Karnataka High Court
Ashok Bhima Thane @ Mahar vs Smt Basavva Appayya @ Apparai Thane on 2 December, 2021
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2nd DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO.707 OF 2006 (PAR)
BETWEEN:
1. ASHOK BHIMA THANE @ MAHAR
AGE: 60 YEARS, OCC: SERVICE & AGRIL.,
R/O KANAGALA - 591 225
TAL: HUKERI, DIST : BELGAUM.
2. VILAS BHIMA THANE @ MAHAR
AGE 50 YEARS
OCC: SERVICE & AGRIL.,
R/O CENTRAL BANK OF INDIA,
VIGILANCE BANK, MAKER TOWER (E)
CUFFE PARED, MUMBAI - 400 005.
3. KASHINATH BHIMA THANE @ MAHAR
AGE: 45 YEARS
OCC: SERVICE & AGRIL.,
R/O KANAGALA - 591 225
TAL : HUKERI, DIST : BELGAUM. ... APPELLANTS
(BY SRI RAVI S.BALIKAI, ADVOCATE)
AND:
1. SMT.BASAVVA APPAYYA @ APPARAI THANE
SINCE DECEASED BY HER LR.
ALREADY ON RECORD AS RESPONDENT NO.2.
2. SMT.KASHAVVA
W/O LAXMAN TAYAPPAGOL,
2
AGE: 41 YEARS
OCC: HOUSEHOLD WORK
JAWADAR PLOTS,
R/O NIPANI - 591 213
TAL: CHIKODI, DIST: BELGAUM. ... RESPONDENTS
(BY SRI SHIVARAJ S. BALLOLI AND
SRI RAMESH I. ZIRALI, ADVOCATES FOR R-2)
THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE, 1908.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri. Ravi S. Balikai, learned counsel for appellants and Sri.Ramesh I.Zirali, learned counsel for respondent No.2, have appeared in-person.
2. This is an appeal from the Court of Civil Judge Senior Division, Hukkeri.
3. For the sake of convenience, the parties are referred to as per their rankings before the trial Court.
4. The facts of the case are simply stated as under:-
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It is stated that the original propositus is one Govind. He had two sons namely, Bhimappa and Appayya. Bhimappa has three sons namely Ashok, Vilas and Kashinath. Appayya Thane died on 01.11.1962 leaving behind his widow the first plaintiff and daughter the second plaintiff.
The suit properties, situated at Kanagala Village in Hukkeri Taluq are both agricultural lands and houses are ancestral properties enjoyed by the propositus Govind and his sons. After the death of Appayya, the plaintiffs and Bhimappa- the father of the defendants including the defendants formed a Hindu Joint Family and they all enjoyed the ancestral properties jointly. Even after the death of Bhimappa the father of defendants, the defendants and plaintiffs formed a Hindu Joint Family and enjoyed the properties jointly.
It is said that after the death of the original propositus Govind, Bhimappa being the elder son and 4 being a Manager of the Hindu Joint Family, his name was entered in respect all the suit properties, but all the family members consisting of plaintiffs and defendants were enjoying the properties jointly till the death of Bhimappa. After the death of Bhimappa, his three sons without notice to the plaintiffs and in collusion with the Revenue Authorities got their name entered in all the properties. When the plaintiffs requested the defendants for effecting partition and separate possession of their share in the year 1996 the defendants refused to do so. Hence, plaintiffs were constrained to initiate action against the defendants. Contending that the cause of action arose in the month of December 1996 when the plaintiffs requested the defendants for effect of partition with respect of family properties and defendants refused hence they filed suit for partition.
After the issuance of the suit summons, the defendants appeared through their counsel and defendant 5 No.3 filed the written statement which was adopted by defendants No 1 and 2. They denied the plaint averments.
The defendants denied the relationship of the plaintiffs with the family of the defendants and more so with Appayya Thane. They seriously disputed the claim made by the plaintiffs that they are the wife and daughter of late Appayya Thane. It was contended that plaintiffs are not the legal heirs of deceased Ayyappa Thane. They specifically denied the genealogy referred to by the plaintiffs. Hence, they contended that plaintiffs have no right to file suit for partition and separate possession.
