M S Muniraju vs Sri M A Muniappa
2021 Latest Caselaw 3796 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO

                  R.F.A.No.1066/2007

BETWEEN:

1.     M.S.MUNIRAJU
       AGED 47 YEARS
       S/O SANJEEVAPPA
       R/O MANDUR VILLAGE AND POST
       BIDARAHALLI HOBLI, VIA VIRGONAGAR
       POST, BANGALORE EAST TALUK
       BANGALORE - 560 049.

2.     SRI M S NAGARAJU
       SINCE DEAD BY HIS LRs

2(a) SMT.MARIYAMMA
     AGED ABOUT 68 YEARS
     WIFE OF LATE M.S. NAGARAJU
     R/AT MANDUR VILLAGE
     BIDARAHALLI HOBLI,
     MANDUR POST,
     BANGALORE EAST TALUK
     BANGALORE - 560 049.

2(b) SRI AMBARISH
     AGED ABOUT 43 YEARS
     SON OF LATE M.S. NAGARAJU
     R/AT MANDUR VILLAGE
     BIDARAHALLI HOBLI,
     MANDUR POST,
     BANGALORE EAST TALUK
                         2


     BANGALORE - 560 049.

2(c) SMT. GEETHAMMA
     AGED ABOUT 45 YEARS
     DAUGHTER OF LATE M.S. NAGARAJU
     WIFE OF RAMAKRISHNAPPA
     R/AT KURUBARA KUNTE VILLAGE
     KASABA HOBLI, YELIYUR POST
     DEVANAHALLI TALUK
     BENGALURU RURAL DISTRICT.

2(d) SMT. VIDYARANI
     AGED ABOUT 34 YEARS
     WIFE OF LATE M.N.NAGESH
     R/AT MANDUR VILLAGE
     BIDARAHALLI HOBLI,
     MANDUR POST,
     BANGALORE EAST TALUK
     BANGALORE - 560 049.

3.   M S NARAYANASWAMY
     AGED 43 YEARS
     S/O SANJEEVAPPA
     R/O MANDUR VILLAGE AND POST
     BIDARAHALLI HOBLI, VIA VIRGONAGAR
     POST, BANGALORE EAST TALUK
     BANGALORE - 560 049.

     SRI M S KRISHNAPPA
     DIED ON 29-3-7
     REPRESENTED BY HIS LRs.

4.   SMT. KEMPAMMA
     AGED 51 YEARS
     W/O LATE M.S.KRISHNAPPA
     R/O MANDUR VILLAGE AND POST
     BIDARAHALLI HOBLI,
     VIA VIRGONAGARPOST,
     BANGALORE EAST TALUK
                           3


       BANGALORE - 560 049.

5.     SRI M K MURTHY
       AGED 28 YEARS,
       S/O LATE M S KRISHNAPPA
       R/O MANDUR VILLAGE AND POST
       BIDARAHALLI HOBLI, VIA VIRGONAGAR POST,
       BANGALORE EAST TALUK
       BANGALORE - 560 049.

6.     SRI PRASANNA KUMAR
       AGED 25 YEARS, S/O LATE M S KRISHNAPPA
       R/O MANDUR VILLAGE AND POST
       BIDARAHALLI HOBLI, VIA VIRGONAGAR POST,
       BANGALORE EAST TALUK
       BANGALORE - 560 049.

7.     SMT.NEELAMMA
       W/O K MANJANNA
       D/O LATE M S KRISHNAPPA
       AGED 32 YEARS,
       R/O K NARAGANA PURA
       BANGALORE EAST TALUK
       BANGALORE - 560 049.            ..APPELLANTS

       (BY SRI VIJAY KRISHNA BHAT M, ADVOCATE)

AND:
1 . SRI M A MUNIAPPA
S/O LATE ANJENAPPA
AGED 62 YEARS,
R/O MANDUR VILLAGE AND POST
BIDARAHALLI HOBLI, VIA VIRGONAGARA POST
BANGALORE EAST TALUK
BANGALORE - 560 049.

