Karnataka High Court
Sri Karabasappa vs Sri Hemareddy S/O Basappa Hallera on 2 December, 2021
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA
DHARWARD BENCH
DATED THIS THE 2nd DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO. 837 OF 2007 (PAR)
BETWEEN:
1. SRI. KARABASAPPA
SINCE DECEASED BY HIS LRS
1(A) SMT. DANAMMA K. HALLERA
W/O KARABASAPPA M. HALLERA
AGE: 58 YEARS, R/O KUSAGUR
RANEBENNUR TALUK, DIST. HAVERI.
1(B) SMT. REKHA
W/O PANDURANGA JAKKAREDDY
AGE: 39 YEARS, OCC: H/W
R/O VENKATESH COLONY,
BENGERI HUBLI.
1(C) SRI. ANANDAREDDI
S/O KARABASAPPA M. HALLERA
AGE: 37 YEARS, OCC: AGRICULTURIST
R/O KUSUGUR
TAL: RANEBENNUR, DIST: HAVERI
1(D) SMT. SHOBHA
W/O CHANDREGOUDA PATIL
AGE: 34 YEARS, OCC: H/W
R/O PRAGATHI AGRO INDUSTRIES
PLOT NO.61, G.C.I.E. HUBLI ROAD.
1(E) SMT. SUNITA
W/O KOTTURU BASAVAREDDY METI,
AGE: 31 YEARS, OCC: HOUSEHOLD
R/O YEREHANCHINAL
TAL: YELABURGA, DIST: KOPPAL
2
1(F) SUNANDA
D/O KARABASAPPA HALLERA
AGE: 28 YEARS, OCC: H/W
R/O KUSUGUR VILLAGE
TAL: RANEBENNUR,
DIST: HAVERI.
2. SRI. CHANNABASAPPA
S/O MAHADEVAPPA HALLERA
SINCE DECEASED BY HIS LRS
2(a) SMT. LALITHAWWA
W/O CHANNABASAPPA HALLERA
AGE: 50 YEARS, OCC: H/W
R/O KUSWAGGUR
TAL: RANEBENNUR
DIST: HAVERI
2(b) HEMACHANDRA
S/O CHANNABASAPPA HALLERA
AGE: 24 YEARS,
R/O KUSWAGGUR
TAL: RANEBENNUR
DIST: HAVERI
2(c) SRINIVAS
S/O CHANNABASAPPA HALLERA
AGE: 22 YEARS,
R/O KUSWAGGUR
TAL: RANEBENNUR
DIST: HAVERI.
3. SRI. BHARAMAREDDY
S/O MAHADEVAPPA HALLERA
AGE: 50 YEARS, OCC: JUNIOR ENGINEER
R/O KADA QUARTERS F/9/2
BHEEMARAYANAGUDI
TAL: SHAHAAPUR, DIST: GULBARGA ... APPELLANTS
(BY SRI RAMESH I. ZIRALI &
SRI SHIVARAJ S. BALLOLI, ADVOCATES)
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AND:
1. SRI. HEMAREDDY
S/O BASAPPA HALLERA
AGE: 42 YEARS, OCC: AGRICULTURE
R/O KUSUGURU
TAL: RANEBENNUR
DIST:HAVERI.
2. SRI. NAGAPPA
S/O KRISHNAPPA HALLERA
AGE: 72 YEARS, OCC: AGRICULTURE
R/O KUSWAGGUR
TAL: RANEBENNUR
DIST:HAVERI. ... RESPONDENTS
(BY SRI. K. L. PATIL AND
SRI. S. S. BETURMATH, ADVOCATES FOR R1;
NOTICE TO R2 - SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE, 1908.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri. Ramesh I. Zirali, learned counsel for appellants and Sri.K.L.Patil, learned counsel for the respondent No.1, have appeared in person.
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2. This is an appeal from the Court of Additional Civil Judge, Senior Division at Ranebennur.
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:-
The plaintiffs and defendants are the grand children of one Ningappa, the common propositus. The propositus Ningappa had two sons, namely Mahadevappa and Krishnappa. Mahadevappa had three sons Karabasappa, Channabasappa and Bharama Reddy. Krishnappa had two sons, Nagappa and Basappa. Basappa had two daughters Yallamma and Mallamma and one son namely Hema Reddy.
