Karnataka High Court
Janbeg Shamasher Jamadar vs Rasul Balu Jamadar on 28 July, 2023
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NC: 2023:KHC-D:7915
RFA No. 3041 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
REGULAR FIRST APPEAL NO.3041/2011 (DEC/INJ)
VINAYAKA BETWEEN:
BV
1. SHRI JANBEG SHAMASHER JAMADAR,
Digitally SINCE DECEASED BY HIS LRS.
signed by
VINAYAKA B V
Date: 1A. SMT. MAHARAJABI W/O. JANBEG JAMADAR,
2023.11.20 AGE: 61 YEARS, OCC: AGRICULTURE,
11:06:27
+0530 R/O: MAMADAPUR K.L. - 591 211
TAL: CHIKODI, DIST:BELAGAVI.
1B. SHRI GULAB JANBEG JAMADAR,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: MAMADAPUR K.L. - 591 211,
TAL: CHIKODI, DIST: BELAGAVI.
1C. SMT. DILSHAD W/O. BALASAHEB MULLA,
AGE: 39 YEARS, OCC: HOUSEHOLD,
R/O: AKKOL - 591 211,
TAL: CHIKODI, DIST: BELAGAVI.
1D. ABEDA D/O. JANBEG JAMADAR,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: MAMADAPUR K.L.-591 211,
TAL: CHIKODI, DIST: BELAGAVI.
SHRI PAPALAL SHAMASHER JAMADAR,
SINCE DECEASED BY HIS LRS.
2. SHRI AJIT PAPALAL JAMADAR,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: MAMADAPUR, K.L., 591 211,
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RFA No. 3041 of 2011
TALUK: CHIKODI
DIST: BELGAUM.
3. SHRI NAZIR PAPALAL JAMADAR,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: MAMADAPUR, K.L. - 591 211,
TALUK: CHIKODI, DIST: BELGAUM.
4. SOU. MADINA W/O. HARUN PATEL,
AGE: 32 YEARS, OCC: HOUSELHOLD,
R/O: AT: TURAMBE, 416 208,
TQ: RADHANAGARI, DIST: KOLHAPUR,
MAHARASHTRA, STATE.
5. SHRI ILLAI SHAMASHER JAMADAR,
SINCE DECEASED BY HIS LRS.
5A. SMT. ASMA W/O. IIAHI JAMADAR,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: MAMADAPUR K.L. 591 211,
TAL: CHIKODI, DIST: BELAGAVI.
5B. SHRI SURAJ S/O. ILLAHI JAMADAR,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: MAMADAPUR K.L. - 591 211.
5C. SMT. RUKKAYYA W/O. FAROOQ DANAWADE,
AGE: 25 YEARS, OCC: HOUSEHOLD,
R/O: RAJAPUR - 416 103,
TAL: SHIROL, DIST: KOLHAPUR.
6. SHRI BALU SHAMASHER JAMADAR,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: MAMADAPUR, K.L. - 591 211,
TAL: CHIKODI, DIST: BELGAUM.
SHRI SAHEB JANGALI JAMADAR,
SINCE DECEASED BY HIS LRS.
7. SMT. CHANDABAI W/O. SAHEB JAMADAR,
DEADE -A APPELLANTS 8 TO 12 ARE
TREATED AS HER LEGAL REPRESENTATIVES.
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RFA No. 3041 of 2011
8. SOU. MATABABI W/O. ZAHANGIR MULLA,
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O: MANGUR 591 215,
TALUKA: CHIKODI, DIST: BELGAUM.
9. SOU. MUMTAZ W/O. ZAHANGIR MULLA,
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O: AT:MALBHAG, POST: KASABA - SANGAON,
TQ: KAGAL, DIST: KOLHAPUR,
MAHARASHTRA STATE.
10. SOU. BISMILHA W/O. NABISO MULLA,
AGE: 39 YEARS, OCC: HOUSEHOLD,
R/O: BASAVA NAGAR, HUNNARGI 591 215,
TALUKA: CHIKODI, DIST; BELGAUM.
11. SOU. AKKABAI @ MUMTAZ,
W/O. MEERASAB KOTHALI,
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O: PALASE PLOT, MANJARI - 591 213,
TALUK: CHIKODI, DIST: BELGAUM.
12. SOU. DILSHAD W/O. ZAKIR SHAIKH,
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O: KARANUR 416 216,
TALUKA: KAGAL, DIST: KOLHAPUR,
MAHARASHTRA STATE.
...APPELLANTS
(BY SRI RAMACHANDRA A. MALI, ADVOCATE)
AND:
RASUL BALU JAMADAR,
SINCE DECEASED BY HIS LRS.
1. SMT. MAHABUBI W/O. RASUL JAMADAR,
AGE: 69 YEARS, OCC: HOUSEHOLD,
R/O: MAMADAPUR, K.L. 591 211,
TALUKA: CHIKODI, DIST: BELGAUM.
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RFA No. 3041 of 2011
2. SHRI GULAB RASUL JAMADAR,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: MAMADAPUR, K.L. 591 211,
TQ: CHIKODI, DIST: BELGAUM.
3. SHRI SIKANDAR RASUL JAMADAR,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: MAMADAPUR, K.L. 591 211,
TQ: CHIKODI, DIST: BELGAUM.
4. SHRI RASID RASUL JAMADAR,
AGE: 42 YEARS, OCC: AGRICULTURE
R/O: MAMADAPUR, K.L. 591 211,
TQ: CHIKODI, DIST: BELGAUM.
