Jagananath Shetty & Others vs Sunil Kumar Shetty & Others

Nataraj Rangaswamy, J

This Regular Second Appeal is filed by the legal representatives of the deceased defendant No. 1 challenging the Judgment and Decree dated

22.09.2005 in O.S.No.186/1997 passed by the Additional Civil Judge (Jr.Dn.) & J.M.F.C., Udupi and the concurring Judgment and Decree dated

23.08.2012 passed by the Additional Senior Civil Judge, Udupi in R.A.No. 84/2005.

The parties are henceforth referred to as they were arrayed before the Trial Court. The appellant was the legal representative of defendant no.1

while the respondents were the plaintiffs andother defendants before the Trial Court.

The facts as stated in O.S. No. 186/1997 are that the plaintiff and the defendants 4, 5, 7 are the children of the defendant No. 2. The defendant No.

1, defendant No. 2 and the defendant No. 3 were the children of Thumbe Shedthy. For the sake of convenience, the family tree of the plaintiff and the

defendants is extracted below.

It is stated that Thumbe Shedthy was the yajamanthi of the Aliya Santhana family comprised of the plaintiff and the defendants and that she was

cultivating the suit schedule ‘A’ properties as a tenant on ‘Chalageni’. It is contended that after the Karnataka Land Reforms Act was

promulgated, the defendant No. 1 and 2 filed Form No. 7 claiming occupancy rights in respect of the suit schedule properties. The Land Tribunal in

terms of order dated 17.09.1981 had granted item no. 6 to the defendant No. 2 and Item No. 1 to 5 to defendant No. 1. The plaintiff claimed that the

suit properties were cultivated by Thumbe Shedthy and that the grant of the land by the Land Tribunal was to the benefit of the Aliya Santhana family.

The plaintiff therefore claimed that he being the member of the Kavaru is entitled to an equal share in the suit properties.

The defendant No.1 filed his separate written statement contending that he was the tenant in respect of Items 1 to 5 of A schedule and he had filed

an application for occupancy rights in his individual capacity and therefore contended that the plaintiff was not entitled for any share in the suit

schedule property. He also contended that the Land Tribunal having once granted the occupancy rights, the Civil Court had no jurisdiction to decide as

to whether the grant made in his favour enured to the joint family. He contended that he had constructed a house in his property by raising a loan from

the Bank and had renovated the house by expending substantial sums of money. He also contended that he had taken the suit schedule properties on

chalageni basis and had requested his mother to join him when he executed chalageni chit in favour of the land lady. Therefore he contended that his

mother had only half right in the chalageni property and the remaining half right belonged to him and that the half right of the mother had devolved

upon her three children namely the defendants 1 to 3 and that the defendant No. 1 had 4/6th share in the chalageni right of the mother. He further

contended that the defendant no.2 had claimed occupancy right in respect of the last item of the suit property and that the occupancy right was

granted in her name and therefore the remaining properties stood in the name of defendant No.1. He thus contended that the plaintiff and other

defendants had no right over the suit properties and thus sought for dismissal of the suit.

The 2nd defendant filed a separate written statement contending that the suit properties were obtained by her mother Smt. Thumbe Shedthy. At the

time of executing chalageni chit, the land lady had insisted that a male member of the family should join in executing the chalageni chit. Accordingly

the defendant No. 1 joined her mother and executed the Chalageni chit. Further she stated that Thumbe Shedthy was alive at the time of filing Form

No. 7 before the Land Tribunal. However on account of her old age, she allowed the defendant No. 1 to file the Form No. 7. She thus contended that

the properties involved in the suit filed by Smt. Narasu Shedthy had been originally enjoyed by Smt. Nagamma Shedthy who is the mother of Smt.

Thumbe Shedthy and therefore Smt. Thumbe hedthy had got right over the properties enjoyed by Smt. Nagamma Shedthy and thus the defendant no.2

had per capita share in the properties enjoyed by her mother Smt. Nagamma Shedthy. She further contended that the properties in question were

obtained in her individual capacity and same were not inherited by her from Smt. Nagamma Shedthy. Therefore the properties in question were not

included in the suit filed by Smt. Narasu Shedthy and others. She contended that the plaintiff and other children had a per capita share in the plaint

schedule properties and further stated that she has no objection for decreeing the suit.

On the basis of the above pleadings, the Trial Court has framed the following issues:-

Whether the plaintiff proves that the plaint A schedule properties are liable for partition into 10 equal shares?

Whether the plaintiff proves that he is entitled for 1/10th share in the plaint A schedule properties?

Whether the plaintiff proves that the net annual income from the plaint A schedule properties is 50 muras of rice?