2 . A M SHAMANNA
S/O LATE ANJENAPPA
MAJOR, R/O CHIKKAGUBBI VILLAGE
                            4


DODDAGUBBI POST,
BIDARAHALLI HOBLI
BANGALORE EAST TALUK
BANGALORE - 560 049.                 ..RESPONDENTS

(BY SRI ANOOP, ADVOCATE FOR
 SRI ASHOK HARNAHALLI ASSTS. FOR R-1
 R-2 IS SERVED)

     THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 13.12.2006
PASSED IN O.S.No.849/2003 ON THE FILE OF THE I
ADDL.CIVIL  JUDGE   (SR.DN.), BANGALORE   RURAL
DISTRICT, BANGALORE, DISMISSING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.

    THIS RFA COMING ON FOR HEARING THIS DAY THE
COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

Appeal is directed against the Judgment and

decree dated 13.12.2006 passed in O.S.No.849/2003

by the I Additional Civil Judge, Senior Division,

Bengaluru Rural District, Bengaluru, wherein the suit

of the plaintiffs came to be dismissed with cost.

2. In order to avoid overlapping and confusion

parties are addressed in accordance with their status

and rankings as stood before the trial court.

3. The suit is for declaration of title and permanent

injunction and the subject matter is immovable

property consisting agricultural land. Suit came to be

dismissed with cost. Hence, it is appeal by the

plaintiffs.

4. The substance of the case of the plaintiffs is that

plaintiff No.1 M.S.Muniraju, M.S.Nagaraju,

M.S.Narayanaswamy and M.S.Krishnappa are all sons

of one Sanjeevappa. Defendants are M.A.Muniyappa

and A.M.Shamanna. Both are sons of Anjinappa.

5. The said Sanjeevappa and Anjinappa are

brothers and name of another brother is Nanjappa.

All the said three persons namely Sanjeevappa,

Anjinappa and Nanjappa are the sons of one

Gummanna. Said Gummanna is dead and the three

sons of Gummanna stated to have partitioned the

joint family property on 21.09.1953 and got their

respective shares of properties is not disputed. After

the said partition, Nanjappa came out of family.

However, Sanjeevappa and Anjinappa continued in the

joint family.

6. Land in survey No.77 measuring 30 guntas out of

01 acre 23 guntas, land in survey No.126 (old) new

Sy.No.190 to the extent of 05 acres 01 gunta and land

in survey No. 189 (old Sy.No.187) to the extent of 05

acres 02 guntas situate at Mandur Village were

purchased in the name of Anjinappa under the

registered sale deeds dated 18-10-1954, 02-03-1956

and 23-07-1959 out of joint family funds. Since

Anjinappa was elder, the properties were purchased in

his name. But Sanjeevappa and Anjinappa continued

in joint family. After the death of Anjinappa oral

partition took place between the defendants and

father of plaintiffs. The suit schedule properties were

allotted to Sanjeevappa, father of the plaintiffs.

7. Land measuring 33 guntas in Survey No.77 and

05 acres 02 guntas in Survey No.189 fell to the share

of defendants. There was mis understanding between

plaintiffs and their father Sanjeevappa. Hence

partition was effected and revenue authorities were

approached and Anjinappa's children/defendants gave

consent for effecting change of katha and revenue

entries in respect of the suit schedule properties

recognizing the share of Sanjeevappa and accordingly,

mutation was accepted in the name of Sanjeevappa as

per MR No.25/1992-93 dated 26-10-1992. Thus,

according to plaintiffs, the partition that was effected

subsequent to death of Anjinappa was a total and

complete one and binding on both the parties. Other

than the properties that fell to the share of

Anjinappa's children /defendants, they have no right,

title or interest and possession in respect of the suit

schedule properties which are thus fell to the share of

plaintiffs' father Sanjeevappa.

