Karnataka High Court
Sri. Manjunath vs Smt. Dakshayanamma on 30 July, 2024
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RSA No. 2227 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.2227 OF 2023 (PAR/POS)
BETWEEN:
1. SRI. MANJUNATH,
S/O LATE A.V. RURDRAIAH
AGED ABOUT 46 YEARS.
2. SMT. VANAJAKSHI
W/O MANJUNATH
AGED ABOUT 36 YEARS
3. VISHAL
MINOR,
REP. BY NATURAL GUARDIAN AND MOTHER
SMT. VANAJAKSHI.
ALL ARE RESIDING AT
AGALAGURKI VILLAGE AND POST,
Digitally signed by
ARUNKUMAR M S NANDI HOBLI,
Location: High CHIKKABALLAPUR TALUK AND
Court of Karnataka
DISTRICT - 586 101.
...APPELLANTS
(BY SRI. MOHAN REDDY H SAWKAR, ADVOCATE)
AND:
SMT. DAKSHAYANAMMA
W/O LATE NAGARAJ
D/O LATE A.V. RUDRAIAH,
AGED ABOUT 59 YEARS,
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RSA No. 2227 of 2023
R/AT AGALAGURKI VILLAGE AND POST,
NANDI HOBLI,
CHIKKABALLAPUR TALUK AND
DISTRICT - 586 101.
REP. BY GPA HOLDER
SRI. P.N. RUDRARADHYA,
S/O LATE NAGARAJ
AGED ABOUT 32 YEARS
R/T NO.19/1,
BASAVESWARA TEMPLE ROAD,
THANISANDRA,
BENGALURU - 560 045.
...RESPONDENT
(BY SRI. NIZAM ABBAS., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 15.07.2023
PASSED IN R.A.No.30/2022 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKABALLAPURA., PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
10.06.2022 PASSED IN OS No.355/2018 ON THE FILE OF THE
PRL. SENIOR CIVIL JUDGE AND CJM, CHICKBALLAPUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
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RSA No. 2227 of 2023
ORAL JUDGMENT
This appeal is preferred by defendants No.1 to 3,
challenging the judgment and decree dated 15.07.2023 in RA
No.30/2022 on the file of First Additional District and Sessions
Judge at Chikkaballapura, allowing the appeal in part in respect
of Item Nos.1 to 3 of the schedule properties in OS
No.355/2018, decreeing in the suit of the plaintiff in-part vide
judgment and decree dated 10.06.2022 on the file of Prl.
Senior Civil Judge and CJM., at Chikkaballapura.
2. For the sake of convenience, parties are referred to
as per their ranking before the Trial Court.
3. It is the case of the plaintiff that, the father of the
plaintiff - A.V.Rudraiah had acquired the suit schedule
properties and the suit schedule properties are the ancestral
properties of the plaintiffs and defendant No.1 and as such, the
plaintiff had filed a suit in OS No.355/2018 on the file of the
Trial Court seeking relief of partition and separate possession in
respect of the suit schedule properties. It is also pleaded by the
plaintiff that, Item Nos.1 to 3 of the schedule properties are the
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tenanted properties and occupancy right has been in favour the
mother of the plaintiff - Neelamma and accordingly, the plaintiff
has filed seeking partition and separate possession in respect of
the subject land. It is also stated that after the death of mother
of the plaintiffs, defendant No.1 had executed a gift deed dated
13.11.2018, in respect of Item Nos.1 to 3 in favour of
defendants No.2 and 3 without consent of the plaintiff and
accordingly, the plaintiff sought for share in the suit schedule
properties.
4. After service of notice, the defendants entered
appearance and the defendants contended that the plaintiff,
defendant No.1 and deceased Rudranamma are the class-I
legal heirs of deceased A.V.Rudraiah and his wife
Smt.Neelamma. Defendant No.2 is the daughter of
Rudranamma. Therefore, it is the contention of the defendants
that the schedule properties are to be devolved among the
children of Sri.A.V.Rudraiah in respect of Item No.4, 6 and 7 of
the schedule properties concerned. Insofar as Item Nos.1 to 3
and 5 are concerned. It is contended by the defendants that
the property is a tenanted land as the father of defendant No.1
was an Archaka of Veerabhadraswamy temple, Algurki village
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and on this demand/demise defendant No.1 has succeeded for
performing pooja of Veerabhadraswamy deity. Accordingly, it is
the contention of defendant No.1 that the plaintiff has been
ousted from the joint family from the date of her marriage and
as such dismissal of the suit in respect of Item Nos.1 to 3 are
concerned.