The defendants contended that the original propositus Govind had two sons by name Bhimappa and Appayya. Appayya was not married. He predeceased Bhimappa. He died bachelor issueless. It is their specific case that Appayya was leading a life of vagabond and was a Goonda working in Bombay dockyard and was murdered on 01.11.1962. The defendants specifically contended that Appayya was not married and after his death the father of 6 defendants Bhimappa inherited the properties and his name was entered in the records from 1962-63 onwards. Thus, Bhimappa became the full and absolute owner of the properties.
It is also contended that Bhimappa died on 07.11.1980. After his death, the names of defendants are entered as legal heirs for the entire suit properties as per M.E.No.2553 dated 25.11.1980 and they are in actual possession and enjoyment of the properties in question.
Accordingly, they prayed for the dismissal of the suit.
On the basis of the rival pleadings of the parties, the trial Court framed the following issues:
1. Whether the plaintiffs proves the genealogy as shown in schedule 'A' of the plaint?
2. Whether the plaintiffs proves that suit properties are the joint family properties of themselves and defendants and they are in joint possession of the same?
3. Whether the plaintiffs proves the cause of action to file the suit?7
4. Whether the defendants no.1 to 3 proves the genealogy as contended by them in the written statement?
5. Whether the defendants proves that the plaintiff have not paid proper court fee?
6. Whether the plaintiffs are entitled for the partition and separate possession of the half share in the suit properties as prayed for?
7. What decree or order?
Additional Issue no.1:
Whether the defendant no.3 proves that VPC No.1125/A is his self acquired property?
To prove the case, plaintiff No.2 got examined herself as PW-1 and plaintiff No.1 was examined as PW-2 and produced thirty documents which were marked as exhibits P-1 to P30. On behalf of defendants, defendant No.3 was examined as DW-1 and produced thirty-four documents which were marked as exhibits D-1 to D-34.
On the trial of the action, the suit came to be decreed in-part. Hence, this Regular First Appeal is filed under Section 96 of CPC.8
5. Sri.Ravi Balikai, learned counsel for appellants submitted that the judgment and decree of the trial Court is contrary to law and facts.
Next, he submitted that the trial Court has failed to note that the plaintiffs have not proved their claim in the suit by leading cogent evidence both oral and documentary in support of their plaint averments.
A further submission was made that the trial Court has failed to note that Appayya Thane died unmarried at Mumbai. The plaintiffs are in no way concerned with deceased Appayya Thane. It is submitted that plaintiffs have no right to sue for partition.
Counsel Sri. Ravi Balikai vehemently contended that in view of the specific denial of the relation between the plaintiffs and the deceased Appayya Thane, heavy burden casted upon the plaintiffs to prove the relationship. Except the interested testimony of plaintiff No.1, there is no other evidence led in by the plaintiffs to prove the relation and 9 the alleged marriage. Counsel therefore, submitted that the trial Court ought to have held that plaintiffs have failed to prove their relation with Appayya Thane.
It is further submitted that the reliance placed by the Trial Court Ex P-22, the Survivorship Certificate issued by the Tahasildar, Hukkeri, is totally erroneous in law. The Revenue Officials are not competent to decide the relationship and issue such certificate and the same cannot be made the basis for recording findings on the disputed relations by Civil Courts.
The plaintiffs are strangers to the family of Appayya Thane and they never resided at Kanagala Village or Mumbai at any point of time with Appayya. They are residing at a far-off place at Manwad Village, Gadhinglaj Taluq, Kolhapur District, Maharashtra State.
The trial Court has failed to note that the land bearing Sy.No.32/7 was purchased by Late Bhimappa on 09.11.1970 long after the death of Appayya and it is the 10 self-acquired property of defendants. The reasoning of the trial Court that Bhimappa had no separate income is contrary to law.
