Sri Karabasappa vs Sri Hemareddy S/O Basappa Hallera
2021 Latest Caselaw 5273 Kant

                            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)
                               3




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.

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

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.

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

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?

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.

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.

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

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

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:

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 -

Mallappajjaiah Vs. Muddanna.

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

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.

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?

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

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

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

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

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

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

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

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:-

"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.

¸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

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

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.

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

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

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

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

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.

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