5. SOU. SHAHANAJ,
W/O. SALIM VANTAMURE @ KHAN,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: NEAR TEMALAI MANDIR,
KALANAND HOUSING SOCIETY,
VIKRAM NAGAR, KOLHAPUR 416 012,
MAHARASHTRA
...RESPONDENTS
(BY SMT. PALLAVI S. PACHHAPURE, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 R/W. ORDER XLI
RULE 1 OF THE CIVIL PROCEDURE CODE, 1908, AGAINST THE
JUDGMENT AND DECREE DATED 18.02.2011 PASSED IN
O.S.NO.107/2004 ON THE FILE OF THE SENIOR CIVIL JUDGE
CHIKODI, DECREEING THE SUIT FILED FOR DECLARATION AND
CONSEQUENTIAL RELIEF OF INJUNCTION.
THIS APPEAL, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.06.2023 COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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NC: 2023:KHC-D:7915
RFA No. 3041 of 2011
JUDGMENT
Defendants in OS No.107 of 2004 on the file of the learned Senior Civil Judge, Chikkodi (hereinafter referred to as 'the Trial Court' for brevity) have preferred this appeal being aggrieved by the judgment and decree dated 18.02.2011, decreeing the suit of the plaintiff and declaring that he is the absolute owner in possession of the suit schedule properties and restraining defendant Nos.1 to 4 from interfering with his peaceful possession and enjoyment of the same by granting permanent injunction.
2. For the sake of convenience, parties shall be referred to as per their status and rank before the Trial Court.
3. Brief facts of the case are that, the plaintiff filed the suit OS No.107 of 2004 before the Trial Court against defendant Nos.1 to 5 seeking declaration that he is the absolute owner in possession of the suit schedule properties and for permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the schedule properties. The schedule appended to the plaint describes (i) R.S. No.45 measuring 3.31 aces, and (ii) R.S. No.15 measuring -6- NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 7.31 acres, situated at Mamadapur K.L. Village, Chikkodi Taluk ('schedule properties'). Since the entire survey numbers constitute the schedule properties, the boundaries are not referred to in the schedule.
4. It is the contention of the plaintiff that the schedule properties are the Sanadi Inam Lands granted for services rendered. Initially Balu - the father of the plaintiff was rendering the services as Sanadi and after his death, the plaintiff continued the same. The Assistant Commissioner, Chikkodi, vide order dated 04.09.1954 appointed the plaintiff as Sanadi in the place of his father. The name of the plaintiff was mutated in the revenue records and he is in possession and enjoyment of the same.
5. It is contended that the schedule properties were re-granted as per the order of the Assistant Commissioner, Chikkodi, dated 28.09.1970 and as per the order of the Tahasildar, Chikkodi, dated 17.10.1970. Thus, the plaintiff continued to be in possession and enjoyment of the schedule properties as per M.E. No.1781 of Mamadapur K.L. Village and -7- NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 paying the land revenue, growing groundnut, tobacco, chilly and sugarcane crops.
6. It is contended that the defendants who are not having any right, title or interest over the schedule properties started denying the title of the plaintiff and interfering with his possession and enjoyment. The plaintiff apprehends that he may be dispossessed by the defendants, as they are politically and physically strong. The cause of action for the suit arose during last week of June, 2004, when the defendants started denying the title of the plaintiff. Therefore, plaintiff sought for declaration of his title and permanent injunction against the defendants.
7. During the pendency of the suit, the original plaintiff Rasul Balu Jamadar died and his legal representatives were brought on record. Similarly, defendant Nos.2 and 5 have also died and their legal representatives were brought on record.
8. Defendant No.1 filed the written statement denying the contentions taken by the plaintiff. It is contended that the schedule properties were inherited from the ancestors of the -8- NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 plaintiff and defendants. One Hussain is the common ancestor and he is the great-grandfather of the plaintiff and defendant Nos.1 to 5. When they were living jointly, the schedule properties were granted in the name of Appa, as Sanadi Inam Lands. Budan being the brother of Appa along with their respective family members were enjoying the properties as tenants in common. After the demise of Appa, his son Balu and thereafter the plaintiff came to be appointed as Sanadi on behalf of the family members. Since from the lifetime of Appa and Budan, the schedule properties were in joint possession and enjoyment of all the members.
9. It is contended that there was a family arrangement between Appa and Budan and in accordance with the said arrangement, they were cultivating the properties, since 1967. There was a compromise between the family members and in terms of the compromise dated 05.07.1967 between the plaintiff, defendants No. 1, 2, 5, Karim and Balu, who are the sons of Budan, the schedule properties are being enjoyed by them.
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10. It is contended that on introduction of Karnataka Village Offices Abolition Act, 1961 (hereinafter referred to as 'KVOA Act'), the schedule lands given to the family of the plaintiff and defendants in lieu of rendering Sanadi services were vested in the Government and the same came to be resumed by the Government on extinguishment of Village Offices, subject to recognition of rights of the holders of Village Offices. The Watan Abolition Act effected change in the tenure and character as 'Watan Lands', but it never effected the other incidents of the property. As per the Personal Law governing the parties, the property continued to be the property held by tenants in common. Even though the re-grant of the lands was in the name of one of the members of the family, it enures to the benefit of all the members. It is also contended that the appointment of the plaintiff and his father as Sanadi and their possession over the suit properties was for and on behalf of the descendents of Appa and Budan. The re-grant order passed by the Assistant Commissioner on 28.09.1970 and the order of the Tahsildar dated 17.10.1970 in the name of the plaintiff enure to the benefit of all the descendents of Appa and Budan, including
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 the defendants. Therefore, the plaintiff is estopped from claiming right over the properties, exclusively.
