Karnataka High Court
Smt. Shivakka W/O. Mallayya ... vs Stm. Gangavva W/O. Basalingayya ... on 10 November, 2023
Bench: H.P.Sandesh, Ramachandra D. Huddar
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RFA No.100169/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100169 OF 2017
BETWEEN:
1. SMT. SHIVAKKA W/O. MALLAYYA SUTAGATTI,
SINCE DECEASED HER LEGAL HEIRS ARE
IMPEDED AS APPELLANT NO. (A) TO 1 (D)
1.(A) SHRI. NINGAYYA S/O. MALLAYYA SUTAGATTI,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O: VANAHALLI POST, HEBBALLI,
TQ AND DIST: DHARWAD.
1.(B) SHRI. VIRUPAKSHAYYA S/O. MALLAYYA SUTAGATTI,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: VANAHALLI POST, HEBBALLI,
TQ AND DIST: DHARWAD.
1.(C) SHRI. IRAYYA S/O. MALLAYYA SUTAGATTI,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: VANAHALLI POST, HEBBALLI,
TQ AND DIST: DHARWAD.
YASHAVANT
NARAYANKAR 1.(D) SHRI. CHANNAYYA S/O. MALLAYYA SUTAGATTI,
AGE: 58 YEARS, OCC: AGRICULTURE,
Digitally signed
R/O: VANAHALLI POST, HEBBALLI,
by YASHAVANT TQ AND DIST: DHARWAD.
NARAYANKAR
Date: 2023.11.10
15:23:20 +0530 2. SMT. IRAVVA W/O. APPAYYA HIREMATH,
AGE: ABOUT 70 YEARS, OCC: HOUSEHOLD,
R/O: HUGAR PLOT, 2ND CROSS,
ISHWAR NAGAR, OLD HUBLI, HUBLI.
3. SMT PARVATEVVA W/O. NINGAYYA HIREMATH,
AGE: ABOUT 68 YEARS, OCC: HOUSEHOLD,
R/O: YADALLI VILLAGE, TQ: SAUDATTI,
DIST: BELGAUM.
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RFA No.100169/2017
4. SMT. NEELAVVA W/O. IRAYYA SALIMATH,
AGE: ABOUT 65 YEARS, OCC: HOUSEHOLD,
R/O: GUMGOL VILLAGE, POST: BYALAL,
TQ: NAVALGUND, DIST: DHARWAD.
5. SRI. GANGADHAR S/O. SOMAYYA HIREMATH,
SINCE APPELLANT NO. 5 DECEASED HER LEGAL HEIRS
ARE IMPEDED AS APPELLANT NO. 5 (A) TO 5 (D)
5(A) SMT. SAROJA W/O. GANGADHAR HIREMATH,
AGE: 44 YEARS, OCC: HOUSEHOLD,
R/O: #10/14. DEVANG PETH NAGAR, HUBLI.
5(B) BASAYYA S/O. GANGADHAR HIREMATH,
AGE: 25 YEARS, OCC: PVT. SERVICES,
R/O: #10/14. DEVANG PETH NAGAR, HUBLI.
5(C) NAGESH S/O. GANGADHAR HIREMATH,
AGE: 23 YEARS, OCC: PRIVATE SERVICES,
R/O: #10/14. DEVANG PETH NAGAR, HUBLI.
5(D) IRAYYA S/O. GANGADHAR HIREMATH,
AGE: 19 YEARS, OCC: HOUSEHOLD,
R/O: DEVANG PETH, MAIN ROAD, HUBLI.
SMT. NINGAVVA W/O. SHIVANANDAYYA HIREMATH,
SINCE DECEASED HER LEGAL HEIRS ARE
IMPEDED AS APPELLANT NO. 6 (A) TO 6 (C)
6. SHIVANANDAYYA S/O. BASAYYA HIREMATH,
SINCE APPELLANT NO. 6 DECEASED HIS LEGAL HEIRS
ARE ON RECORDS AS APPELLANT NO. 7 AND 8.
7. VIJAYLAXMI W/O. IRAYYA HIREMTH,
AGE: 47 YEARS, OCC: HOUSEHOLD,
R/O: DEVANG PETH, MAIN ROAD, HUBLI.