It is stated that the sons of Ningappa i.e., Mahadevappa and Krishnappa died long back. The joint family properties are not partitioned. In anticipation that the Land Reforms Amendment Act may be enacted in 5 future and in order to avoid surrender of lands to the Government, the Afsat Hissa took place and the suit schedule properties were nominally partitioned between the plaintiffs and defendants in the year 1955. The plaintiffs and the defendants are cultivating the suit schedule properties as joint owners and they are in joint possession and enjoyment.
It is stated that the first plaintiff was working in the Revenue Department and he retired from the service during 1993. The defendants got entered their name in the revenue records and Panchayat records.
Contended that the suit schedule properties are the joint family properties and he is entitled for ¼th share in the same, the plaintiff-initiated action and filed the suit for partition.
After service of the suit summons, defendants 1 to 3 appeared through their counsel and filed their written statement. They denied plaint averments. 6
They contended that property bearing No.8/2 was purchased by Mahadevappa, the father of defendants 1 to 3 for valuable consideration in the year 1962. Hence, it is their absolute property and not a joint family property.
Property No.59/1 measuring 14 acres 05 guntas was service Inam land. Mahadevappa being the eldest son was rendering service. The plaintiffs filed application for registration of their names as occupants to the extent of ½ share and the Tribunal rejected the application and declared that the defendants 1 to 3 are the occupants. Hence, property No.59/1 is not a joint family property.
They also contended that property No.102/3A+3B and 123 are tenanted lands and they are cultivating the same. The Land Tribunal passed the order on 07.08.1976 and declared that defendants 1 to 3 as occupants. Hence, this property is also not joint family property.
Further, property bearing No.37 is concerned, they contended that the second defendant purchased to an extent of 1 acre 10 Guntas in the year 1969. It is his 7 self-acquisition. Hence, they contended that the suit properties are not joint family properties. Among other grounds, they prayed for dismissal of the suit.
On the basis of the rival pleadings, the trial Court framed the following issues:
1. Whether the plaintiffs prove that the suit schedule properties are the joint family properties of plaintiffs and defendants 1 to 3?
2. Whether the plaintiffs prove that they have 1/4th share together in the suit schedule properties?
3. Whether the plaintiffs are entitled to mesne profits?
4. Whether the defendants prove that there is already partition in the joint family in 1955 itself?
5. Whether the defendants 1 to 5 prove that they are absolute owners of the suit schedule properties as narrated in their written statement?8
6. Whether the sixth defendant proves that he is the bonafide purchaser of schedule 1(B) property from defendants 1 to 3 without notice?
7. Whether the suit is bad for non-joinder of necessary parties?
8. Whether the plaintiffs are entitled to any share? If so to what extent?
9. What order or decree?
ADDITIONAL ISSUES
1. Whether the suit is properly valued and the court fee paid on the plaint is sufficient?
2. What order or decree?
On behalf of plaintiff, PWs.1 to 3 were examined and produced twenty-four documents which were marked as Exs.P1 to P24. On behalf of the defendants, defendant-1 was examined as DW-1 and two other witnesses as DWs-2 and 3 and produced one hundred and fifty-nine documents which were marked as Exs.D1 to D159.
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On the trial of the action, the trial Court decreed the suit holding that the plaintiff is entitled for partition and separate possession of 1/5th share in the suit schedule properties, defendants 1, 2, 3 and 7 were also entitled for partition and separate possession of 1/5th share in the suit schedule properties. Hence, this Regular First Appeal is filed under Section 96 of the Code of Civil Procedure.
5. Sri. Ramesh I. Zirali, learned counsel for appellants submits that the judgment and decree of the trial Court is contrary to the oral and documentary evidence on record.
Next, he submitted that the trial Court erred in presuming that plaintiff and defendants 1 to 3 were living in joint family. He submitted that there was a severance of status and there was no joint family. Hence, the trail Court on an erroneous presumption held that the family was joint and has erroneously proceeded to decree the suit for partition.
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A further submission was made that the trial Court failed to consider that there was partition in the family in the year 1955 itself and the suit schedule properties were governed under the Bombay Tenancy and Agricultural Act, 1948 and The Bombay Land Revenue Act, 1879.
It is submitted that the trial Court erred in holding issue No.4 in the negative in spite of the fact that the plaintiff's admission reveals that there was a partition in respect of the joint family properties in the year 1955. The Court below having taken into consideration this admission pleaded in the plaint and also in the admission of PW1 in cross-examination, ought to have decided issue No.4 in the affirmative.
