Karnataka High Court
Chandrashekhara vs Smt.Gouri on 24 November, 2023
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RFA No. 100310 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.100310 OF 2016
BETWEEN:
1. CHANDRASHEKHARA
S/O. HIRIYANNA GUDDAMANE
SINCE DECEASED BY HIS LR'S,
1(A) TARA
W/O. CHANDRASHEKHAR DEVADIGA
@ GUDDADAMANE
AGE: 52 YEARS
OCCUPATION: HOUSEHOLD WORK
KASTURABA NAGAR, SIRSI
UTTAR KANNADA.
1(B) SUMANA
Digitally signed W/O. MANJUNATH DEVADIGA
by VINUTHA M
Location: HIGH @ GUDDADAMANE
COURT OF AGE: 36 YEARS
KARNATAKA
OCCUPATION: HOUSEHOLD WORK
KANASUR, SIDDAPUR
UTTAR KANNADA.
1(C) MAHESH
S/O. CHANDRASHEKHAR DEVADIGA
@ GUDDADAMANE
AGE: 33 YEARS
OCCUPATION: PRIVATE WORK
KASTURABA NAGAR, SIRSI
UTTAR KANNADA.
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RFA No. 100310 of 2016
1(D) DINESH
S/O. CHANDRASHEKHAR DEVADIGA
@ GUDDADAMANE
AGE: 30 YEARS
OCCUPATION: PRIVATE WORK
KASTURABA NAGAR, SIRSI
UTTAR KANNADA.
2. NITYANANDA
S/O HIRIYANNA GUDDADAMANE
AGE: 47 YEARS
OCC: AGRICULTURIST.
3. NAGARAJ
S/O HIRIYANNA GUDDADAMANE
AGE: 38 YEARS
OCC: AGRICULTURIST.
4. DAYANANDA
S/O HIRIYANNA GUDDADAMANE
AGE: 36 YEARS
OCC: AGRICULTURIST.
5. SMT.DURGI
W/O HIRIYANNA GUDDADAMANE
AGE: 72 YEARS
OCC: HOUSEHOLD.
6. SMT.KERIYAMMA
W/O SUBBA DEVADIGA
AGE: 55 YEARS
OCC: HOUSEHOLD.
7. SMT.KUSUMA
W/O RAMA DEVADIGA
AGE: 51 YEARS
OCC: HOUSEHOLD.
8. PARVATI
D/O HIRIYANNA GUDDADAMANE
AGE: 48 YEARS
OCC: HOUSEHOLD.
9. BHAGIRATHI
D/O HIRIYANNA GUDDADAMANE
AGE: 40 YEARS, OCC: HOUSEHOLD
ALL ARE RESIDENTS OF GUDDADAMANE
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RFA No. 100310 of 2016
HUBLI ROAD, SIRSI,
UTTAR KANNADA.
...APPELLANTS
(BY SRI F. V. PATIL, ADVOCATE FOR A1(A-D) AND A2 TO A9)
AND:
1. SMT.GOURI
W/O BANGARI GUDDADAMANE
AGE: 85 YEARS, OCC: HOUSEHOLD WORK.
2. SHANKAR
S/O BANGARI GUDDADAMANE
AGE: 60 YEARS, OCC: BUSINESS.
3. VITTAL
S/O BANGARI GUDDADAMANE
AGE: 58 YEARS, OCC: BUSINESS.
4. GOPAL
S/O BANGARI GUDDADAMANE
AGE: 53 YEARS, OCC: BUSINESS.
5. SHRIDHAR
S/O BANGARI GUDDADAMANE
AGE: 48 YEARS, OCC: BUSINESS.
6. VIVEKANAND
S/O BANGARI GUDDADAMANE
AGE: 45 YEARS, OCC: BUSINESS
RESPONDENTS NO. 1 TO 6
ARE R/O GUDDADAMANE
HUBLI ROAD, SIRSI
UTTAR KANNADA.
7. SMT.SEETE
W/O NARAYAN DEVADIGA
AGE: 63 YEARS, OCC: HOUSEHOLD WORK
R/O: GUDDADAMANE
HUBLI ROAD, SIRSI
UTTAR KANNADA.
8. BHAVANI
W/O SUBRAY DEVADIGA
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RFA No. 100310 of 2016
AGE: 50 YEARS, OCC: HOUSEHOLD
R/O: MOOD-BHATKAL, BHATKAL
UTTAR KANNADA.
9. RENUKA
W/O NARAYAN KUNDAPUR
AGE: 55 YEARS, OCC: HOUSEHOLD
R/O: NEAR HEAD POST OFFICE
RANEBENNUR
HAVERI.
10. SMT. LEELAVATI
W/O PUTTA
AGE: 65 YEARS
OCC: HOUSEHOLD WORK
R/O: GUDDADAMANE
HUBLI ROAD, SIRSI
UTTAR KANNADA.
11. USHALAXMI @ VISHALAXI
W/O GOVIND DEVADIGA
AGE: 68 YEARS, R/O: HUTTAGAR
MANJAVALI, SIRSI
UTTAR KANNADA.
12. NARASIMHA MANJUNATH HEGDE
A/a: 43 YEARS, OCC: BUSINESSMAN
R/O HUBLI ROAD, SIRSI
UTTAR KANNADA.
13. NARAYAN KRISHNAPPA @ MUDURAPPA KUNDAPUR
AGE: 65 YEARS
R/O: IN FRONT OF HEAD POST OFFICE
RANEBENNUR, HAVERI.
14. T.T. PARASHU
S/O T.T. ACHYUTAN
A/a: 51 YEARS, OCC: BUSINESS
R/O RAMANBAIL, SIRSI.
15. T.T. ANIL
S/O T.T. ACHYUTAN
A/a: 49 YEARS, OCC: BUSINESS
R/O RAMANBAIL, SIRSI.
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RFA No. 100310 of 2016
16. SUBRAYA S/O KRISHNA HEGDE
AGE: 50 YEARS, OCC: AGRICULTURE
R/O: KALMANE, HUNASEKOPPA POST
SIRSI TALUK
UTTAR KANNADA.
17. MANJUNATH
S/O KRISHNA HEGDE
AGE: 46 YEARS
OCC: AGRICULTURE AND REPORTER
R/O: H.NO.106, ORCHIDS, R.C.NAGAR
MAIN ROAD, HP OFFICE OPPOSITE
RANICHANNAMMA NAGAR
BELAGAVI-590 006.
18. KRISHNA
S/O SUBRAYA HEGDE
AGE: 78 YEARS, OCC: AGRICULUTRE
R/O: KALMANE, HUNASEKOPPA POST
SIRSI, UTTAR KANNADA.
