jointly by all the three brothers. That, Kadadevaramath property bearing no. 3238 appears to be now renumbered as property bearing no. 2885A. It is thereafter on 20.09.1888 Veerabhadrayya and Kadayya effected partition by way of a Registered Partition Deed which is marked in the case as Ex.D.55. Under the partition 38 : 39 : property bearing no. 3235 fell to the share of Veerabhadrayya and property bearing no. 3234 fell to the share of Kadayya exclusively. However, the property described as Kadadevaramath bearing no. 3238 (new no. 2885A) and the property situated at Chinganur were not partitioned. Therefore it continued to be joint. In the said partition deed there is a specific recital that on 12.01.1986 under a Registered Partition deed, Gurusiddayya took his share in the joint family property. Thus there cannot be any dispute regarding facts which are set out in Ex.D.55.
21. Somewhere in 1902, Veerabharaayya died leaving behind three sons by name Chandrashekarayya, Siddeshwarayya and Channabasayya.
Channabasayya died unmarried. Siddeshwarayya was given in adoption to Gurusiddayya. Thus, Chandrashekarayya represented Veerabhadrayya's branch. On 03.11.1915, Gurusiddayya who had taken 39 : 40 : the aforesaid Siddeshwarayya as his adopted son, died leaving behind his adopted son Siddeshwarayya. The said Siddeshwarayya filed a suit against Kadayya in O.S.No.886/1927 claiming the properties which had fallen to the share of Gurusiddayya in the aforesaid partition. After contest, the suit came to be dismissed. He preferred an appeal. Appeal was allowed. In execution of the said decree, which is marked in the case as Ex.P-44, he has taken possession of the property which fell to the share of Gurusiddayya in the earlier partition.
22. Siddeshwarayya, son of Gurusiddayya had three sons by name Veerabhadrayya, Gurusiddayya and Kadasiddeshwara. Veerabhadrayya went in adoption to Chandrashekarayya son of Veerabharayya. He is defendant-1 in the present suit. Gurusiddayya son of Siddeshwarayya is defendant-2 in the suit. Kadasiddeshwara is defendant-3 in the suit. Kadayya's 40 : 41 : wife is Gurubasavva. Lingayya who went in adoption to Kadayya, had a son by name Basavannayya. That Basavannayya had a son by name Lingayya and a daughter by name Adivevva. This Adivevva was married to Madivalayya Keladimath, who is none other than the brother of Gurubasavva. This Adivevva and Madivalayya Keladimath had son by name Siddeshwarayya and a daughter by name Virupaxavaa. Son of Adivevva i.e., Siddeshwarayya was taken in adoption by Gurubasavva. He is defendant-12 in this suit. His wife Shakuntala is defendant-13. Sons, Shivakumar, Rajeshwar and Gurubasayya are defendants-14, 15 and 16.
23. Basavannayya son of Lingayya had a wife by name Shivubai. Shivubai is defendant-4. Defendants- 5, 6, 6, 8, 9, 10 and 11 are children of Shivubai.
24. Kadayya, i.e., son of Channabasayya Gurusiddayya died on 21.06.1933. It is after his death, 41 : 42 : on 25.10.1936 Gurubasavva took the aforesaid Siddeshwarayya son of Adivevva as her adopted son. The said Gurubasavva had executed a registered gift deed in favour of defendan-12 gifting her properties bearing Municipal Nos.2889, 2891, 2892 and her undivided interest in 2885A.
25. Therefore from the aforesaid undisputed registered documents which have come into existence at an undisputed point of time, what follows is, the property belonging to erstwhile joint family is divided as under:
26. Towards the share of Gurusiddayya, Municipal Nos.3236 and 3237, towards the share of Veerabhadrayya Municipal No.3235, towards the share of Kadayya Municipal No.3234 has fallen exclusively. Therefore the question of effecting partition in this suit in respect of those properties is not permissible as they cease to be joint family properties. Under the document 42 : 43 : dated 12.01.1876 property bearing Municipal No.3238 Kadadeveramath and Chindanur was not divided. Therefore the said property belongs to all the three brothers Gurusiddayya, Veerabharayya and Kadayya. In the partition dated 20.09.1888 as per Ex.D-55 also, the said property was not partitioned. Even after the said partition, the said property continued to be joint.