5. The Trial Court, based on the pleadings on record
on formulated issues. In order to establishe their case, the
plaintiff has examined son of the plaintiff as PW1 and got
marked 43 documents and same were marked as Ex.P1 to P43.
Defendants have examined two witnesses as DW1 and DW2
and produced 11 documents and same were marked as Ex.D1
to D11. The Trial Court after considering the material on record
has decreed the suit in part and operative portion of the order
passed by the Trial Court reads as under:
"The suit of the plaintiff is hereby partly decreed
with costs.
The plaintiff is entitled for 1/3rd share in suit item
No.4, 6 and 7 schedule mentioned properties by metes
and bounds.
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The defendant No.1 is entitled for 1/3rd share in
suit item No.4, 6 and 7 schedule mentioned properties
by metes and bounds.
The defendant No.2 being daughter of deceased
Rudranamma is entitled for 1/3rd share in suit item No.4,
6 and 7 schedule mentioned properties by metes and
bounds.
The plaintiff is not entitled for share in suit item
No.1 to 3 and suit item No.5 schedule mentioned
properties, which are absolute properties of defendant
No.1.
Draw preliminary decree accordingly".
6. Being aggrieved by the judgment and decree
passed by the Trial Court in OS No.355/2018, the plaintiff has
filed RA No.30/2022 on the file of the First Appellate Court on
the ground that the finding recorded by the Trial Court with
regard to Item Nos.1 to 3 and 5 of the suit schedule properties
requires interference by the First Appellate Court. The said
appeal was registered by the defendants. The First Appellate
Court after considering the material on record re-appreciated
the evidence on record and partly decreed the appeal filed by
the appellant/plaintiff holding that the finding recorded by the
Trial Court vide judgment and decree dated 10.06.2022 in OS
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No.355/2018 was set aside and passed the following order in
judgment and decree and the operative portion of the order
reads as under:
The Regular Appeal filed by the appellant-plaintiff
under Order-41 R-1 r/w Sec.96 of C.P.C is partly
allowed.
The judgment and decree dated 10.06.2022 passed
by the learned Prl. Senior Civil Judge and CJM.,
Chikkabalapur is set aside, in so far as suit item no.1 to 3
properties.
The plaintiff/appellant, defendant no.1 and
2/respondent no.1 and 2 each entitle for 1/3rd share in
the suit item no.1 to 3 properties.
The judgment and decree dated 10.06.2022 passed
by the learned Prl. Senior Civil Judge and CJM.,
Chikkaballapur is confirmed in so far as the suit item no.4
to 7 properties.
Parties bear their own costs.
Draw decree accordingly.
Office is directed to send the trial Court records
along with the copy of this judgment.
7. Being aggrieved by the judgment and decree
passed by the Trial Court with regard to Item Nos.1 to 3 of the
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schedule properties, defendants No.1 to 3 have preferred this
Regular Second Appeal.
8. Having heard Sri.Mohan Reddy H Sawkar., the
learned counsel for the appellants and Sri.Nizam Abbas.,
learned counsel for the respondents and perused the material
on record.
9. Sri.Mohan Reddy H Sawkar., the learned counsel
appearing for the appellants contended that, Item Nos.1 to 3 of
the schedule property, being tenanted property as the father of
the defendant No.1 was performing the Pooja of
Veerabhadreswamy and accordingly, submitted that the same
was inherited by defendant No.1/appellant No.1 herein.
Therefore, the findings recorded by the First Appellate Court in
respect of Item Nos.1 to 3 of the suit schedule properties
require to be interfered with in this appeal. Learned counsel
appearing for the appellant submitted that as the defendant
No.1 was performing pooja as an archaka of the
Veerabhadraswamy Temple in question and therefore, the
tenanted property of the Veerbhadraswamy Temple has to be
devolved on the male children of the original grantee -
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A.V.Rudraiah and Neelamma and accordingly sought for
interference of this Court.
10. Per contra, Sri.Nizam Abbas., learned counsel
appearing for the respondents sought to justify the impugned
judgment and decree passed by the First Appellate Court.