Whether the plaintiff proves that he is entitled for mesne profits? If so, whether an enquiry under Order 20 Rule 12 is necessary?

Whether the 1st defendant proves that he has effected improvements? If so, whether he is entitled for value of the improvements?

Whether the plaintiff is entitled for partition and for separate possession of 1/10th share in the plaint A schedule properties?

To what decree or order?

Before the Trial Court the plaintiff was examined as P.W.1 and he marked Exhibits P1 to P55 while the defendant No. 1 was examined as D.W.1

and defendant No. 2 was examined as D.W.2. The daughter of the land lady was examined as D.W.3 while the maternal uncle of the defendants 1, 2

and 3 was examined as D.W.4 and they marked Exhibits-D1 to D15.

The Trial Court after appreciating the evidence on record, held that the family of the plaintiff was governed by the Aliyasanthana Law of

inheritance and therefore held that the plaintiff was the member of the kavaru of the defendant No. 2 and thus the plaintiff was entitled to a per capita

share of 1/10th in the suit schedule properties and thus decreed the suit and declared that the plaintiff and other defendants are entitled to 1/10th share

in the suit schedule properties.

The legal representatives of the defendant No. 1 filed a first appeal before the First Appellate Court in R.A. No. 84/2005. The First Appellate

Court secured the record of the trial court and considered the evidence on record and held that in view of Section 7 (2) of the Hindu Succession Act

and having regard to the date of death of Smt. Thumbe Shedthy, the provisions of Aliya Santhana law of inheritance had to give way to the law of

inheritance prescribed under Hindu Succession Act and declared that the defendant No. 1, 2 and 3 were entitled to an undivided 1/3rd share in the suit

schedule properties.

The First Appellate Court held that Thumbe Shedthywas a tenant even prior to filing of an application in Form No. 7 by the defendant No. 1 and

held that the grant of the land in the name of the defendant No. 1 was in fact a grant to the family and thus held that the defendants 1, 2 and 3 were

entitled to an equal share in the suit schedule properties.

The legal representatives of the defendant No. 1 feeling aggrieved by the Judgment and Decree passed by the trial Court and the 1st Appellate

Court have preferred this Regular Second Appeal. The records of the Trial Court and the First Appellate Court were received.

This appeal is listed today for admission and I have heard the Counsel for the defendant no.1/ appellants, plaintiff/respondent. I have perused the

records of the Trial Court and the First Appellate Court and their Judgments and the grounds urged in the appeal memorandum.

The prime contention of the legal representatives of the defendant No.1 is that the defendant No. 1 had executed the chalageni chit in favour of

the land lady and had included the name of Thumbe Shedthy in the chalageni chit out of sheer respect. They contended that it was the defendant No.1

who was cultivating the suit properties on chalageni basis and that he had filed Form No. 7 as a tenant in respect of the suit schedule properties. It is

also contended that the defendant No. 2 had also filed a similar application in respect of the suit schedule properties and that the Land Tribunal

recognized the cultivation of the defendant No. 1 as well as the defendant No. 2 and accordingly conferred occupancy rights in respect of suit items 1

to 5 in favour of defendant No. 1 and suit item No. 6 in favour of the defendant No. 2.

He therefore contended that the suit properties were not available for partition. He also argued that the First Appellate Court is not justified in

granting partition based upon the Hindu Succession Act, 1956. He further contended that there was no evidence on record which disclosed that the

plaintiff, his mother (defendant No. 2) were cultivating the land and therefore the plaintiff was not entitled for a share in the suit schedule properties. It

was further argued that in view of the fact that the chalageni chit was executed by the defendant No. 1 and his mother, the grant of half of the suit

schedule properties in favour of the defendant No. 1 should be upheld and in respect of the other half which went to the share of his mother, the

defendant No.1 along with defendant No. 2 and 3 were entitled to an equal share. He therefore contended that the Judgment and Decree of the first

Appellate Court is wholly erroneous and calls for interference.

On the other hand the learned counsel for the plaintiff and other defendants contended that the chalageni chit as per Ex.P1 and P2 was executed

in the year 1963 and the chalageni chit disclosed the names of defendant No.1 and his mother Thumbe Shedthy. They also contended that the

evidence of D.W.3 (daughter of the landlady) disclosed in categorical terms that during the lifetime of her mother, the lease rentals were paid by Smt.