The trial Court erred in not considering Ex.D-5 - M.E No.1415, dated 08.06.1955 which clearly depicts the demarcation of the properties of Mahadevappa, the father of defendants 1 to 3 and Krishnappa, the father of plaintiff No.1 and grandfather of plaintiff No.2. The trial Court erred in not considering Ex.D41 dated 15.05.1955 the original 11 partition deed dated 15.05.1955 executed by all the members of the family in the year 1955. As per partition. As per the partition deed mutation entry No.1416 dated 08.06.1955 was made by the revenue authorities in the Record of Rights - Ex.P.19.
Sri.Ramesh I. Zirali, learned counsel, vehemently urged that the trial Court erred in not considering the fact that Mahadevappa, father of the defendants was a lawful tenant in respect of some of the suit schedule properties and the properties were shown to be under cultivation of Mahadevappa as a protected tenant under the Bombay Tenancy and Agricultural Act of 1948. As per the provisions of this Act, a person cultivating the tenanted land was entitled with the sole right to inherit those tenanted lands and this right of inheritance could not be availed by any of his other joint family members. The trial Court erred in not considering these vital facts.
Counsel further urged that the trial Court erred in not appreciating the actual evidence of defendants as 12 recorded by the Land Tribunal on 24.09.1981 and 08.04.1981, as per Exs.D44 and D46, with respect to re-grant of Devasthan Inam Land, which is also one of the suit schedule property. The Tribunal after recording the evidence, passed an order on 24.09.1981 (Ex.D47) granting the Devastan Inam Land in favor of defendants and rejected the re-grant application filed by the plaintiffs. The order of grant has attained finality and hence there was no scope to reopen the said order in the Civil Court. It is also stated that the trial Court erred in not appreciating the fact that the application filed by the defendants as per Exs. D49 to D51 for regrant of Devastan Inam Land, was on their own behalf and not as a Manager of the joint family.
Lastly, he submitted that the judgment and decree of the trial Court lacks judicial reasoning and accordingly, he prayed that the appeal may be allowed.
Learned counsel relied upon the following decisions: 13
1. AIR 1980 SC 2026 - Kochadai Naidu and Others Vs Ayyalu Naidu and Others and Nagayaswami Naidu and Others Vs Kochadai Naidu and Others.
2. 1989 STPL 4322 KARNATAKA -
3. AIR 2003 SC 3800 - D. S. Lakshmaiah and another Vs. L.Balasubramanyan and another.
6. Sri.K.L.Patil, learned counsel for the respondents justified the judgment and decree of the trial Court.
Next, he submitted that, in the partition, which was affected in the year 1955, the suit schedule properties were not divided. Hence, the plaintiffs were constrained to initiate action for partition and sought for share in the properties. He submitted that the properties, which are alleged to have been acquired by defendants' father Mahadevappa and defendants 1 to 3 were in fact for and 14 on behalf of the joint family. Therefore, he submitted that the Trial Court justified in decreeing the suit.
A further submission was made that family was joint and properties were not divided by metes and bounds. The father of defendants Mahadevappa, being the Manager and Karta of the joint family acquired the properties and hence the properties have to be construed as the properties of the joint family.
Counsel vehemently submitted that the defendants 1 to 3 have failed to prove that the properties are their absolute properties.
Lastly, he contended that the trial Court in extenso referred to the oral and documentary evidence on record and justified in holding that the properties are joint family properties and accordingly granted share in the properties. Therefore, he submitted that the appellants have not made out any good grounds to interfere with the judgment and decree of the trial Court and accordingly, he prayed for dismissal of the suit.
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Learned counsel relied upon the following decisions:
1. 2015(1) SCC 417 - N. Padmamma and others Vs. S. Ramakrishnareddy and Others.
2. AIR 1960 SC 335 - Mst.Rukhmabai Vs. Lala Laxminarayan.
3. Civil Appeal No.5646 of 2008 - K. V. Sudharshan Vs. A. Ramakrishnappa & Ors.
4. AIR 1969 SC 1076 - Mudigowda Gowdappa Sankh and Others v. Ramchandra Revgowda Sankh (dead) by his legal representatives and Another.
