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Judgment
This regular first appeal u/s 96 of CPC is filed by the legal heirs of the first defendant in O.S.No. 53/1994 on the file of Court of Principal Civil Judge (Jr.Dn.), Shimoga being aggrieved by the judgment and decree dated 22-08-2005 decreeing the suit for partition and declaring that the plaintiffs are entitled for 1/28th share in the suit schedule ''A and ''B'' properties. The suit was dismissed in respect of the claim relating to suit schedule ''C'' property. The brief facts leading to the above appeal in the suit are that:
The plaintiffs 1 and 2 claiming to be the daughters of one late T.G. Krishna Hegde had filed a suit for partition of the suit schedule properties impleading their six brothers as defendants 1 to 6 and had claimed 1/8th share each being eight children of T.G. Krishna Hegde. It is the plea of the plaintiffs that all the properties were joint family properties and that they had been improved upon during the lifetime of their father and after his demise in the year 1985, the plaintiffs became entitled for their respective shares. But the defendants ignored the claim of plaintiffs, particularly the first defendant who was enjoying the property to the exclusion of other children of late T.G. Krishna Hegde. In spite of a demand through legal notice, as the defendants particularly the first defendant was not ready to yield to give share to the plaintiffs, the plaintiffs were constrained to file the suit.
The defendants contested the suit. The first defendant filed a separate statement and defendants 2 to 6, the younger brothers of the first defendant filed a separate statement in common.
The first defendant contested the suit mainly on the premise that while the plaintiffs are the sisters of defendants, they were married long back; that they are not entitled to claim share in the family properties, that if at all they want to claim any share, they can claim as legal heirs of their deceased father and on notional partition in terms of Sections 6 and 8 of the Hindu Succession Act. It was also further contended that suit items 1, 2, 3 and 5 which are agricultural lands admittedly in possession and cultivation of the first defendant are self-acquired properties of the first defendant, as the Land Tribunal, Thirthahalli in terms of its proceedings in LRT: Inam: MDG BDR 4/81-82 dated 19-07-1982 had registered the first defendant as an occupant of the subject lands namely 4 acres 04 guntas in Sy.No. 30, 10 acres 36 guntas in Sy.No. 31, 3 acres 12 guntas in Sy.No. 32 and 2 acres in Sy.No. 36 of Tudur village under the provisions of the Karnataka (Personal Miscellaneous) Inams Abolition Act, 1954 and therefore, the plaintiffs and other defendants are not entitled for any share as it is not any part of the family properties, but the exclusive property of the first defendant.
Defendants 2 to 6 in their common statement while supporting the plea of the plaintiffs to the effect that ''A'' and ''B'' schedule properties are family properties and the plaintiffs and defendants each are entitled to 1/8th share and prayed for passing a preliminary decree accordingly The first defendant having sold an extent of 3 acres of land in Sy.No. 30 in favour of one Gopal Rao son of Sripathy Rao as per the sale deed dated 27-12-1996 i.e. during the pendency of the suit before the Trial Court and this purchaser in turn having sold some part of the same in favour of defendants 8 and 9 by subsequent sale deed, all these persons were added as defendants 7, 8 and 9 by an application made subsequently.
These defendants who have also filed a separate statement, while did not dispute the purchase of parts of land in survey number as indicated above, contended that it is for a valuable consideration from the first defendant; that the plaintiffs have no right, title or interest to the subject lands which has been sold in favour of these defendants; that the purchasers have made huge investment and have improved upon the lands and that they are the bonafide purchasers for valuable consideration, that the plaintiffs cannot claim the property which according to them is self-acquired property of the first defendant and adopting the other averments pleaded in the written statement of the first defendant, prayed for dismissal of the suit as against them.
In the wake of such pleadings, the Trial Court framed the following issues and additional issues:
(i) Whether the plaintiffs prove that plaint schedule properties are all joint family properties and they have got equal share?
(ii) Whether the defendant No.1 proves that plaint ''A'' schedule items No.1 to 4 and 6 are separate properties others are the joint family properties?