It is submitted that Bhimappa had sufficient income from his lands and agricultural work. On the contrary, there was no contribution by late Appayya for the acquisition of the said land.
It is submitted that suit properties are not joint family properties as alleged by the plaintiffs. The burden was upon the plaintiffs to prove issue Nos.1, 2, 3 and 6. The plaintiffs have not proved the issues by leading proper evidence.
It is also submitted that the trial Court has totally erred in relying upon Exs.P.22, P26, P27, P28 and P29. The defendants have seriously disputed the documents and the plaintiffs have not proved the said documents in accordance with law.
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Lastly, he submitted that the findings recorded by the Courts are erroneous and lack of judicial reasoning. Hence, the appeal may be allowed.
6. Sri. Ramesh Zirali, counsel for respondent-2 justified the judgment and decree of the trial court.
Next, he submitted that the first plaintiff Smt.Basavva is the wife of Appayya and the second plaintiff Smt. Kashavva is the daughter of Appayya.
A further submission was made that plaintiffs have successfully proved their relation with Appayya. The trial Court considered the oral and documentary evidence on record and rightly held that plaintiffs have proved the genealogy.
It is submitted that the plaintiffs have also proved that the suit properties are joint family properties and plaintiffs are entitled for a share.
12
Lastly, he submitted that the trial Court in extenso referred to the material on record and rightly decreed the suit and the appellants have not made out any good grounds to interfere with the judgment and decree of the trial court. Hence the appeal may be dismissed.
7. Heard the contentions on behalf of the appellants and learned counsel for respondent No.2. Perused the records with care.
The points that arise for consideration are: -
1) Whether the plaintiffs have proved their relationship with Appayya Thane ?
2) Whether plaintiffs have right to initiate action for partition?
3) Whether the trial Court justified in holding that plaintiffs are entitled for half share in the scheduled property except VPC No 125 situated at Kanagal Village ?13
The facts have been sufficiently stated. The suit giving rise to the appeal was filed by the plaintiffs for partition and separate possession.
The controversy is with regard to factum proof of relationship and the right to initiate action.
Before I answer the points for consideration, I would propose to say few words regarding the law relating to a Hindu Marriage.
Marriage and sonship constitute some of the unique chapters in the litera legis of ancient Hindu law. As early as the time of Rig Veda, marriage had assumed the sacred character of a sacrament and sanction of religion had heightened the character and importance of the institution of marriage. The basal thought was that marriage was a prime necessity, for that alone could enable a person to discharge properly his religious and secular obligations. The earliest records show that the rules of inheritance depended on the rules of marriage and it was obligatory on 14 the father to give the daughter in marriage as a gift. The smritis deal with the subject of marriage with meticulous care and make fascinating study. Manu expounded the subject, so also did many other smritikars and commentators.
Marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. The importance and imperative character of the institution of marriage needs no comment. In Hindu law, marriage is treated as a samskara or a sacrament. It is the last of the 10 sacraments, enjoined by the Hindu religion for regeneration of men and obligatory in case of every Hindu who does not desire to adopt the life of a sanyasi. In Hindu law, there were no less than eight different forms of marriage, and each being different from the other and at the same time, each form of marriage depicts a different stage of social progress.
Under the Indian law, therefore, it is now open to two Hindus if they desire to contract civil marriage to have 15 it solemnized under the Special Marriage Act of 1954. However, if they prefer marriage in a sacramental form or to state it more precisely, prefer a ceremonial marriage, then it much be solemnized in accordance with the requirements of the Hindu Marriage Act 1955. It seems convenient to refer to the former as a special or a civil marriage and to the ceremonial marriage regulated by the present enactment as a Hindu marriage. The legislature uses the expression 'Hindu marriage' in Act in the context of such a ceremonial marriage for example, when it lays down the conditions for a Hindu marriage in Section 5 and speaks of ceremonies for a Hindu marriage in Section 7 and registration of Hindu Marriages in Section 8.
