Karnataka High Court
K G Balasubramanya vs Sri K.G. Nagabhushan on 8 November, 2024
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RFA No. 1774 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1774 OF 2013 (PAR/INJ)
BETWEEN:
1. K.G BALASUBRAMANYA,
S/O LATE K. GUNDU RAO,
AGED ABOUT 63 YEARS,
R/A NO.16, PUSHPAK FARM,
BANK COLONY, KONANKUNTE,
BANGALORE-560 062.
2. SRI K.G. ANANTHAPADMANABA,
S/O LATE K GUNDU RAO,
AGED ABOUT 61 YEARS,
R/A NO.475, 8TH MAIN, 2ND CROSS,
HANUMANTHANAGAR,
BANGALORE-560 019.
3. SRI K.G. VALLABHA RAMU,
S/O LATE K. GUNDU RAO,
AGED ABOUT 53 YEARS,
Digitally R/A NO.576, 1ST MAIN,
signed by NAGENDRA BLOCK, BSK 1ST STAGE,
NANDINI R BANGALORE-560 050.
Location:
High Court of
Karnataka 4. SRI K.G. SHASHIDHARA,
S/O LATE K. GUNDU RAO,
AGED ABOUT 46 YEARS,
R/A NO.159/1, SRINIDHI LAYOUT,
15TH CROSS, CHUNCHANAGHATTA,
KOTHANUR ROAD,
BANGALORE-560 062.
...APPELLANTS
(BY SRI R A DEVANAND, ADVOCATE FOR APPELLANT NO.1 & 3;
SRI S.R MURALIDHAR, ADVOCATE FOR APPELLANT NO. 2 & 4)
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RFA No. 1774 of 2013
AND:
1. SRI K.G. NAGABHUSHAN,
S/O LATE K. GUNDU RAO,
SINCE DEAD BY HIS LRS,
1(a) SMT. SHAKUNTALA,
W/O NAGHABHUSHAN,
AGED ABOUT 66 YEARS.
1(b) N. RAGHAVENDRA,
S/O LATE NAGABHUSHAN,
AGED ABOUT 44 YEARS.
1(c) MISS N RASHMI,
D/O LATE NAGABHUSHAN,
AGED ABOUT 37 YEARS.
ALL ARE R/A NO.85, MODEL
HOUSE STREET, BASAVANAGUDI,
BANGALORE-04
2. SRI K.G. PRABHAKAR,
S/O LATE K. GUNDU RAO,
AGED ABOUT 63 YEARS,
R/A NO.6/20, 2ND MAIN,
BYRASANDRA, JAYANAGAR EAST,
BANGALORE-11.
3. THE TAHSILDAR,
BANGALORE-SOUTH TALUK,
D.C OFFICE COMPOUND,
BANGALORE-560 009.
4. SRI K. MANJUNATH
S/O NOT KNOWN TO THE PLAINTIFF,
AGED MAJOR,
R/A NO.144/1, 2ND MAIN,
THYAGARAJANAGAR,
BANGALORE-560 028.
(DELETED AS PER ORDER DATED 18.10.2008)
...RESPONDENTS
(BY SRI V B SHIVA KUMAR, ADVOCATE FOR R1(a-c);
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RFA No. 1774 of 2013
R2 IS SERVED;
SRI HARISH GANAPATHI, AGA FOR R3;
R-4 IS DELETED AS PER CAUSETITLE;
NOTICE TO PROPOSED R5 IS HELD SUFFICIENT V/O DATED
27.01.2016)
THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 27.08.2013 PASSED IN
O.S.NO.5622/2003 ON THE FILE OF I-ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION AND INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.10.2024 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
Being aggrieved by the judgment of dismissal in
O.S.No.5622/2003 by the learned I Additional City Civil
and Sessions Judge, Bengaluru City (CCH-2) dated
27.08.2013, the plaintiffs are before this Court in appeal.
2. The parties would be referred to as per their
ranks before the trial Court for the sake of convenience.
3. Brief facts of the case of the plaintiffs are as
below:
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Plaintiff Nos.1 to 4 are the sons of Gowramma, who
was the second wife of K.Gundu Rao S/o Srikantaiah.