8. IRAYYA S/O. SHIVANANDAYYA HIREMATH,
AGE: 43 YEARS, OCC: BUSINESS,
R/O: DEVANG PETH, MAIN ROAD, HUBLI.
9. SMT. BASAVANNEVVA W/O. SHRIKANTHAYYA HIREMATH,
AGE: ABOUT 57 YEARS, OCC: HOUSEHOLD,
R/O: BEHIND ISWAR TEMPLE, GOPANKOPPA, HUBLI.
10. SMT. BASALINGAVVA W/O. BASAYYA SOUDATTIMATH,
AGE: ABOUT 55 YEARS, OCC: HOUSEHOLD,
R/O: CHETANA COLONY, BENGERI, HUBLI.
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RFA No.100169/2017
11. SRI. BASAVANNAYYA S/O. NAGAYYA BALGOD,
AGE: 24 YEARS, OCC: COOLIE,
R/O: SIDRAMESHWAR NAGAR,
GOPANKOPPA, HUBLI.
12. MASTER VEERESH S/O. NAGAYYA BALGOD,
AGE: 21 YEARS, OCC: COOLIE,
R/O: SIDRAMESHWAR NAGAR,
GOPANKOPPA, HUBLI.
(SINCE MINOR REPRESENTED BY HIS
NATURAL GUARDIAN DEFENDANT NO.9)
13. MASTER NANDISH S/O. NAGAYYA BALGOD,
AGE: 19 YEARS, OCC: COOLIE,
R/O: SIDRAMESHWAR NAGAR,
GOPANKOPPA, HUBLI.
...APPELLANTS
(BY SRI. PRAKASH K. JAWALKAR, ADVOCATE )
AND:
SMT. GANGAVVA W/O. BASALINGAYYA HIREMATH,
DEFENDANT NO. 1 IS DEAD AS DELETED
AS PER ORDER PASSED ON 23/07/2016
1. MALLAYYA S/O. BASALINGAYYA HIREMTH,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: SATTUR, DHARWAD.
2. SMT. NINGAVVA W/O. SHIVAPUTRAYYA HIREMATH,
SINCE RESPONDENT NO.2 DECEASED HIS LEGAL HEIRS
ARE ON RECORD AS RESPONDENT NO.2(A) AND 2(B)
2.(A) SHRI. SHIVAPUTRAYYA HIREMATH,
AGE: 60 YEARS, OCC: PRIVATE SERVICE,
R/O: SATTUR VILLAGE, DHARWAD.
2.(B) BASALINGAYYA S/O. SHIVAPUTRAYYA HIREMATH,
AGE: 28 YEARS, OCC: PRIVATE SERVICE,
R/O: SATTUR VILLAGE, DHARWAD.
3. SMT. SUSHILA W/O. FAKKIRAYYA BALAGOD,
AGE: ABOUT 43 YEARS, OCC: HOUSEHOLD,
R/O: SIDRAMESHWAR NAGAR,
GOPANKOPPA, HUBLI.
4. SMT. NAGARATNA W/O. MALLAYYA HIREMTH,
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RFA No.100169/2017
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O: SATTUR, TQ: DHARWAD.
5. SANGAYYA S/O. MALLAYYA HIREMATH,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O: SATTUR, TQ: DHARWAD.
6. RAJASHEKHAR S/O. MALLAYYA HIREMATH,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: SATTUR, TQ: DHARWAD.
7. ANNAPUNA D/O. MALLAYYA HIREMATH,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: SATTUR, TQ: DHARWAD.
8. BASALINGAYYA S/O. MALLAYYA HIREMATH,
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O: SATTUR, TQ: DHARWAD.
9. SRI. FAKKIRAYYA S/O. BASAYYA BALAGOD,
SINCE THE RESPONDENT NO. 9 HAS DECEASED,
HIS LRS BROUGHT ON RECORD
9.(A) SHRI. BASAYYA S/O. FAKKIRAYYA BALAGOD,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: JODALLI, TQ: KALAGATAGI, DIST: DHARWAD.