11. It is contended that during 1966, the plaintiff had made an attempt to lay his exclusive claim over the schedule properties by filing the suit OS No.30 of 1966 against defendants No. 1, 2 and 5 and also against Kasim and Balu who are the sons of Budan Jamadar and Dalanbi Imam Jamadar. The defendants in the said suit contested the claim of the plaintiff. Even though an interlocutory order in favour of the plaintiff was passed, the same was challenged before this Court in M.F.A. No.362 of 1966. During the pendency of the said appeal, the plaintiff and defendants No. 1, 2, 5 and 6, at the intervention of well-wishers, compromised the dispute and there was an arrangement as stated above, for cultivation of the schedule lands and accordingly started enjoying the properties as per the said arrangement. Therefore, the suit before the Trial Court and the M.F.A. No.362 of 1966 before this Court came to be disposed of as 'settled out of Court'. Thus, the defendants are also the owners in possession of the schedule properties and they are not strangers. The plaintiff is not entitled for any declaration or for permanent injunction.
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12. It is contended that only when defendant Nos.1, 5 and 6 gave waradi to the Revenue Authority to enter their names in the revenue records, an enquiry was held after issuing notice to the plaintiff and the plaintiff thought of filing the suit to defeat the rights of the defendants and other sharers. It is also contended that the suit is bad for non- joinder of necessary parties, i.e., other members of the family who are representing their respective branches. It is also contended that the suit is barred by limitation as the defendants have denied the exclusive right of the plaintiff over the schedule properties in OS No.30 of 1966. Thereafter, the plaintiff had not taken any action to seek declaration in his favour. Therefore, defendant No.1 prayed for dismissal of the suit with costs.
13. Defendant Nos.2 to 5 have filed the memo adopting the written statement filed by defendant No.1. After the death of defendant No.5, his legal representatives i.e., defendant Nos.5 (a to f) have also filed the memo adopting the written statement filed by defendant No.1.
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14. On the basis of these pleadings, the Trial Court framed the following issues for consideration:
"1. Whether the plaintiff proves his exclusive title over the suit schedule property in pursuance of the grant made by the Assistant Commissioner under the Watan Abolition Act?
OR
2. Whether the defendants prove that the grant of the suit land in favour of the plaintiff enures for the benefit of the joint family?
3. Whether the plaintiff proves his lawful possession and enjoyment of the suit property as on the date of the suit?
4. Whether the plaintiff is entitled to the reliefs, which he has claimed?
5. What order or decree?
15. The plaintiff got examined himself as PW1 and got marked Exs.P.1 to P.103 in support of his contention. The defendants got examined DWs.1 to 4 and got marked Exs.D.1 to D.24 in support of their defence. The Trial Court after taking into consideration all these materials on record, answered issue
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 Nos.1 and 3 in the Affirmative, issue No.2 in the Negative and issue No.4 partly in the affirmative and accordingly, decreed the suit of the plaintiff declaring that he is the absolute owner in possession of the suit schedule properties and restraining defendant Nos.1 to 4 from interfering with his peaceful possession and enjoyment of the schedule property by granting permanent injunction.
16. Being aggrieved by the same, the defendants have preferred this appeal.
17. Heard Sri Ramachandra A. Mali, learned counsel for the appellants and Smt.Pallavi S Pachhapure, learned counsel for the respondents. Perused the materials including the Trial Court records.
18. Learned counsel for the appellants contended that the relationship between the parties as per the genealogy referred to in the written statement of defendant No.1 before the Trial Court is not disputed. Filing of the suit OS No.30 of 1966 by the plaintiff on 18.07.1966 claiming permanent injunction is also not in dispute. When temporary injunction was granted in the said suit in favour of the plaintiff, the same
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 was challenged before this Court by filing M.F.A. No.362 of 1966 and the parties to the suit entered into a compromise. As a result, the suit as well as the Miscellaneous First Appeal came to be disposed off. Ex.D.24 is the 'D¥À¸Ávï gÁfRIJ ¥ÀvÀæ ', which was entered into between the parties and the same has been acted upon. As a result, the members of the family are in possession and enjoyment of different portions of the schedule properties as mentioned in Ex.D.24. In the meantime, with effect from 01.02.1963, in view of the KVOA Act, the lands vested with the Government. Subsequently on 20.09.1970, the schedule properties were re-granted in favour of the plaintiff and obviously it is on behalf of all the members of the family. A detailed memo was filed before this Court in M.F.A. No.362 of 1966 for withdrawing the same and therefore the plaintiff is estopped from contending otherwise.
19. Learned counsel further submitted that as per Ex.D.24 which is a 'D¥À¸Ávï gÁfRIJ ¥ÀvÀæ ', each sharer is allotted a share in the schedule property and accordingly each of them are in possession and enjoyment of the property. Since it is only a family arrangement, the same does not require
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 registration. In support of his contention, he placed reliance on the decision in the case of Kale & Ors Vs. Deputy Director of Consolidation & Ors1.
