Siddaramayya and Others vs Fakirayya and Others

S.N. Satyanarayana, J.—Plaintiff Nos. 1 and 2 in O.S. No. 188/2006 on the file of the Civil Judge (Sr.Dn.), Yellapur have come up in this second appeal impugning the concurrent findings of both the Courts below.

Brief facts leading to this second appeal are as under:

"Plaintiff Nos. 1 and 2 are sons of defendant Nos. 1 and 2. Defendant No. 1-Fakirayya is the son of Sangayya Hiremath. According to plaintiffs, their grandfather Sangayya Hiremath was tenant of suit schedule lands, namely, land bearing Sy. No. 29 measuring 10 acres 15 guntas, land bearing Sy. No. 31/2 measuring 4 acres 12 guntas and land bearing Sy. No. 418/GR measuring 2 guntas and a house property bearing Panchayat No. 19. All the aforesaid properties are situated in Yellapur village, Yellapur Hobli, Yellapur Taluk of Karwar District. Admittedly, the tenancy of suit schedule items Nos. 1 and 2 lands were with the plaintiffs grandfather from the year 1943, which were under the joint cultivation of himself and his brother Channayya Hiremath."

The records would disclose that, during the year 1965, there was a suit for partition filed by plaintiffs grandfather Sangayya''s younger brother seeking partition of the joint family properties, in which, the protected tenancy lands were also included. In the said suit, it is seen that during the pendency of the proceedings, plaintiffs grandfather Sangayya Hiremath died and plaintiffs father was arraigned as legal representative. In the said suit, suit schedule properties were allotted to his share representing himself and his branch, i.e., plaintiff Nos. 1 and 2 who had by then born to defendant No. 1 in his wedlock with defendant No. 2. It is seen that, subsequently, in view of the amendment to the Karnataka Land Reforms Act, which came into force from the year 1973, an application is filed by the plaintiffs father seeking occupancy rights in respect of suit schedule item Nos. 1 and 2, which was accepted by the Land Tribunal and the occupancy right was granted in his favour.

According to the plaintiffs, suit lands being property of joint family was allotted to the branch of their father, consisting of themselves and their father in the judgment and decree passed in O.S. No. 74/1965. According to them, they have an equal share in the suit schedule properties along with their father defendant No. 1 and their mother defendant No. 2. It is also pleaded that, defendant No. 1 who is father of plaintiffs has disowned his wife defendant No. 2 and his two children who are plaintiffs in the original suit and appellant Nos. 1 and 2 in this proceedings. That he has been living with another woman, leading immoral life, that he is also addicted to bad vices. As such, suit schedule properties should be divided and their share should be given to them in the said properties. The suit was contested by defendant No. 1 on the ground that, suit schedule property is not the joint family property and that the said property was absolute property of his father and on his death, under Section 8 of the Hindu Succession Act, he has acquired the property as sole legal heir, in which, plaintiffs have no share. It is further contended that, as on the date of filing of form No. 7, he had filed it claiming the said property as his individual property and occupancy certificate, which was granted by the Land Tribunal is in his individual capacity, as such plaintiffs have no share in the suit schedule property.

Based on the aforesaid pleadings, the Court below framed in all four issues. The first one is whether suit schedule properties are joint family properties, second issue is with reference to the allegation regarding defendant No. 1 being addicted to bad vices and trying to sell the suit schedule property for his personal use and to deprive the legitimate share of the plaintiffs, third issue is with reference to the plaintiffs entitlement of half share in the suit schedule property as contended in the plaint and fourth issue is to decide what is the relief, for which, they are entitled to. In the said proceedings, after recording the evidence on behalf of the plaintiffs and defendants, the Court below answered all the issues namely, issue regarding status of suit property as joint family property and that of the allegation of defendant No. 1 being addicted to vices and the plaintiffs right to seek half share in the suit schedule property in the negative and consequently, suit of the plaintiffs was dismissed. Against which, an appeal is filed by the plaintiffs in R.A. No. 73/2008 on the file of the Fast Track Court, Sirsi, wherein, the grounds urged was that the trial Court has not properly appreciated the fact that the suit schedule property was subject matter of earlier partition between the branch of their grandfather and his brother and in the said suit, on the death of plaintiffs grandfather, their father defendant No. 1 was impleaded as his legal heir. In the said proceedings, the share that was allotted to him is not only for his individual benefit, but for the benefit of himself and his family, which includes plaintiff Nos. 1 and 2, who are minors at the relevant point of time and the same is not looked into by the trial Court. It was further contended that provisions of the Karnataka Land Reforms Act is not properly appreciated while considering the prayer of the plaintiffs for the relief of partition.

In the said appeal, based on the findings of the trial Court in O.S. No. 188/2006 and also the grounds urged in R.A. No. 73/2008, the lower appellate Court framed two points for its consideration. The first one is, whether the judgment and decree impugned needs interference and for what order. In the said appeal, it is seen that the lower appellate Court after hearing the counsel appearing for both the parties declined to accept the grounds urged, on the ground that, after the death of plaintiffs grandfather Sangayya, defendant No. 1 succeeded to the suit schedule property as legal heir under Section 8 of the Hindu Succession Act and as such, he became absolute owner of suit schedule property, therefore, the same cannot be considered as joint family property and the plaintiffs have failed to establish the existence of any joint family between plaintiffs and their father defendant No. 1, as such the judgment and decree passed by the trial Court in dismissing the suit for partition is just and proper and accordingly, dismissed the regular appeal filed in R.A. No. 73/2008.