...RESPONDENTS
(BY SRI VISHWANATH HEGDE, ADVOCATE FOR C/R1 TO R6 AND
R16 TO R18;
SRI HARSH DESAI, ADVOCATE FOR R2 TO R6, R8, R9,
R11, R13(A-B);
R10(A), R10(I) AND R10(J) - HELD SUFFICIENT;
R10(B), R10(C) AND R10(H) - DECEASED;
R10(A), (D) TO (G), (I) AND (J) - ARE LR'S OF R10(B),
(C), (H);
R12 - DELETED;
R7, R10(D) TO R10(G), R14, R15 - SERVED AND
UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
01.09.2016 IN O.S.NO.34/2013 PASSED BY THE COURT OF THE
SENIOR CIVIL JUDGE, SIRSI, DISMISSING THE SUIT FILED FOR
DECLARATION AND PARTITION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.06.2023 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, VENKATESH NAIK T. J., DELIVERED THE
FOLLOWING:
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RFA No. 100310 of 2016
JUDGMENT
This appeal is filed challenging the impugned
judgment and decree dated 01.09.2016 passed by the
Senior Civil Judge, Sirsi, in O.S.No.34/2013.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court. The
appellants are 'plaintiffs' and respondents are 'defendants'.
3. Plaintiffs filed a suit for declaration, partition and
separate possession in respect of suit schedule properties.
It is the case of the plaintiffs that plaintiff Nos.1 to 5 are
the brothers and plaintiff Nos.7 to 10 are the sisters and
plaintiff No.6 is the mother of plaintiff Nos.1 to 5 and 7 to
10. Defendant No.11 is the only daughter of deceased
Keredevi. Defendant Nos.12 to 15 are not concerned with
the family of plaintiffs and defendant Nos.1 to 11. Since
defendant Nos. 12 to 15 are contending that they have
also got right over some portion of the suit properties and
as such they are made as parties in this suit. In fact,
defendants Nos.12 to 15 have no sort of right, title and
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interest over the suit properties. The predecessors of the
plaintiffs and defendant Nos.1 to 11 originally hails from
South Kanara District and they are governed by
Aliyasantana custom. The plaintiffs and defendant Nos.1 to
11 constitute a joint family under their custom. Till today
there is no partition amongst the plaintiffs and defendant
Nos.1 to 11 as per law and as such they are the joint
family members. Originally, the suit properties were
tenanted lands. The Propositus of plaintiffs by name
Hiriyanna and the Propositus of defendants by name
Bangari and the mother of defendant No.11 by name
Keredevi were the tenants under the landlord. One Ananth
@ Chandrashekar Nadig and Arunachal Nadig were the
landlords of suit 'A' schedule properties. One Narayana
Yellappa Sulakhe and others were the landlords of suit 'B'
schedule properties. Sri Hiriyanna and Sri Bangari were
living together and were cultivating the lands jointly till the
year 1970.
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4. Thereafter, they started to cultivate half extent
each of property in suit 'A' schedule separately with the
consent of owners of the land. Accordingly, a document
styled as "Geni Tahaname Kararu" dated 18.11.1970 was
executed between the parties. After coming into force of
amended Land Reforms Act, 1974, Hiriyanna Maya Rama
has filed Form No.7 before the Land Tribunal, Sirsi,
seeking occupancy right over the portion of land in suit 'A'
schedule properties to an extent of land, which is in his
possession. Similarly, Bangari Maya Rama had also filed
separate application regarding entire area of suit 'A' and
'B' schedule properties. The mother of defendant No.11 by
name Keredevi had also filed separate Form No.7 in
connection with portion of land in Sy.No.130 of Sirsi
village. In the absence of Hiriyanna, the application moved
by Keredevi was disposed off. The application moved by
Hiriyanna and Bangari was enquired before the Land
Tribunal, Sirsi and the Tribunal partly allowed the
application moved by Hiriyanna and also the Bangari, in
the year 1977.
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5. However, the order passed in favour of Hiriyanna
was not traced out before the Land Tribunal. Apart from
that, on the strength of the said order, Form No.10 was
also not issued. Hence, the order passed in favour of
Bangari was challenged before this court in LRRP
No.6998/1989. This court remanded the matter back to
the Land Tribunal, Sirsi for fresh disposal, in accordance
with law.
6. It is contended that, after remand, the Land
Tribunal conducted an enquiry and rejected Form No.7
filed by Hiriyanna and conferred occupancy rights in favour
of Bangari and Keredevi. Aggrieved by the said order, the
present plaintiffs preferred a writ petition before this court
in W.P.No.21464/1999 and the same was dismissed.
Aggrieved by the same, plaintiffs preferred a writ appeal in
W.A.No.899/2007 before this Court. Further, the
landlords of suit 'A' schedule property also filed a writ
appeal in W.A.No.1102/2007. However, the Division
Bench of this court dismissed both the appeals with certain
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observations, i.e. "If the appellant has any right in respect
of the lands over which occupancy rights have been
registered in favour of 3rd respondent, it may be so
asserted before the civil court but not possible for this
court to examine such aspects in Writ appeal." Considering
the observations made by the Division Bench of this court,
parties filed the suit in O.S.No.34/2013.
7. It is contended that, they are governed by law of
Aliyasantana, the original tenant was one Marla and he
was put in possession of the property in the year 1930-31.
After his death, his brother Madoora continued as tenant
of the suit properties. Thereafter, Smt. Akkamma and
Smt. Subbi continued as tenants of the properties. Hence,
the tenancy right was the family right of the family of
Marla. Even though the occupancy right was conferred in
the name of Bangari and Keredevi, the present plaintiffs,
as the members of the joint family, have also got right
over the properties. There is no partition between the
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plaintiffs and defendant Nos.1 to 11 till today, with respect
to the suit properties.
8. It is contended that, the defendants taking undue
advantage of the entry in the record of rights and also in
the order of Land Tribunal, Smt. Keredevi, the mother of
present defendant No.11 had executed a sale deed in
favour of defendant No.12 through a registered sale deed
dated 15.03.2001 and she has also executed another sale
deed dated 07.05.2001 in favour of defendant Nos.14 and
15. Defendant No.13 is contending that he has acquired
right over the property by virtue of a Will executed by
Keredevi. So far as Sy.No.163 is concerned, the same was
also tenanted property and occupancy right was conferred
in the name of Bangari. But by violating the provisions of
Karnataka Land Reforms Act, she sold the property to
somebody. Hence, the same was forfeited to the
Government. Even with respect to the said properties,
Hiriyanna had filed Form No.7 before the Land Tribunal. In
fact the above said sale deeds and the alleged Will are
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illegal documents. During the pendency of the tenancy
matter, defendant Nos.12 to 15 cannot acquire any sort of
right, title and interest over the suit properties by virtue of
the alleged sale deed and the Will. It is stated that
defendant Nos.12 to 15 are also not in actual possession
of the properties. The plaintiffs are in actual possession
and enjoyment of the half portion of the 'A' schedule
properties. Even though occupancy right was conferred-in
favour of Bangari and Keredevi, the same is for and on
behalf of the joint family consisting of the present plaintiffs
and defendant Nos.1 to 11.