9.(B) SMT. MANJULA W/O. MRUTYUNJAY HIREMATH,
AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
R/O: JODALLI, TQ: KALAGATAGI, DIST: DHARWAD.
9.(C) SMT. LAXMI W/O. MANJAYYA HIREMATH,
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
R/O: JODALLI, TQ: KALAGATAGI,
DIST: DHARWAD.
10. SRI GOOLAPPA @ NAGAPPA S/O. RUDRAPPA HOOLI,
AGE: ABOUT 73 YEARS, OCC: AGRICULTURE,
R/O: SATTUR, DHARWAD.
11. SRI. TIRAKAPPA S/O. BHOJAPPA TAMMANNAVAR,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: KURUVINKOPPA VILLAGE,
TQ: SAUNDATTI, DIST: BELGAUM.
12. SRI. SHINGAPPA
S/O. CHANDRASHEKHAR CHINIVALAR,
AGE: 40 YEAR, OCC: AGRICULTURE,
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RFA No.100169/2017
R/O: CHINIVALAR ONI,
SAUDATTI, DIST: BELGAUM.
13. SRI. MALLAPPA S/O. ISHWARAPPA ANGADI,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: BANDI ONI, SAUDATTI, DIST: BELGAUM.
14. SRI. PRABHUJI S/O. KALLAPPA BEVUR,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: PRABHUNAVAR ONI,
SAUDATTI, DIST: BELGAUM.
15. M/S. RAGHAVI TECHNOLOGIES,
REPRESENTED BY ITS PARTNERS,
VIRUPAX S/O. KARABASAPPA MAMANI AND
ARVIND S/O. CHANNAPPAGOUDA PATIL,
AGE: 49 AND 45 YEARS, OCC: BUSINESS,
R/O: NO. II, SHANTI COLONY, HUBLI.
16. VIRUPAX S/O. KARABASAPPA MAMANI,
AGE: 53 YEARS, OCC: BUSINESS,
R/O: NO.II, SHANTI COLONY, HUBLI.
17. ARVIND S/O. CHANNAPPAGOUDA PATIL,
AGE: 52 YEARS, OCC: BUSINESS,
R/O: NO.II SHANTI COLONY, HUBLI.
...RESPONDENTS
(BY SRI. S.R. HEGDE, ADVOCATE FOR CAVEAT/R1, R2 (A-B), R9 (A-C)
(V/C FILED); NOTICE SERVED TO R3 TO R8 AND R11 TO R17;
R10 HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL FILED UNDER ORDER 41 RULE 1
OF CPC, PRAYING THAT, THE IMPUGNED JUDGMENT AND DECREE
PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE, AND C.J.M
DHARWAD IN ORIGINAL SUIT NO.363/2012 DATED 25-03-2017
PLEASE BE SET ASIDE THE DECREE THE SUIT AS PRAYED FOR SUCH
OTHER RELIEFS AS THIS HON'BLE COURT DEEMED FIT AND PROPER
PLEASE BE GRANTED.
THIS APPEAL, HAVING BEEN HEARD AND RESERVED ON
02.11.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
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DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Plaintiffs-appellants being aggrieved and dissatisfied by
dismissal of their suit in O.S.No.363/2012 dated 25.03.2017 by
the I-Additional Senior Civil Judge and CJM, Dharwad have
preferred this appeal.
2. For the sake of convenience, the parties to this
appeal are referred to as per their rank before the Trial Court.
3. The facts leading to the case of the plaintiffs in brief
are as under:
The plaintiffs have described the suit schedule property in
the plaint as an agricultural land bearing Survey/Block No.30
measuring 15 acres 11 guntas, situated at Sattur village within
the boundaries so mentioned in the plaint (hereinafter referred
to as "suit property").
According to the plaintiffs, suit schedule properties are
joint family properties of themselves and the defendants 1 to
10. It is their case that one Mallayya was the propositus and he
had a wife by name Ningavva. Both are no more. In the
wedlock between Mallayya and Ningavva, four children were
born by name Basavva, Shivakka, Basalingayya and Sharavva.
