Karnataka High Court
Sri. Manjunath vs Smt. Dakshayanamma on 30 July, 2024
-1-
NC: 2024:KHC:30235
RSA No. 2227 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.2227 OF 2023 (PAR/POS)
BETWEEN:
1. SRI. MANJUNATH,
S/O LATE A.V. RURDRAIAH
AGED ABOUT 46 YEARS.
2. SMT. VANAJAKSHI
W/O MANJUNATH
AGED ABOUT 36 YEARS
3. VISHAL
MINOR,
REP. BY NATURAL GUARDIAN AND MOTHER
SMT. VANAJAKSHI.
ALL ARE RESIDING AT
AGALAGURKI VILLAGE AND POST,
Digitally signed by
ARUNKUMAR M S NANDI HOBLI,
Location: High CHIKKABALLAPUR TALUK AND
Court of Karnataka
DISTRICT - 586 101.
...APPELLANTS
(BY SRI. MOHAN REDDY H SAWKAR, ADVOCATE)
AND:
SMT. DAKSHAYANAMMA
W/O LATE NAGARAJ
D/O LATE A.V. RUDRAIAH,
AGED ABOUT 59 YEARS,
-2-
NC: 2024:KHC:30235
RSA No. 2227 of 2023
R/AT AGALAGURKI VILLAGE AND POST,
NANDI HOBLI,
CHIKKABALLAPUR TALUK AND
DISTRICT - 586 101.
REP. BY GPA HOLDER
SRI. P.N. RUDRARADHYA,
S/O LATE NAGARAJ
AGED ABOUT 32 YEARS
R/T NO.19/1,
BASAVESWARA TEMPLE ROAD,
THANISANDRA,
BENGALURU - 560 045.
...RESPONDENT
(BY SRI. NIZAM ABBAS., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 15.07.2023
PASSED IN R.A.No.30/2022 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKABALLAPURA., PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
10.06.2022 PASSED IN OS No.355/2018 ON THE FILE OF THE
PRL. SENIOR CIVIL JUDGE AND CJM, CHICKBALLAPUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
-3-
NC: 2024:KHC:30235
RSA No. 2227 of 2023
ORAL JUDGMENT
This appeal is preferred by defendants No.1 to 3, challenging the judgment and decree dated 15.07.2023 in RA No.30/2022 on the file of First Additional District and Sessions Judge at Chikkaballapura, allowing the appeal in part in respect of Item Nos.1 to 3 of the schedule properties in OS No.355/2018, decreeing in the suit of the plaintiff in-part vide judgment and decree dated 10.06.2022 on the file of Prl. Senior Civil Judge and CJM., at Chikkaballapura.
2. For the sake of convenience, parties are referred to as per their ranking before the Trial Court.
3. It is the case of the plaintiff that, the father of the plaintiff - A.V.Rudraiah had acquired the suit schedule properties and the suit schedule properties are the ancestral properties of the plaintiffs and defendant No.1 and as such, the plaintiff had filed a suit in OS No.355/2018 on the file of the Trial Court seeking relief of partition and separate possession in respect of the suit schedule properties. It is also pleaded by the plaintiff that, Item Nos.1 to 3 of the schedule properties are the -4- NC: 2024:KHC:30235 RSA No. 2227 of 2023 tenanted properties and occupancy right has been in favour the mother of the plaintiff - Neelamma and accordingly, the plaintiff has filed seeking partition and separate possession in respect of the subject land. It is also stated that after the death of mother of the plaintiffs, defendant No.1 had executed a gift deed dated 13.11.2018, in respect of Item Nos.1 to 3 in favour of defendants No.2 and 3 without consent of the plaintiff and accordingly, the plaintiff sought for share in the suit schedule properties.
4. After service of notice, the defendants entered appearance and the defendants contended that the plaintiff, defendant No.1 and deceased Rudranamma are the class-I legal heirs of deceased A.V.Rudraiah and his wife Smt.Neelamma. Defendant No.2 is the daughter of Rudranamma. Therefore, it is the contention of the defendants that the schedule properties are to be devolved among the children of Sri.A.V.Rudraiah in respect of Item No.4, 6 and 7 of the schedule properties concerned. Insofar as Item Nos.1 to 3 and 5 are concerned. It is contended by the defendants that the property is a tenanted land as the father of defendant No.1 was an Archaka of Veerabhadraswamy temple, Algurki village -5- NC: 2024:KHC:30235 RSA No. 2227 of 2023 and on this demand/demise defendant No.1 has succeeded for performing pooja of Veerabhadraswamy deity. Accordingly, it is the contention of defendant No.1 that the plaintiff has been ousted from the joint family from the date of her marriage and as such dismissal of the suit in respect of Item Nos.1 to 3 are concerned.
