Bhimappa Hanamantappa Mullur and Others vs Maruti Yallappa Mullur and Others

S.N. Satyanarayana, J.—Defendants 1, 7 and 8 in O.S. No. 14/2005 on the file of Civil Judge (Jr. Dn.), Ramadurg, have come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of plaintiffs 1 to 4 for the relief of partition and their right to seek separate possession in the suit schedule property.

The brief facts leading to this second appeal are that the suit schedule property namely property bearing Sy. No. 100 measuring 12 acres 37 guntas, situated in Katkol village of Ramadurg taluk, Belagavi district is the disputed property in the original suit. Admittedly the plaintiffs 1 to 4 and defendants 1 to 10 are members of erstwhile joint family of Hanumantappa. Admittedly Hanumantappa had in all four sons and two daughters. The 1st of them is Bhimappa who is the 1st defendant in the original suit and 1st appellant in the lower appellate Court as well as this Court. The 2nd son of Hanumantappa is Nagappa, 3rd son is Yallappa and 4th son is Ningappa. Admittedly Hanumantappa who is propositus of his joint family died prior to 1946. There appears to be partition in the family of Hanumantappa among his four sons in the year 1946 and thereafter they are living independently with their respective families. When the matter stood thus, in the year 1968 the suit schedule property which is sanadi land was re-granted in favour of 1st defendant Bhimappa which he claimed as grant in his individual name.

The records would disclose that out of 12 acres 37 guntas which was granted in his favour, he gave a wardi to the revenue authorities in getting 2 acres each in the name of his brother Nagappa, Yallappa and Ningappa and remaining 6 acres 37 guntas continued to be the property of Bhimappa. Though the mutation entries were effected in the year 1984, till 2005 there was no dispute between the parties with reference to holding of 2 acres by second son of Hanumantappa namely Nagappa, 2 acres by 3rd son of Hanumantappa namely Yallappa and 2 acres by 4th son of Hanumantappa namely Ningappa. However in the year 2005 the present suit in O.S. No. 14/2005 came to be filed by the wife and son of Yallappa namely Maruti and Basavva as plaintiffs 1 and 2. The wife and one of the sons of Ningappa as plaintiffs 3 and 4 against the 1st son of Hanuamntappa namely Bhimappa as 1st defendant and other members of the family i.e., his two daughters as defendants 7 and 8 and his younger brother Nagappa''s family members as defendants 2 to 6.

In the said suit 1st defendant contended that sanadi inam land which was granted in his favour was never in joint possession and enjoyment of other members of his family. That the grant of sanadi which was made in his favour was not for the benefit of his joint family. In the proceedings before the trial Court during the course of evidence it has come on record that, in the family of deceased propositus Hanumantappa there was a partition in the year 1946. If that is accepted, then as on the date of re-grant in the year 1968, the family was not joint in status and not even at the time when the land vested with the Government after the sanadi was extinguished and vesting of the land in Government has taken place. In view of the joint family not being in existence as on the date of vesting of the land to the Government and also as on the date of re-grant the 1st defendant refused to part with the land as he claimed the said grant in his exclusive name.

It is seen that the trial Court while considering the issues framed has held that the grant of sanadi land is in favour of the joint family of Bhimappa, which includes his younger brothers. Therefore allotting of 2 acres in favour of each of his brothers is not sufficient and entire extent of granted land should be divided among 4 sons that means each should get 3 acres 9 guntas. The said judgment and decree passed by the trial Court was subject matter of appeal in R.A. No. 2/2008. The lower appellate Court also concurred with the view rendered by the trial Court.

Being aggrieved by the concurrent finding of both the Courts below, the defendant No. 1 and his two daughters namely defendants 7 and 8 have come up in this second appeal impugning the concurrent finding of both the Courts below.

This court while hearing the counsel appearing for appellants on admission, admitted this appeal to consider the following substantial questions of law.

"SUBSTANTIAL QUESTIONS OF LAW

1) Whether both the Courts below were justified in accepting the suit schedule property as joint family property as against the admission of plaintiff that in the year 1946 there was division between plaintiff''s father, first defendant and other brothers?