9. It is contended that, in the absence of plaintiffs,
defendant Nos.1 to 11 cannot act as per their whims and
fancies; Bangari died on 16.11.1985, defendant Nos.1 to
10 have created many documents styling as Will, partition,
etc. All those documents were created behind the back of
plaintiffs with an intention to deprive the right of the
plaintiffs over the suit schedule properties. Therefore, any
sort of documents in the absence of the consent of
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plaintiffs has no force in the eye of law and the same does
not bind upon the right of the plaintiffs over the suit
schedule properties. By virtue of those illegal documents,
the right of the plaintiffs over the suit properties is not
vitiated. Even though the occupancy right was conferred in
favour of Bangari with respect to 'B' schedule properties,
the same is for and on behalf of the entire family
comprising the plaintiffs also.
10. It is contended that, the plaintiffs have half share
in the suit schedule properties. After the disposal of the
writ appeal on 16.06.2013, the plaintiffs have requested
defendant Nos.1 to 11 to effect actual partition by metes
and bounds, then defendant Nos.1 to 13 have asserted
that the plaintiffs have no manner of right, title and
interest over the suit schedule properties and they have
also denied to effect partition and to hand over the actual
separate possession to the plaintiffs. Thus, cause of action
arose for the plaintiffs to file the suit for declaration,
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partition and separate possession. Hence, they filed the
suit.
11. After institution of the suit, summons were issued
to the defendants. In spite of service of summons,
defendant Nos.7, 10 and 15 remained ex-parte, and the
name of defendant No.12 came to be deleted during the
pendency of the proceedings, since the plaintiffs gave up
their claim as against defendant No.12. The contesting
defendant Nos.1 to 6, 8, 9, 11 and 13 appeared through
their counsel and defendants Nos.1 to 6, 8 and 9 filed their
written statement, whereas, defendant Nos.11 and 13 filed
their separate written statements. In the written
statements, these defendants have disputed the
description of the suit properties, the correctness of the
genealogy furnished in the plaint and the relationship
inter-se shown in the genealogy.
12. Defendant No.12 contended that he had
purchased two acres of land in Sl.No.19 of 'A' schedule,
'12' years prior to the filing of the suit under a registered
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sale deed for a valuable consideration and he is in
possession of the said property.
13. Defendant No.13 contended that, he became the
owner of land bearing Sy.No.130A/10 to an extent of one
acre by virtue of a registered Will executed by deceased
Keredevi in his favour and therefore, the plaintiffs cannot
assert any right over these properties held by defendant
Nos.12 and 13. These defendants have denied the claim of
the plaintiffs that their ancestors and ancestors of
defendant Nos.1 to 11 hail from South Kanara and they
are governed by Aliyasantana law of inheritance as alleged
in the plaint. Though these defendants have admitted that
the suit properties were originally tenanted lands, but they
have specifically denied the claim of the plaintiffs that
Hiriyanna and Bangari were cultivating these lands jointly
and thereafter cultivated their respective half portions
separately as alleged. They have denied the fact that both
Hiriyanna and Bangari had filed Form No.7 before the Land
Tribunal for grant of occupancy rights. It is contended that
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the plaintiffs are not at all related to their family nor their
ancestor Hiriyanna ever cultivated the suit land as tenant
along with Bangari. They have asserted that 'A' schedule
properties were exclusively cultivated by their ancestor
Bangari and mother of defendant No.11 Keredevi jointly
and both of them filed separate Form No.7 for grant of
occupancy rights in their favour and both were accordingly
conferred with occupancy rights in their names. It is
contended that 'B' schedule properties were the exclusive
tenanted lands of Bangari and occupancy rights was
granted in favour of Bangari by the Land Tribunal. It is
further denied that there was an agreement dated
18.11.1970 between Hiriyanna, Bangari and the landlords,
as claimed by the plaintiffs.
14. It is contended that, since the ancestors of
plaintiffs Shri Hiriyanna, was not tenant of 'A' schedule
properties, his application was rejected by the land
tribunal. It is contended that, a mere observation made in
writ appeal by the High court would not give any legal
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right to the plaintiffs to file the present suit, as Smt.
Bangari alone was tenant of 'A' schedule properties. It is
further contended that, plaintiffs never claimed that, suit
schedule properties were their joint family properties or
they are governed by Aliyasantana law of inheritance
before the land tribunal, therefore, now plaintiffs cannot
contend that, Shri. Hiriyanna had executed Power of
Attorney in favour of plaintiff No.2, before land tribunal,
wherein, plaintiff No.2 had stated that, Shri Hiriyanna and
Sri Bangari were not full brothers. It is further contended
that, in order to prove the relationship, the plaintiffs have
to prove, whether Shri. Marla had a brother by name -
Shri Madoora and they had a sister by name Smt.
Manjakka and she had a son by name Rama and Shri.
Rama had 2 daughters by name Smt. Akkamma and Smt.
Subbi, but without there being any relationship with the
defendants, the plaintiffs have filed a false suit. Hence, the
defendants prayed for dismissal of the suit.
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15. The trial Court, based on the pleadings of the
parties, framed the following issues;
1. Whether the plaintiffs prove the correctness of
genealogy furnished by them in Para 2 of the plaint?
2. Whether the plaintiffs further prove the correct
description of the suit properties?
3. Whether they further prove that they along with
defendant Nos.1 to 11 constitute a Hindu Undivided
Family?
4. Whether they further prove the grant of occupancy
rights in favour of one Bangari and one Keredevi with
respect to B schedule properties was for and on behalf
of the joint family?
5. Whether they further prove their joint possession
over the suit A and B schedule properties along with
defendant Nos.1 to11?
6. Whether they further prove that the sale deed
dt.15.3.2001 and 7.5.2001 executed by the mother of
the defendant No.11 in favour of defendant Nos.12 to
15 are not binding on their rights over the suit
properties?
7. Whether they further prove that the alleged Will
dt.16.11.1985 is also not binding on them?
prove that partition of suit schedule A properties are
the absolute properties of deceased Bangari and
portion of the same were the self acquired properties
of deceased Keredevi?
9. Whether they further prove that B schedule
properties were the self acquired properties of
deceased Bangari?
10. Whether the suit reliefs are properly valued and
court fee paid thereon by the plaintiffs is proper?
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11. Whether the defendant No.11 proves the alleged
Will dt.24.4.1986 by his mother Keredevi in her
favour?
12. Whether defendant No.12 proves his absolute title
and possession over Survey No.130A/19 to an extent
of 2 acres under the Registered Sale Deed
Dt.16.3.2001?
13. Whether the plaintiffs are entitled to seek the suit
reliefs?