Sections 5 and 7 of the Act lay down the conditions and ceremonial requirements of a Hindu marriage. They are:
i) The marriage must be solemnized in
accordance with the customary rites and
ceremonies of either party and where such rites and ceremonies include saptapadi (taking 16 of seven steps by the parties before the sacred fire), that requirement must be observed (S7).
ii) There should not be subsisting valid marriage of either of the parties with any other person [S 5(i)].
iii) The parties should as regard age and mental capacity be competent to have a marriage solemnized between them [ss 5(ii) and (iii)].
iv) The parties should not by reason of degrees of prohibited relationship or sapinda relationship be debarred from marrying one another [ss 5 (iv) and (v)].
The Hindu marriage contemplate by the Act is a ceremonial marriage and it must be solemnized in accordance with the customary rites and ceremonies of one of the two parties. Non-observance of the essential customary rites and ceremonies of at least one of the parties would amount to failure to solemnize the marriage. A marriage, not duly solemnized by performance of the essential ceremonies is, under the Act, no marriage at all. 17 The condition that neither party must have a spouse living at the time of marriage is absolute with the result that monogamy is now the rule.
Marriage under the Act, therefore, is the union of one man with one woman to the exclusion of all others, satisfied by the solemnization of the marriage in accordance with requisite ceremonies and, it directly creates a relation between the parties and that is called the status of each. The status of an individual, used as a legal term, means the legal position of the individual, in or with regard to the community; the relation between the parties, and that status of each of them with regard to the community, which are constituted upon marriage, are not imposed or defined by contract or agreement but by law. Hindu marriage, under the Act, is a monogamous which must be solemnized by performance of the essential rites and ceremonies and there must be no incapacity in the parties to marry one another arising from prohibited degrees of relationship or sapinda relationship. 18
A Hindu marriage, solemnized after the commencement of the Act, is void ipso jure in case of bigamy or where the parties were within the prohibited degrees of relationship or were spaindas of each other, unless in the case of any of the two last mentioned conditions the custom and usage governing both the parties to the marriage permits of a marriage between them. Any marriage in contravention of any of these three conditions is null and void from its inception and either party to such marriage can obtain a decree of nullity from the court against the other party (Section 11).
A reading of Sections 5 and 7 makes it clear that Hindu marriage has both religious as well as secular aspects. Therefore, it is to be treated both as a sacrament and as a contract. It is sacrament because there is a emphasis on the performance of the customary rites and ceremonies including saptapadi wherever it is treated as an essential ceremony for the completion of the marriage. It is a contract because the section 5 deals with the 19 capacity of the spouses to enter into an alliance for a marriage. Even under the original Hindu law, marriage was a sacrament as well as a contract.
Bearing these principles let me consider the controversy with regard to factum of relationship.
The original propositus is one Govind. He had two sons namely, Bhimappa and Appayya. Bhimappa had three sons Ashok, Vilas and Kashinath.
The genealogy furnished by the plaintiffs is as under:-
GOVIND BHIMAPPA APPAYYA Ashok Vilas Kashinath Bassavva ( wife ) Kashawwa (Daughter) 20 The specific case of the plaintiffs is that they are the wife and daughter of Appayya and are members of the joint family hence, they are entitled for half share in the suit schedule properties. The defendants specifically denied the factum of relationship and the right of plaintiffs to seek for partition.
It is perhaps well to observe that one of the points in dispute between the parties is whether there was a legal and valid marriage between Smt. Basavva and Appayya. Plaintiff No.1 contends that she was married to Appayya and they lived together at Kanagal Village as husband and wife.
In this regard, it would be relevant to refer to the pleadings. I have carefully perused the plaint. The suit is instituted on 10.09.1997. The plaintiffs have pleaded that the original propositus Govind died 50-60 years back leaving behind his sons late Bhimappa and Appayya who died 10 years and 25 years back respectively. Bhimappa left behind his three sons and Appayya died on 01.11.1962 21 leaving behind his widow plaintiff No.1 and daughter plaintiff No.2 only. All the suit properties are ancestral properties and the plaintiffs jointly entitled for ½ share.