7. Heard the contentions on behalf of the appellants and respondent-1 and perused the records with care.
The points that arise for consideration are: -
1. What is the nature of properties; Whether the suit properties are joint family properties or absolute properties of defendants? 16
2. Whether the Trial Court is right in concluding that the suit properties are joint family properties and justified in holding that plaintiffs are entitled for a share in those properties?
The facts have been sufficiently stated. The suit giving rise to this appeal was brought by the plaintiffs seeking relief of partition and separate possession.
For the sake of convenience, the genealogy is referred to as under:-
Ningappa Mahadevappaa-Savantravva Krishnappa Karabasappa Channa Basappa Bharama Reddy Nagappa Basappa Yallamma Hemareddy Mallamma It is not in dispute that Ningappa was the original propositus. He had two sons Mahadevappa and Krishnappa. Mahadevappa had three sons, they are 17 defendants 1 to 3. Krishnappa had two sons Nagappa the first plaintiff and Basappa. Basappa had two daughters Yallamma and Mallamma and one son namely Hema Reddy
- the second plaintiff.
Nagappa and Hema Reddy brought action against the defendants contending that the suit schedule properties are joint family properties and they are entitled for a share.
The defendants contended that the suit schedule properties are not joint family properties are their absolute properties.
To answer the rival contentions, some introductory outline is essential to understand the concept of Joint Family and the presumption.
The joint and undivided family is a normal condition of Hindu Society. An undivided Hindu family is ordinarily joint not only in estate but in food and worship. The presumption therefore is that members of a Hindu family 18 are living in a state of union, unless the contrary is established. This general principle has no application in cases where one of the coparceners was admittedly separate from the other member of the family. Merely because members lived and worked at different places but owned a joint family house in common it cannot be said that they did not form a joint Hindu family. The strength of the presumption necessarily varies in every case. The presumption of union is stronger in case of brothers than in case of cousins, and the farther you go from the founder of the family, the presumption becomes weaker and weaker. Brothers may be presumed to be joint but conclusion of jointness with collaterals must be affirmatively proved.
There is no presumption that a family, because it is joint, possesses joint property. Possession of property is not under the Mithakshara law, a necessary requisite for the constitution of a joint family though where persons lived together, joint in food and worship, it is difficult to 19 conceive of their possessing no property whatever, such as ordinary household articles which they would enjoy in common. Hindu law does not require that properties of a joint family should be immovable properties or that they should be of appreciable value. Once the existence of joint family is not in dispute, necessarily the property held by the family assumed the character of a coparcenary property and every member of the family would be entitled by birth to a share in the coparcenary property unless any of the coparcenary pleads, by separate pleading and proves that some of the properties or all the properties are his self-acquired properties and cannot be blended in coparcenary property.
Merely because the family is joint there is no presumption of joint property. A Hindu, even if he be joint may possess separate property. Such property belongs exclusively to him. Neither member of coparcenary, nor his male issue, acquires any interest in it by birth. On his death (intestate), it passes by succession to his heirs and 20 not by survivorship to the surviving coparcener. The existence of joint family does not raise presumption that it owned properties jointly. However, presumption of jointness in case of father and son might be stronger than that of other collaterals. Existence of a joint family does not carry a presumption that property purchased by any member of the family is joint property of the family. The initial burden always lies upon the party asserting that any item of property is joint family property.
The normal state of every Hindu family is joint. Presumably, every such family is joint in food, worship and estate. In the absence of division, such is the legal presumption. But the members of the family may sever in all or any of these three things." The presumption of jointness is not an absolute one. It may be displaced by direct evidence or prior partition. Acquisition of properties in the names of different members is not inconsistent with jointness. Of course, there is no presumption, that a family, because it is joint, possess joint property or any 21 property. The question whether the property is joint family property is one of fact to be decided on evidence without reference to any presumption.
Bearing these principles in mind, let me consider whether the properties are joint family properties or the absolute properties and that a presumption could be drawn.
Let me set out the details of the properties as set out in the plaint schedule.
µÉqÀÆå® 1(J) gÁtÂèɣÀÆßgÀÄ vÁ®ÆPÀ PÀĸÀUÀÆgÀÄ UÁæªÀÄzÀ d«ÄãÀÄUÀ¼ÀÄ j¸À£ÀA PÉëÃvÀæ J-UÀÄA DPÁgÀ gÀÆ ¥ÉÊ C.Q.