20. Learned counsel further submitted that originally the grant of the land was as Sanadi Inam Land. It is hereditary in nature. The co-ordinate Bench of this Court in Imamsa Chandas Gurikar & Ors. Vs. Mohdinsa Nabisa Gurikar & Ors2 referring to the decision of the Hon'ble Apex Court, categorically held that grant of Watan to the eldest member of the family would not make him the exclusive owner of the Watan properties. It is also held that any member of the family of the Watandar, who has a hereditary interest both in Watan property and in the hereditary office, would be entitled to hold the said office, but by practice the office of Walikar or Watandar was conferred only on the eldest member of the family, on the basis of custom, by applying the Rule of Primogeniture, applicable to such office. The Court held that the Watan Act has been enacted to preserve the pre-existing rights of the members of the joint family and each of the branch of the family descended from the original Watandar. The expression 1 AIR 1976 SC 807 2 R.F.A. No. 588/1996 disposed off on 14.12.2017
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 'head of the family' is defined to include Chief Representative of each branch of the family. The Court has reiterated the expression of the Hon'ble Apex Court that Watandar cannot be limited to the narrow class of persons who have claimed the hereditary interest both in the Watan properties or in the hereditary office. Watan property has also been treated as property belonging to the family and all persons belonging to the Watan family, who had a hereditary interest in such Watan property and were entitled to be Watandars of the same Watan within the meaning of 'Watan Act', were entitled to a share in such property, once it ceases to be impartible. The Court has also held that the holder of the Village Office under the Karnataka Village Office Abolition Act, 1961, would mean, a person having an interest in the Village Office under the existing law relating to the said office, would also include junior members of the family who had an interest in the Village Office and not restricted to only those appointed in the said Office. Therefore, the said decision aptly applies to the case on hand.
21. Learned counsel placing reliance on the above decision also contended that the Court has made it clear that this principle would apply to Muslim families as ruled by the
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 Hon'ble Apex Court in Abubakar Abdul Inamdar (dead) by 3 Lrs. and Others Vs. Harun Abdul Inamdar and Others and that the right of a member of the family to seek partition of the property cannot be regarded as a right relating to re-grant of land as service inam or an incidence in respect thereof. Such right is irrespective of re-grant of the said land to the holder of a Village Office. On re-grant of the land, the holder is deemed to be an occupant and therefore holding changes its intrinsic character and becomes Ryotwari land and the land becomes capable of partition by metes and bounds amongst the members of the joint family, be it Hindu or Muslim, as and when succession opens or the right to claim partition exceeds. He contended that once the office of the Watandar stood extinguished, the Rule of lineal primogeniture stood abolished and the land on re-grant becomes Joint Family property held by the Watandar for and on behalf of the joint family just as other property which is in possession of the co-heir and the same is applicable to the parties to the present suit. 3 1995 SCC (5) 612
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22. Learned counsel also contended that the co- ordinate Bench of this Court categorically held that the word 'person' defined under Section 31-B of the KVOA Act, 1961, includes persons and it is not just an eldest son of the Walikar who is demised and who has interest in the Village Office, but all his sons would have interest in the Office as well as the emoluments attached to such Office including the land, even though only the eldest son is conferred with the said office on the basis of Rule of Primogeniture and not on his individual merit, which is being higher as opposed to the merit of his other family members. Since it is a settled position of law as held by the Hon'ble Apex Court and reiterated by the co- ordinate Bench of this Court just as the members of the Joint Hindu Family would be entitled to seek partition and separate possession of the land re-granted under the provisions of KVOA Act, 1961, the members of the Muslim family would also be entitled to seek such a division.
23. Learned counsel also placed reliance on the decision rendered by the Division Bench of this Court in Beerappa Vs.
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 Fakkirappa Beerappa Bandrolli & Ors4 to contend that the re-grant after resumption of the land in the State in favour of one of the members of the joint family will not become his exclusive property, but on the other hand by succession or by survivorship, the junior branch of the family will also become entitled to the share in the land.
24. Placing reliance on these decisions, learned counsel for the appellants contended that the father of the plaintiff was rendering service of Sanadi. He being the eldest member of the family, re-grant in his name would enure to the benefit of the members, even though the family is governed by Muslim Law. Ex.P.31 is the document under which father of the plaintiff was appointed as Sanadi, being the eldest member of the family and therefore the decisions referred to above are aptly applicable to the facts of the present case.
25. Learned counsel refers to Ex.P34 (which is also marked as Ex.D1), to contend that Appa - the eldest son of Hussain, is shown as khatadar even before 1894. Therefore, it is clear that it was not Appa for the first time officiated as 4 ILR 2006 KAR 4170
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 Sanadi but even earlier to that, the eldest members of the family were holding the office. Under such circumstances, the plaintiff cannot seek declaration of his right over the property to the exclusion of other members of the family. The Trial Court has committed an error in decreeing the suit of the plaintiff, declaring him as the absolute owner in possession of the property and restraining the defendants from interfering with his possession and enjoyment of the same. Hence, he prays for allowing the appeal, in the interest of justice.
26. Per contra, learned counsel for the respondents opposing the appeal submitted that the relationship between the parties as per the genealogy is not in dispute. One Hussain was the father of Appa and Budan. But Hussain has never officiated the office of Sanadi at any point of time. Even as per Ex.P34, it was only Appa who is the son of Hussain, for the first time appointed as Sanadi. Therefore, even accepting the dictum laid down in various judgments relied on by the learned counsel for the appellants, the branch of Appa is entitled to seek partition in the lands that were re-granted in favour of the plaintiff. Since Hussain was never officiated the office of Sanadi, the branch of Budan, the second son of Hussain are
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 strangers and they cannot seek any right over the schedule properties.
27. Learned counsel further submitted that the family genealogy in the case of Imamsa Chandsa Gurikar (supra), Abu Bakar Abdul Imamsa (supra) and Mohammadsa (supra) disclose that only the members of the branch who was appointed to the office of either Sanadi or Walikar or Gurikar, are entitled for the benefits of the properties, irrespective of the fact that the eldest member is appointed to officiate the office. Under such circumstances, it was held in all these decisions that even the junior members in the branch are entitled to succeed by applying the principles of primogeniture.