8. It is further contended that defendants without

having any right, title or interest over the suit

properties have started interfering with the possession

and enjoyment of the suit schedule properties and

they have also raised a dispute before the Assistant

Commissioner, Bangalore North Sub-Division by filing

R.A.No.113/2000-2001 challenging the mutation

effected in the name of Sanjeevappa. The Assistant

Commissioner set aside the mutation and remanded

the matter to the Tahsildar for fresh enquiry and

thereafter, Special Tahasildar passed an order to

effect revenue entries in the name of defendants in

respect of the suit schedule properties.

9. The plaintiffs' further claim that revenue entries

were transferred in the name of defendants from the

name of plaintiffs through unauthorized and unlawful

manner. The records of the properties were

transferred in the name of plaintiffs' father recognizing

the legal effect of the partition that is stated to have

been entered into between the plaintiffs' father and

defendants.

10. Defendant Nos. 1 and 2 entered appearance

through their counsel, but defendant No.2 has not

chosen to file his written statement and contest the

suit. Defendant No.1 filed his written statement.

11. The defendants being the offsprings of Anjinappa

are two in numbers and opposed the claim of the

plaintiffs. The contention of defendant No.1 in

substance is that, the joint family originally headed by

Gummanna got disrupted admittedly on

21-9-1953. Thereafter, plaintiffs' father and

defendants' father started holding their share as

divided members of Hindu Joint Family. There was no

question of continuation of joint family between the

plaintiffs' father and Anjinappa nor was their any

reunion between Sanjeevappa or his children and

Anjinappa or his children. It is their further contention

that the schedule properties form the exclusive

properties of Anjinappa in respect of which plaintiffs

have no any kind of right title, interest or possession.

12. The learned trial Judge on the basis of the

pleadings and contentions of the parties framed the

following issues and answered as under:

"1. Whether the plaintiffs prove that they are the owners of suit schedule properties?

2. Whether the plaintiffs prove that they are in lawful possession of the suit schedule properties as on the date of suit?

3. Whether the plaintiffs prove that the alleged interference by the defendants?

4. Whether the 1st defendant proves that the suit as brought is not maintainable?

5. What Order or Decree?

6. During the trail, the plaintiff has been examined as P.W.1 and other three witnesses have been examined as P.Ws.2 to 4 and got marked Ex.P.1 to Ex.P.42. The first defendant examined as D.W.1 and got marked Ex.D.1 to Ex.D.31 and closed the side.

7. I have heard the arguments of both the Learned Counsel and perused the records.

8. My finding on the above issues are as under:-

Issue No.1 in the Negative Issue No.2 in the Negative Issue No.3 in the Negative Issue No.4 in the Affirmative. Issue NO.5 As per final order."

13. Learned trial Judge was accommodated with the

following oral and documentary evidence on behalf of

the both the parties:

Plaintiff:

"P.W.1.M.H.Muniraju P.W.2. Muninanjinappa P.W.3 Ramnajinappa P.W.4 Appaji Gowda.

Ex.P.1 Genealogical Tree Ex.P.2 to P.4 are the C.C. of the Sale Deeds. Ex.P.5 to 25 are the R.T.C. Extracts Ex.P.26 Mutation Register Extract Ex.P.27 Form No.21 Ex.P.28 Assistant Commissioner's Orders. Ex.P.29 and P.30 are the Kandayam Paid Receipts. Ex.P.31 and P.32 are the Pathanis. Ex.P.33 to P.36 are the Objections Copies Ex.P.37 to C.C. of the Tahsildar's Orders Ex.P.38 C.C.of the Ordersheet. Ex.P.39 C.C. of the orders in W.P.No.16061/04. Ex.P.40 C.C. of Orders in W.P.No.16061/04. Ex.P.41 C.C. of Orders in R.A.No.54/2004-05. Ex.P.42 C.C. of the Interim orders.

Defendants:

D.W.1. M.A.Muniyappa Ex.D.1. Partition Deed dated 21.9.1953 Ex.D.1(a) Typed Copy of D1.