1. 8:2 14-25 19-36 1,50,000.00
2. 58 06-21 22-09 60,000.00
3. 59:1 14-05 41-22 1,50,000.00
4. 102:3C+3§ 08-39 29-63 90,000.00
5. 123 22-31 75-17 2,00,000.00
6. 37 04-37 14-84 50,000.00 2+3+4+5 C+1:1 EzÀgÀ°è 1 JPÀgÉ 10 UÀÄAmÉ 2-4-0 ¸ÁªÀÄÆ»PÀ 22 1(©) gÁtÂèɣÀÆßgÀÄ £ÀUÀgÀ ©£ï±ÉÃwÌ¥Áèl. £ÀA§gÀ: 794 6+7+8A+9A:18 J UÀÄ D ¥ÉÊ PÉëÃvÀæ 0 - 6 - 10 - 6 7-75 1,00,000-00 EzÀgÀ ZÀPÀ̧A¢ü : -
¥ÀƪÀðPÉÌ :- «. PÉ.¸ÁªÀPÁgÀ EªÀgÀ ªÀÄ£É.
¥À²ÑªÀÄPÉÌ :- »gÉêÀÄoÀ EªÀgÀ ªÀÄ£É.
GvÀÛgÀPÉÌ :- gÀ¸ÉÛ
zÀPÀëtPÉÌ :- gÀ¸ÉÛ
EªÀÅ zÁªÉÃzÀ D¹ÛUÀ¼ÀÄ EgÀÄvÀÛªÉ.
It is relevant to note that counsel jointly submitted the properties at Sl.No.2 in Schedule-I R.S.NO.58 and schedule 'B' property 794 came to deleted. Parties to the proceeding are not claiming relief in respect of these two properties. Taking note of the said submission there is no need to answer with respect to these two properties.
The property number 8/2 belonged to one Bharamappa. It is said that he had obtained loan and he did not clear the loan hence the property was auctioned on 06.06.1962. The auction was confirmed on 02.09.1962 and 23 Mahadevappa purchased the property for a sum of Rs. 3,600/-. It is also noticed that the legal representatives of Bharamappa filed a case in O.S.NO. 31/1964 and the same came to be dismissed on 30.01.1968. The son of Mahadevappa namely Karibasappa filed execution case in Ex. No 15/1980 on the file of Munsiff & JMFC Ranebennuru and possession was handed over through court bailiff on
08.04.1981. Thus, the legal representatives of deceased Mahadevappa are in exclusive possession and enjoyment of the property. It is the exclusive and absolute property of defendants 1 to 3.
The record of rights is also standing in the name of defendants.
Ex P-1 and Ex D-32 is the record of rights pertaining to Sy.No.8/2. I have perused the same with care. it depicts that the names of defendants.
Further, PW-1 - Hema Redyy in the cross examination has deposed as under:-
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"1955 gÀ°è «¨sÁUÀªÁzÀ £ÀAvÀgÀ zÁªÁ D¹Û PÀæ.¸ÀA.£ÀA-1 £ÉÃzÀÝ£ÀÄß ¸À.£ÀA-8:2 £ÀÄß £ÀªÀÄä zÉÆqÀØ CdÓ ªÀĺÁzÉêÀ¥Àà 1962 gÀ°è °¯Á«£À°è d«ÄãÀÄ Rjâ »r¢zÁÝ£É CAzÉæ ¸ÀļÀÄî DzÀgÉ Rjâ »r¢zÀÄÝ ¤d."