5. The Trial Court, based on the pleadings on record on formulated issues. In order to establishe their case, the plaintiff has examined son of the plaintiff as PW1 and got marked 43 documents and same were marked as Ex.P1 to P43. Defendants have examined two witnesses as DW1 and DW2 and produced 11 documents and same were marked as Ex.D1 to D11. The Trial Court after considering the material on record has decreed the suit in part and operative portion of the order passed by the Trial Court reads as under:
"The suit of the plaintiff is hereby partly decreed with costs.
The plaintiff is entitled for 1/3rd share in suit item No.4, 6 and 7 schedule mentioned properties by metes and bounds.-6-
NC: 2024:KHC:30235 RSA No. 2227 of 2023 The defendant No.1 is entitled for 1/3rd share in suit item No.4, 6 and 7 schedule mentioned properties by metes and bounds.
The defendant No.2 being daughter of deceased Rudranamma is entitled for 1/3rd share in suit item No.4,
6 and 7 schedule mentioned properties by metes and bounds.
The plaintiff is not entitled for share in suit item No.1 to 3 and suit item No.5 schedule mentioned properties, which are absolute properties of defendant No.1.
Draw preliminary decree accordingly".
6. Being aggrieved by the judgment and decree passed by the Trial Court in OS No.355/2018, the plaintiff has filed RA No.30/2022 on the file of the First Appellate Court on the ground that the finding recorded by the Trial Court with regard to Item Nos.1 to 3 and 5 of the suit schedule properties requires interference by the First Appellate Court. The said appeal was registered by the defendants. The First Appellate Court after considering the material on record re-appreciated the evidence on record and partly decreed the appeal filed by the appellant/plaintiff holding that the finding recorded by the Trial Court vide judgment and decree dated 10.06.2022 in OS -7- NC: 2024:KHC:30235 RSA No. 2227 of 2023 No.355/2018 was set aside and passed the following order in judgment and decree and the operative portion of the order reads as under:
The Regular Appeal filed by the appellant-plaintiff under Order-41 R-1 r/w Sec.96 of C.P.C is partly allowed.
The judgment and decree dated 10.06.2022 passed by the learned Prl. Senior Civil Judge and CJM., Chikkabalapur is set aside, in so far as suit item no.1 to 3 properties.
The plaintiff/appellant, defendant no.1 and 2/respondent no.1 and 2 each entitle for 1/3rd share in the suit item no.1 to 3 properties.
The judgment and decree dated 10.06.2022 passed by the learned Prl. Senior Civil Judge and CJM., Chikkaballapur is confirmed in so far as the suit item no.4 to 7 properties.
Parties bear their own costs.
Draw decree accordingly.
Office is directed to send the trial Court records along with the copy of this judgment.
7. Being aggrieved by the judgment and decree passed by the Trial Court with regard to Item Nos.1 to 3 of the -8- NC: 2024:KHC:30235 RSA No. 2227 of 2023 schedule properties, defendants No.1 to 3 have preferred this Regular Second Appeal.
8. Having heard Sri.Mohan Reddy H Sawkar., the learned counsel for the appellants and Sri.Nizam Abbas., learned counsel for the respondents and perused the material on record.
9. Sri.Mohan Reddy H Sawkar., the learned counsel appearing for the appellants contended that, Item Nos.1 to 3 of the schedule property, being tenanted property as the father of the defendant No.1 was performing the Pooja of Veerabhadreswamy and accordingly, submitted that the same was inherited by defendant No.1/appellant No.1 herein. Therefore, the findings recorded by the First Appellate Court in respect of Item Nos.1 to 3 of the suit schedule properties require to be interfered with in this appeal. Learned counsel appearing for the appellant submitted that as the defendant No.1 was performing pooja as an archaka of the Veerabhadraswamy Temple in question and therefore, the tenanted property of the Veerbhadraswamy Temple has to be devolved on the male children of the original grantee - -9-
NC: 2024:KHC:30235 RSA No. 2227 of 2023 A.V.Rudraiah and Neelamma and accordingly sought for interference of this Court.