14. What order of decree?
16. The plaintiffs, in support of their case, plaintiff
No.2, Shri. Nityanand was examined as PW1 and got
marked documents at Ex.P1 to Ex.P77. Plaintiffs also
examined two witnesses as PW2 and PW3. None of the
defendants was examined, but they relied upon Ex.D1 to
Ex.D11.
17. The trial Court after recording the oral and
documentary evidence, answered issue No.1, 3 to 5 and
13 in the negative, issue No.2, 8 and 9 in the affirmative,
issue No.6, 7, 10 to 12, does not survive for consideration,
and consequently dismissed the suit of the plaintiffs.
Aggrieved by the judgment and decree passed by the trial
court, the plaintiffs have preferred this appeal.
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18. Heard learned counsel Sri. F.V. Patil appearing for
plaintiffs and Sri Vishwanath Hegde and Sri Harsh Desai,
learned counsel appearing for the defendants.
19. Learned counsel for the plaintiffs contended that,
the judgment and decree passed by trial court is contrary
to the evidence on record; the trial court has not
appreciated the aspect that, defendants have not proved
their defence by leading evidence; the trial court has not
properly appreciated the genealogy furnished by the
plaintiffs. It is contended that, tenancy was created under
the Bombay Tenancy and Agriculture Holdings Act of 1939,
and the tenancy is traceable in the name of Marla and
both plaintiffs and defendants have admitted the same;
the tenancy rights are heritable both under the Bombay
Tenancy and Agriculture Holdings Act and Mysore Land
Reforms Act of 1961. It is further contended that, in the
affidavit (Ex.P74) dated: 09.01.1999 filed by father of
defendants (Shri. Bangari Marla), before the Land Tribunal
and the affidavit (Ex.P75) dated: 09.01.1999 of Rama
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Mava Krishna Dubbe, wherein the genealogy of the family
and creation of tenancy and its inheritability, has been
admitted; therefore, the burden of proof on plaintiffs, have
been discharged, now, the burden shifts on the
defendants, but they have not discharged the burden, by
leading cogent evidence. It is contended that, the trial
court ought to have answered issue No.1 and 3 in favour
of plaintiffs, holding that, both plaintiffs and defendants
constitute joint family; the trial court has erroneously
proceeded to consider the question of Aliyasantana and
Kavaru, thus committed an error in not applying the
provisions of KLR Act, 1961, as to the heritability of the
tenancy, division of the joint family properties and the
competency of civil court in respect of ascertaining the
shares of respective parties. It is contended that, tenancy
was created in favour of Marla as per Ex.P54 to Ex.P64
and this fact being admitted by plaintiffs and defendants
and the constitution of the joint family and cultivation
being established as per Ex.P73 and 74 coupled with
Ex.P71, it is contended that, the compromise entered
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between the plaintiffs and heirs of Keredevi i.e, defendant
No. 11 and 12, pursuant to orders on I.A. 3 and 4, the
genealogy of family has been admitted and the grant of
occupancy right in favour of joint family.
20. It is contended that, by virtue of Ex.P77-Original
Geni Tahaname, Shri. Hiriyanna and Bangari were
cultivating schedule 'A' properties, half each, hence
Hiriyanna had filed form No.7 in the year 1974 and
claimed occupancy rights to half extent of 'A' schedule
properties, therefore, the Hon'ble High Court in Writ
Petition, has granted liberty to plaintiffs to put forth their
claim in respect of their half share and accordingly, the
plaintiffs have filed the present suit. It is further
contended that, merely because, the landlord sought for
rejection of occupancy rights claimed by Hiriyanna, it
cannot disprove the existence of the same, when the
landlord himself affixed his signature on the agreement. It
is further contended that, the trial court has wrongly held
that, Ex.P77 is inadmissible evidence on the ground of non
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registration and insufficiency of stamp duty; Ex.P77 was
produced for collateral purpose to ascertain possession of
Hiriyanna and Bangari over half portion each in suit 'A'
schedule properties and Ex.P77 is executed as a
memorandum of past event, it does not require
registration and it is admissible in evidence. It is
contended that, though the plaintiffs have proved joint
family status and suit schedule properties is joint family
properties of plaintiffs and defendants and no partition
took place in the family of plaintiffs, the trial court ought
to have decreed the suit of the plaintiffs. Hence, the
plaintiffs prayed to allow the appeal and to decree the suit.
21. Learned counsel for the appellants relied upon the
following decisions;
1) ILR 2004 KAR 3355 in Case of Parushuram
Nemani Kuduchakar and Ors V. Smt. Shantabai
Ramachandra Kuduchakar and Ors
2) ILR 1992 KAR 1359 in Case of Booda Poojary V.
Thomupoojarthy
3) AIR 1968 MYSORE 216 in case Smt. Tatnamala V.
State
4) ILR 2003 KAR 3176 in case Krishna V. Sanjeev
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5) AIR 1999 GUJARAT 108 in case
AshokkumarUttamchand Shah V. Patel Mohmad
Asmal Chanchad
6) RFA No.1790/2010 in case Rajesh Naik V. Smt. G
Susheela and Ors
7) 2017(4) KCCR 3615(DB) in Sri. Ramachandra
Narayan Talwar V. KUmar Soukharya and
Others
8) 2006(2) AIR KAR R 700 in case Kallappa
Ningapopa Alagundi V. Narasappa Ningappa
Alaguni Major.
9) AIR 1959 SC 914 in case Dolgobinda Paricha V.
Nimai Charan Misra and Othrs
10) AIR 1928 NAGPUR 20 in case Jagdeo V. Vithoba
11) AIR 1999 SC 1341 in case Iswar Bahi C Patil @
Bachu Bhai Patel V. Harihar Behera and Others.
22. The learned counsel for the defendants contend
that, plaintiffs have failed to prove the genealogy
furnished by them and they along with defendant No.1 to
11 constitute a Hindu Undivided Family; plaintiffs have
failed to prove that, the grant of occupancy rights in
favour of one Bangari and one Keredevi in respect of 'B'
schedule properties was for and on behalf of the joint
family and the plaintiffs are in joint possession of suit
schedule 'A' and 'B' properties, along with defendants No.1
to 11. It is further contended that, defendants No.1 to 11
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and 13 proved that, after partition of 'A' schedule
properties, it was the absolute properties of deceased
Bangari and portion of the same were the self acquired
properties of deceased Keredevi; suit schedule 'B'
properties were self acquired properties of deceased
Bangari. Therefore, the counsel contended that, the trial
court considering the oral and documentary evidence on
record and the fact that, the plaintiffs failed to prove the
relationship with the defendants rightly dismissed the suit
of plaintiffs, hence, the counsel justified the judgment and
decree passed by the trial court.