DW-1 - Karabasappa, in his chief examination has stated as under:-
"zÁªÁzÀ ±ÉqÀÆå¯ï-1J D¹ÛAiÀiÁzÀ PÀĸÀUÀÆgÀÄ UÁæªÀÄzÀ j ¸À £ÀA:8:2 PÉëÃvÀæ 14 JPÀgÉ 25 UÀÄAmÉ F d«ÄãÀÄ ªÉÆzÀ°UÉ ¨sÀgÀªÀÄ¥Àà PÀĸÀUÀÆgÀÄ EªÀgÀ ªÀiÁ°Ìà PÀ§eÁ ªÀ»ªÁnAiÀÄ D¹ÛAiÀiÁVvÀÄÛ. ¸ÀzÀj ªÀåQÛAiÀÄÄ ¸ÀºÀPÁgÀ ¸ÀAWÀzÀ ¸Á®ªÀ£ÀÄß wÃj¸ÀzÉà ºÉÆÃzÀ PÁgÀt ¸Á®zÀ ºÀtzÀ ªÀ¸ÀÆ°UÁV vÉUÉzÀÄPÉÆAqÀ PÀæªÀÄzÀ°è ¸ÀzÀj d«ÄãÀ£ÀÄß ¸ÁªÀðd¤PÀ °¯Á«UÉ EqÀ¯ÁVvÀÄÛ. ¸ÀzÀj °¯Á«£À°è £À£Àß vÀAzÉ ªÀĺÀzÉêÀ¥Àà£ÀÄ CzÀ£ÀÄß vÁ£ÀÄ RjâUÉ vÉUÉzÀÄPÉÆArzÀÄÝ EzÉ. ¸ÀzÀj RjâAiÀÄ PÁ®PÉÌ ªÁ¢ ¥ÀæwªÁ¢AiÀÄgÀ WÀgÁuÉÃAiÀÄÄ MlÄÖ WÀgÁuÉÃAiÀiÁVgÀzÉà CzÀÄ «¨sÁVvÀ ªÀåQÛUÀ¼À ªÀÄ£ÉvÀ£ÀªÁVzÀÄÝzÀjAzÀ ¸ÀzÀj ªÀĺÁzÉêÀ¥Àà£ÀÄ Rjâ¹zÀ ¸ÀzÀj Rjâ ªÀåªÀºÁgÀªÀÅ PÉêÀ® ªÀĺÁzÉêÀ¥Àà£À ±ÁSÁzÀ ªÀÄ£ÉÃvÀ£ÀPÉÌ ¸ÀA§AzÀ¥ÀlÖzÀÄÝ ªÀiÁvÀæ DVzÀÄÝ, CzÀgÀ°è ªÁ¢AiÀÄjUÉ AiÀiÁªÀÅzÉà vÀgÀºÀzÀ ºÀPÀÄÌ »vÀ ¸ÀA§AzsÀ JAzÀÄ ¥Áæ¥ÀÛªÁVgÀĪÀÅ¢®è. 25
¸À.£ÀA§gÀÄ:8:2 µÀqÀÆå¯ï-J1 d«ÄãÀÄ °¯Á«£À°è »rzÀ d«ÄãÁVgÀÄvÀÛzÉà CAzÉæ ¤d. 1966 £Éà ¸Á°£À°è CzÀ£ÀÄß °¯Á°£À°è »r¢zÀÄÝ CAzÉæ ¤d«zÉ."
It is significant to note that the defendants divided the property among themselves as under.
NAME EXTENT OF LAND PORTION Karabasappa 4 A-21 Guntas Eastern Channabasappa 4A -32 Guntas Middle Bharamareddy 4A -32 Guntas Western
After the division of the property, they are paying the tax to the authority concerned regularly. Therefore, it can be safely held that it is not the joint family property. On the other hand, it is absolute property of defendants.
In so far as the property bearing No.59/1 is concerned, the property was service Inam land. It is said that according to Bombay Hereditary Officer Act 1874 the elder son in the family was alone had the right of 26 occupancy. Hence, Mahadevappa being the elder son and his children were rendering service.
During the year 1977, the plaintiffs filed an application under Section 11 of the Karnataka Certain Inams Abolition Act, 1977 for registration of their names as an occupant to an extent of ½ share. Accordingly, an application was also made on 26.12.1980 to 'The Special Tahasildar (Land Reforms) Ranebennuru in LRF (D) SR 314:78-79. The Land Tribunal rejected the application.
Ex D-47 is the order. I have perused the same with care. The Land Tribunal, Ranebennuru considered the application and rejected the same 24.09.1981.
Ex D-48 is Form No II dated 09.12.1981 which issued in favor of the defendants.
Hence the contention that it is a joint family property cannot be accepted.
In so far as the properties No. 102 /3A+ 3 B and 123 are concerned, they are tenanted lands. The defendants 27 were cultivating the lands personally. They filed application for registration as occupants in LRF (A) SR - 1415/16/75-76. The Special Tahasildar issued notice to the defendants 1 to 3 to pay the premium with interest. Accordingly, premium of Rs.20,960.00 (Rupees Twenty Thousand Nine Hundred and Sixty only) was paid in 14 installments from 23.06.1980 to 11.04.2000.