10. Per contra, Sri.Nizam Abbas., learned counsel appearing for the respondents sought to justify the impugned judgment and decree passed by the First Appellate Court. Having taken note of the submissions made by the learned counsel appearing for the parties, the relationship between the parties is not disputed and the genealogical tree of the parties reads as under:
ªÀA±ÀªÀÈPÀë J.«.gÀÄzÀæAiÀÄå (¥sÀ) ºÉA: ¤Ã®ªÀÄä (¥sÀ) gÀÄzÁætªÀÄä (¥sÀ) zÁPÁëtªÀÄä (52) ªÀÄAdÄ£Áxï(45) UÀAqÀ: £ÁUÀgÁd DgÁzsÀå (¥sÀ) ºÉA:ªÀ£ÀeÁQë (35) ZÀAzÀæPÀ® (35) VjdªÀÄä (33) gÉÃtÄPÁgÁzsÀå (32) gÀÄzÁægÁzsÀå(30) «±Á¯ï (12) UÀUÀ£À(9) UÁ£À«(6)
11. Perusal of the genealogical tree would indicate that the plaintiff and defendant No.1 are the children of A.V.Rudraiah and Smt.Neelamma. A.V.Rudraiah had another daughter by name Rudranamma, who is the mother of
- 10 -
NC: 2024:KHC:30235 RSA No. 2227 of 2023 defendant No.2. Defendant No.2 has married defendant No.1. In that view of the matter, the joint family property of A.V.Rudraiah and Smt.Neelamma has to be devolved amongst the plaintiff, defendant No.1 and defendant No.2 equally. Therefore, insofar as the finding recorded by the Trial Court in respect of Item Nos.4, 6 and 7 of the judgment and decree dated 10.06.2022 by the Trial Court is just and proper. However, insofar as the finding recorded by the Trial Court on Item Nos.1 to 3 and 5 of the schedule property is concerned, having taken note of finding recorded by both the Courts below as well as Item Nos.1 to 3 is concerned, it is the contention of the appellant/defendant No.1 that, Item Nos.1 to 3 of the schedule property is the tenanted land, as the father of defendant No.1 was performing pooja of Veerabhadraswamy Temple and in connection with the same, occupancy right has been conferred on the mother of the plaintiff and defendant No.1 - Neelamma and therefore, grievance of defendant No.1 is that, as defendant No.1 is performing of the Pooja of Veerabhadraswamy and accordingly, Item Nos.1 to 3 of the schedule property shall be exclusive property of defendant No.1 and the plaintiff has no right in respect of the schedule
- 11 -
NC: 2024:KHC:30235 RSA No. 2227 of 2023 property, insofar as Item Nos.1 to 3 of the suit properties are concerned. The said contention cannot be accepted. However, it is not in dispute that, Item Nos.1 to 3 of the schedule property has been granted in favour of Smt.Neelamma as per Ex.P23. In that view of the matter, Item Nos.1 to 3 of the schedule property has to be devolved among all the children of A.V.Rudraiah and Smt.Neelamma. In that view of the matter, the findings recorded by the First Appellate Court that the tenanted property, namely, Item Nos.1 to 3 of the schedule property is a joint family property of the parties, and accordingly, arrived at a conclusion that, the plaintiff is also entitled for 1/3rd share in respect of Item Nos.1 to 3 of the schedule properties. On this aspect, it is relevant to follow the judgment of this Court in the case of Narayana and others V/s A.Sadashiva and others reported in ILR 2000 KAR 487, wherein, this Court at para Nos.4 and 5 held as follows:
"4. The contention raised by the plaintiff is that the decision in ILR 1994 KAR 2327 referred to above, does not apply to the facts of the case as the occupancy rights were conferred long before the institution of the suit and there is no matter pending, calling for reference to the Land Tribunal for adjudication. Reliance was placed upon two decisions of this Court where the decision in ILR 1994
- 12 -
NC: 2024:KHC:30235 RSA No. 2227 of 2023 KAR 2327 referred to above, has been distinguished. In JARAPPA POOJARI AND OTHERS vs SMT. RAMAKKU AND OTHERS, an identical question came up before this Court and the Division Bench of this Court in paras 6 and 7 of the judgment observed as follows:
"Even otherwise, no question of tenancy arises in this case. That question has already been decided by the Land Tribunal while it issued an occupancy certificate. When an occupancy certificate is already issued, no question of tenancy arises thereafter and the only question is as to whether the right granted by the Land Tribunal would enure to the benefit of the first defendant alone or to all the legal heirs. That certainly is a matter which can be decided by the Trial Court and its jurisdiction is not ousted especially when an order has already been passed by the Land Tribunal".
This decision has been followed in VEERABHADRAPPA & OTHERS VS VIRUPAXAPPA TOTAPPA BILEBAL wherein this Court on the decision of this Court in BOODA POOJARY VS THOMU POOJARTHI a Full Bench decision, wherein it was observed that when once the occupancy rights are granted, the leasehold rights stand converted into free hold rights without damaging the rights of the occupant's family or any member thereof and it is always open to the member or members of the family to claim their share or right in Civil Court over the lands on which occupancy rights are granted by establishing their right or interest in the property.