2) Whether both the Courts were justified in accepting the suit property as joint family property in the absence of any documents to show that the said property was in possession and cultivation of propositus Hanumanthappa at any point of time during his lifetime?

3) Whether the M.R. entry No. 8401 is properly appreciated by both the Courts below to accept that the varadi of first defendant is admission with reference to suit schedule property as joint family property?"

Thereafter since LCR of both the Courts below were received, filing of paper book was dispensed with and the matter was taken up for hearing.

Heard the learned counsel for appellants Sri H.M. Dharigond and the learned counsel Sri Shriharsh Neelopant, appearing for contesting respondents 1 to 3 who are respectively plaintiffs 1, 3 and 4. Incidentally 2nd plaintiff in the original suit i.e., the wife of Yallappa died and it is her only son Maruti is continuing the litigation on her behalf.

After hearing the learned counsel for both parties the trial Court record was looked into. On going through the same it is seen that the land in question is sanadi inam land for the post of halabaraki of that village. In the suit the plaintiff has claimed that the sanadi inam is to the family for which Hanumantappa was the propositus and the father of plaintiffs 1 and 2 and 1st defendant are 3 sons and father of defendants 2 to 6 is another son. According to plaintiffs grant is in favour of the family consisting of propositus Hanumantappa and his four sons. As against that the defence taken by the 1st defendant is that the sanadi grant of suit land is in his exclusive name. In this proceedings the plaintiffs have not produced any document to show that sanadi inam is to the joint family and the 1st defendant also has not produced any document to show that the sanadi grant is in his exclusive name.

In this context what is to be looked into is the sanadi grant. Admittedly it is the sanadi grant for halabaraki service rendered to the village which is similar to that of talawarki. If that is taken into consideration there is no need for any document to be produced to show that this is joint family land. The normal procedure is that talawarki and halabaraki services are basically to the family and it is a hereditary office. Therefore if 1st defendant is raising a defence that in his family for the first time he was appointed for halabaraki service, then he has to establish as to the date when he was appointed for the said job and the date from which the suit land is granted in his favour as halabaraki inam. In the instant case no such document is produced. When admittedly the said service is considered as a service which is hereditary service of a particular family, the contention of the plaintiff that their grandfather propositus Hunumantappa was the person doing halabaraki service, and subsequently by inheritance it has come to the 1st defendant Bhimappa cannot be disbelieved.

Assuming for a moment it is the service inam land which is inherited by 1st defendant, then the land which is appended to the said service is also joint family property. No doubt there is an admission on the part of plaintiffs that there was a partition in the year 1946 between the sons of Hanumantappa, at that time halabaraki service was not registered in the name of 1st son Bhimappa. Therefore the land could not have been subject matter of partition for the reason that it was attached to the service rendered by him at the relevant point of time. It is only in the year 1963 when the said service came to an end due to inam abolition, the said land became raitawari land and it was available for grant to the family as raitawari land.

In the light of that the learned counsel appearing for respondents/plaintiffs would rely upon the judgment rendered by the Apex Court in the matter of Annasaheb Bapusaheb Patil and others Vs. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. and heirs etc., AIR 1995 SC 895 : (1995) 1 JT 370 : (1995) 1 SCALE 100 : (1995) 2 SCC 543 : (1995) 1 SCR 88 : (1995) 1 UJ 488 , wherein at head note A reads as under:

"By operation of S. 3 Watans have been abolished and all the incidents attached to the watandari including the pre-existing custom, operation of law or any decree or order of the Court were nullified by statutory operation. Thereby, the incidents attached to the watan i.e. liability to render service as patel became extinct and the lands became ryotwari lands, office of watan stood extinguished, the lineal primogeniture stood abolished and the land on regrant became the Hindu joint family property held by the watandar for and on behalf of the members of the joint Hindu family. All the members of the family became entitled to claim right to partition by survivorship."

Another judgment rendered by a Division Bench of this Court in the matter of Bhimappa Ramappa Ghasti Vs. Arjan Laxman Ghasti, (1992) ILR (Kar) 3594 : (1993) 2 KarLJ 179 , wherein the head note reads as under:

"Karnataka Village Offices Abolition Act, 1961, Section 4 - Land would be released from the nature of its impartibility and becomes available for partition only after regrant."

