Sharadamma and Others vs Kempamma and Others

A.V. Chandrashekara, J.—Concurrent findings are called in question before this court by filing this appeal under Section 100, C.P.C. Appellants herein were defendants 2 to 6 in an original suit in O.S. 624/95 which was pending on the file of Civil Judge (Junior Divn.), Anekal. The 1st respondent-Smt. Kempamma was the sole plaintiff in the said suit. The 2nd respondent herein was the 1st defendant and defendants 7 and 8 are the children of the 1st defendant.

Suit was filed for the relief of partition and separate possession in respect of three items of properties as described in the schedule appended to the plaint. Ultimately defendants 2 to 6 did not contest the suit insofar as item No. 3 is concerned and therefore, they are not aggrieved by the relief of partition and separate possession granted to the plaintiff in respect of item No. 3 property. According to the appellants herein, item Nos. 1 and 2 properties were the absolute properties of Venkatarmanappa-husband of the 2nd defendant and at no point of time, it belonged to his father-Munivenkatappa as he had been conferred with occupancy right by the Land Tribunal. Thus they had contested the suit.

Ultimately the learned trial judge framed the following issues for consideration:

ISSUES

"1. Whether the plaintiff proves that she and the defendants constitute joint family and that the suit schedule properties are joint family properties?

Whether the 2nd defendant proves that suit the schedule items 1 & 2 are the self acquired properties of her husband?

Whether the plaintiff is entitled for partition and separate possession of her share as sought?

Whether the plaintiff is entitled for mesne profits?

What order or decree?"

The plaintiff has got examined herself as P.W. 1 and examined one Yellappa as PW2 and 34 exhibits are got marked. On behalf of defendants 2 to 6, two witnesses are examined and 21 exhibits were got marked. Ultimately the learned judge of the trial court has chosen to answer issue Nos. 1 and 3 in the affirmative and Nos. 2 and 4 in the negative. Ultimately the suit came to be decreed as prayed for, granting 1/15th share to the plaintiff.

The said judgment and decree dated 16.3.2004 was called in question by filing an appeal under Section 96, C.P.C. before the court of Senior Civil Judge, Bengaluru Rural District. The said appeal was withdrawn and transferred to Fast Track Court-III. The learned judge has chosen to dismiss the appeal and confirm therein the judgment of the trial court by framing the following points for consideration as found in paragraph 8 of the judgment:

"1. Whether the impugned Judgment and decree passed by the court below is valid and sustainable in law?

What Order?"

The present appeal has been admitted to consider the following substantial questions of law framed on 10.11.2008:

"Whether the Courts below were justified in granting a share in items 1 and 2 of suit property to the plaintiff despite the stand taken by the defendants that items 1 and 2 are the properties given to the husband to the 1st appellant under Personal and Miscellaneous Inam Abolition Act, 1954 as personal property of the 1st defendant''s husband and as such, it has become the self acquired property of the said defendant?"

Learned counsel for the appellants, Mr. Varadarajan has vehemently argued that the evidence placed on record does not indicate that the property in question belonged to Munivenkatappa-father-in-law of the 2nd defendant and that no reliance can be placed on the order passed by the Tribunal while conferring occupancy right in I.R. INH. 728/1981-82 vide Ex. D14. He has argued that no revenue records are placed before the trial court to show that the lands in question belonged to Munivenkatappa and that the application filed by Venkataramanappa was for and on behalf of the joint family.

Heard learned counsel on both sides. Perused documents.

The order passed by the Land Tribunal is found at Ex. D14. It is an order passed by the Land Tribunal under the relevant provisions of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, as amended from time to time. In the said order, there is a specific reference about the name of Munivenkatappa found as the person in possession relating to the land in question for the years 1973-74 to 1978-79. The application seeking conferring occupancy rights was filed by Venkataramanappa in the year 1981 and the matter was taken up in July 1981 for consideration. The Tribunal which is a body created under the statute had looked into the relevant revenue records and had also looked into column Nos. 9, 10 as also 12(2) which shows the name of the person in possession.

Even in the plaint, it is specifically stated that these two properties belonged to Munivenkatappa and after his death, Venkataramanappa filed an application for conferment of occupancy rights. The fact that Munivenkatappa had 3 wives, viz., Muniyamma, Ammakka and Ammakka is not in dispute. Venkataramanappa the husband of the 2nd defendant, was the son by the first wife. Plaintiff is the daughter of the second wife and third wife is the 1st defendant. In paragraph 2 of the plaint, plaintiff has specifically stated that the suit schedule properties belonged to Munivenkatappa and that during his lifetime, he was in possession and enjoyment of the same. If the plaintiff had averred that it was their ancestral properties, it would have been something different. The fact that the name of Munivenkatappa finds place in the revenue records is not in dispute and this has been referred to by the competent authority. While granting occupancy right to the husband of the second defendant.

Even otherwise, while re-assessing the entire evidence placed on record, the learned judge of the first appellate court has held that revenue entries stood in the name of Munivenkatappa-father-in-law of the 2nd defendant and therefore, his name was shown as Kabjedar.

D.W. 2-Sampangiramaiah aged 75 years, residing in the same village, has deposed that all the properties were the self-acquired properties of Munivenkatappa suggestion that the lands were granted in favour of Venkataramanappa has been specifically denied. There is no evidence to indicate that the jointness of the family was severed at any point of time. There is no dispute that item No. 3 property belonged to Munivenkatappa and therefore, the plaintiff is also entitled to 1/15th share. All these facts have been taken into consideration by the trial court as well as the first appellate court while assessing the oral and documentary evidence and both the courts below have adopted right approach to the real state of affairs. Evidence is tested on the touchstone of intrinsic probabilities.

No perversity or illegality is found in the approach adopted by the courts below. Both the courts have come to the conclusion that Munivenkatappa chose to file the application for and on behalf of the family and therefore it would enure to the benefit of all the members of the family. In this view of the matter, the plaintiff is entitled to 1/15th share since the properties belonged to Munivenkatappa in his individual capacity. Therefore the share allotted is in accordance with Section 8 of the Hindu Succession Act. Hence, no interference is called for. Accordingly the substantial question of law is answered in the affirmative.

In the result, the appeal is dismissed.

Parties to bear their own costs.