Having taken note of the submissions made by the learned
counsel appearing for the parties, the relationship between the
parties is not disputed and the genealogical tree of the parties
reads as under:
ªÀA±ÀªÀÈPÀë
J.«.gÀÄzÀæAiÀÄå (¥sÀ)
ºÉA: ¤Ã®ªÀÄä (¥sÀ)
gÀÄzÁætªÀÄä (¥sÀ) zÁPÁëtªÀÄä (52) ªÀÄAdÄ£Áxï(45)
UÀAqÀ: £ÁUÀgÁd DgÁzsÀå (¥sÀ) ºÉA:ªÀ£ÀeÁQë (35)
ZÀAzÀæPÀ® (35) VjdªÀÄä (33) gÉÃtÄPÁgÁzsÀå (32) gÀÄzÁægÁzsÀå(30) «±Á¯ï (12) UÀUÀ£À(9) UÁ£À«(6)
11. Perusal of the genealogical tree would indicate that
the plaintiff and defendant No.1 are the children of
A.V.Rudraiah and Smt.Neelamma. A.V.Rudraiah had another
daughter by name Rudranamma, who is the mother of
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defendant No.2. Defendant No.2 has married defendant No.1.
In that view of the matter, the joint family property of
A.V.Rudraiah and Smt.Neelamma has to be devolved amongst
the plaintiff, defendant No.1 and defendant No.2 equally.
Therefore, insofar as the finding recorded by the Trial Court in
respect of Item Nos.4, 6 and 7 of the judgment and decree
dated 10.06.2022 by the Trial Court is just and proper.
However, insofar as the finding recorded by the Trial Court on
Item Nos.1 to 3 and 5 of the schedule property is concerned,
having taken note of finding recorded by both the Courts below
as well as Item Nos.1 to 3 is concerned, it is the contention of
the appellant/defendant No.1 that, Item Nos.1 to 3 of the
schedule property is the tenanted land, as the father of
defendant No.1 was performing pooja of Veerabhadraswamy
Temple and in connection with the same, occupancy right has
been conferred on the mother of the plaintiff and defendant
No.1 - Neelamma and therefore, grievance of defendant No.1 is
that, as defendant No.1 is performing of the Pooja of
Veerabhadraswamy and accordingly, Item Nos.1 to 3 of the
schedule property shall be exclusive property of defendant No.1
and the plaintiff has no right in respect of the schedule
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property, insofar as Item Nos.1 to 3 of the suit properties are
concerned. The said contention cannot be accepted. However,
it is not in dispute that, Item Nos.1 to 3 of the schedule
property has been granted in favour of Smt.Neelamma as per
Ex.P23. In that view of the matter, Item Nos.1 to 3 of the
schedule property has to be devolved among all the children of
A.V.Rudraiah and Smt.Neelamma. In that view of the matter,
the findings recorded by the First Appellate Court that the
tenanted property, namely, Item Nos.1 to 3 of the schedule
property is a joint family property of the parties, and
accordingly, arrived at a conclusion that, the plaintiff is also
entitled for 1/3rd share in respect of Item Nos.1 to 3 of the
schedule properties. On this aspect, it is relevant to follow the
judgment of this Court in the case of Narayana and others
V/s A.Sadashiva and others reported in ILR 2000 KAR
487, wherein, this Court at para Nos.4 and 5 held as follows:
"4. The contention raised by the plaintiff is that the
decision in ILR 1994 KAR 2327 referred to above, does
not apply to the facts of the case as the occupancy rights
were conferred long before the institution of the suit and
there is no matter pending, calling for reference to the
Land Tribunal for adjudication. Reliance was placed upon
two decisions of this Court where the decision in ILR 1994
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KAR 2327 referred to above, has been distinguished. In
JARAPPA POOJARI AND OTHERS vs SMT. RAMAKKU AND
OTHERS, an identical question came up before this Court
and the Division Bench of this Court in paras 6 and 7 of
the judgment observed as follows:
"Even otherwise, no question of tenancy arises in
this case. That question has already been decided by the
Land Tribunal while it issued an occupancy certificate.
When an occupancy certificate is already issued, no
question of tenancy arises thereafter and the only
question is as to whether the right granted by the Land
Tribunal would enure to the benefit of the first defendant
alone or to all the legal heirs. That certainly is a matter
which can be decided by the Trial Court and its
jurisdiction is not ousted especially when an order has
already been passed by the Land Tribunal".
This decision has been followed in
VEERABHADRAPPA & OTHERS VS VIRUPAXAPPA TOTAPPA
BILEBAL wherein this Court on the decision of this Court
in BOODA POOJARY VS THOMU POOJARTHI a Full Bench
decision, wherein it was observed that when once the
occupancy rights are granted, the leasehold rights stand
converted into free hold rights without damaging the
rights of the occupant's family or any member thereof and
it is always open to the member or members of the family
to claim their share or right in Civil Court over the lands
on which occupancy rights are granted by establishing
their right or interest in the property.