In order to prove the relation plaintiff No.1 relied on oral and documentary evidence.
Basawwa - plaintiff No.1 was examined herself as PW-2. She has stated that she and her daughter are jointly entitled for ½ share in the properties.
I may extract the relevant portion of the cross examination as under:
" I am an illiterate. One Sheshappa Kenchappa Kamble is my father. My parents were resided at Manawad. I was born and brought up at Manawad. It is not true to suggest even now also I am residing at Manawad, witness volunteers she is residing at Kanagala. It is not true to suggest I am deposing falsely that I am residing at Kanagala. My ration card is at Manawad. My name is also found place in voter list at Manawad. I have no any ration card at 22 Kanagala so, also my name did not find place in the voter list at Kanagala".
With regard to marriage, she has deposed as under:-
I am the wife of Appayya @Aparai. Since there was no any custom prevailing in our community preparing marriage Yadi, hence in my marriage also Yadi was not prepared. It is not true to suggest I am deposing falsely that there was no custom in olden days to get prepared the Marriage Yadi. No marriage card were printed with regard to my marriage. Marriage was not registered. I have no any photograph with regard to performing marriage with Aparai. I have no any photos with deceased Aparai. It is not true to suggest since I did not marry said Aparai, hence question of taking photograph does not arise. It is not true to suggest myself & deceased Aparai never resided together as husband and wife. Myself & deceased Aparai stayed together at Kanagal. I have not produced any documents to show that myself and deceased Aparai stayed together at Kanagal. It is not true to suggest that plaintiff No.2 is not born to Aparai Thane. 23
It is not true to suggest I have no any matrimonial relation with deceased Aparai Thane.
The evidence of Basawwa PW-2 - does not depict that she was marred to Appayya. There is nothing on record to show that the marriage was solemnized in accordance with the customary rites and ceremonies of one of the two parties.
It is not in dispute that parties are Hindus. The Hindu Marriage Act contemplates ceremonial marriage and it must be solemnized in accordance with the customary rites and ceremonies of one of the two parties. Non - observance of the essential customary rites and ceremonies of at least one of the parties would amount to failure to solemnize the marriage. A marriage, not duly solemnized by performance of the essential ceremonies under the Act, no marriage at all.24
She has also deposed that she does not know the cause of death of Appayya. She admits that after 8 days she was told that Appayya has died in Bombay.
The evidence of Smt.Basawwa would clearly establish that she never lived with Appayya. Further, no material evidence is forthcoming regarding her alleged marriage with Appayya. She has not examined any independent witnesses to prove that she is the wife of late Appayya. Therefore, I have no hesitation to say that PW-2 Smt. Basawwa has failed to prove the solemnization of the marriage in accordance with requisite ceremonies.
While addressing arguments, counsel - Sri.Ramesh I. Zirali, strenuously urged that plaintiffs have filed the suit for partition and separate possession and the suit is not one for declaration of status hence, the strict proof of marriage is not essential.
I have heard the contention with utmost care. No doubt, the suit is not one for declaration of status. But what is required to be considered is whether plaintiffs have 25 a right to initiate action and consequently seek partition in the family properties of late Appayya?. It is the specific case of plaintiffs that they are the members of joint family hence they are entitled for a share in the family properties. In order to seek partition, a person must establish his relation with the family and his right to initiate action.
Under these circumstances, this Court is compelled to discuss the factors viz., proof of marriage of Smt.Basawwa with Appayya, plaintiff's relationship with the family of Appayya, whether plaintiffs are the members of joint family, last but not the least the right to initiate action.
Apart from oral evidence, plaintiff No.1 has relied upon documentary evidence to prove that she is the wife and plaintiff No.2 is the daughter of Appayya.