Ex.D.2 Original Sale Deed dated 18.10.1954. Ex.D.3 Original Sale Deed dated 23.07.1959. Ex.D.4 Original Sale Deed dated 29.09.1954. Ex.D.5. Record of Rights.

Ex.D.6. Index of land.

Ex.D.7 Pahani Ex.D.8 and D.9 are the Mutation Register Extracts. Ex.D.10 to D.18 are the Pahanis. Ex.D.19 to D.22 are the Tax Paid Receipts. Ex.D.23. C.C. of the Orders in R.A. Ex.D.24. C.C of the Orders in R.R.T.(DS)27/2002-03. Ex.D.25. C.C. of the Orders in R.A.No.80/2003-04. Ex.D.26. C.C. of the Orders in R.A.No.54/2004-05. Ex.D.27. C.C. of the orders in W.P.No.16061/04. Ex.D.28 and D.29 are the Police Acknowledgements. Ex.D.30 and D.31 are the Pahanis."

14. Upon conclusion of the trial, learned trial Judge

answered issue Nos. 1 to 3 in the negative, issue No.4

in the affirmative and as per final order, dismissed

the suit of the plaintiffs. Aggrieved by the same,

the plaintiffs have preferred this appeal.

15. Learned counsel Mr.Vijay Krishna Bhat for

plaintiffs submitted that the learned trial Judge erred

seriously in dismissing the suit of the plaintiffs. The

learned trial Judge erred in losing sight of established

principles of joint Hindu family. Learned counsel also

emphasizes on the point that there was consent for

bifurcating the katha of item No.2 of the schedule

property. The defendants legally tendered their

consent for katha to be effected for 30 guntas in the

name of the plaintiffs. Learned counsel further

stresses that when the total extent of land is 01 acre

23 guntas and there was no reason for the defendants

to give consent for change of katha. Learned counsel

would further emphasize on the point that when katha

is transferred in the name of the plaintiffs by consent

of the defendants which invariably amounts to

recognition of the right of the plaintiffs over the

schedule property. In the said connection, defendants

are estopped from contending to the prejudice of the

plaintiffs. Learned counsel would further submit

regarding RTC extract produced at Ex.P14 and in the

column meant for possession showed the name of

'Anjinappa'. The name of 'Anjinappa' is bracketed and

thereafter name of 'Sanjeevappa' is mentioned.

Learned counsel submits that it is not uncommon for

reunion of a partitioned family among Hindus, as

such, if joint family members once partitioned there is

no embargo for them to reunite and to have the

continuation of the joint family. It is in this connection

though the sons of Gummanna got partitioned,

Sanjeevappa and Anjinappa decided to continue.

16. Learned counsel Mr.Anoop for defendants would

submit that suit is filed against the well established

principles of Hindu law relating to joint family. The

partition of the year 1953 is not disputed and on the

other hand, it is admitted positively by the plaintiffs.

There is no question of reunion of family thereafter

and as such the acquisition made by Anjinappa,

father of defendants never belonged to joint family

with Sanjeevappa, father of plaintiffs. Thus, the

acquisition made by Anjinappa formed the property of

his separate family consisting of Anjinappa and his

children being defendant Nos. 1 and 2.

17. In the meanwhile, father of the plaintiffs has

managed to get the revenue records in his name and

it is due to misrepresentation. Regard being had to

the fact that it is not binding on the defendants. The

defendants are in actual possession and enjoyment of

the schedule properties.

18. In the context and circumstances of the case,

the following points are amply clear:

* Existence of joint family led by Gummanna, father of Anjinappa, Sanjeevappa and Nanjappa at earliest point of time is not disputed; * The partition dated 21-9-1953 effected among the three brothers, namely Anjinappa, Sanjeevappa and Nanjappa is not disputed;

* The properties are stated to have been allotted to the siblings, namely Anjinappa, Sanjeevappa and Nanjappa;

* After the partition, Nanjappa went away from the joint family and there is no participation from his side for any of the development thereafter.