27. Assuming for the sake of argument that property was the subject matter of O.S.No.886/1927 in which, the property was divided, as the branch of Veerabhadrayya was not party to the said suit, any order or decree passed in the said suit do not bind the said branch. In fact, in the last series of documents, i.e., registered gift deed dated 19.03.1964, the property bearing Municipal No.2885A is described as property held in common. The trial Court on appreciation of oral and documentary evidence on record has categorically held that the partition pleaded between Gurubasavva 43 : 44 : and Lingayya 02.01.1947 is not proved. Therefore it can be safely held that this property originally bearing Municipal No.3238 which can be identified as the property belonging to Kadadevarmath is the property which is not divided, it is held in joint by the members of the erstwhile joint family. That is the only property which is available for partition. There is a dispute regarding the new number given to Municipal No.3238. There is reference to Municipal No.2885B and also there is reference to Municipal Nos.2889, 2891, 2892 and 2893. It is the case of the plaintiffs that Municipal Nos.2889, 2892, 2885A and 2885B, all form part of Municipal No.3238 in which they are entitled to a share. It is the specific case of the defendants-2 and 12-16 that Municipal No.3238 corresponds only to Municipal No.2885A and Municipal Nos. 2891 and 2892 forms part of the property which fell to the share in the erstwhile partition. However, from the material on record it is not possible to decide this dispute as 44 : 45 : probably at the stage of leading evidence, the parties have not given much attention in this regard. But the fact remains that property bearing Municipal No.3238 is not divided and in Municipal No.3238 all the three brothers Gurusiddayya, Veerabhadrayya and Kadayya are entitled to 1/3rd share.
28. If Municipal No.2885A is all what Municipal No.3238 is, in that property, all the three brothers would be entitled to 1/3rd share. If apart from Municipal No.2885A if any of the properties referred to above also forms part of Municipal No.3238, even then, each one of them would be entitled to 1/3rd share. But this enquiry is to be conducted in the Final Decree Proceedings, if parties adduce evidence and seek partition in respect of the property other than Municipal No.2885A.
29. Plaintiffs' suit came to be dismissed on 11.08.2000. During the pendency of this appeal, 45 : 46 : defendants-12 to 16 have executed a registered sale deed dated 17.07.2008 in favour of respondent-38 who is impleaded in this appeal. They have conveyed all the properties which are the subject matter of the registered gift deed dated 19.03.1964. Therefore, the said sale deed is hit by doctrine of lis pendens. If defenants-12 to 16 are the absolute owners of Municipal Nos.2889, 2891 and 2892, the purchasers will also get absolute title.
30. In so far as property bearing Municipal No.2885A is concerned, in the gift deed itself, there is a express recital that this property is held in joint. Therefore, defendants-12 to 16 are entitled only to 1/3rd share. So the purchasers cannot get a better title than what his vendor had. Therefore is entitled to only 1/3rd share. Therefore merely because the property is purchased by respondent-38 during the pendency of the proceedings, the document would not become void. It is 46 : 47 : only in the event of defendants-12 to 16 are held to be not the absolute owners, then only to that extent, the document could be void.
31. In other words, the question whether this property bearing Municipal No.3238 corresponds only to Municipal No.2885A or it encompasses the property bearing Municipal Nos.2891, 2892 and 2893, is the matter to be decided in the Final Decree Proceedings.
32. Defendant Nos.4 to 9 have preferred cross- objection challenging the finding of the Trial Court on issue No.9 where the Trial Court has held that the partition pleaded by them between Gurubasawwa and Lingayya on 02.01.1947 is not proved. Therefore, they contend in view of the partition dated 02.01.1947 that branch got some of the properties belonging to Gurubasawwa and plaintiffs have no right in the suit property. As set out above Lingayya went out of the family in adoption to Kadaiah, therefore, in the partition 47 : 48 : effect in the family, subsequent to that adoption, the partition was effected between three brothers. Lingayya had a son by name Basavannayya. That Basavannayya had a son by name Lingayya and a daughter Adivewwa. Lingayya's son Basavannayya branch is defendant Nos.4 to 11. This partition which is set up by them is between Gurubasawwa and this Lingayya; as they are not members of the joint family and the properties, which are the subject matter of the said partition in which Lingayya had no right in the property, he cannot claim any right on the alleged partition. In fact, the Trial Court on careful consideration of evidence on record has recorded a finding that the partition dated 02.01.1947 which is stated to be oral partition is not proved and the same is based on legal evidence. I do not see any infirmity in the said finding recorded by the Trial Court. Hence, I do not see any merit in the cross- objections. Accordingly, cross-objection is dismissed. 48 : 49 :
33. In that view of the matter, I pass the following order:
ORDER The suit of the plaintiff is partly decreed.
(a) The plaintiff and his branch is entitled to 1/3rd share in property bearing Municipal No.3238 only.
(b) The question whether Municipal No.3238 encompasses only Municipal No.2885A or it also encompasses Municipal No.2891, 2892, 2893 is to be gone into in the Final Decree Proceedings.
(c) For the purpose of avoiding any further confusion, it is made clear that:-
i) Municipal No.3236 and Municipal No.3237 exclusively belongs to Gurusiddayya and consequent CTS numbers.
49 : 50 :
ii) Property bearing Municipal No.3235 exclusively belongs to Veerabhadrayya's branch and consequent CTS number 2890.
iii) Property bearing Municipal No.3234 exclusively belongs to Kadayya and the consequent CTS No.2889 belongs exclusively to defendant No.12 and his successors in title.
(d) Lingayya son of Channabasayya is given in adoption to Kadayya the brother of Channabasayya and therefore he is not the member of the joint family.
Therefore he has no right in any of these properties.
Ordered accordingly.
SD/-
JUDGE Bvv/ksp 50