K.G.Rukmini and K.G.Indira are the two other daughters of
Gowramma. Defendant Nos.1 and 2 and one G.Kamala are
the sons and daughter of Rukminiamma, who was the first
wife of K.Gundu Rao. The said K.Gundu Rao died on
17.10.1994. The relationship between the parties is not in
dispute. The said K.Gundu Rao had acquired the suit
schedule-A to D properties i.e., a)House No.149 situated
at R.V.Road; b) 18 guntas in Sy.No.159/1C situated at
Kothanur Village; c) 15 guntas in Sy.No.68/2B situated at
Kothanur Village and d) 16 guntas in Sy.No.18/2 situated
at Raghavanapalya Village from his ancestors. Apart from
that 12 guntas in Sy.No.107, which was the Inam Land
was granted in favour of defendant No.1. It is contended
that the said K.Gundu Rao was the Khatedar of the said
four items of the immovable properties and he died
intestate leaving behind his second wife-Gowramma, the
plaintiffs and the defendants. After the death of K.Gundu
Rao in the year 1994, the family remained joint and on
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19.02.1995, the plaintiffs, the defendants, and other
children of K.Gundu Rao along with the second wife-
Gowramma partitioned all the suit schedule properties.
The details of the said partition is narrated as: (a) in
respect of the house property bearing No.149, it was
divided into 07 shares between all the six sons of K.Gundu
Rao and the said Gowramma; (b) Sy.No.159/1C was made
use of for formation of 10 sites and all the children i.e.,
the sons and daughters including Gowramma were given
01 site each and later, it has been acquired by BDA; (c)
Sy.No.68/2B was divided into 10 shares equally between
the sons and daughters of K.Gundu Rao and Gowramma
and (d) Sy.No.18/2 was divided into 06 shares equally
between the sons of the 1st and the 2nd wives of K.Gundu
Rao i.e., the plaintiffs and the defendants.
4. It was contended that in view of the equal
shares having been allotted to Kamala, Rukmini, and
Indira in Sy.No.159/1C and Sy.No.68/2B, they were
excluded in respect of the share in Sy.No.18/2 as it was a
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mutual partition. The house property bearing No.149 was
sold to one Agarwal and the sale proceeds were shared by
all of them. In respect of the said oral partition, a
document was entered into in the form of a Palu Patti
(Memorandum of Partition), but however, no sharer was
placed in exclusive possession of their respective shares
except declaring the quantum of the shares. It is the case
of the plaintiffs that the said memorandum of partition was
not acted upon and none of the parties to the said
document had got changed the khata into their respective
names and had paid any taxes.
5. It was further contended that one K.Lakshman
was Developer by profession, he undertook certain
development of the properties surrounding Sy.No.18/2
and he formed roads in the properties situated on the
northern and southern side of Sy.No.18/2. A road had to
be formed in Sy.No.18/2 and therefore, he approached the
plaintiffs and the defendants and accordingly, allowing
such request, an amended Palu Patti was entered into
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between the plaintiffs and the defendants. The shares of
plaintiff Nos.2 and 4 are defined and shown in the property
belonging to one Ananthapadmanabha-cousin of late
K.Gundu Rao and the location of the shares of plaintiff
Nos.2 to 4 is highly improper and illegal as the said
location in the property was never at any point of time had
belonged to the ownership of the late K.Gundu Rao. It was
further contended that the defendants had entered a
contract with R.S. Developers to sell their respective
alleged shares as defined in the sketch and the said
developers also contacted the plaintiffs and insisted to sell
their respective shares and in the event of disinclination,
they may come forward to grant permission to form road
in Sy.No.18/2. Therefore, the plaintiffs entered into an
agreement on 28.03.2003 with the said R.S. Developer-
H.R.Ravichandra, wherein all the 06 shares of the plaintiffs
and the defendants and that of the road is defined and
described within the area of 16 guntas in Sy.No.18/2. It
was further stated that after getting the revenue entries
i.e., khata being done, sought conversion of the land from
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agricultural to non-agricultural use and the shares of
plaintiff Nos.2 and 4 have been defined in the property of
the said Ananthapadmanabha who is cousin of K.Gundu
Rao. It is contended that such transactions are illegal, and
the shares of the plaintiffs and the defendants are not
properly defined not only in respect of area but also in
respect of the location as per the Palu Patti dated
19.02.1995 and the amended Palu Patti dated 16.12.1998.
Hence, they contended that the partition is to be
reopened, and a fresh partition must be effected.
6. In addition to this, it was contended that the
grandfather of the plaintiffs i.e., Srikantaiah was a
Shanbogh of Kothanur Village and after coming into force
of the Karnataka Inam Abolition Act, 1961, the said
K.Gundu Rao and defendant No.1 applied for re-grant of
the different extent of the lands in Sy.No.107 and
accordingly, the defendant No.1 was re-granted with 12
guntas of land. They contended that such re-grant would
also enure to the joint family of the plaintiffs and
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defendants and the said property also needs to be
partitioned.