19. It is the stance of the plaintiffs that subsequent

to partition of the year 1953, Sanjeevappa, father of

plaintiffs and Anjinappa, father of defendants

continued in joint family and three items of land and

properties were purchased by Anjinappa, in the name

of Anjinappa on 18-10-1954, 02-03-1956 and

23-07-1959 namely; (1) Survey No.77 measuring 01

acre 23 guntas on 18-10-1954; (2) survey No.126

(Old)New No.190 measuring 05 acres 02 guntas on

23-07-1959 and (3) Survey No.137 (old) new

No.189, 5 acres 02 guntas on 02-03-1956 marked as

Exs.P2 and P3.

20. Plaintiffs claim that subsequent to the death of

Anjinappa, Sanjeevappa who is the brother of

Anjinappa and the children of Anjinappa who are the

defendants divided the suit three items of properties,

wherein plaintiffs' father got the suit schedule

property i.e. one full item and half item in the

another out of three items of the properties. It is in

this connection, plaintiffs claim that purchasing of

properties in the name of Anjinappa is only as a mark

of heritage and respect as Anjinappa was the eldest

son of Gummanna.

21. Though it is a regular first appeal under Section

96 of CPC, it also involves the question of law

regarding the rules of partition under the Hindu law,

recognition of the divided members and the legal

effect therein.

22. Insofar as the claim of the plaintiffs is concerned,

disruption of the joint family as per the partition dated

21-9-1953 was not a genuine and complete one as

subsequently, plaintiffs' father Sanjeevappa and

defendants' father Anjinappa continued to be joint as

the members of joint family. Regard being had to the

fact that it was only Nanjappa who chose to be

separate by virtue of partition. Thus, it is the stance of

the plaintiffs that the joint family both disrupted and

reunited. Nodoubt, both are not foreign to Hindu law

regarding joint family.

23. Insofar as the concept of 'partition' is concerned,

the properties are divided at the time of partition

which may be partial or total. It is partial when only

some of the joint family properties are divided and

rest are kept to be joint and in which event, the

status of the joint family would continue in respect of

the properties that are not divided. Equally, partition

may be with reference to only one or some of the

members of the joint family, in which event, only the

outgoing member gets disconnected with the joint

family and terminates all relationship except the

blood relationship. In which event also, the partition is

partial. At this stage, I am reminded of the principles

that parties by themselves enter into a partial

partition, but there cannot be a suit for partial

partition which is based on the principles that all the

properties of the joint Hindu family and all the parties

are to be included in the suit for partition. The

popular mode of a partial partition wherein one or

some of the members of the total joint family get

partitioned is also regarded as 'release'. It is in the

said connection, plaintiffs claim that second partition

was effected subsequent to 1953.

24. The claim of the appellants as the plaintiffs in

the trial court is for declaration of title and permanent

injunction. According to them the partition that was

effected on 21.09.1953 was only in connection with

one of the joint family member namely Nanjappa.

However the joint family with reference to plaintiffs

father and Anjinappa father of defendants continued.

Interestingly plaintiffs' claim is against the context

and circumstances of the case. The partition deed

Ex.D-1 is effected among all the three brothers

namely Anjinappa, Sanjeevappa and Nanjappa and

there is no recital in the said deed regarding the

continuation of joint family between plaintiffs' father

Sanjeevappa and Anjinappa or his children

(defendants). There could have been another

document or circumstance or materials reliable in case

the plaintiffs' father Sanjeevappa, Anjinappa or his

children had continued in the joint family. It is in this

connection Mr.Vijay Krishna Bhat learned counsel for

plaintiffs/appellants would submit that it was a oral

understanding and partition between Sanjeevappa and

children of Anjinappa namely defendants continued

jointly.

25. Learned counsel emphasized that request was

given for opening khatha of 33 guntas in favour of

Anjinappa in respect of land in Sy.No.77 and it could

have been request for entire extent of 1 acre 23

guntas in the name of Anjinappa. Reason for foregoing

30 guntas and confining khatha to 33 guntas raises a

big question.