28. Learned counsel further submitted that Ex.D.24 is not a family arrangement, but it is in the form of a partition deed, which is compulsorily registerable under the provisions of the Registration Act. Only in case a family arrangement is entered into between the parties regarding the oral partition already effected, by reducing the terms of such partition into writing, then only it could be held that the document does not require registration. But if the terms of family arrangement are
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 found in writing, such document would necessarily require registration.
29. Learned counsel by referring to the decision in Kale & Ors (supra) contended that, a distinction is made by the Hon'ble Apex Court between the document containing the terms and recitals of the family arrangement made under the very document and a mere memorandum prepared after the family arrangement had already been made, either for the purpose of record or for information of the Court or for making necessary mutation. Only in such case of the memorandum recording the earlier arrangements which do create or extinguish any rights in the immovable properties, it does not fall within the mischief of Section 17(2) of the Registration Act. Therefore, it is not a compulsorily registerable document and it does not require registration. In the present case, the recitals in Ex.D24 do not suggest that there was an earlier partition amongst the members of the family and the terms of the same were reduced into writing in the form of a document. Under such circumstances, Ex.D24 is a compulsorily registerable document and the same cannot be looked into for any purpose.
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30. Learned counsel further submitted that Ex.D24 was never proved by the defendants. The said document is dated 05.07.1967 and it is styled as a partition between the members of the family. From 05.07.1967 till filing of the suit on 04.08.2004, Ex.D24 had not seen the light of the day and it was never acted upon. It is only as per Ex.P102 dated 28.09.1970, the lands were re-granted in favour of the plaintiff. On the date of Ex.D24, the lands were already vested in the Government and it was not available for partition.
31. Learned counsel further submitted that even when OS No.30 of 1966 was filed and was pending on the date of Ex.D24, it was not produced in the said suit, nor it was produced before this Court even though M.F.A. No.362 of 1966 was pending as on that date. Even though D.W.1 has filed the affidavit in lieu of examination-in-chief, he never referred to Ex.D24. The evidence of DWs.1 to 4 to prove Ex.D24 is not helpful to the defendants in any manner as they being the sons of the so-called attesting witnesses and the scribe, have never identified the signatures of the attesting witnesses and the scribe as that of their father. Only after filing the suit by the plaintiff, that too, in the year 2005, an attempt was made by
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 the defendants to seek mutation of the revenue records by submitting an application and the same was rejected by the Revenue Officer. Even when the said order was challenged before the Assistant Commissioner by preferring an appeal, the same came to be dismissed vide order dated 05.12.2005, as per Ex.P96.
32. Learned counsel further submitted that even though the defendants contended that on the basis of Ex.D24, they are in possession of a portion of the schedule land, they never proved the same by producing any materials in OS No.30 of 1966. The defendants herein pleaded that they are cultivating about 14 acres of other lands and are growing sugarcane. Exs.D4 to D24 could be related to those lands where they were growing sugarcane crop, but the same cannot be related to the schedule properties.
33. Learned counsel also contended that the Trial Court has meticulously considered the contentions of the parties along with the oral and documentary evidence placed before it and arrived at a right conclusion to decree the suit of the plaintiff as prayed for. It has assigned valid reasons for
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 decreeing the suit and the same cannot be termed as either perverse or illegal. Under such circumstances, there are no reasons to interfere with the impugned judgment and decree passed by the Trial Court. Hence, she prays for dismissal of the appeal, with costs, as devoid of merits.
34. In light of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the impugned judgment and decree passed by the Trial Court suffers from any perversity or illegality and the same calls for any interference by this Court?"
My answer to the above point is in the 'Negative' for the following:
REASONS
35. The undisputed facts of the case are that, one Hussain is the father of two brothers - Appa and Budan. Appa had three sons including defendant No.5. Budan had three sons. The plaintiff is the son of Balu, the eldest son of Appa, while the defendants are the children of Samsher, the second son of Budan.
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36. The family genealogy which is admitted by both the parties, is as under:
Hussain Appa Budan Balu Jangali Sileman Babu Shamasher Kashim Saheb(D.5) Rasul Badasaheb Appa (plaintiff) Janbeg Rapalal Mamulal Walli@Irallahi Balu (D-1) (D-2) (D-3) (D-4) Admittedly, the schedule properties are the service inam lands for rendering services of Sanadi.
37. It is the contention of the plaintiff that initially his father Balu was rendering service as Sanadi and the schedule properties were granted as Service Inam Land. It is also the
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 contention of the plaintiff that Appa, the grandfather of the plaintiff, was first to officiate the office of Sanadi and he was in cultivation and enjoyment of service inam lands. Thereafter, it was by his eldest son Balu and again by the plaintiff being the eldest son of Balu, were officiating the office of Sanadi. Therefore, it is the contention of the plaintiff that since Hussain was never officiated the office of service Inam, never rendered services as Sanadi, the branch of Budan is not entitled to inherit any share in the schedule properties.
38. On the other hand, it is the contention of the defendants that the schedule properties were inherited by the common ancestor of plaintiff and defendant, i.e., Hussain - father of Appa and Budan. Therefore, by applying the principles of lineal Primogeniture, the descendents of Budan being the younger brother of Appa, is also entitled for a share in the property as they enjoyed the property as tenants in common. Since the office of Sanadi Inam was heritable to the eldest member in the family, the properties granted towards such services is heritable by all the members including the junior branch members of the family. Therefore, since the defendants are the descendents of Budan - the younger brother
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 of Appa, they are entitled to succeed to their share. Under such circumstances, the plaintiff is not entitled for declaration that he is the absolute owner in possession of the schedule properties or for permanent injunction as sought for.