23. From the perusal of the evidence of both the
parties, it appears that, the plaintiffs are mainly relying
upon the genealogy, contending that, the plaintiffs'
paternal grand mother (Smt. Subbi) and mother of
Bangari (Smt. Akkamma) were full sisters and they were
full sisters of one Rama and they were children of one
Manjakka, who is none other than the daughter of
propositus Manja. Smt. Manjakka had two brothers by
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name Marla and Madoora. Therefore, the plaintiffs are
claiming their rights in the suit properties, through their
paternal grand mother Smt. Subbi.
24. According to the plaintiffs, their grandmother
Subbi and the grandmother of defendants No.2 to 10
Akkamma were full sisters and daughters of Manjakka and
as such they inherited the suit properties under
Aliyasantana law of inheritance and they being the
successors of Subbi and defendants No.2 to 10 being the
successors of Akkamma are the joint family members
having equal half share in the suit properties. Thus, the
heavy burden is on the plaintiffs at the first instance to
prove that they belong to Aliyasantana custom.
25. To prove their claim, PW1 has relied on Ex.P54 to
P59 mutation entries. Ex.P54 to Ex.P56 are the mutation
entries dated 09.07.1936 pertaining to the suit property.
Ex.P57 is the mutation entry dated 06.09.1936 in the
name of Akkamma. Ex.P58 is another mutation entry
dated 08.01.1954 in the name of Akkamma with regard to
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conferment of occupancy rights in her favour. Similarly,
Ex.P59 is the mutation entry dated 23.10.1956 in the
name of Bangari, after the death of Akkamma. These
documents are produced and relied on by the plaintiffs to
show that the family was following Aliyasantana custom
since the second name of all these persons in these
documents is shown as mava (maternal uncle) instead of
mentioning the names of their father or mother.
26. Therefore, it is to be seen as to how Ex.P54 to
Ex.P59 is helpful to the case of the plaintiffs. No doubt, in
all these documents the name of the maternal uncle is
shown infront of the names of Akkamma and Bangari, but
not a single revenue record is placed before the court
showing the name of Smt. Subbi, whom the plaintiffs claim
to be their grandmother. Before considering the claim of
the plaintiffs regarding Alyasantana law of inheritance, it
would be relevant to refer to the essentials of this
particular customary law of inheritance. A Hindu who
follow this law is governed by the Madras Aliyasantana Act
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1949, Sec.3 of the Act defines the word "Aliyasantana" as
under:
Sec.3(a) "Aliyasantana" means the
system of inheritance in which
descent is traced in the female line,
but does not include the system of
inheritance known as the
"Marumakkatayam".
27. As per Sec.3(b) of Hindu Succession Act,
'Aliyasantana Law' means the system of law applicable to
persons who, if this Act had not been passed, would have
been governed by the Madras Aliyasantana Act, 1949 or
by customary Aliyasantana law with respect to the matter
for which provision is made in this Act. The Aliyasantana
system is the system of inheritance through female line
which gives property rights to the lady and all rights are
centralized on her. The basic difference between the
"Mitakshara Joint Family", "Marumakkattayam" and
"Aliyasantana system" is that the former is based on
patriarchal system while the latter is based on matriarchal
system.
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28. The other significant aspect of Aliyasantana
custom is the existence of "Kavaru" the meaning of which
as provided in Sec.3(b)(I) of the Act is 'Kavaru' in relation
to a female, means the group of persons consisting of that
female, her children and all her descendants in the female
line.
29. Sec.3(c) of the Act further defines the term
"Kutumba" which means the group of persons forming a
joint family with community of property governed by the
Aliyasantana law of inheritance. Thus, what can be
gathered from these definitions provided under the Act is
that in this matrilineal system of inheritance, the woman is
the propositus. All her children, male and female, along
with the mother constitute one group and this group is the
Kavaru. Further, a Kavaru, any more than a Kutumba,
cannot be created by the act of parties. A woman and
some of her children only, they being children of one
father, cannot constitute a Kavaru. Kutumba is the unit.
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The Kavaru being a sub-division of the Kutumba, the
courts have recognized a Kavaru as legal entity.
30. The common feature of 'Kutumba' as well as
'Kavaru' is that each of these consists of a female and her
descendants in the female line. Thus, Kutumba is the
name given to the joint family consisting of males and
females, all descended in the female line, from a common
ancestress. In this matrilineal seniority of Aliyasantana law
of inheritance, where the eldest sister is succeeded by her
next eldest sister, etc., until the surviving sister have had
their turns, at which point, the females of the next
generation, daughters of these "original" sisters will have
their turns, in order of seniority. In the backdrop of these
customary provisions, it is to be seen as to "whether the
plaintiffs in the instant case could satisfy these essentials
in order to claim their right under this particular law of
inheritance?"
31. It is material to note that in the genealogy
furnished in the plaint, the propositus shown is admittedly
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not a female but a male, by name Manja. Thus, as per the
own case made out by the plaintiffs, the propositus or
ancestress was not Manjakka. In none of Ex.P54 to P59,
we find the name of Manjakka as the ancestress or the
original holder of the suit property. On the contrary, as
we have already discussed supra, the name of Marla is
shown as the original mulagenidar and after his death, the
name of Madoora is found for the first time in the year
1936.
32. Even Ex.P55 and P56 reveal the name of Marla.
Thereafter, the name of Akkamma was entered to the
records of the suit property as per Ex.P57 and Ex.P58, as
the protected tenant. Thus, these documents which are
the own documents of PW1 would disclose that, at no
point of time, the original holder of the suit property was
any female member of the family. Furthermore, PW1
himself has categorically admitted in his cross examination
that, there was no varsa entry after the death of his father
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or his maternal uncle under Aliyasantana law and he has
no documents to prove the same.
33. It is further relevant to note that even PW3 who is
the son of one of the landlords has categorically admitted
in his cross examination that the original tenant of suit
Sy No.136 was one Marla and from Marla it was inherited
by Madoora and from him, the same was inherited by
Bangari. He has further admitted that even the other suit
Sy Nos.133 and 134 were also cultivated by the above
persons. This material piece of his admission is found in
his cross examination dated 29.07.2016 at para 4 which
reads thus;
"It is true to suggest that Sy No.136 was belonging
to one Marla as tenant. Thereafter the said property
was inherited by Madura. It is true to suggest that
from Madura the said property was inherited by
Bangari. It is true to suggest that Sy No.133 and 134
were originally belonging to Marla and after him to
Madur and thereafter leased to Krishna Nagappa
Shetty and then to Bangari".
The above categorical statement of PW3 would
once again falsify the claim of the plaintiffs that the
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suit properties have been inherited under Aliyasantana
custom through a female member of the family. It is
further to be noted that the parties are the residents
of North Kanara District and the suit properties are
also situated in said district, wherein the Aliyasantana
law of inheritance is not prevalent or followed.