(iii) Whether the plaintiffs are entitled to partition and separate possession of 2/8th share in the suit schedule properties?
(iv) Whether the plaintiffs are entitled to mesne profits as prayed for?
(v) To what relief the parties are entitled to?
(vi) What order or decree?
Additional Issues:
Whether the defendants No. 7 to 9 prove that they are the bonafide purchasers of 3 acres out of 4.04 acres in survey No. 30 of Tudur village for valuable consideration without the knowledge of it being a joint family property and also without the knowledge of pendency of this suit as pleaded in para No. 10 and para No. 12?
Whether the defendants No. 2 to 6 are entitled to 1/8th share?
Parties went to trial on such issues. The plaintiffs on their behalf examined the second plaintiff as P.W.1 and also examined their neighbour T.S. Vasantha Hegde son of Sanjeeva Hegde as P.W.2 and got marked the documents as Ex. P1 to Ex. P16.
On behalf of the defendants, 4th defendant was examined as D.W.1, wife of the first defendant as D.W.2 and the 7th defendant who is the purchaser as D.W.3 and got marked the documentary evidence as Ex.D1 to Ex.D75 and closed their side.
On appreciation of such oral and documentary evidence, the learned Judge of the Trial Court answered issue Nos. 1 & 3 partly in the affirmative; issue No. 2 in the negative; issue No.4 and Additional issue No.1 are answered accordingly; additional issue No. 2 is answered in the affirmative; Issue Nos. 5 & 6 have been answered as per the final order and therefore, decreed the suit holding that the plaintiffs are entitled for 1/28th share in plaint ''A'' and ''B'' properties. The suit insofar as claim over ''C'' schedule property is concerned it came to be dismissed.
Being aggrieved by the said judgment and decree, RFA No. 2072/2005 has been filed by the first defendant.
Defendants 7 to 9, the purchasers have also preferred a separate appeal in RFA No. 1930/2005, but we shall deal with it separately as the appeal preferred by the first defendant is more comprehensive on the relevant issues and defendants 7 to 9 being only the purchasers pendente lite, as also observed by the Trial Court, they stand or fall along with the fortunes of the first defendant.
The main contention of the appellant in RFA No. 2072/2005 filed by the first defendant is that the properties comprised in Survey Numbers 30, 31, 32 and 36 of Tudur village cannot be treated as joint family properties though the father of the parties in fact had recognized his possession and conceded before the Land Tribunal for grant of occupancy rights in favour of the first defendant as he alone was cultivating the lands in question for the past several years and has continued to be in possession, that the plaintiffs or the defendants 2 to 6 have not in any way contributed nor have taken part in the cultivation and therefore, the learned Judge of the Trial Court has committed an error in treating these properties also as joint family properties.
We have heard Sri. Mahesh Kiran Sherry, learned counsel appearing for the appellants in RFA No. 2072/2005 and Sri. Varadaraj Hawaldar, learned counsel appearing for the appellants in RFA No. 1930/2005 and Sri. Madhukar Deshpande, learned counsel appearing for respondents 1 and 2, the plaintiffs in the suit who are the contesting respondents in these appeals.
Submission of Sri. Mahesh Kiran Sherry, learned counsel appearing for the appellants in RFA No. 2072/2005 is that the learned Judge of the Trial Court has committed an error in treating the subject lands as family properties which were granted in favour of the first defendant/appellant as per the order of the Land Tribunal at Ex.D4, that there is no contribution on the part of either the father of the appellants or other members of the family for getting the lands granted in favour of the first defendant/appellant and possession and enjoyment was exclusively by this appellant, it is because this appellant is cultivating the land as a tenant by paying rents as Moolageni lease hold rights, the subject lands also been mutated in the name of this appellant since long and shown only his name as cultivator as per Ex.D59 to Ex.D75. It is only to be construed as individual property of this appellant and to this extent, the judgment and decree passed by the Trial Court is also not correct, that the appellant has not joined issues on any other aspects.