Being aggrieved by the concurrent finding rendered by both the Courts below, the plaintiffs in O.S. No. 188/2006 have come up in this second appeal, wherein, they have reiterated the pleadings in the original suit and the grounds urged in the lower appellate Court as the grounds for impugning the concurrent findings rendered by both the Courts below. In support of that, they have also produced additional documents, which are nothing but the documents with reference to earlier proceedings between plaintiffs grandfather and his brother in O.S. No. 74/1965 on the file of the Munsiff Court, Haliyal, where the said proceeding was initiated and also the records pertaining to the execution levied pursuant to the compromise decree passed in O.S. No. 75/1965, which is executed in E.P. No. 17/1977 on the file of the Munsiff Court, Yellapur.

In this proceeding, after hearing the learned counsel appearing for the appellants, this Court proceeded to admit this second appeal to consider the following substantial question of law.

"Whether the first appellate Court has rightly appreciated the rights of the parties with reference to right of Sangayya Channiah to suit schedule property ignoring Ex. P8 pursuant to decree in O.S. 74/1965?"

After hearing the learned counsel appearing for the appellants and respondents, this Court felt, one more substantial question of law is required to be considered. Accordingly, the same is framed as under:

"Whether the lower appellate Court was justified in holding that defendant No. 1 has succeeded to suit property under Section 8 of the Hindu Succession Act ignoring the definition of joint family as contemplated under Section 2(17) of the Karnataka Land Reforms Act, which deals with tenancy rights of the member belonging to agricultural family.?"

This Court on hearing the counsel for the appellants and as well as the respondents and after perusing the judgments of both the Courts below with reference to pleadings, oral and documentary evidence available on record and also the additional documents, which are now produced with reference to the earlier proceedings in O.S. No. 74/1965, proceeded to answer the aforesaid substantial questions of law in the negative against the defendant No. 1 in the original suit and in favour of the plaintiff Nos. 1 and 2 for the following reasons.

Admittedly, plaintiff Nos. 1 and 2 and defendant No. 1 and their grandfather Sangayya Hiremath and his younger brother Channaya are the members belonging to the family of agriculturists. The fact that plaintiff''s father Sangayya was tenant of suit schedule item Nos. 1 and 2 is not in dispute. It is further not in dispute that in addition to these two properties there were several other properties available to the family and the same was in joint cultivation of plaintiff''s grandfather Sangayya and his younger brother Channabasayya. Therefore, the said lands are considered as the lands belonging to the joint family of the plaintiff''s family, and hence plaintiff should be understood as member of the joint family as defined u/S 2(17) of the Land Reforms Act. It is necessary for the reason that, in the matter of general succession when the succession opens it is the sons who are class-1 heirs, who will succeed in exclusion of others. That analogy would apply to the general succession, when it comes to tenanted lands, the position regarding succession will have to be looked into from the perception of the Land Reforms Act where the family is defined differently.

Under the Land Reforms Act, the word family and joint family are defined as under:

"Sec. 2 (12) "Family" means,-

(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;

(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;

(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and

(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;

Sec. 2(17) "Joint Family" means, -

in the case of persons governed by Hindu Law, an undivided Hindu Family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence;

...

The relevant provisions of Section 8 of the Hindu Succession Act, reads as under:

"8. General rules of succession in the case of males.-The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

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In the instant case, the fact remains that plaintiff Nos. 1 and 2, their father first defendant and their grandfather Sangayya along with his younger brother Channabasayya constitute family of agriculturist in joint cultivation and enjoyment of suit schedule property. Therefore, when the suit for partition was filed, though the tenancy was in the exclusive name of Sangayya, suit schedule item Nos. 1 and 2 was considered as agricultural lands available for joint cultivation of himself and his younger brother. Accordingly, the same was subjected to partition and 50% share was allotted to Channabasayya in the said proceedings and remaining 50% share in the family property was allotted to plaintiff''s grandfather. Since plaintiff''s grandfather had died then it was the first defendant who was representing the deceased Sangayya as his legal heir to succeed to the suit schedule property as his 50% share in the suit schedule property. Therefore, the said property which was allotted to the share of first defendant in O.S. No. 74/1965 should be accepted as the share which is granted not in the individual capacity of first defendant as son of Sangayya but it is for his branch.