Though PW1 claims that his ancestors originally hail
from South Kanara district, wherein this particular law
is followed, but to substantiate this aspect, he has not
placed any materials before the court. Hence, this
claim of PW1 that they are governed by Aliyasantana
law of inheritance, has no substance.
34. It is further relevant to note that in none of the
Writ proceedings before this Court, the father of PW1
Hiriyanna had made any whisper with regard to the fact
that they are governed by Aliyasantana custom. He had
also not pleaded that the suit properties were originally
tenanted lands inherited from their maternal grandmother
Manjakka and from her, his mother Subbi and the mother
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of Bangari, Akkamma inherited the said properties under
Aliyasantana law of inheritance and hence, himself and
Bangari being the sons of Akkamma and Bangari have got
equal half share in these properties. On the contrary, from
the appeal memo filed by him and as per Ex.D9, it is
clearly revealed that PW1 had specifically pleaded his
tenancy to an extent of half portion of the suit properties.
35. However, in his cross examination, PW1 has
stated that in the Writ proceeding, they had claimed that
their family was Aliyasantana family and he has also
admitted that no positive finding has been given by the
High Court in that regard and he has also admitted that
though they had put forth such claim before the Land
Tribunal, even the Tribunal has not affirmed it. Thus, for
the first time, in this case, a desperate attempt appears to
have been made by the plaintiffs to introduce a different
plea that they are governed by this particular law of
inheritance.
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36. Even PW1 has clearly admitted in his cross
examination that after the death of his father or his
maternal uncle, succession has not taken place as per
Aliyasantana law and that he has no records to prove that
the family was following this particular customary law of
inheritance. Even PW2 who claims to be the relative of the
plaintiffs has stated in his chief examination that the
family of the plaintiffs and defendants was earlier following
this custom and even their own family was also following
it, but he could not even say as to how the properties
would devolve under this law of inheritance. Therefore,
viewed from any angle, it cannot be said that the plaintiffs
could prove with cogent materials that their family was
governed by Aliyasantana law.
37. Now the next material aspect which requires
consideration is as to "whether the plaintiffs could prove
that they constitute a Hindu Undivided Joint Family along
with defendants No.1 to 11?" As we have already
discussed supra, it is their specific case that even after the
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death of their grandmother Subbi and the grandmother of
defendants No.2 to 10 Akkamma, there was no partition in
their family and hence, they all constitute undivided
family. It is to be noted that in order to prove the
jointness of the family of the plaintiffs and defendants
No.1 to 11, the plaintiffs must prove that the children of
Akkamma and Subbi were jointly residing in the
matrimonial home of both Akkamma and Subbi and that
they all together constituted a joint family.
38. As we have held above, at the first instance the
plaintiffs have to prove that both Akkamma and Subbi
continued the matrilineal system of inheritance in which
the eldest female member was the propositus and that all
her children, male and female, along with the mother
constitute one group called 'Kavaru". The plaintiffs have to
further prove as to who was their common ancestress in
order to claim right under this customary law. The plaint is
totally silent on these material aspects. It is not the case
of the plaintiffs that the mother of Rama, Akkamma and
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Subbi as shown in their genealogical tree was the common
ancestress.
39. It is significant to note that PW1 has categorically
admitted that he has no documents to prove that his
father and Bangari were jointly cultivating the suit lands.
He has even admitted that he has not produced any
documents to show that Bangari was their family member
and even he has admitted that in the Form No.7 filed by
Bangari, he had not made mention of the name of his
father. This material piece of his admission is found in his
cross examination dated 13.06.2016 in para No.4 which
reads thus;
"zÁªÁ¹ÛUÀ¼À£ÀÄß £ÀªÀÄä vÀAzÉ ºÁUÀÆ §AUÁj EªÀgÀÄ dAnAiÀiÁV ¸ÁUÀÄ
ªÀiÁqÀÄwÛzÀÝ §UÉÎ AiÀiÁªÀÅzÉà zÁR¯É E®è JAzÀgÉ ¤d. §AUÁj EªÀgÄÀ £ÀªÀÄä
PÀÄAlÄA§zÀ ¸ÀzÀ¸ÀågÁzÀÝgÉAzÀÄ vÉÆÃj¸À®Ä zÁR¯É ºÁdgÀÄ¥Àr¹®è. CªÀgÄÀ
vÀÄA©zÀÝ ¥sÁªÀÄð £ÀA.7 £À°èAiÀÄÆ PÀÆqÀ £ÀªÀÄä vÀAzÉ CxÀªÁ £ÀªÀÄä §UÉÎ G¯ÉèÃR
E®è JAzÀgÉ ¤d. £ÀªÀÄä ¥ÀgÀªÁV PÀÆqÀ ¥sÁªÀÄð £ÀA.7 vÀÄA©zÀÝ §UÉÎ §AUÁj
AiÀiÁªÀvÀÆÛ ºÉýPÉ ¤Ãr®è JAzÀgÉ ¤d."
The above categorical admission of PW1 once again
clearly nullifies his claim that the family of Hiriyanna as
well as that of Bangari were constituting a joint family and
they were jointly cultivating the suit lands.
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40. One more material aspect which is to be noted
here is that the mother of PW1, the defendant No.6 had
also filed Form No.7 seeking grant of occupancy rights in
her favour with respect to the suit Sy. No.133, 136 and
163 and the same was rejected by the Land Tribunal as
per Ex.D3 which was admitted by PW1 when it was
confronted to him by the defence counsel. He has also
admitted that against the said dismissal order, his mother
has not preferred any appeal. If really the family of
Hiriyanna and Bangari were joint and were in joint
possession and cultivation of the suit lands as per the
claim of the plaintiffs, then a reasonable suspicion
certainly arises as to what was the necessity for defendant
No.6 to file such application separately. This is one such
circumstance which would negate the claim of the plaintiffs
regarding the jointness of parties as well as the properties.
41. The own documents of the plaintiffs Ex.P54 to 59
which have come into existence at an undisputed point of
time right from the year 1936 would indicate that the
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family of Subbi and Akkamma was never joint. However,
the learned counsel for the plaintiffs vehemently argued
that there was a clear admission by the present defendant
No.2 as per Ex.D10 with regard to the existence of joint
family of their family and that of Hiriyanna.
42. In this regard our attention has been invited to
page No.2 of Ex.D2 which is statement of defendant No.2
before the Land Tribunal, wherein he has stated in his
cross examination that their house and that of Hiriyanna
are situated in the suit Sy. No.130. By pointing out this
statement, it has been submitted that because both
Hiriyanna and Bangari were in the joint family, their
houses were abutting each other. Thus this line of
argument canvassed on behalf of the plaintiffs cannot be
accepted for the reason that, mere existence of houses
abuting each other would not automatically prove that the
families of both were joint. On the other hand, the
existence of joint family will have to be proved with
acceptable evidence, both oral as well as documentary.