RFA No.100169/2017
All the four children are no more. Plaintiffs 2 to 5 are the
children of Basavva. Deceased defendant No.1 was the wife of
Basalingayya. Defendants 2 to 4 are the children of
Basalingayya and Gangamma. Defendants 6 to 9 are children of
defendant No.2. Plaintiffs 6, 7 and 8 are the children of
Sharavva. Plaintiffs 9 to 11 are the children of Nagayya. This
Nagayya was the son of Sharavva. One Mahadevi was also the
daughter of Sharavva, who is no more. Defendant No.10 is
another son of Sharavva. Thus, plaintiffs have described the
genealogy in the plaint.
According to plaintiffs, suit property is the ancestral joint
family property of themselves and defendants 1 to 10. It is the
specific case of the plaintiffs that, till date no partition has
taken place in respect of suit schedule property in between
plaintiffs and defendants 1 to 10. It is alleged that, the
husband of defendant No.1 by name Basalingayya, on demise
of propositus-Mallayya, suppressing the fact of daughters of
Mallayya, stated above, got his name entered in respect of suit
schedule property stating that, he was the only the legal heir of
propositus-Mallayya. It is alleged that behind the back of
plaintiffs, defendants 1 to 10 sold portion of suit property to
defendants 11 to 15. It is alleged that these defendants 11 to
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15 were very much aware that the plaintiffs have got their
legitimate share in the suit schedule property. Despite that,
defendant No.2 sold certain portions of the suit property to the
aforesaid defendants 11 to 15.
It is alleged that so called sale deeds in favour of
defendants 11 to 15 are not binding to the extent of shares of
the plaintiffs. It is alleged that when the plaintiffs approached
defendants 1 to 10 and requested to effect partition, there was
a flat refusal. Therefore, the plaintiffs were constrained to file
the suit.
4. Before the Trial Court, pursuant to summons
issued, all the defendants appeared except defendants 16 to
18, who remained exparte. It was defendant No.2 filed written
statement and the same was adopted by defendants 1 and 3 to
10.
5. The whole case of the plaintiffs has been denied by
these defendants. It is contended that the genealogy so
described by the plaintiffs is not admitted. The plaintiffs are put
to strict proof of the same. The whole case of the plaintiffs with
regard to joint family status in respect of suit schedule property
and selling of portion of suit schedule property behind the back
RFA No.100169/2017
of plaintiffs has been specifically denied. According to
defendants 1 to 10, without any cause of action the suit has
been filed. No death certificate of propositus is produced to
show his date of death.
6. It is the specific contention of defendants 1 to 10
that, it was defendant No.2, who was cultivating the suit
schedule property in his individual capacity. Under the
provisions of Inam Abolition Act, after filing of From No.7
before the Land Tribunal, the Land Tribunal on enquiry has
granted occupancy rights in favour of defendant No.2 and
accordingly, issued Form No.7. The said order of the Land
Tribunal is dated 07.11.1981. Thus, as the suit property is self-
acquired property of defendant No.2, plaintiffs have no share in
the same.
7. Likewise, defendant No.14 filed written statement,
which was adopted by defendants 11 to 13 and 15. As per their
assertion, they are bonafide purchasers of portion of the suit
schedule property. After due enquiry with regard to title of
defendants 1 to 10, they purchased the portion of the suit
schedule property. The plaintiffs are put to strict proof of the
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allegations made in the plaint about their entitlement of shares
in the suit schedule property.
8. It is further contended that the date of death of
propositus and date of birth of female heirs are the material
questions to be decided in this case in view of amendment to
section 6 of the Hindu Succession Act. Because of suppression
of material facts by the plaintiffs, the suit is not maintainable.
These defendants have not admitted the case of the plaintiffs.
Therefore, all the defendants prayed to dismiss the suit.
9. Based on the rival pleadings of both the sides, the
learned Trial Court framed in all six issues, which are as
follows:
ISSUES
1. Whether the plaintiffs prove that suit properties
are the ancestral joint family properties of
plaintiffs and defendants?
2. Whether the plaintiffs prove that they have got
any share in the suit properties? If so what is the
share?
3. Whether the plaintiffs prove that sale deeds
executed in favour of defends No.11 to 15 are not
binding on plaintiffs?
4. Whether the defendant No.2 proves that suit
properties are his self-acquired properties?
