Ashok Bhima Thane @ Mahar vs Smt Basavva Appayya @ Apparai ...
2021 Latest Caselaw 5274 Kant

                             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:-

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

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

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

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?

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.

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

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

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.

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.

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 ?

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

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

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

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.

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.

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

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)

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

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

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.

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.

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

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

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.

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

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

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

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