39. Admittedly, with effect from 01.02.1963, the Karnataka Village Abolition Act, 1961, came into effect and the lands granted as Inam Lands for officiating the office of Sanadi, vested with the Government. It is also admitted that only on 28.09.1970, the schedule properties were re-granted in favour of plaintiff as per Ex.P31. According to the defendants, there was a family arrangement between the members of the family as per Ex.D24, which evidence the fact that even the plaintiff admitted the rights of the defendants over the schedule properties.
40. Ex.P34 is the earliest available document which is in vernacular - Marathi language. Ex.P34(a) is its translation in Kannada. According to it, it is the Mutation Entry No.41A to the effect that Appa Vallad Hussain Sanadi is the khatadar even prior to 1894, in respect of Sy.Nos.15 and 45 of Mamadapur village, being the Sanadi Inam Lands. Even though, it is
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 contended by the defendants that in Ex.P.34(a) there is reference to the name of Hussain, who is said to be the common ancestor of Appa and Budan, on verification of the document the reference to the name of Hussain is as father of Appa Vallad and not in his individual right. Even though it is contended by the defendants that the timeline referred to in Ex.P34(a) as 'prior to 1894' coincides with the lifetime of Hussain - the father of Appa and Budan, there are absolutely no such materials to probabalize the said contention. The plain reading of Ex.P34(a) reveals that it was Appa son of Hussain, who is the grandfather of the plaintiff-Rasul was the khatadar of the properties in question as he was officiating the office of Sanadi.
41. The plaintiff-Rasul who is the grandson of Appa was aged 60 years when the suit was filed in the year 2004 and therefore it could be reasonably held that Appa being the grand father for having officiated the office of Sanadi for the first time just before or during 1894. Since there are no other evidence either oral or documentary in support of the case of the defendants to contend that Hussain - the father of Appa and Budan was first officiating the office of Sanadi and since the
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 earliest document that is available is Ex.P34(a), it could be safely held that it was not Hussain, but it was Appa Hussain who was officiating the office of Sanadi as contended by the plaintiff. When it is held that Appa, son of Hussain was officiating the office of Sanadi for the first time, the legal position regarding inheriting the schedule properties is to be considered.
42. The KVOA Act, 1961 was enacted to abolish village offices in the State of Karnataka, which was held hereditary before commencement of the Constitution and the emoluments appertaining thereto in the State of Karnataka and to provide for matters consequential and incidental thereto. Under the said Act, the appointed date is 01.02.1963 under Section 2 (1) (a) of the Act. Under Section 2 (1) (b) 'authorized holder' has been defined to mean a person in whose favour a land granted or continued in respect of or annexed to, a village office by the State or a part thereof has been validly alienated permanently, whether by way of sale, gift, partition or otherwise, under the existing law relating to the such village offices. The definition of emoluments would include lands. Section 2(1) (g) defines 'holder of a village office' or 'holder' to mean a person having
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 an interest in a village office under an existing law relating to such office.' The proviso states that where any village office has been entered in a register or record under the existing law relating to such village office, as held by the whole body of persons having interest in the village office, the whole of such body shall be deemed to be the holder. The word 'Inferior village officer' is defined to mean 'every village office of lower degree than that of a Patel or Village Accountant'. 'Officiator' means the person actually performing the duties of a village office, whether he be a person having a right to perform the duties of such office or a substitute appointed under the existing law relating to such office. The word 'Village office' is defined under Section 2(1)(n), which essentially is held hereditarily.
43. Both the learned counsels placed reliance on the decision of the co-ordinate Bench of this Court in Imamsa Chandas Gurikar (supra), in support of their contention. The co-ordinate Bench of this Court considering the similar set of facts raised the point for consideration, which is as under:
"Whether the suit schedule lands being attached to the office of Walikar and re-granted to
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 Nabisab under KVOA Act, 1961, would enure to the benefit of all the members of the family of Chandas?.
44. After considering several decisions of the Hon'ble Supreme Court and Privy Council, the Court held that despite order of re-grant being conferred by the learned District Judge, the said re-grant would enure to the benefit of all the members of the family of Chandas, who was the erstwhile owner of the Office of Walikar and on his demise, despite the same being conferred on Nabisab, who was his eldest son. The Court also considered as to whether the order of re-grant of the suit lands made in the name of Nabisab was on the basis that Nabisab only had the right to enjoy the said lands on its re-grant and not to the benefit of all other members of the family, i.e., other heirs of Chandsa, who was holding the office of Walikar till his demise.
45. The Court held while answering the point that, it would be useful to revisit two aspects. Firstly, as to whether the appointment of Nabisab as walikar was exclusive, based on his own merit and qualification and in his individual capacity and that his appointment to the said office did not enure to the
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 benefit of other members of the family. Secondly, as to whether the order or re-grant of the suit lands made in the name of Nabisab was on the basis that, Nabisab only had the right to enjoy the said lands on its re-grant and it did not enure to the benefit of all other members of the family of Chandsa. That on the demise of Nabisab, his legal heirs only were entitled for the share in the said lands and not the branch of plaintiffs' family.
46. Learned counsel for the respondents has drawn my attention to the genealogy and facts of the case in Imamsa Chandsa Gurikar (supra). The genealogy in the said case is as under:
Imamsa Chandsa (2/12/153) Lalsa (died) Anasarama (Predeceased Chandsa) Rajama
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Nabisa (17/1/1996)
P1 P2 P3 P4 P5 Sahebi
Son Son
D1 (Wife) Chandama
(19/9/88) Daughters
P6 P7
D2 D3 D4 D5
47. The suit for declaration, partition and separate possession was filed by the plaintiffs in respect of the lands that were granted by virtue of the office of Walikar. Imamsa, the original propositus was the holder of the office of Walikar and thereafter the eldest members in the branch were officiating the office of Walikar. By applying the principles of primogeniture, it is held that even the junior branch members of the said branch are entitled for partition. It is relevant to refer to the portion of the judgment.