5. Whether the plaintiffs prove that they are entitled
for the reliefs claimed?
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6. What decree or order?
10. Before the Trial Court, to substantiate the case of
the plaintiffs, one Neelavva Salimath entered the witness box
as PW1 and two more independent witnesses by name
Gadigeppa Chulaki and Shivanandayya Hiremath were
examined as PW2 and PW3. On behalf of the plaintiffs, Ex.P1 to
29 were marked and closed plaintiffs' evidence.
11. To rebut the evidence of the plaintiffs, one of the
defendants Mallayya Hiremath entered witness box as DW1. On
behalf of the defendants, Ex.D1 and D2 were marked. So called
purchasers have not entered the witness box.
12. On hearing the arguments of both the sides and on
perusal of the records, the learned Trial Court dismissed the
suit of the plaintiffs by answering issues 1 to 5 in negative. It is
this judgment, which is challenged by the appellants-plaintiffs
by preferring this appeal.
13. It is vehemently argued by the counsel for the
plaintiffs that the suit schedule property is the ancestral joint
family property of the plaintiffs and defendants 1 to 10 and
defendant No.2 cannot contend that it is his self-acquired
property. The plaintiffs have produced voluminous documents
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to show that the suit schedule property is the joint family
ancestral property of themselves and defendants 1 to 10. By
virtue of provisions of Section 6 of the Hindu Succession Act,
daughter is also entitled for share equal to that of son. Under
the provisions of Hindu Succession Act, she is a co-parcener by
birth. As she has got birth right in the suit schedule property,
the learned Trial Court without adhering to the provisions of
Hindu Succession Act and also the judgment of the Hon'ble
Supreme Court and without appreciating the documents and
evidence has erroneously dismissed the suit of the plaintiffs.
There is no proper appreciation on question of law and facts.
When it was a tenanted property and when the Land Tribunal
granted occupancy right, it enures to the benefit of family
members. Therefore, as the plaintiffs are the co-parceners by
way of inheritance from their respective parents, now the
defendants cannot disprove the rights of the plaintiffs. In
support of their submission, the learned counsel for the
plaintiffs relied upon various documents. It is submitted to
allow the appeal and set aside the impugned judgment granting
decree of partition and separate possession of the suit schedule
property.
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14. As against this submission, the learned counsel for
respondents with all force submits that, when the parents of
these plaintiffs are no more, these plaintiffs are not entitled for
share. Further, it is submitted that the genealogy so furnished
by the plaintiffs is incorrect. There is no proper description of
genealogy. It is submitted that the Land Tribunal has granted
occupancy rights in the independent capacity, as defendant
No.2 was a tenant of the suit schedule property. As it was his
self-acquired property of defendant No.2, these plaintiffs
cannot claim any share in the schedule property. In support of
his submission, the counsel for the respondents also took us
through the evidence placed on record, both oral and
documentary. It is prayed by the defendants to dismiss this
appeal by confirming the judgment of the Trial Court.
15. We have given our anxious consideration to the
rival submissions of both sides and meticulously perused the
records. The points that would arise for our consideration are
as under:
i) Whether learned Trial Court has committed error in
declining the share to the plaintiffs on the ground that
these plaintiffs are not entitled for the share in the
suit schedule property as the suit schedule property
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was self-acquired property of deceased defendant
No.2?
ii) If so, whether plaintiffs are entitled for any share in
the suit schedule property?
iii) What order?
16. Our answers to the above points 1 and 2 is in
affirmative for the following:
REASONS
17. Before adverting to the other aspects of the case,
let us examine the status of the schedule properties. It is the
case of the plaintiffs that the suit schedule property holds
status of joint family property and it is an ancestral property
being cultivated by the propositus by name Mallayya. Ningavva
was his wife. According to plaintiffs, Mallayya and Ningavva had
four children i.e. one son by name Basalingayya and three
daughters by name Basavva, Shivakka and Sharavva.
Basalingayya had a wife by name Gangamma, who was arrayed
as defendant No.1. She is also no more. This genealogy so
stated by the plaintiffs in the plaint is not accepted by the
defendants 1 to 10.