26. Mr.Bhat learned counsel for appellants submits

that the oral understanding or partition was effected

between Sanjeevappa and legal representatives of

Anjinappa somewhere during the year 1978. This was

controverted by learned counsel for defendants saying

that the age of the defendant No.1 as per the plaint

cause title is 58 years as on 2003. However it is

denied that no partition had taken place. The prime

principle accepted for partition is that all the

properties are to be included and all the necessary

parties to be included to the suit for partition.

27. The claim of continuation of joint family even

after partition deed Ex.D-1 dated 21.09.1953 is not

evidenced by documents as stated by the plaintiffs.

But there must be some enabling documents on the

revenue side. When a khatha is agreed to be changed

or transferred or modified by virtue of a partition

wherein participating parties have no dispute khatha

will be changed in accordance with the arrangement

or family partition. In this connection there should

have been transfer of khatha being made in the name

of both the parties. In the relevant column of RTC or

mutation normally in the regional language the term

used for effecting khatha on the basis of partition is

'vibhaga' or 'panchayat palupatti'. But no such

document is placed. Insofar regarding khatha of item

No.1 of Schedule property is concerned, learned

counsel for defendants would submit that effecting of

khatha was not within the knowledge of the

defendants. It is in this connection the defendants

have not explained as to why or what was the reason

for delay in taking action regarding change of khatha

from the name of plaintiffs. It was submitted that

Sanjeevappa being paternal uncle played fraud and

got the revenue entries beyond the back of the

defendants. However revenue proceedings were

initiated during 2001. Again in this connection it is

necessary to mention such change of entry is

regarding item No.2 of schedule properties. In

continuation of my observation regarding including of

all the properties, participation of all the parties to the

partition, it is necessary to mention that when the

partition did not happen between plaintiffs' father and

Anjinappa, father of defendants or if happened and it

was reunited there should be an account in respect of

all the properties and total number of properties when

Nanjappa went out of the house as it is partial.

According to plaintiffs except exclusive share taken by

Nanjappa the remaining properties should have been

continued as joint family properties. But as per the

partition deed 13 items of property fell to the share of

Sanjeevappa now deceased and 12 properties to

Anjinappa, father of defendants. But the sharing of

two items of properties it does not give any meaning

at all. Again it cannot be partial partition against

brothers. Neither there is document or enabling

material or circumstances in that connection. Further

if the earlier properties if continued or if Sanjeevappa

and Anjinappa had reunited subsequent to partition

the joint family should give account for total

properties. Oral partition of the year 1978 plaintiffs

are accounted for the division of properties. Plaintiffs

are tight lipped with regard to other properties.

Insofar as other properties allotted in the partition

deed of the year 1953, it is quite pertinent to note

schedule properties could not have been in existence

in the year 1953 as it was acquired by Anjinappa

subsequent to partition. It is not the case of the

plaintiffs that those properties were remained joint

family properties but left out in the partition. It is not

the case that plaintiffs and Anjinappa, father of

defendants earned three items of property from the

earnings of joint family properties. Examined from

any angle plaintiffs does not make out a case for

declaration of title or permanent injunction. The

isolated entry regarding RTC extract cannot be

claimed that was made in the name of plaintiffs and

was subsequently restored in the name of defendants.

The entry in the name of plaintiffs cannot be taken

advantage by the plaintiffs. It is on the part of the

plaintiffs to explain the legitimacy or legal sources of

revenue entry. Neither plaintiffs had acquired it nor

contributed any efforts to acquire said property nor it

is devolved upon them in law. More over plaintiffs

also cannot take advantage of a lapse or irregularity in

the case of defendants for establishing their case. The

plaintiffs have to sink or sail on the basis of their own

case. The said momentary entry in the revenue

records does not support the case of the plaintiffs.

28. In the whole circumstances, I find the Judgment

and decree passed by the learned trial Judge does not

call for interference but deserves to be confirmed. In

the result, appeal stands dismissed. No order as to

cost.

Sd/-

JUDGE

SBN/tsn*