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5. Apparently, the decision in ILR 1994 KAR 2327
was rendered in a pending matter and all the observations
in that pending matter and all the observations in that
related to the jurisdiction of the Civil Court to decide the
issue when rival claims to tenancy were raised. In the
instant case, the contention is that the tenancy claimed
by the first respondent was for and on behalf of the joint
family and so the plaintiffs are entitled to a share in the
properties in respect of which occupancy rights are
already conferred on husband of the first respondent by
the Land Tribunal. Apparently the Land Reforms Act
contains no provision for reviewing the claim or for
recalling the claim for tenancy rights, after a long distance
of time as in this case, to consider the only question as to
whether the tenancy on the basis of which occupancy
rights were conferred, were joint family rights or
individual right. It is essentially a question of fact as to
whether the tenancy rights on the basis of which the first
respondent sought and obtained occupancy rights was a
joint family tenancy or not and it is for the Trial Court to
decide the issue when the proceedings before the Land
Tribunal stood terminated long before the litigation in
question. Apparently the decision in ILR 1994 KAR 2327
(Mudakappa's case), case would apply to matters which
are only pending and not in respect of matters which are
concluded as in this case. In the circumstances, the order
made by the learned District Judge setting aside the
judgment and decree in O.S. No. 266 of 1983 and
directing the Trial Court to reopen the matter for disposal
in accordance with the decision in ILR 94 KAR 2327
cannot be sustained and is set aside. The learned District
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Judge shall consider the matter on merits and dispose of
the same in accordance with law".
12. It is also relevant to follow the judgment of the
Division Bench of this Court in the case of Nimbavva and
Others V/s Channaveerayya and Others reported in ILR
2013 KAR 6202. Wherein this Court at Para Nos.16 to 20
reads as under:
"16. The actual dispute is whether the married
daughters are entitled to claim share after the death of
their father in respect of the tenanted lands of their father
and whether can they claim a share in respect of the
family dwelling house in view of the Hindu Succession Act,
1956.
17. So far as the first point is concerned, Section
2(12) of the Karnataka Land Reforms Act defines "Family"
as under:
2(12) "Family" means-
(a) in the case of an individual who has a spouse or
spouses, such individual, the spouse or spouses and their
minor sons and unmarried daughters, if any;
(b) in the case of an individual who has no spouse, such
individual and his or her minor sons and unmarried
daughters;
(c) in the case of an individual who is a divorced person
and who has not remarried, such individual and his minor
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sons and unmarried daughters, whether in his custody or
not; and
(d) where an individual and his or her spouse are both
dead, their minor sons and unmarried daughters."
By looking into the definition of family, it includes only the
spouse, minor sons and un-married daughters. At no
place, "married daughters" finds a place under the
Karnataka Land Reforms Act.
18. Section 24 of the Karnataka Land Reforms Act
reads as hereunder:
"24. Rights of tenant to be heritable: Where a
tenant dies, the landlord shall be deemed to have
continued the tenancy to the heirs of such tenant
on the same terms and conditions on which such
tenant was holding at the time of his death."
19. On perusal of Section 24 of the Act read with
the definition of family, it is clear that married daughter
cannot claim share in respect of tenanted land. The
question whether the married daughters can claim a
share in respect of a tenanted land of their father is
decided by this Court in KAMALA VS. LINGAMMA
HENGSU (supra) wherein it is held that only the family
members as defined in the Karnataka Land Reforms Act
are entitled for inheritance by way of succession after the
death of their father. The legal position in regard to the
right of a married daughter to claim a share in respect of
a tenanted land of her father cannot be disputed by the
plaintiff's counsel. We would have agreed with the
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contentions urged by Mr. Kini that the plaintiffs are
entitled to equal share on par with the sons when the
father died intestate provided there is a heritable right to
them under the Act. Karnataka Land Reforms Act is a
special enactment which has been enacted for the benefit
of cultivator, the same cannot be deviated by this Court
by applying the provisions of Hindu Succession Act.
20. In the circumstances, we are of the view that
when a married daughter is excluded under the definition
of "family" under the Karnataka Land Reforms Act, and
more particularly in the back ground of Section 24 of the
Act, the trial Court has committed an error in considering
the right that as per the notional partition, the plaintiffs
are entitled to claim a share along with their brothers out
of the share of their deceased father".
13. Following the declaration of law made by this Court,
as the daughter is also entitled for share in the tenanted
property of her parents, I am of the view that, there is no
infirmity in the judgment and decree passed by the First
Appellate Court in respect of Item Nos.1 to 3 of the schedule
property is concerned. Accordingly, the appeal is dismissed on
merits as there is no substantial question of law is required to
be formulated in the above appeal under section 100 of Code of
Civil Procedure.
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14. Accordingly, the appeal is dismissed.
SD/-
(E.S.INDIRESH)
JUDGE
KBM