18. PW1, being plaintiff No.4, has reiterated the plaint
averments with regard to status of suit schedule property as
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ancestral joint family property. So also, PW2-Gadigeppa
Channabasappa Chulaki, aged about 80 years at the time of his
evidence before the Trial Court and PW2-Shivanandayya
Bassayya Hiremath aged about 63 years, have stated in their
respective evidence that, the suit schedule property is ancestral
joint family property of the plaintiffs and defendants 1 to 10.
Except denial in the cross-examination, nothing is elicited from
the mouth of these witnesses so as to disbelieve their evidence
with regard to the status of the suit schedule property by the
defendants.
19. It is spoken to by PW1 in the cross examination
that husband of defendant No.1-Gangavva byname
Basalingayya, without informing anybody, muchless the
plaintiffs, got mutated his name in the revenue records. It is
suggested to PW1 that pleadings to that effect is true. There is
no further denial of this fact by the defendants.
20. So far as documentary evidence is concerned, the
plaintiffs have produced Ex.P1, the RTC extract of the schedule
property. So far as entry in the said RTC extract marked in the
Ex.P1 is concerned, plaintiffs have not disputed it but it is their
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contention that behind their back, the names of defendants 1
to 10 were entered in revenue records.
21. The main document relied upon by the plaintiffs is
Ex.P2, mutation entry certified by the revenue authorities in
respect of suit schedule property. It is stated in this mutation
entry that, on 06.12.1955, Mallayya Basalingayya Mathad i.e.
propositus died. He has got only legal heir by name
Basalingayya Mathad i.e. husband of defendant No.1.
Therefore, his name entered in the revenue records in respect
of suit schedule property. So this mutation entry pre-supposes
that prior to 06.12.1955 the name of Mallayya Basalingayya
Mathad was appearing in the revenue records in respect of suit
schedule property.
22. It is the case of the defendants 1 to 10 that the suit
schedule property was granted to the said Basalingayya by
virtue of orders of the Land Tribunal under the provisions of
Inam Abolition Act. Accordingly, occupancy rights were granted
and Form No.7 came to be issued in the name of Basalingayya.
Therefore, as it was granted in the name of Basalingayya, it
was his self-acquired property.
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23. The other documents are sale deeds as per Ex.P13
to 18. These sale deeds show that portion of the schedule
property was sold by defendants 1 to 10. Ex.P3 is the RTC
Extract from 1964 to 1994. To show the relationship between
plaintiffs and defendants 1 to 10, they have produced Adhaar
Card, voters card of the plaintiffs. While marking these
documents, no little finger was raised by the defendants. Some
photographs were also confronted to DW1 and they were
marked in evidence. The contents of said photographs are not
denied by the defendants.
24. For the sake of denial, the defendants must have
denied the relationship but the trend of evidence spoken to by
them clearly establish that, these plaintiffs are also children of
Basavva, Sharavva as narrated in the genealogy.
25. So far as defendants are concerned, Mallayya i.e.,
defendant No.2 entered the witness box being son of
Basalingayya and specifically stated that, his father was a
tenant of the suit schedule property and it was granted to him.
According to his evidence, the land Tribunal has granted
occupancy rights in his name as per orders dated 07.11.1981.
That means his father was cultivating the suit schedule
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property and after his demise, it was DW1 filed Form No.7 and
under the provisions of Inam Abolition Act, the Land Tribunal
passed an order on 07.11.1981 and granted occupancy rights.
The fact of granting occupancy rights in respect of scheduled
property in the name of DW1 i.e. defendant No.2 is not denied
by the plaintiffs. Their case is that, as the suit schedule
property was under cultivation by Mallayya and after his
demise the name of Basalingayya came to be entered as per
entry in Ex.P2 and thereafter, it was defendant No.2 filed Form
No.7. It is the contention of the defendants that it was the self-
acquired property of the defendants, but the records produced
by the plaintiffs as well as defendants 1 to 10 do establish that
right from the days of Mallayya, the suit schedule property was
under cultivation by the plaintiffs and defendants' family. So
therefore, now defendants 1 to 10 cannot contend that it was
their self-acquired property. The law with regard to grant of
occupancy rights is well settled and it also enures to the benefit
of legal heirs of the grantee.