7. On appearance, defendant Nos.1 and 4 filed
their written statements. Defendant No.1 contended that
the Suit Schedule A, B, C and D properties are the
ancestral properties, and they are not the self-acquired
properties of K.Gundu Rao. They stood in the name of the
said K.Gundu Rao and some of them were acquired out of
the contributions of defendant Nos.1 and 2. Now the
partition having been concluded, they are not available for
partition. The partition has been accepted by all the
female heirs of K. Gundu Rao and therefore, it is acted
upon. He further contended that on 19.02.1995, all the
children of K. Gundu Rao along with Gowramma,
partitioned all the suit schedule properties and such
partition was acted upon. The alienation of the house
property bearing No.149 is admitted. Formation of 10 sites
in Survey No.159/1C is also admitted. The entering into
the transaction with a Developer in respect of Sy.No.18/2
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and forming of the sites therein is also admitted by
defendant No.1. It was contended that Sy.No.18/2 was
partitioned which came to be effected on 19-2-1995 and
the subsequent Palu Patti dated 16-12-1998 and by virtue
of the said division partition was accepted conclusively by
the plaintiffs, there was a total division of all the
properties and each of the parties have given respective
share in the properties. Therefore, when the parties are in
enjoyment of the properties, none of the properties
remained to be partitioned. However, they contended that
the plaintiffs were in dominant position and the defendants
were the silent spectators and for whatever partition done
has been agreed by these defendants. They contended
that they have signed the documents as wished by the
plaintiffs and they were only at the receiving end.
Defendant No.1 contended that he is not in the knowledge
of the development undertook by one Lakshman and that
to form a road, the subsequent amended Palu Patti came
to be entered. He distances himself away from all the
knowledge in respect of the connecting road which must
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be formed and the reason for amended Palu Patti. He
denies that plaintiff Nos.2 and 4 were given a portion of
the property belonging to one Ananthapadmanabha who
is the cousin of K. Gundu Rao. Therefore, denying the
claim of the plaintiffs, defendant No.1 assert that Palu
Patti was effected and therefore, the suit is not
maintainable. He further contended that the Sy.No.107
was an Inam Land and after the Inam Abolition Act came
into force, the defendant No.1 applied for the re-grant and
by virtue of the order passed by the Special Deputy
Commissioner, it was granted to defendant No.1.
8. The written statement of defendant No.4
discloses that he has been impleaded in the suit at belated
point of time and he is the purchaser of land bearing
Sy.No.18/1 and Sy.No.18/2 measuring 4 acres and he
being the purchaser and has right in the property and the
extent of his holding and possession as per the extent
reflected in the rough sketch annexed to the sale deed.
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9. Based on the above pleadings, the following
issues were framed by the trial Court:
1. Whether the plaintiffs prove that the partition deed
dated 19.2.1995 was not acted upon though it was
recited that the division has been made?
2. Whether the plaintiff further prove that the female
heirs of Gowramma not included in the said partition
and as such, it cannot be acted upon?
3. Whether the plaintiffs further prove that the
defendants are trying to alienate their respective
shares to the builder K.Lakshmana?
4. Whether the defendant No.1 proves that the suit
schedule properties are not available for partition?
5. Whether the defendant No.1 further proves that the
suit is bad for non-joinder of necessary parties?
6. Whether the defendant No.1 further proves that the
suit is barred by limitation?
7. Whether the plaintiffs entitled to the partition and
separate possession of 1/6th share of the suit schedule
properties?
8. What decree or Order?
10. On behalf of the plaintiffs, plaintiff No.3 was
examined as PW1 and Exhibits P1 to P18 were marked. On
behalf of defendants, defendant No.1(b) was examined
as DW.1 and Exhibits D1 to D28 were marked.
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11. After hearing the arguments by both the sides,
the trial court answered issue Nos. 1 to 3, 6 and 7 in
the negative and issue Nos. 4 and 5 in the affirmative and
by the impugned judgment, dismissed the suit of the
plaintiffs.
12. Being aggrieved by the said judgment, the
plaintiffs have approached this Court in appeal.
13. On service of notice, respondent No.1 (a-c)
appeared before this Court through their counsel and
respondent No.2 served, remained unrepresented.
14. On admitting the appeal, the trial Court records
have been secured and the arguments by learned counsel
Sri R.A. Devanand, for appellant Nos. 1 and 3; Sri S. R.