Ex P-22 is the Survivorship Certificate issued by the Tahasildar, Hukkeri. It is perhaps well to observe that the Revenue Official under Karnataka Land Revenue Act is not competent and has no power to determine the relations or 26 status of a person. It is purely in the domain of the Civil Court. It is significant to note that the Certificate is issued only for the purpose of claiming social benefits, family pension etc. Hence, I have no hesitation to say that Ex P-22 has no evidentiary value.
Ex P-25 is the School Leaving Certificate issued by Vidya Mandir, Manwad on 12.09.1981. This would not prove the marital status of Basavva. As could be seen from the date of issue of the Certificate it is obtained after the death of Appayya.
Ex P-28 the letter dated 16.11.1963 sent by LIC addressed to the plaintiff No.1. This document also would not prove that Basavva is married to Appayya. It is issued in response to a letter that was sent in the name and style of Smt. Basavva.
Ex-P-29 is the Certificate issued by Village Police Patil Manwad. It cannot be construed as evidence to prove the marriage.27
Ex-P-30 is the Voter l.D.Card. It is needless to observe that the entries in the ID would be made as per the information supplied by the person during the preparation of voter list. This document also would not prove that Smt.Basawwa is wife of Appayya.
The said entry was based on the mere information. The self-serving testimony could not have been made use of to establish the factum of relationship with Appayya.
In the circumstances, the reasoning adopted by the trial Court to hold that the plaintiffs have proved the genealogy and that plaintiffs are wife and daughter of Late Appayya and are entitled to half share in the suit property is unsustainable in law. It seems to me that the trial Court has lost sight of the same and has erroneously decreed the suit.
It is significant to note that Appayya died on 01.11.1962. It is also not in dispute both Bhimappa and Appayya were living in Bombay. Appayya was working in Bombay dockyard and Bhimappa was working in Bombay 28 Police. After the death of Appayya in the year 1962, the suit schedule properties are entered in name of Bhimappa as the sole legal heir. Bhimappa died on 07.11.1980 and after his demise, the names of the defendants 1 to 3 are entered in the RTC Extracts as per M.E.No.3358 dated 25.11.1980. Ex P-23(a) is the Mutation Entry.
It is significant to note that plaintiffs never made any claim for partition or made any attempt to get their names entered in the Revenue Records right from 1962 till the date of filing of the present suit in the year 1997.
It is further interesting to note that plaintiffs never made any attempt to assert their alleged right for more than 35 years which according to this Court sounds unnatural.
Plaintiffs are residents of Manwad village a remote place in the State of Maharashtra. As already noted above, the suit schedule properties are situated in Kanagal Village. They never lived in Kanagal Village. Hence, it 29 cannot be said that plaintiffs are in joint possession and enjoyment of the suit schedule properties.
The conduct on the part of plaintiffs and the sequence of events that have taken place right from 1962 till the filing of the suit in the year 1997 raises a doubt as factum of relationship of plaintiffs with Appayya. In my considered view, learned Judge has failed to consider the conduct of plaintiffs and the sequence of events and has erroneously proceeded to hold that plaintiffs are the wife and daughter of Appayya. As already noted above, apart from self-serving testimony, there is no independent evidence adduced by the plaintiffs to prove their relation either with Appayya or with his family.
In my considered opinion, the material on record is not sufficient to conclude that the plaintiffs have successfully proved their relationship with Appayya and his family. On facts and in all the circumstances of the case, plaintiffs have failed to establish their relationship with Appayya and his family. Hence, they cannot be considered 30 as members of joint family. Therefore, they have no right to initiate action for partition.
For the reasons stated above, I have no hesitation to hold that plaintiff's have failed to prove,
1. Their relation with Appayya and his family.
2. They are the members of the joint family.
3. That they have right to initiate action for the relief of partition.
The points are answered accordingly.
For the reasons stated above, this Court is of the opinion that the suit is liable to be dismissed.
8. Accordingly, the appeal is allowed. The judgment and decree dated 24.11.2005 passed by the Court of the Civil Judge (Sr.Dn.), Hukkeri in O.S.No.152/1997 is set aside.
Parties to bear their respective costs.
Sd/-
JUDGE gab/VMB-1