- 13 -
NC: 2024:KHC:30235 RSA No. 2227 of 2023
5. Apparently, the decision in ILR 1994 KAR 2327 was rendered in a pending matter and all the observations in that pending matter and all the observations in that related to the jurisdiction of the Civil Court to decide the issue when rival claims to tenancy were raised. In the instant case, the contention is that the tenancy claimed by the first respondent was for and on behalf of the joint family and so the plaintiffs are entitled to a share in the properties in respect of which occupancy rights are already conferred on husband of the first respondent by the Land Tribunal. Apparently the Land Reforms Act contains no provision for reviewing the claim or for recalling the claim for tenancy rights, after a long distance of time as in this case, to consider the only question as to whether the tenancy on the basis of which occupancy rights were conferred, were joint family rights or individual right. It is essentially a question of fact as to whether the tenancy rights on the basis of which the first respondent sought and obtained occupancy rights was a joint family tenancy or not and it is for the Trial Court to decide the issue when the proceedings before the Land Tribunal stood terminated long before the litigation in question. Apparently the decision in ILR 1994 KAR 2327 (Mudakappa's case), case would apply to matters which are only pending and not in respect of matters which are concluded as in this case. In the circumstances, the order made by the learned District Judge setting aside the judgment and decree in O.S. No. 266 of 1983 and directing the Trial Court to reopen the matter for disposal in accordance with the decision in ILR 94 KAR 2327 cannot be sustained and is set aside. The learned District
- 14 -
NC: 2024:KHC:30235 RSA No. 2227 of 2023 Judge shall consider the matter on merits and dispose of the same in accordance with law".
12. It is also relevant to follow the judgment of the Division Bench of this Court in the case of Nimbavva and Others V/s Channaveerayya and Others reported in ILR 2013 KAR 6202. Wherein this Court at Para Nos.16 to 20 reads as under:
"16. The actual dispute is whether the married daughters are entitled to claim share after the death of their father in respect of the tenanted lands of their father and whether can they claim a share in respect of the family dwelling house in view of the Hindu Succession Act, 1956.
17. So far as the first point is concerned, Section 2(12) of the Karnataka Land Reforms Act defines "Family"
as under:
2(12) "Family" means-
(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;
(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;
(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor
- 15 -
NC: 2024:KHC:30235 RSA No. 2227 of 2023 sons and unmarried daughters, whether in his custody or not; and
(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters." By looking into the definition of family, it includes only the spouse, minor sons and un-married daughters. At no place, "married daughters" finds a place under the Karnataka Land Reforms Act.
18. Section 24 of the Karnataka Land Reforms Act reads as hereunder:
"24. Rights of tenant to be heritable: Where a tenant dies, the landlord shall be deemed to have continued the tenancy to the heirs of such tenant on the same terms and conditions on which such tenant was holding at the time of his death."
19. On perusal of Section 24 of the Act read with the definition of family, it is clear that married daughter cannot claim share in respect of tenanted land. The question whether the married daughters can claim a share in respect of a tenanted land of their father is decided by this Court in KAMALA VS. LINGAMMA HENGSU (supra) wherein it is held that only the family members as defined in the Karnataka Land Reforms Act are entitled for inheritance by way of succession after the death of their father. The legal position in regard to the right of a married daughter to claim a share in respect of a tenanted land of her father cannot be disputed by the plaintiff's counsel. We would have agreed with the
- 16 -
NC: 2024:KHC:30235 RSA No. 2227 of 2023 contentions urged by Mr. Kini that the plaintiffs are entitled to equal share on par with the sons when the father died intestate provided there is a heritable right to them under the Act. Karnataka Land Reforms Act is a special enactment which has been enacted for the benefit of cultivator, the same cannot be deviated by this Court by applying the provisions of Hindu Succession Act.
20. In the circumstances, we are of the view that when a married daughter is excluded under the definition of "family" under the Karnataka Land Reforms Act, and more particularly in the back ground of Section 24 of the Act, the trial Court has committed an error in considering the right that as per the notional partition, the plaintiffs are entitled to claim a share along with their brothers out of the share of their deceased father".
13. Following the declaration of law made by this Court, as the daughter is also entitled for share in the tenanted property of her parents, I am of the view that, there is no infirmity in the judgment and decree passed by the First Appellate Court in respect of Item Nos.1 to 3 of the schedule property is concerned. Accordingly, the appeal is dismissed on merits as there is no substantial question of law is required to be formulated in the above appeal under section 100 of Code of Civil Procedure.
- 17 -
NC: 2024:KHC:30235 RSA No. 2227 of 2023
14. Accordingly, the appeal is dismissed.
SD/-
(E.S.INDIRESH) JUDGE KBM List No.: 1 Sl No.: 43