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43. One more relevant aspect to be noted here is that
admittedly the sister of Bangari, Keredevi had also filed a
separate application for grant of occupancy rights with
respect to the suit Sy. No.103 and the same was allowed
and occupancy rights were granted to her. This order has
also remained unchallenged by the parties. If really the
families of Akkamma and Subbi were joint and they were
jointly cultivating the suit lands, then the daughter of
Akkamma Keredevi could not have been allowed by the
other members of the family to file Form No.7 with respect
to the said property. This aspect also clearly falsifies their
claim.
44. However, the plaintiffs have relied much on
Ex.P77 which is said to be an agreement dated 18.11.1970
alleged to have been entered into between Hiriyanna,
Bangari and the landlord with respect to suit 'A' schedule
Properties. This document which is styled as a "Geni
Tahaname Kararu" has been seriously disputed by the
defendants. According to their defence, the plaintiffs have
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got up this document only to suit their purpose in this case
which has seen the light of the day for the first time in the
year 1999 and hence, the same cannot be relied on.
45. It is to be noted that the tenancy issue with
respect to the suit lands under Ex.D6 or under Ex.P76,
Writ proceedings have been settled, because there cannot
be any dispute to the settled law that the issue as to who
is the tenant of the land has to be necessarily decided by
the Land Tribunal and that the issue has been now settled
in the present case. Even the plaintiffs cannot deny the
fact that the occupancy rights have been exclusively
granted in favour of Bangari in exclusion of Hiriyanna. Now
all that is to be considered by this court as per the order of
High Court as per Ex.P76 is as to "whether this grant was
in the exclusive and individual capacity of Hiriyanna" or
"whether it was for and on behalf of the family consisting
of Hiriyanna and Bangari".
46. Ex.P77 has been produced by PW1 to prove that
his father Hiriyanna and Bangari were jointly cultivating
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the suit 'A' schedule properties till the year 1970 and
thereafter with the consent of the landlords, they started
cultivating half extent of the properties each under this
document. How far this document could be relied upon, is
the material aspect which needs consideration. The
learned defence counsel has pointed out so many
infirmities in this document so as to disprove the claim of
the plaintiffs. The first infirmity pointed out by the defence
counsel is with regard to the assertion of the plaintiffs in
this suit regarding the alleged joint cultivation by
Hiriyanna and Bangari, whereas this document reveals
their alleged separate cultivation. This is the first
inconsistency crept in the case of plaintiffs to disbelieve
this document.
47. The second circumstance which would cast cloud
on Ex.P77 is its non-production by the plaintiffs in all the
earlier proceedings. As has been rightly argued by the
learned defence counsel, the first revenue proceeding was
held in the year 1977 after submission of Form No.7 in the
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year 1974 and in that proceeding, the father of PW1 failed
to refer Ex.P77. However, the plaintiffs relied upon Ex.P77,
for the first time in the year 1999 before the Land Tribunal.
When Ex.P77 according to the plaintiffs had come into
existence in the year 1970 itself then there would not have
been any impediment to Hiriyanna to assert his rights
before the Land Tribunal on the basis of his document.
48. It is further relevant to note that even Hon'ble
High Court in Ex.D6 order had made material observations
on page No.12 of its order that this document is not
reliable on the grounds which has been referred to supra.
The Hon'ble High Court has clearly observed that the
belated production of this document exposes the
document to serious doubt regarding its authenticity and
integrity. Even it is observed that the landlords who had
participated in the enquiry in the year 1977 had not
referred to this document when as per the claim of the
plaintiffs, the landlords were also parties to this document.
Ultimately, the High Court held that no credence could be
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attached to this document so also to the statement of the
land owner made in the year 1999.
49. However, the learned counsel for the plaintiffs
urged with some vehemence that the observations made
by the High Court in Ex.D6 order would not come in the
way of deciding the validity of Ex.P77 since in Ex.P76 Writ
appeal which were filed against the very same order at
Ex.D6, the Division Bench of the High Court has opined
that the claim of common tenancy under Ex.P77 could be
agitated before this court. No doubt, such observations are
made in Ex.P76 appeals, but that observations of the High
Court would not absolve the plaintiffs from proving the
genuiness of Ex.P77 since those observations made in
Ex.D6 order with regard to Ex.P77 have not at all been
disturbed or set aside. In other words, the observations
made in Ex.P76 cannot be construed as conclusive findings
as regards the validity of Ex.P77.
50. One more material aspect which would nullify the
genuineness of Ex.P77 is the statement of the landlord
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before the Land Tribunal as per Ex.D7. In this statement,
he has clearly stated that since the Land Tribunal has
granted occupancy rights in favour of Bangari with respect
to suit Sy No.134, the application seeking occupancy
rights by Hiriyanna be rejected. This document is a
certified copy of his statement which has been obtained by
the defendants from the concerned authority. Moreover,
the son of the very same landlord PW3 has categorically
admitted this statement given by his father as per this
document as well as the signature of his father on it.
51. It is material to note that Ex.D7 is the statement
of one of the landlords Anant Nadig who is shown to be
one of the parties to Ex.P77 and the Sy. No.134 referred
by him in Ex.D7 is also included in Ex.P77 . Under such
circumstances, when the landlord himself has stated
before the Land Tribunal affirming the right of Bangari
alone over the said property which was accepted by the
Tribunal, then it is highly improbable to believe that the
very same person would have entered into such
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agreement as per Ex.P77 acknowledging the alleged
tenancy of Hiriyanna to the half extent.
52. If really the suit properties were commonly or
jointly cultivated by both Hiriyanna and Bangari, then the
said landlords would not have sought for rejection of the
application of Hiriyanna as per Ex.D7. This is also one of
the circumstances which could probabalise that it was
Bangari alone who was cultivating these lands exclusively
in his individual capacity. It is further pertinent to note
that even the son of the said landlord PW3 has
categorically admitted in his cross examination dated
29.07.2016 that from Marla and Madoora, the suit
properties were inherited by Bangari. Even PW3 has
clearly admitted in his further cross examination that since
1970 till 1999 neither his father nor his uncle had
produced Ex.P77 before the Land Tribunal and they had
also not referred to this document before the Tribunal.
53. The stand taken by the plaintiffs in this case to
assert their right over the suit properties are mutually
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destructive. At one stretch they claim that, though the
occupancy rights were granted in favour of Bangari, it was
for and on behalf of the family and in another stretch, they
have sought for proving that this was joint tenancy of both
and they were cultivating the lands to the extent of their
respective half portions as per Ex.P77. All these
circumstances are indicative of the fact that, the plaintiffs
have brought up this document only with an intention to
create some sort of arrangement inter-se between
Hiriyanna and Bangari to claim their half right in the suit
properties.