It is further seen that subsequent to the suit schedule land being allotted to the share of first defendant''s branch he has filed an application seeking occupancy right. Though, vide Ex. D.1 he has claimed occupancy right in his individual capacity, the occupancy right which is awarded to him would enure to the benefit of other members of his family by virtue of judgment rendered in the matter of Sangayya Kalyannayya Bangi v. Land Tribunal, Jamakhandi reported in AIR 1998 which is followed in an unreported judgment of this Court in Chikkarangayya Since deceased by his L.R. and Anr. v. Gurusiddaiah and Ors., in R.S.A. No. 363/2005 decided on 8.12.10. Therefore, it is seen that finding of both the Courts below in holding that the suit schedule properties are not joint family properties is incorrect and further finding of the lower appellate Court in holding that in respect of suit land u/S 8 of Hindu Succession Act, after the death of Sangayya, the first defendant Fakkirayya being his son would succeed to the suit property in exclusion of right of succession of his children, plaintiff Nos. 1 and 2 in the original suit is incorrect.

In fact, the right of plaintiffs as members of the agricultural family to seek a share in the suit schedule property is rightly appreciated by the Apex Court in Balawwa and Another Vs. Hasanabi and Others, (2000) 3 JT 600 : (2008) 14 SCALE 552 : (2000) 9 SCC 272 : (2008) AIRSCW 2633 . In view of the same, the finding of the lower appellate Court is incorrect and the same cannot be accepted. Therefore, this Court find that the plaintiffs being the members of the joint family of Sangayya, being his grandchildren are entitled to seek equal share in the suit schedule property along with their father and mother. In that view of the matter, in the suit schedule property the plaintiff Nos. 1 and 2 have 1/4th share each for themselves along with their mother, second defendant who also has got 1/4th share in the said land, so far as the first defendant Fakkirayya is concerned, he has 1/4th share which is his absolute right which he has got right to deal in any manner he deems fit.

In the instant case, it is stated that during the pendency of proceedings filed by plaintiff Nos. 1 and 2 at the stage of regular appeal, first defendant Sangayya is stated to have sold the suit schedule item No. 1 in favour of two persons conveying 50% share to each one of them and one of them is stated to be his son through his second wife. However, at the time of arguments it is brought to the notice of this Court that the first defendant Fakkirayya was having live-in relationship with a widow who already had two sons born to her through her first husband, whom the defendant had claimed as his sons in the written statement which was filed by him. Though he has made such statement, he did not establish before the Court below and this Court that they are his children through the woman, with whom he is living. Even assuming that they are his children from the said woman in the absence of any proof of his parentage to said children, they cannot claim any share in the suit property falling to his share.

During the course of arguments both the counsels tried to demonstrate by producing several documents regarding parentage of 1st defendant to plaintiffs and also to the children of woman with whom 1st defendant was having live-in relationship. One of the document is the school certificate where at the time of admitting one of the child referred to as the son of first defendant in his written statement is shown as his biological son. It is stated that another child is son of his partner with whom he had live-in relationship, conceived through her first husband. Per contra, counsel for the appellant produced a document which is voter list showing residence of first defendant along with the lady with whom he had live-in relationship and her two sons. In the voter list father''s name of both children are shown as Ramachandra Rayakar and not that of first defendant. With this, it is clearly seen that there is nothing on record to demonstrate that the said children are children of first defendant. Even otherwise, either both the children or one of them is born to first defendant in his relationship outside the wedlock with another woman they can only seek a share in the property which is allotted to the exclusive share of the first defendant.

While considering the finding of the Courts below, this Court observed that the finding of trial Court on issue No. 2 that second defendant was not living a debauch life is also incorrect in view of the fact that he was living with a widow with two children when his legally wedded wife and children were struggling for their survival elsewhere. At this stage, this Court would not like to go into the issue of parentage of the children referred to in the written statement of 1st defendant. Admittedly, in this proceedings the first defendant in the original suit is no more. It is also stated that he has already executed a Will bequeathing his right in the suit schedule properties in favour of his alleged son. If at all such a testamentary document is available, the beneficiary under the Will, will be entitled to the share to which first defendant is entitled in this proceedings. With such observation appeal filed by the plaintiff is hereby allowed by setting aside the judgment of both the Courts below. While doing so, the suit of the plaintiff for 1/4th share each in the suit schedule property is allowed. It is further held that the second defendant in the original suit who is the second respondent herein is also entitled to 1/4th share in the suit schedule property. Accordingly, the appeal is disposed of.

In the course of arguments learned counsel for the appellant tried to rely upon judgments reported in Sangappa Kalyanappa Bangi v. Land Tribunal, Jamkhandi and Chikkarangaiah and Anr. v. Gurusiddaiah and Ors. referred supra. In the peculiar facts and circumstances of the case and since the right which the plaintiffs are seeking is in respect of agricultural land in respect of which occupancy right is granted under Land Reforms Act, this Court by looking into the relevant provisions of Karnataka Land Reforms Act which defined a joint family and by recognizing the rights of the members of the said joint family as seen in the judgment rendered by the Supreme Court in Balavva v. Hasanbi''s case, this Court feel that the said judgments would have no bearing on the facts of the case and would not support the case of first defendant in seeking to dismiss the suit of the plaintiff by holding that the suit properties are the absolute properties of first defendant-Sangayya.

Since the first defendant is dead all those who are claiming title to the suit property through the first defendant are entitled to participate in the final decree proceedings to get their rights defined from out of the share that is allotted to the first defendant.