48. The co-ordinate Bench of this Court considered the facts of the case and the position of law as laid down in various
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 decisions of either Hon'ble Apex Court or this Court, including the decisions in Mohamadsa (supra) and Beerappa (supra), held that despite the order of re-grant being confirmed on the eldest member of the family, the said re-grant would enure to the benefits of all the members of family of Chandsa who was the erstwhile holder of the office of Walikar and on his demise, despite the same being concurred on Nabisab, who was his eldest son. Accordingly, point No.1 referred to above was answered. Even though the re-grant of the land was made in the name of Nabisab on the enforcement of KVOA Act, 1961 in his individual name, it was held that the other members of the family would also get benefit of such re-grant. The grantee of the land is not entitled to appropriate the land and enjoy the same to the exclusion of other members of the family i.e., the other heirs of Chandsa, who was holding the office of Walikar till his demise. It is specifically held that Nabisab being the heir of Chandsa and being the eldest son was conferred with the office of Walikar on the basis of Rule of primogeniture. But that would not imply that the other heirs of Chandsa became disentitled to enjoy the suit land jointly alongwith Nabisab. Taking clue from the settled position of law, the co-ordinate
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 Bench of this Court has re-iterated that impartibility of the watan lands did not per se dilute its nature as joint family properties or render it as separate property of the last holder of the village office, so as to mutate the right of other members of the joint family to a share in the said property. Such lands are held to be the joint family properties under Hindu law and it cannot be excluded from the other properties of the joint family as that would run counter to the scheme of 1874 Act or the Watan Act. Therefore, it was held that the re-grant of watan land in favour of any member of the joint Hindu family would imply that it would enure to the benefit of the entire joint Hindu family.
49. It was further held that the principle would also apply to a Muslim family as ruled by the Hon'ble Apex Court. Thus, it was concluded that the re-grant made in the name of an individual in the joint family would not take away right of junior member of the family, who had interest in the village office, to seek partition and share in the suit land according to his personal law, despite the re-grant being made in the name of the holder of the village office, immediately prior to the date of re-grant. It is further made clear that the other members of
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 the ex-watandar can seek partition of the watan lands once the same is re-granted to a watandar and it becomes ryotwari lands, in terms of their personal law. Therefore, watan lands becoming ryotwari lands, the watandari being extinguished the applicability of law of Rule of lineal primogeniture would also stand abolished and all the persons entitled to claim right to partition in accordance with law as per their personal law.
50. The co-ordinate Bench referred to Section 2(1)(g) of KVOA Act, 1961 and the expression 'holder of a village office' or 'holder' means a person having an interest in a village office. It also includes 'whole body of persons' having an interest in the village office, where such office has been entered in a register or record or relating to such village office being held by such body. It is also made clear that the word 'person' in clause (b) of Section 3(1) includes 'persons'. It is not just the eldest son of a walikar, who has demised, who has an interest in the village office, but all his sons would have an interest in the office as well as the emoluments attached to such office including land, although only the eldest son is conferred the said office on the basis of Rule of primogeniture and not on his
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 individual merit being higher as opposed to the merit of other family members.
51. It is held that Nabisab being the heir of Chandsa who officiated the office of Walikar on the basis of Rule of Primogeniture, which was re-granted only in his name, but that would not suggest that the other heirs of Chandsa became disentitled to enjoy the suit lands jointly along with Nabisab which they did so as heirs of Chandsa only because Nabisab was re-granted the land under KVOA Act, 1961.
52. Learned counsel for the respondent has drawn my attention to the genealogy in Abu Bakar Abdul Inamdar (supra), which is as under:
Syed Abdulla Inamdar (Holder of Office) Abubakar Son Son Son Daughter Daughter
53. It is contended that it was Syed Abdulla Inamdar who was officiating the office and after his death, it was his eldest son Abubakar was appointed to the office. However, even the junior members of the family of Syed Abdulla Inamdar
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 were held to be entitled to claim interest in the property. It is relevant to highlight the observations of the Hon'ble Apex Court that the inams were impartible and had to devolve upon the eldest son by the Rule of primogeniture. Therefore, service to the ruler due from the members of the family were expected to be taken from the eldest son by the Rule of primogeniture, then the heirs of Syed Abdulla, even though not forming a joint family as is known to Hindu law, would still be a group of people, the representative of which is Abubakar, in order to hold the Inam. Once that Inam was abolished and re-grant given to Abubackar, impartibility of the estate vanished and thus this group of people were definitely entitled to claim their respective shares in accordance with the law of Shariat. Thus, the position of law is made very clear by both the decisions that the principle enunciated would apply equally to Muslim families to seek partition of such properties after re-grant of the land in favour of the holder of the office.
54. Similarly, in Mohammadsa (supra), the genealogical tree is as under:
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RFA No. 3041 of 2011
Maktumsa (Holder of Office) Walikar
Madansa Allisa Mashaksa
Mohmmadsa Hanifsa Kasimsa
D1 D2 D3
55. The eldest member Maktumsa, was the holder of the office of Walikar and after his demise it was his eldest son Madansa and thereafter Mohammadsa officiated the office of Walikar. This decision was also referred to by the co-ordinate Bench of this Court in Imamsa (supra). The Division Bench of this Court considered the issue framed by the Trial Court as to whether the plaintiffs prove that they are entitled to partition and possession of 2/3rd share in the suit properties held that in spite of re-grant of the land in favour of the eldest member of the branch, the junior members would become co-owners as each one of them became entitled to a share in the suit lands.