Muralidhar, for appellant Nos. 2 and 4; Sri V.B.
Shivakumar for R1(a to c) and learned AGA for respondent
No.3 were heard. However, respondent No.4 was deleted
in the cause title. Notice to proposed respondent Nos. 5 to
7 on IA No.1/2015 was issued, while proposed respondent
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No.6 and 7 appeared, proposed respondent No.5 did not
appear despite service of notice.
15. During the pendency of the appeal, IA
No.1/2015 is filed by the appellants to implead the
proposed respondents No.5 to 7 who are the sisters of
plaintiffs and defendant No. 1 and 2. For the reasons
stated below, the suit is liable to be dismissed on the
ground of previous partition and therefore, it is not
necessary to consider the IA No. 1/2015, and hence, the
same is liable to be rejected.
16. The learned counsel appearing for appellant
Nos. 1 and 3 submits that the main dispute raised in this
appeal is only in respect of Sy.No.107/1 measuring 12
guntas which is liable to be partitioned. It is submitted
that, it was an Inam land, and it was included in the plaint
at the later point of time. He submits that Exs.P12 and
P13, the RTC show that it was an Inam land and Exs.P17
and P18 would establish that defendant No.1 was never
the Inamdar or the Shanbhog which otherwise could have
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excluded the rights over the said property. It is submitted
that there is no finding by the trial Court on the said Issue
concerning the 12 guntas in Sy.No.107. He submits that
defendant No.1 applied for the re-grant and the Assistant
Commissioner re-granted the said land in favour of
defendant No.1 by virtue of Ex.D1. It is pointed out that in
the absence of any evidence on behalf of defendant No.1
to show that 12 guntas in Sy.No.107 was exclusively
granted as he was an officer of the village, he was entitled
for exclusive grant in respect of the same. Therefore, the
plaint having stated in para 17(a) that the re-grant was
applied by defendant No.1 in his capacity as a member of
the family; it was after the death of K. Gundu Rao; that
there being no additional evidence to counter the
pleadings in para 17(a) of the plaint; and that there is no
evidence on behalf of defendant No.1 to show that he was
granted exclusive rights in respect of the same, the trial
Court erred in holding that the said property is also not
available for partition. He vehemently argues that there
was no finding by the trial Court on this aspect and as
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such, the indulgence of this Court is needed in that regard.
He further submits that the cross-examination of DW1
shows that defendant No.1 was a Shanbhog, but when
there is no document in that regard, his testimony cannot
be accepted. The evidence of DW1 do not show the period
of office held by defendant No.1 and therefore, the
impugned judgment is liable to be interfered with. It is
contended that Palu Patti at Exs.P10 and P11 are in
respect of the properties acquired by K. Gundu Rao and
therefore, the Sy.No.107 measuring 12 guntas being not
part of the said Palu Patti, is available for partition.
17. The learned counsel appearing for appellant
Nos. 2 and 4 would contend that the original Shanbhog as
mentioned in Ex.D1 was one Vasanthaiah and Krishnappa.
He submits that the inam land was re-granted and the
question that would be determined is whether such re-
grant would enure to the individual or to the family. In this
regard, he fully supports the arguments canvassed by the
learned counsel for appellant Nos. 1 and 3.
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18. The learned counsel for the appellants would rely
on the judgment in the case of Baijnath Prasad Singh Vs.
Tej Bali Singh1; in the case of Chinnathayi Vs.
Kulasekara Pandiya Naicker and others2; in the case of
Nagesh Bisto Desai etc., Vs. Khando Tirmal Desai
etc.etc.3 ; in the case of Kalgonda Babgonda Patil Vs.
Balgonda Kalgonda Patil and others4; Shivappa
Thammannappa Karaban Vs.Parasappa Hanammappa
Kuraban and others5 and in the case of Laxmibai
Sadashiv Date and others Vs. Ganesh Shankar Date and
others6.