Another judgment rendered in the matter of Beerappa Bandrolli Vs. Fakirappa Beerappa Bandrolli and Others, (2006) ILR (Kar) 4170 : (2007) 1 KarLJ 477 , wherein the head note reads as under:

"Held, in the light of the abolition of the village office, in the light of the resumption of the land in the State and regrant of the same in favour of one of the members of the joint family, succession by survivorship, the junior branch of the family would also become entitle to share in the land regranted to the family-Just because the office was held by the eldest member of the family, it does not make the property attached to the office as an exclusive property of the said person-On Facts, Held, plaintiffs-Appellants are entitled for half share in the suit schedule property."

In an another judgment in the matter of Verupegowda and Rajegowda Vs. Shankaregowda and Chandrashekhara, (2009) ILR (Kar) 1867 , wherein the head note B reads as under:

"(B) Code of Civil Procedure, 1908 - Section 100 - Suit for partition -Dismissal of - Appealed against -Dismissal of first appeal - Second appeal - Occupancy rights granted to any member of the family - Benefit to other members or to the whole of the family -HELD, The suit property, an agricultural land, was a tenanted property as on 01.03.1974 having been under cultivation of Basavegowda, the father of the parties whose name appears in the Record of Rights - The partition between the plaintiffs and the defendants in respect of the family properties as per Ex. P1 was on 24.11.1974. Indisputably, the suit properties were not partitioned under Ex. P1, since it had vested in the State Government on 1.3.1974. The RTC shows the name of 1st defendant only from 1974-1975 i.e., after vesting. 1st defendant filed Form. 7 on 21.12.1976 and the occupancy rights thereof were ordered to be registered in his name as per the order at Ex. P10/D1. Since the property had vested in the State Government earlier to the family partition and since the occupancy rights were granted subsequently in the name of a member of the erstwhile joint family (1st defendant), it would enure for the benefit of the members of the entire family."

On going through the aforesaid judgment, which it clearly discloses that when service inam comes to an end, the land which would get automatically vested in the Government would cease to be inam land and it becomes the raitawari land and it is available for re-grant not to the person who is doing service on behalf of the family but the re-grant is for the entire family. If that is taken into consideration, when Bhimappa the 1st defendant was continuing the service of halabaraki, the grant which was made to the service was available to the sanadi who was carrying of the halabaraki service. However when that service came to an end in the year 1963, the land which got vested in the Government became raitawari land and it is re-granted to Bhimappa for the benefit of his joint family which means for himself and three brothers. In that view of the matter this Court find that the 1st question of law is required to be answered in the affirmative.

Despite the fact that there was partition in the family with reference to other properties, this grant continued to be the property of the joint family in the hands of a person who was continuing the service which was attached to the family and in that view the 1st substantial question of law being answered in the affirmative, 2nd and 3rd substantial questions of law are also required to be answered in the affirmative.

While doing so, the judgment relied upon by the learned counsel for appellants is required to be looked into which is in the matter of Marabasappa (D) by L.Rs. and Others Vs. Ningappa (D) by L.Rs. and Others, (2011) 4 RCR(Civil) 370 : (2011) 10 SCALE 214 : (2011) 12 SCR 435 : (2011) 5 UJ 3269 , wherein while dealing with the joint family property it is held that with reference to presumption the observation is that in the absence of strong evidence in favour of the existence of joint family, the same cannot be accepted. This judgment will have no bearing to the facts of the case. Therefore the said judgment would not enure to his benefit.

Now coming to the second judgment relied upon by the learned counsel for appellants in the matter of Shashidhar and others v. Ashwini Uma Mathad and another, the ratio laid down in this judgment has absolutely no bearing on the facts of the case.

In that view of the matter, this Court feel that while answering the substantial questions of law in favour of respondents, feel that the judgment rendered by both the Courts below in decreeing the suit of plaintiffs and confirming by the lower appellate Court appears to be just and proper. Therefore this second appeal is hereby dismissed.