Thumbe Shedthy to the mother of DW3 and after her death, the lease rentals were paid to D.W.3. They contended that the lease rentals paid to the

land lady as per Ex.P6 to P24 indicated that the same were paid by Thumbe Shedthy. Thus the plaintiff contended that it cannot be claimed by the

defendant No.1 that the suit schedule properties were granted to him in recognition of his sole tenancy in respect of the suit schedule items. They also

contended that the evidence of D.W.4 which was crucial indicated that the suit schedule properties were undisputedly joint family properties and that

D.W.4 had counseled both the defendant No. 1, 2 to live separately until the suit properties were properly partitioned. The plaintiff therefore

contended that the Trial Court and the First Appellate Court have rightly held that the suit properties were not the individual properties of defendant

No. 1 but were the family properties of Thumbe Shedthy and that she alone was entitled to claim occupancy of the suit schedule properties and she

had permitted the defendants 1 and 2 to file necessary applications owing to her advanced age.

It is not in dispute that when Form No. 7 was filed by the defendant No.1 and 2, Thumbe Shedthy was alive. Thus it has to be conceded that the

application filed by the defendant No. 1 and 2 was in effect an application on behalf of the joint family. As stated earlier Thumbe Shedthy died in the

year 1980 and therefore the succession to the property opened up in the year 1980.

The chalageni chit was executed by Thumbe Shedthy and the defendant No. 1 in the year 1963. The execution of Ex.P1 and P2 is not disputed by

the defendant No. 1. On the contrary, he claimed that the chaalageni chit was executed including the name of Thumbe Shedthy only out of sheer

respect. This is however not convincingly proved by the defendant No. 1. It is found that the age of the defendant No. 1 in the year 2001 when his

evidence was recorded was 60 years. Therefore in the year 1963, the defendant No. 1 was hardly 22 years. Therefore it is hard to believe that the

defendant no.1 had taken the suit schedule properties on chalageni. Exhibits-P6 to P24 indicate that the rent was paid by the mother of the defendant

No. 1. It is also found from Exhibit-P25 that the mother of the defendant No. 1 had delivered 1.18 quintals of rice to the Karnataka Food and Civil

Supplies Corporation Limited in the year 1974. A similar receipt is found in Exhibit-P26 and Exhibit-P27. Exhibit-P28 is the land revenue paid by

Thumbe Hengsu Shedthy in the year 1960. Exhibit-P29 is the land revenue paid by the mother of the defendant No. 1. All these documents indicate

that it was Thumbe Shedthy who was cultivating the land in question.

In addition, the evidence of DW.3 is clinching in the sense that she being the daughter of the landlady acknowledged that it was Thumbe Shedthy

who was cultivating the land and was paying the rent during the lifetime of her mother and thereafter to the defendant No. 3. Further in his cross-

examination DW.1 had admitted that except the order passed by the Land Tribunal, he did not have any document to show that the lands in question

were cultivated in his individual capacity and that the defendants 2 and 3 did not have any share therein. He admitted that he was in Mumbai and that

he used to come once or twice. He contended that he had no document to show that from the year 1963, when the saguvali chit was executed till the

year 1974 that he was residing in the village or was cultivating the land in question. He also admitted that the suit properties were not subjected to

partition.

In the absence of any document to show that the defendant No.1 was cultivating the land in question from the year 1963 till the year 1974 and in

view of Exhibit-P1 and P2 which were the chalageni slips that were executed by the defendant No. 1 along with his mother, it has to be invariably

held that the chalageni tenancy was initially in favour of the mother of the defendant No.1. Thus as on 01.03.1974, when the mother of defendant no.1

was entitled to file an application, it was the defendant No.1 and 2 who filed applications before the Land Tribunal seeking for grant of occupancy

rights. The Land Tribunal had granted occupancy rights in favour of the Defendant No. 1 and 2. Therefore, it has to be invariably held that the grant in

favour of the defendant No.1 and 2 in fact, was in favour of the family. This is also the reason why this Court in W.P. No. 26303/1997 had permitted

the Civil Court to go into the question as to whether the grant was in the individual name of the defendant No. 1 or was it a joint tenancy. The Trial

Court and the First Appellate Court have rightly held that the grant of the land in question was a grant in favour of the family and that therefore the

defendants 1, 2 and 3 were entitled to an undivided 1/3rd share in the suit schedule properties.

The First Appellate Court held that in view of Hindu Succession Act, 1956, the law relating to inheritance amongst Aliyasanthana is not applicable

in view of Section 7 (2) of the Act. This finding of the 1st Appellate Court is fortified by the Judgment of the Apex Court in the case ofA IR 1980 SC

198 and 2012 (3) KCCR 1794 (Smt. Seetha Poojarthy and another V/s Panju Poojarthy and another).

Thus I do not find any irregularity or illegality in the appreciation of evidence by the Trial Court and the First Appellate Court and the application of

law and the declaration of shares of the defendants No.1, 2 and 3. I do not find any error or irregularity in the Judgment and Decree passed by the

First Appellate Court.

As no substantial question of law for consideration arises in this appeal, this Regular Second Appeal is dismissed.