19. Per contra, learned counsel appearing for
respondents, Sri V.B. Shivakumar, submits that the
plaintiffs basically and predominantly are concerned with
the partition in respect of the properties held by K. Gundu
Rao. It is submitted that the plaint says that the suit
schedule properties are the joint family properties and
AIR 1921 Privy Council 62
AIR 1952 Supreme Court 29
AIR 1982 Supreme Court 887
AIR 1989 Supreme Court 1042
AIR 1995 SCW 5031
AIR 1977 Bombay 350
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therefore, they are liable to be partitioned. He further
contends that the Palu Patti at Ex.P10 and the amended
Palu Patti at Ex.P11 dated 19-02-1995 and 16-12-1998
are only in respect of the properties which were left behind
by the deceased K. Gundu Rao. He submits that apart
from the properties which are mentioned in Ex.P10, the
deceased K. Gundu Rao has also left a Will as averred in
Ex.P10 itself. Therefore, at no stretch of imagination, it
can be said that the suit is for partition of all the joint
family properties of the plaintiffs and defendants. In fact,
there is no such averments in the plaint that there existed
a joint family of the plaintiffs and the defendants. Much
prior to the year 1976, defendant No.1 was living
separately and therefore, defendant No.1 and K. Gundu
Rao have filed separate applications to the Assistant
Commissioner for re-grant of the Inam land and
accordingly, the Assistant Commissioner had re-granted
the lands. It is contended that the separate holdings of K.
Gundu Rao and defendant No.1 were identified as long
back as in the year 1976. Defendant No.1 was in
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possession of 12 guntas of land and K. Gundu Rao was in
possession of 35 guntas of land as mentioned in Ex.D1, re-
grant order. Therefore, when the Palu Patti was entered, it
was a division of the properties held by K. Gundu Rao
under Section 8 of the Hindu Succession Act, but not a
division among the coparceners of the joint family.
Therefore, when there is no pleading that there existed
the joint family of the plaintiffs and defendants, when the
Palu Patti, Ex.P10 do not state that the property is the
joint family property which is being partitioned under it, it
is not in the mouth of the plaintiffs to contend that the
Sy.No.107 measuring 12 guntas is also amenable for
partition. The contention that Sy.No.107 measuring 12
guntas is also to be partitioned is only an afterthought and
without any basis for the same in the plaint. He contends
that if Sy.No.107 is also joint family property, it would
have found place either in Ex.P10 or Ex.P11. There is no
iota of pleading that it is the joint family property.
Therefore, he submits that no fault can be found in the
impugned judgment of the trial Court.
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20. In the light of the above submissions, the
points that arise for consideration are:
1. Whether the partition as per the Memorandum of
Partition dated 19-2-1995 is acted upon and if so,
whether it is to be re-opened?
2. Whether re-grant of land in Sy.No.107 under
Ex.D1 would enure to the joint family of plaintiffs
and defendants?
3. Whether the judgment of the trial Court needs
any interference by this Court?
Reg.Point No.1:
21. It is necessary to note that, initially, the house
situated at R.V. road, Sy.No.158/C and Sy.No.68/2B of
Kothanur measuring 18 guntas and 15 guntas each
respectively and Sy.No.18/2 measuring 16 guntas of
Raghavaiahnapalya were only the suit schedule properties.
There is some discrepancy in the plaint as to the
description of the suit schedule properties. In para 5 of the
plaint, the above mentioned four properties are stated at
(a) to (d). At the end of the plaint, the suit schedule is
described to be: "Sy.No.159/C, which is (b) property
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mentioned above, Sy.No.18/2 which are described in two parts,
which are part of the property (b) mentioned above and the
Sy.No.107 which was inserted at later point of time by way of
amendment to the plaint."
22. The memorandum of partition dated 19-2-1995
which is the admitted document by both the parties would
show that the house property bearing No.149 was
partitioned and later it was sold by all the sharers.
Similarly, in Sy.No.159/1C, 10 sites were formed and all of
them were acquired by BDA. In Sy.No.68/2B 10 shares
were carved out and later it was sold by all the sharers. In
Sy.No.18/2 six sharers were carved out and only the sons
of K. Gundu Rao were allotted to the shares. It is in
respect of this property a dispute has cropped up as stated
in the plaint and when the surrounding lands were
developed, the amended Palu Patti (Ex. P11) was entered
into and it is the grievance of appellants that their share is
shown in the property belonging to the cousin of K. Gundu
Rao. The plaintiffs entered into an agreement with the
developer and contended that their property has been
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shown in the property belonging to the cousin of K. Gundu
Rao and therefore, it does not call for reopening of the
partition.
23. It is necessary to note that, after the said
partition as stated in the Palu Patti dated 19-2-1995, the
properties have been sold by each of the sharers. It is also
necessary to note that as per the said partition, the
mutation entries have been effected. The plaintiffs have
also entered into an agreement and agreed to provide
road in Sy.No.18/2. Therefore, it is evident that each of
the sharer under the said Palu Patti, which is at Ex.P10,
have either sold or have dealt with the same as per their
wish and will. Hence, the question of reopening partition
does not arise, and this aspect has been elaborately dealt
by the trial Court in the impugned judgment.