The right of the co-owner can be extinguished by another co- owner only by an act of ouster and thereby depriving him or keeping away by a positive act from use and enjoyment of the
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 property for a continuous period of 12 years. Therefore, it was held that the younger brother of Maktumsa who filed the suit is entitled for the benefits by applying the principles of primogeniture.
56. Thus, the Courts have reiterated the position of law that the successors in interest of the eldest member of the family, who was appointed and was officiating the office, are entitled to the benefits of the properties attached to such office, even though they are the junior members in the family, by applying the rule of lineal primogeniture. It was only under such circumstances, the Courts have repeatedly held that grant of land to the eldest member of the family do not make it the exclusive property of the person who was appointed to the office but it would enure to the benefit of other junior members in the family.
57. It is the settled proposition of law that the impartibility of the property does not per se destroy its nature as joint family property or render it the separate property of the land holder, so as to destroy the right of survivorship. It is not in dispute that the estate retains its character of joint
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 family property and it devolves by the general law upon those persons who being in fact and in law in respect of estate, are also members in the line of succession.
58. In the present case, as discussed above, the earliest document that is available is Ex.P34 and 34(a) where as per M.E.41, the khatadar during 1894 was Appa Walad Hussain, who was officiating the office of Sanadi. Ex.P.31 is in Marathi language. Ex.P.31(a) is its translation. It is M.E. No.752 dated 31.12.1947 and the revenue records were mutated in the name of Balu Appa Jamadar, i.e., the eldest son of Appa Hussain as per Rule of primogeniture. Similarly, Ex.P.32 (its translation Ex.P.32(a)) is dated 14.10.1954 - M.E. No.1084. According to it, the eldest son of Balu, i.e., Rasul Balu, who is the plaintiff herein and his name came to be mutated in the revenue records. Thus, the materials placed before the Court unmistakenly prove that, for the first time it was Appa, the grandfather of the plaintiff was appointed as Sanadi on his own merits and therefore, only his branch is entitled for the benefit of Rule of Lineal Primogeniture and not the branch of his brother who is not concerned with the office
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 of Sanadi at any point of time, as his father Hussain was never officiated the said office.
59. Ex.D24 is said to be 'D¥À¸Ávï gÁfRIJ ¥ÀvÀæ ', dated 05.07.1967. Admittedly, KVOA Act, 1961 came into force with effect from 01.02.1963. From the said date, the lands in question were vested in the Government. The re-grant was only on 28.9.1970 as per Ex.P33 (translation is at Ex.P33(a)).
60. The suit OS No.30 of 1966 was filed by Rasul Jamadar, where temporary injunction was granted in favour of the plaintiff. Challenging the same, M.F.A. No.362 of 1966 was preferred. The suit came to be dismissed as 'settled out of Court' on 14.07.1967, but no terms of compromise is found in any of the document. Similar is the case when MFA No.362 of 1996 came to be dismissed on 15.11.1967. If at all, Ex.D24 was entered into on 05.07.1967, then that would have found a place in any of the documents at least in the memo seeking dismissal of the suit before the Trial court and the M.F.A. before this Court.
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61. Admittedly, Ex.D24 styled as 'D¥À¸Ávï gÁfRIJ ¥ÀvÀæ ', and it is an unregistered document. The recitals found in the said document disclose that a family arrangement was made under the said document and thereby rights were created in respect of different items of properties in favour of the members of the family as mentioned therein. In Kale (supra), the Hon'ble Apex Court after considering the binding effect and essentials of a family arrangement laid down several propositions including the one which reads as under:
"(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between the document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case, the memorandum itself does not create or distinguish any rights in a immovable properties and therefore, does not fall within the mischief Section 17(2) of the Registration Act and is, therefore, not compulsorily registerable."
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62. Thus, the position of law is very well settled by the Hon'ble Apex Court. If Ex.D24 is considered in the light of this proposition of law, the recitals would go to show that the family arrangement and apportionment of the properties was made under the very document and it was not a memorandum prepared after the family arrangement had already been made. Under such circumstances, the defendant cannot seek shelter under Section 17(2) of the Registration Act and therefore, they cannot place reliance on Ex.D24 in support of their contention.
63. Even though, it is the contention of the plaintiff that by applying the principles of Primogeniture, it is only he who is entitled for declaration and for possession of the schedule properties, the discussions held above disclose that it was not only the plaintiff who is entitled to the exclusive possession of the properties, but the junior members of the family of Appa are also entitled for the benefits of the properties attached to such office. However, denial of the right of the defendants, who claims under Budan will not automatically deny the right of either defendant No.5 or other junior members of the family of Appa. Therefore, it is made clear that the original plaintiff Rasul being the eldest member in the family of Appa and
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NC: 2023:KHC-D:7915 RFA No. 3041 of 2011 thereafter Balu, is entitled for a declaration of his right and for permanent injunction against defendant Nos.1 to 4, but not against defendant No.5 and other descendents of Appa.
64. I have gone through the impugned judgment and decree passed by the Trial Court. It has taken into consideration all the materials on record and has arrived at a right conclusion. I do not find any reason to interfere with the same. Accordingly, I answer the above point in the negative and proceed to pass the following:
ORDER
(i) The appeal is dismissed with costs.
(ii) The judgment and decree dated 18.02.2011 passed in OS No.107 of 2004 on the file of the learned Senior Civil Judge, Chikodi, is hereby confirmed.
Registry is directed to send back the Trial Court records with a copy of this judgment.
Sd/-
JUDGE bvv