In the appeal preferred by the purchasers, while most of the arguments of the learned counsel for the first defendant are adopted apart from this, Sri. Varadaraj Hawaldar, learned counsel for these appellants submits that appellants being the bonafide purchasers and are together claiming under the first defendant, who is the appellant in the other appeal, their interest is required to be protected and assuming that the properties are to be characterised as family properties, but without conceding to protect their interest as bonafide purchaser to adjust equities in their favour by such allotment of shares and dividing the share of the first defendant by metes and bounds at the stage of final decree proceedings. To that extent, their interest be protected.
On the other hand, Sri. Madhukar Deshpande, learned counsel appearing for respondents 1 and 2 submits that the subject lands were the lands held by the family by way of Moolageni lease hold rights, that even as per the declaration given by the father of the parties in Form No.1 at Ex.D1 produced by defendant No.4, the column corresponding to the nature and right, it is clearly indicated that these are moolageni lease hold rights and it has been held by the family as Moolageni ever since the year 1917 and members of the family have been enjoying these lease hold rights of the land generations together and assuming that the appellant/first defendant alone was cultivating, he was cultivating on behalf of the family and that there being no partition in the family, that right having not been partitioned and having been inherited through the father of the parties namely T.G. Krishna Hegde, that if the learned Judge of the Trial Court has held that to be joint family property, there cannot be any other character attributed to these lands and therefore, the mere fact that the appellant/first defendant in the suit cultivated the subject lands cannot make any difference to the nature of the land.
It is also submitted that these lands are also available to all the members for sharing in family partition and therefore submits that no interference is called for. Even the other defendants i.e. the brothers of the plaintiffs other than the first defendant have supported the stand of the plaintiffs to the effect that the subject lands will also form part of the family properties.
In the wake of such grounds urged by the learned counsel for the parties, the only point that arises for our consideration in these appeals is "As to whether the learned Judge of the Trial Court is right in holding that the agricultural lands comprised in Sy.Nos. 30, 31, 32 and 36 which are described as suit schedule items 1 to 4 and 6 in schedule ''A'' properties are also joint family properties?
We have already noticed the submission made at the bar and position that emerges on perusal of Ex.D1 and Ex.D4. It is not as though subject lands and the occupancy rights over the subject lands were given to the first defendant, the appellant in RFA No. 2072/2005. Because of his individual separate effort and he had been cultivating the lands pursuant to the Moolageni rights which the family had, in respect of these lands. The lands without dispute were in the ownership of Mutt or Trust which had given on lease to the ancestors of plaintiffs and defendants 1 to 6 and it is that right under which, the first defendant was cultivating the land. Therefore, it cannot be held or construed that the subject lands are separate or self-acquired properties of the first defendant. On the other hand, they were the rights of the family which were being enjoyed by one or the other members of the family and therefore the parties who are governed by the customary Hindu Law and also codified law in terms of the Hindu Succession Act, 1956, and the properties has to be held as joint family properties. In so far as the dispute, that the plaintiffs are entitled to 1/28th share is connected, there is absolutely no scope for interfering with the judgment and decree passed by the Trial Court. We also notice that the occupancy rights in fact has been granted in favour of the first defendant/appellant under Ex.D4 as per the consent and as per the say of the father and it is not as though the first defendant himself had obtained the occupancy rights in his own right without any help from the father or the family. Therefore, RFA No. 2072/2005 filed by the first defendant has to be dismissed. Insofar as the submission of Sri. Vardaraj Hawaldar in RFA No. 1903/2005 is concerned, Sri. Madhukar Deshpande has drawn our attention that the learned Judge of the Trial Court has made an observation about the position of these appellants who are purchasers of the subject lands during the pendency of the suit and it would be obvious that they being not bonafide purchasers as they have purchased the properties during the pendency of the litigation between the parties while no specific orders being passed at this stage, it is open to the appellants to seek for adjustment of their equities while drawing up of final decree proceedings and division of properties by metes and bounds. So that, to the extent possible, the properties purchased by these appellants may be allotted to the share of the first defendant in the suit. The point is answered in the negative and against the appellants. Except for these observations, this appeal is also dismissed following the dismissal of RFA No. 2072/2005.