24. The learned counsel for the appellants has not
urged this aspect and they have argued predominantly on
the question of partition in respect of 12 guntas in
Sy.No.107 of the suit schedule. Therefore, I do not find
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any reason to interfere with the finding of the trial Court
that there is no sufficient ground to reopen the partition as
claimed in the plaint by the plaintiffs. Hence, point No.1 is
answered in the negative.
Re.Point No.2
25. The second point raised by the plaintiffs is in
respect of the partition in 12 guntas of land in Sy.No.107.
A perusal of the plaint as it stood amended would show
that except in para 17 (a), nowhere it is stated by the
plaintiffs that the plaintiffs and the defendants constituted
a joint Hindu Family till the oral partition as depicted in
Ex.P10 was entered. A careful perusal of the plaint shows
that in para 5, it is unequivocally mentioned that K Gundu
Rao had acquired (a) to (d) properties as mentioned
above. In para 5(a), which came to be inserted by way of
amendment, it was stated that "(a) to (c) properties were
inherited by K. Gundu Rao and (d) property was the Inam
land". In fact, in para 5, '(d)' property is, Sy.No.18/2 and
therefore, the pleading is incorrect in this regard.
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26. Be that as it may, '(d)' property described in
para 5(a) construed to be Sy.No.107 measuring 12
guntas. It is stated that it was an Inam land under Mysore
Personal and Miscellaneous Inam Abolition Act, 1954 and
under Section 10 of the said Act, K. Gundu Rao, was
declared and registered as an occupant by the Additional
Special Deputy Commissioner. It is pertinent to note that
there is no such document as contended by the plaintiffs.
It is to be noted that 35 guntas in Sy.No.107 was
re-granted in favour of K.Gundu Rao, as per Ex.D1. It is
also relevant to note that in none of the paras 6,7, 7(a), of
the plaint, there is any reference about the joint family. In
para 17(a), the plaint states as below:
"17(a). It is important to state that the plaintiffs and
defendants grand father namely Srikantaiah was the
Shanbogh of Kothanur village and who held the office
of Shanbogh for nearly 30 years. It is important to
state that the said grand father died earlier to coming
into force of the Karnataka Inam Abolition Act of
1961. In view of the same, the plaintiff's father Sri. K
Gundu Rao and defendant No.1 herein applied for
different extent of land comprised in different survey
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number. The defendant No.1 who applied for re-grant
in the property of Sy.No. 107 to an extent of 0.12
guntas is the land which the plaintiff father has
entitled to it. In view of the fact that he was
Shanbhog. It is further important to state that the
defendant No.1 who obtained an order of re-grant
under section 5 of Karnataka Inams Abolition Act
never held the office as Shanbhog not even for a day.
The order of re-grant in the schedule item No.3 does
not become the self-acquired property as his and
whereas in becomes Joint family property under the
family law in respect of which the plaintiffs are the
parties to the suit have a right share."
27. Thus, it is evident that the plaintiffs do not
contend that the plaintiffs and the defendants constituted
a joint Hindu family. Even the Palu Patti at Ex.P10 do not
mention that the partition was among the members of the
joint family, but it was mentioned that the partition is in
respect of the properties inherited and left by K. Gundu
Rao.
28. The perusal of Exs.P16 to P18 show that the
plaintiffs have obtained the endorsement from the
Tahsildar that there is no document to show that
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defendant No.1 had worked as a Shanbhog between the
years 1955 to 1965 at Kothanur. The 'Barabaluti Register
Extract' is produced at Ex.P18 and it does not mention the
name of defendant No.1.
29. It is relevant to note that the affidavit evidence
of the examination-in-chief of PW1 is nothing but an exact
replica of the plaint. Nowhere, it is stated that Sy.No.107
measuring 12 guntas was the joint family property of the
plaintiffs and the defendants. On the other hand, in para
25, it is stated that defendant No.1 had applied for re-
grant of Sy.No.107, to which, K.Gundu Rao was entitled
to. Therefore, it is the contention of the plaintiff that the
said property is not the self-acquired property of
defendant No.1, but it is the property owned by K. Gundu
Rao. This contention cannot be appreciated because, K.
Gundu Rao, during his lifetime did not dispute the grant of
12 guntas of land to defendant No.1. Moreover, K. Gundu
Rao was also granted 35 guntas of land as mentioned in
Ex.D1 by way of re-grant in the same survey number.