54. When the alleged joint family itself was not
proved to be in existence, then there is no question of
drawing any inference about the claim that the grant of
occupancy rights in favour of Bangari enured to the benefit
of the joint family. In case of Balagouda Alagouda Patil
and Others Vs, Babasaheb Ramanagouda Patil
reported in ILR 1999 KAR 831, this court held as under;
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"The Occupancy rights granted to only one member.
Where Tenancy rights have been acquired by a member
of a family, such rights shall be held to be for the benefit
of the entire family."
55. Further the defendants have disputed the
relationship of plaintiffs with defendants, so also, the
genealogy furnished by the plaintiffs. In cases where the
plaint genealogy is the very basis of the plaintiffs case and
since there is tendency on the part of an interested person
or a party in order to grab, establish or prove an alleged
claim, to concoct, fabricate or procure false genealogy to
suit their ends, the courts should endeavor to do justice on
the materials and records uninfluenced and undaunted by
any extraneous circumstances. The genealogies of the
families concerned must fall within the four corners of
section 32(5) or section 13 of the Evidence Act. Where
genealogy is proved by oral evidence, the said evidence
must clearly show special means of knowledge disclosing
the exact source, time and the circumstance under which
the knowledge is acquired and this must be clearly and
conclusively proved. The similar ratio is held in case of the
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STATE OF BIHAR VS. RADHA KRISHNA SINGH AND
OTHERS reported in (1983) 3 SCC 118.
56. In the light of the above discussion and
submissions made at the Bar, a question arises to us, how
Aliyasanthana law is applicable to this case: A special
feature of South Canara District has been the prevalence
of "Aliyasanthana or "Aliyakattu" which means the system
of inheritance in which descends is traced in the female
line. According to this custom, the property of a female
descends in the female line. The line of descent is taken to
be from the deceased holder to his sister's son. A legend
describes the origin of this system of inheritance through
the family line to a ruler called Bhutalapandya, who
wanted to offer one of his sons as a sacrifice to the gods,
but was thwarted by the maternal affection of his wife and
had to resort to the sacrifice of his nephew given to him by
his sister and in acknowledgement of this gesture, he
decreed that all sons should thereafter forfeit their rights
in favour of sisters' sons. However this story has no
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historical basis. The custom has resisted all outside
influence and it is obvious that it must have been firmly
rooted since a long time. It gave the women importance
and equality with men.
57. ALIYASANTANA LAW AND MARUMAKKATTAYAM
LAW: Marumakkattayam Law prevails among a
considerable section of the people inhabiting the west
coast of South India viz., the Indian States of Travancore
and Cochin and the Districts of Malabar and South Canara.
In South Canara District, the system is known as
Aliyasanthana. The literal meaning of the word
Marumakkattayam' is inheritance through nephews and
nieces and same is the meaning of Aliyasanthana. The
general castes in South Canara that follow Aliyasanthana
Law are the Bunts, Billawas and the non-priestly classes
among the Jains. It is said that Aliyasanthana is older than
the Marumakkattayam system. Codified the customary
Aliyasanthana Law and amended by the Madras was
Aliyasanthana Act (Madras Act No. IX of 1949) which
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defined and amended in certain respects the Law relating
to marriage, maintenance, guardianship, intestate
succession, family management and partition applicable to
persons governed by the Aliyasanthana Law of inheritance.
The Madras Aliyasanthana (Mysore Amendment Act), 1961
(Mysore Act of No. 1 of 1962) made some changes in
provisions in regard to partition of properties and also
provided that any male or female member of a Kutumba
or Kavaru having undivided interest in its properties
should be entitled to claim partition of his or her share and
the claimant should be allotted the share that would fall to
him or her if a division of properties were made per capita
among all the members of the Kutumba or Kavaru.
58. One of the important judgments covering the
entire Law relating to Aliyasanthana has been rendered by
a Full Bench of the Hon'ble Mysore High Court in the case
of Sundara vs. Girija -AIR 1962 Mysore 72. In the said
case, it was held that, a share allotted to Nissanthathi
Kavaru is only in the nature of life interest in the property
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and such share is not enlarged by Hindu Succession Act
and it does not become capable of being disposed of by
will.
59. In Sundari vs. Lakshmi- reported in AIR 1980 SC
198, the Hon'ble Apex court held that the result of the
explanation to Sec.7 (2) of Hindu Succession Act is that
the undivided interest in the property of the Hindu in the
Aliyasanthana Kattu or Kavaru, shall devolve as provided
for under the Hindu Succession act and that the share of
the Hindu shall be deemed to have been allotted to him
absolutely. It was further held in this case that even
though a Nissanthathi Kavaru might have a limited
interest, as the devolution prescribed for in the Madras
Aliyasanthana Act is no more applicable, the devolution
will be under the Hindu Succession Act.
60. Whereas, in the instant case, the plaintiffs have
failed to establish the relationship with defendants and
genealogy furnished by them. Likewise, the claim of
plaintiffs' is that, their ancestors and ancestors of
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defendant Nos.1 to 11 hail from South Canara and they
are Governed by Aliyasanthana Law of inheritance.
Further, the plaintiffs have failed to prove that Sri.
Hiriyanna and Sri Bangari were cultivating suit schedule
lands jointly and thereafter, cultivated their respective half
portion separately and later both filed Form No.7 before
the Land Tribunal, for grant of occupancy rights. On the
other hand, as per the material available on record,
defendants established that plaintiffs are not related to
their family, nor their ancestor Sri. Hiriyanna ever
cultivated the suit land as tenant along with Sri Bangari.
Further, the defendants have established that, suit
schedule 'A' properties were exclusively cultivated by their
ancestor Sri Bangari and mother of defendant No.11 Smt.
Keredevi jointly and both of them filed separate Form No.7
for grant of occupancy rights in their favour and thus,
occupancy rights were granted in their names and suit
schedule 'B' properties were exclusive tenanted property
of Sri Bangari and occupancy rights were granted in his
favour by the Land Tribunal.
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61. In the light of the decisions i.e., in Sundari's
Case reported in AIR 1980 SC 198, the legal heirs of
Sri Hiriyanna has no right over the suit schedule
properties. Therefore, the trial Court has rightly dismissed
the suit of the plaintiffs. On all these grounds and in view
of the facts and circumstances of the case and provisions
of law, the trial Court has rightly dismissed the suit, which
in our opinion, is neither perverse, capricious nor illegal,
which does not call for any interference by this Court.
Hence, we answer point No.1 in the negative.
62. Point No.2:- In view of the foregoing discussions
and the finding on point No. 1, the appeal filed by the
plaintiffs - appellants deserve to be dismissed. Hence, we
pass the following:-
ORDER
1. The appeal filed by the appellants -
plaintiffs is dismissed.
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2. The Judgment and Decree passed by the
learned Senior Civil Judge, Sirsi, in
O.S. No.34/2013 dated 01.09.2016, is
confirmed.
3. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
PJ/MN