26. It is true that Inam property was impartable till
Inam came to be abolished in the year 1955. Thereafter, the
impartable character of the land ceased to be in existence. It is
obvious that the occupancy rights in respect of suit schedule
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properties were granted to defendant No.2 in the year 1981.
The revenue authorities did not bother to go into the question
as to legal title to the suit schedule property. Such an order
passed by the Land Tribunal cannot give exclusive title to the
land. Here in this case, plaintiffs and defendants 1 to 10 are
entitled to the property left by their ancestor-Mallayya as the
suit schedule property was being cultivated by ancestor-
Mallayya being propositus and after his death, the plaintiffs and
defendants 1 to 10 being his legal heirs inherited the suit
schedule property as class-I heirs. The defendants 1 to 10
never pleaded any ouster of the plaintiffs from the suit
schedule property, where several persons have held joint rights
over the property. Now the claim of the defendants 1 to 10
cannot be accepted as truthful one. Further, in the judgment of
the Hon'ble Apex Court in the case of Vineeta Sharma v.
Rakesh Sharma1 has discussed with regard to the scope of
Section 6 of the Hindu Succession Act. In the said judgment it
is held as under:
Answering the reference in the terms below, the
Supreme Court
Held:
(2020) 9 SCC 1
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Section 6 of the HS Act, 1956 deals with devolution
of interest in coparcenary property of a joint Hindu family
governed by the Mitakshara law. The originally enacted
provision of Section 6 excluded the rule of succession
concerning Mitakshara coparcenary property. It provided
that the interest of a coparcener male Hindu who died after
the commencement of the 1956 Act, shall be governed by
survivorship upon the surviving members of the
coparcenary. The exception was provided by the proviso to
Section 6 that if the deceased had left surviving a female
relative specified in Class 1 of the Schedule or a male
relative specified in that Class who claims through such
female relative, the interest of such coparcener shall
devolve by testamentary or intestate succession, as the
case may be, in order to ascertain the share of deceased
coparcener, the partition has to be deemed before his
death. Explanation II disentitled the separated person to
make any claim in case of intestate succession.
(Paras 53 and 58)
27. Further, in the said judgment, the reference to the
Full Bench is answered as under:
Resultantly, the reference is answered as under:
(i) The provisions contained in substituted Section 6 of
the Hindu Succession Act, 1956 confer status of
coparcener on the daughter born before or after
amendment in the same manner as son with same rights
and liabilities.
(ii) The rights can be claimed by the daughter born earlier
with effect from 9-9-2005 with savings as provided in
Section 6(1) as to the disposition or alienation, partition
or testamentary disposition which had taken place before
20-12-2004.
(iii) Since the right in coparcenary is by birth, it is not
necessary that father coparcener should be living as on 9-
9-2005.
(iv) The statutory fiction of partition created by proviso to
Section 6 of the Hindu Succession Act. 1956 as originally
enacted did not bring about the actual partition or
disruption of coparcenary. The fiction was only for the
purpose of ascertaining share of deceased coparcener
when he was survived by a female heir, of Class I as
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specified in the Schedule to the 1956 Act or male relative
of such female. The provisions of the substituted Section
6 are required to be given full effect. Notwithstanding that
a preliminary decree has been passed the daughters are
to be given share in coparcenary equal to that of a soa in
pending proceedings for final decree or in an appeal.
(v) In view of the rigour of provisions of Explanation to
Section 6(5) of the 1956 Act, a plea of oral partition
cannot be accepted as the statutory recognised mode of
partition effected by a deed of partition duly registered
under the provisions of the Registration Act, 1908 or
effected by a decree of a court. However, in exceptional
cases where plea of oral partition is supported hy public
documents and partition is finally evinced in the same
manner as if it had been affected by a decree of a court,
it may be accepted. A plea of partition based on oral
evidence alone cannot be accepted and to be rejected
outrightly.
(Para 137)
28. The plaintiffs and defendants 1 to 10 are the co-
parceners to the property left by Mallayya. The co-parcenary
consists of propositus and three lineal descendants. The co-
parcenary property is the one which is inherited by a Hindu
w.e.f. 9.9.1955 by male or female Hindu from his/her father,
grandfather or great-grandfather.