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Neither the Palu Patti, Ex.P10 or the plaint do not whisper
anything about the 35 guntas of land which was re-
granted to K. Gundu Rao. Therefore, the evidence of PW1
is not convincing.
30. In the cross-examination of PW1, much was
elicited about the acting upon of the said Palu Patti. In the
cross-examination, it is elicited that Sy.No.107 measuring
12 guntas was not the part of Palu Patti, since it was a
property owned by defendant No.1. He also states that he
has no document to show that the said Sy.No.107
measuring 12 guntas was the ancestral property. It is also
elicited that none of the suit schedule properties were in
the joint possession of the plaintiffs and the defendants.
Such being the admission given by PW1 in the cross-
examination, it cannot be said that the oral testimony
throws any light in respect of Sy.No.107 measuring 12
guntas belonging to the father of the plaintiffs i.e., K.
Gundu Rao. In the cross- examination, it was elicited that,
Ex.P14 came into existence during the pendency of the
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suit and an arrangement was entered into in respect of the
road to be formed in Sy.No.18.
31. The perusal of testimony of DW1, who happens
to be the son of defendant No.1 discloses that nowhere he
has stated that his father Nagabhushana was the
Shanbhog. He states that there were several persons who
were in possession of Sy.No.107 and as his father had
applied for re-grant, accordingly, he was re-granted with
35 guntas of land and defendant No.1 was re-granted with
12 guntas of land. In the cross-examination, there is
nothing much is elicited that the 12 guntas of the
defendant No.1 was belonging to the joint family. Much of
the cross- examination is made to elicit as to whether
defendant No.1 was the Shanbhog. It is elicited in cross-
examination that defendant No.1 was working in NGEF as
the Deputy Engineer. He states that after the death of his
great grandfather, the grandfather K. Gundu Rao became
Shanbhog and K.Gundu Rao was working as an Engineer
Designs in HAL for about 35 years till he retired from
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service. It is pertinent to note that these elicitations in
the cross-examination of DW1 show that even K. Gundu
Rao was not a Shanbhog. It appears that the father of K.
Gundu Rao was the Shanbhog and therefore, the lands
were granted to K. Gundu Rao and his siblings as
mentioned in Ex.D1. Ex.D1 which is the order passed by
the Assistant Commissioner, shows that the re-grant was
made in favour of one Achappa, S/o Krishnappa, K. Gundu
Rao, s/o Srikantaiah, K. Gundu Rao s/o Ramachandra Rao,
K. Ananthapadmanabha, K. Suryanarayana Rao, K.
Ramachandrarao and K. Nagabhushana. It is pertinent to
note that K. Nagabhushana is none else than defendant
No.1, in whose favour 12 guntas of land was re-granted.
K. Gundu Rao, son of Shrikantaiah is the father of the
plaintiffs and the defendants and 35 guntas of land was
re-granted in Sy.No.107. Apart from K. Gundu Rao and
defendant No.1, portions of the lands were allotted to K.
Ananthapadmanabh, K. Suryanarayana Rao and K.
Ramachandra Rao also. The order of the Assistant
Commissioner also discloses that claimants therein are
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belonging to Barwardar, Shanbhogi family, who are in
possession and enjoyment of the suit schedule lands and
according to their respective hissas and paying Kandayam
to the Government regularly, the Assistant Commissioner
was satisfied with the claim and he re-granted the land.
Nowhere, Ex.D1 states that either K. Gundu Rao or
defendant No.1 were the Shanbhog. Therefore, the cross-
examination of DW1 as to whether they were the
Shanbhog and therefore, the lands were granted is of no
help to the plaintiffs.
32. On examining the above evidence available on
record, it is clear that the ancestors of K. Gundu Rao were
the Shanbhogs, and they were given the lands as Inam.
However, their possession continued even after the
abolition of the Inams and accordingly, they filed
application to the Assistant Commissioner for re-grant as
per enjoyment and therefore, the Assistant Commissioner
has granted the lands in terms of Ex.D1. In pursuance to
the order of the Assistant Commissioner, a mutation entry
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was also effected as per Ex.P18. It is worth to note that,
Ex.D1 is dated 22.6.1976. In the light of the above,
Exs.P16, P17 and P18 which show that defendant No.1
Nagabhushana was not a Shanbhog, is not of any
relevance.