Ex.D54 is the order. The land Tribunal passed the order on 07.08.1976 and declared the defendants as occupants. Subsequently, Form No.9 (Ex D-55) and 10 (Ex.D56) were also issued.
Subsequently, the defendants have divided the property among themselves as under.
Sy.No.102/3A+3B - 8 Acres 39 Guntas to the share of Channabasappa.
Sy.No.123 - eastern portion extent 11 Acres 16 Guntas to the share of Bharamappa.
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Sy.No.123 - western portion extent 11 Acres 15 Guntas to the share of Karibasappa.
Hence, this property is also not joint family property. In so far as Sy.No.37 is concerned, one Melugiriappa Hanumappa Nyamathi was the original owner. Due to family necessity, he sold the property in favor of the second defendant to an extent of 1 Acre 10 Guntas was purchased by the second defendant on 06.02.1969.
Ex D-66 is the sale deed.
Karibassappa was examined as DW-1. He has deposed that the properties are the absolute properties. Plaintiffs are not entitled to seek partition.
While addressing the argument, learned counsel Sri.K.L. Patil strenuously urged that the defendants 1 to 3 have failed to establish that the properties are the absolute/exclusive properties. The family was joint. Necessarily the properties held by the joint family are the coparcenary properties and every member of the family 29 would be entitled by birth to a share in the coparcenary properties.
In reply, Sri.Ramesh Zirali, learned counsel submitted that the burden of proof lies on the person who asserts that property is joint family property. But in the instant case, plaintiffs have failed to prove that the properties are joint family properties.
I have considered the submission with utmost care. It is the specific case of the plaintiffs that the properties are joint family properties and they are entitle for a share.
The pleadings and the evidence on record would clearly depict that there is a division in the family way back in 1955. There was severance in status. The family was not joint in food, worship much less in estate.
As already noted above, plaintiffs admit that there is division in the year 1955. However, it is sought to contend that the suit schedule properties were not divided. I find myself unable to accept the contention for the simple 30 reason that after the division of the joint family properties in the year 1955, the father of defendants has acquired the suit schedule properties.
This Court has already discussed the mode of acquisition of suit schedule properties in the earlier part of judgment.
It is perhaps well to observe that the property which is self-acquired of a member of a joint in the family may assume the character of joint family property if it is voluntarily thrown by the owner into a common stock with the intention of abandoning the separate claim thereon; but to establish such abandonment clear intention to waive separate rights must be established. As already noted above there is nothing on record to show that defendants 1 to 3 abandoned separate claim with an intention to waive separate rights.
It is needless to observe that separate property does not cease to be such and become joint family property by any physical act but the acquirer's own volition and 31 intention to surrender his exclusive rights. This element is absent in the present case. At the cost of repetition, it is to be noted that there is sufficient material on record to show that the grant was made exclusively in the name of the father of defendants 1 to 3 and that he was enjoying the property exclusively. The same is also evident from the documentary evidence.
No doubt the normal state of every Hindu family is joint, presumably every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption. In the present case, there is a division in the year 1955 itself, hence the legal presumption does not arise.
On facts and in all the circumstances of the case, plaintiffs have failed to establish that the properties are joint family properties. On the other hand, there is sufficient material on record to conclude that the suit schedule properties are the absolute properties of defendants. Hence, I have no hesitation to say that the 32 Trial Court has totally erred in concluding that the properties are joint family properties.
The outcome of these facts and considerations which I have stated is that I have grave doubt as to whether the judgment and decree of the Trial Court can be supported in respect of the finding that the properties are joint family properties.
It seems to me that the Trial Court has totally misconstrued the position of the Hindu Law and has erroneously proceeded to conclude that the properties are joint family properties.
The points are answered accordingly.
I come, therefore, to the conclusion as a matter-of-fact that plaintiffs have failed to establish that the properties are joint family properties. The judgment and decree of the trial Court cannot be sustained. Hence, the suit is liable to be dismissed.
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Accordingly, the judgment and decree dated 11.12.2006 passed by the Court of Additional Civil Judge, Senior Division, Ranebennuru in O.S.No.33/2000 is set- aside.
8. The appeal is allowed. Parties to bear their respective costs.
Sd/-
JUDGE gab/VMB-1