29. In case, coparcenary property comes to the hands
of a single person, temporarily, it would be treated as his
property, but once a son is born, coparcenary would revive in
terms of Mitakshara law. The said rule can be applied to the
present facts of the case. Under the provisions of Hindu
Succession Act, the right to claim partition is a significant basic
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feature of the coparcenary and a coparcener is one who can
claim partition. The daughter has now become entitled to claim
partition of coparcenary w.e.f. 9.9.2005, which is a vital change
brought about by the statute. A coparcener enjoys the right to
seek severance of status.
30. Therefore, if all these factual features coupled with
position of law is put together, it can be stated that the
plaintiffs are entitled for share in the suit schedule property so
also, defendants 1 to 10. So far as purchasers of portion of the
suit schedule property are concerned, they have to claim equity
at the time of drawing final decree with regard to their
purchase of portions of the suit schedule property from
defendants 1 to 10.
31. This position of law has not been properly
appreciated by the Trial Court. Simply based on wrong finding,
the trial Court has dismissed the suit of the plaintiffs. But in
view of the present position of law, the Trial Court ought not to
have dismissed the suit of the plaintiffs. Therefore, the
judgment and decree passed by the Trial Court requires
interference by this Court and plaintiffs and defendants 1 to 10
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are entitled to their legitimate share in the suit schedule
property by metes and bounds.
32. In view of the provisions of Section 6 of the Hindu
Succession Act, all the legal heirs of Mallayya i.e.
Basavva, Savakka, Basalingayya and Sharavva were entitled to
1/4th share each in the suit schedule property. During the
pendency of the suit, plaintiff No.1 died. Basavva, Basalingayya
and Sharavva and the other children of Mallayya are no more.
The genealogy shows that Savakka died without any issues. As
she has no legal heirs, her share has to be divided in between
her brother and sisters. That means her 1/4th share has to be
divided amongst three persons i.e. Basavva, Basalingayya and
Sharavva. Accordingly, Basavva, Basalingayya and Sharavva
are entitled to share 1/3rd each in the suit schedule property.
33. In this case, defendants 11 to 18 are the so called
purchasers of portion of the suit property. The Hon'ble Apex
Court in the case of Mrs.Umadevi v. Thamarasseri Roman
Catholic Diocese in Civil Appeal No.2592 of 2022 (Arising out
of Special Leave Petition (C) No.20047 of 2017) has held as
under:
Partition - It is not always necessary for a
plaintiff in a suit for partition to seek the
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cancellation of the alienations - Alienees as well
as the co-sharer are still entitled to sustain the
alienation to the extent of the share of the co-
sharer. It may also be open to the alienee, in the
final decree proceedings, to seek the allotment
of the transferred property, to the share of the
transferor, so that equities are worked out in a
fair manner. (para 15)
34. Thus, it is open to the purchasers in the final decree
proceedings to seek allotment of transferred, to the share of
the transferor so that equities are worked out in a fair manner.
35. In view of above discussions, the point raised in this
appeal is answered in favour of the plaintiffs. Resultantly, we
pass the following:
ORDER
i) The regular first appeal is allowed with no order
as to costs.
ii) Plaintiffs 2 to 4 being children of Basavva and
plaintiff No.5 being grandson of Basavva,
together are entitled for 1/3rd share in the suit
schedule property.
iii) Likewise, defendants 2, 3, 4, 6, 7, 8 and 9 being
the legal heirs of deceased Basalingayya, together
are entitled for 1/3rd share in the suit schedule
property.
iv) Defendant No.10, plaintiff No.6, 7, 8 being
children of Sharavva and plaintiffs 9, 10 and 11
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being grandchildren of Sharavva, together are
entitled to 1/3rd share in the suit schedule
property.
v) Defendants 11 to 18, who claim to be the
purchasers of portions of the suit schedule
property, are at liberty to seek equity with regard
to properties so purchased by them under
respective registered sale deeds during the final
decree proceedings.
vi) There shall be preliminary decree in the above
terms.
Sd/-
JUDGE
Sd/-
JUDGE
YAN