33. There is another reason which needs the
attention of the Court. Ex.P10-Palu Patti which is admitted
by both the sides, states that K.Gundu Rao had executed a
Will. It is stated that the sites bearing Nos.12, 13, 14 and
15 formed out of Sy.No.159/1C of Kothanuru, which is
part of Schedule-II property shall be divided among the
legatees of the Will left behind by K.Gundu Rao since the
same are covered under the said Will. Thus, it is evident
that K.Gundu Rao had left behind him a Will. The details of
the said Will are not forthcoming either in the pleadings or
in the evidence. Therefore, this Court finds force in the
submission of the learned counsel for the defendants that
the suit is in respect of the properties left behind by
K.Gundu Rao. Sy.No.107 to the extent of 12 guntas was
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belonging to defendant No.1. If, K.Gundu Rao was allotted
35 guntas as per Ex.D1, the question arises as to why the
plaintiffs did not show 35 guntas as the suit schedule
property. Moreover, the said 35 guntas was also not
shown in the Palu Patti which was entered between the
parties in the year 1995. Therefore, the contention of the
defendants stands to the reason that the re-granted lands
in Sy.No.107 to the extent of 35 guntas and 12 guntas in
favour of K.Gundu Rao and the defendant No.1 were their
own properties and therefore, the properties bequeathed
by K.Gundu Rao under the Will are not included in the Palu
Patti. Hence, this Court is of the opinion that the
contention of the learned counsel for the plaintiffs that
Sy.No.107 to the extent measuring 12 guntas also need to
be partitioned cannot be accepted. If at all, the said 12
guntas is also to be partitioned, question arises as to why
there is no whisper about the 35 guntas granted to
K.Gundu Rao under Ex.D1.
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34. The decisions cited by the appellants do not
have any applicability to the facts of the case. The
judgment in the case of Baijnath Prasad Singh Vs. Tej
Bali Singh referred supra lays down that an impartible
estate does not make it separate or self-acquired property
of a member of the family. It was a case pertaining to a
property of the Raj and it was also concerning the Rule of
Primogeniture. Therefore, the said judgment is not of any
relevance to the case on hand.
35. Similarly, the judgment in the case of
Chinnathayi Vs. Kulasekara Pandiya Naicker and
others referred supra is also concerning the impartible
estate and power to alienate the same. It was held that
the person in whom the impartible estate vests is
competent to alienate a part of it.
36. The judgment in the case of Nagesh Bisto
Desai Vs. Khando Tirmal Desai referred supra, lays
down that the property though impartible, it may be the
ancestral property of the joint Hindu family, and the
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impartibility of property does not perse destroy its nature
as joint family property. There cannot be any dispute
about the principles lays down in the judgment of Nagesh
Bisto Desai (Supra) as it pertains to the Bombay Paragana
and Kulkarni Watans Abolition Act, 1950. The judgment
has a special reference to the said Bombay Paragana and
Kulkarni Watans Abolition Act, 1950 and therefore, unless
it is shown by the plaintiffs that Sy.No.107 was an
impartible estate of the family of K.Gundu Rao since he
was the Shanbhog, this judgment cannot be applied to the
facts of the present case.
37. Similarly, judgment of Shivappa
Tammannappa Karaban Vs. Parasappa Hanammappa
Kuraban and Others7 is concerning the re-grant under
the Karnataka Village Offices Abolition Act and it was held
that the property continues to be the joint family property
for the benefit of the Hindu Undivided Family. Since the
plaint do not mention that the partition is sought in
1994 AIR SCW 5031
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respect of the joint family property and the fact that 35
guntas which was re-granted in favour of the K.Gundu Rao
was not subject matter of the suit, it cannot be said that
this is suit for partition of the all joint family properties.
Hence, this judgment also does not have any application
to the case on hand.
38. The judgment in the case of Laxmibai
Sadashiv Date and Ors. Vs. Ganesh Shankar Date
and Ors is also concerning the impartible estate and the
Rule of Primogeniture. Therefore, the principles laid down
in these decisions are not of any application to the facts of
the present case. Hence, point No.2 deserves to be
answered in the Negative.
Reg. Point No.3:
39. When no other contentions are raised in this
appeal by the appellants, this Court do not find any reason
to interfere with the impugned judgment. When the
plaintiffs are not entitled for any of the reliefs, there is no
necessity of impleading the proposed respondent Nos. 5 to
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7 in this appeal. It would be of no avail to implead the
sisters of the plaintiffs and defendant No.1. Therefore, the
appeal as well as IA No.1/2015 are bereft of any merits
and are liable to be dismissed. Hence, the following:
ORDER
The appeal is hereby dismissed.
Consequently, IA No. 1/2015 is also dismissed.
Costs made easy.
Sd/-
(C M JOSHI)
JUDGE
tsn*
