Dismissed

M S Muniraju v. Sri M a Muniappa

Karnataka HC10 Nov 2021RFA/1066/2007

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a First Appeal against a trial court judgment that held the plaintiffs failed to prove they were co-owners of the disputed agricultural land. The Court found that after the 1953 partition, only one brother separated, while the plaintiff's father and respondent's father continued in the joint family, and the subsequent alleged partition lacked documentary evide

What did the court decide?

The appeal was dismissed, confirming the judgment and decree of the trial court dismissing the suit.

M S Muniraju Vs Sri M a Muniappa — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF NOVEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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R.F.A.No.1066/2007

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BETWEEN:

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M.S.MUNIRAJU

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AGED 47 YEARS

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S/O SANJEEVAPPA

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R/O MANDUR VILLAGE AND POST BIDARAHALLI HOBLI, VIA VIRGONAGAR

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POST, BANGALORE EAST TALUK

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BANGALORE - 560 049.

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SRI M S NAGARAJU

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SINCE DEAD BY HIS LRs

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2(a) SMT.MARIYAMMA AGED ABOUT 68 YEARS WIFE OF LATE M.S. NAGARAJU

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R/AT MANDUR VILLAGE BIDARAHALLI HOBLI, MANDUR POST, BANGALORE EAST TALUK BANGALORE - 560 049.

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2(b) SRI AMBARISH

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AGED ABOUT 43 YEARS SON OF LATE M.S. NAGARAJU

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R/AT MANDUR VILLAGE

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BIDARAHALLI HOBLI, MANDUR POST, BANGALORE EAST TALUK

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BANGALORE - 560 049.

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2(c) SMT. GEETHAMMA AGED ABOUT 45 YEARS DAUGHTER OF LATE M.S. NAGARAJU WIFE OF RAMAKRISHNAPPA R/AT KURUBARA KUNTE VILLAGE KASABA HOBLI, YELIYUR POST DEVANAHALLI TALUK BENGALURU RURAL DISTRICT.

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2(d) SMT. VIDYARANI AGED ABOUT 34 YEARS WIFE OF LATE M.N.NAGESH R/AT MANDUR VILLAGE BIDARAHALLI HOBLI, MANDUR POST, BANGALORE EAST TALUK BANGALORE - 560 049.

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M S NARAYANASWAMY AGED 43 YEARS S/O SANJEEVAPPA R/O MANDUR VILLAGE AND POST BIDARAHALLI HOBLI, VIA VIRGONAGAR POST, BANGALORE EAST TALUK BANGALORE - 560 049.

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SRI M S KRISHNAPPA DIED ON 29-3-7 REPRESENTED BY HIS LRs.

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SMT. KEMPAMMA AGED 51 YEARS W/O LATE M.S.KRISHNAPPA R/O MANDUR VILLAGE AND POST BIDARAHALLI HOBLI, VIA VIRGONAGARPOST, BANGALORE EAST TALUK

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BANGALORE - 560 049.

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5 . SRI M K MURTHY AGED 28 YEARS, S/O LATE M S KRISHNAPPA R/O MANDUR VILLAGE AND POST BIDARAHALLI HOBLI, VIA VIRGONAGAR POST, BANGALORE EAST TALUK BANGALORE - 560 049.

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6 . SRI PRASANNA KUMAR AGED 25 YEARS, S/O LATE M S KRISHNAPPA R/O MANDUR VILLAGE AND POST BIDARAHALLI HOBLI, VIA VIRGONAGAR POST, BANGALORE EAST TALUK BANGALORE - 560 049.

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7 . SMT.NEELAMMA W/O K MANJANNA D/O LATE M S KRISHNAPPA AGED 32 YEARS, R/O K NARAGANA PURA BANGALORE EAST TALUK BANGALORE - 560 049. ..APPELLANTS (BY SRI VIJAY KRISHNA BHAT M, ADVOCATE)

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AND:

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1 . SRI M A MUNIAPPA S/O LATE ANJENAPPA AGED 62 YEARS, R/O MANDUR VILLAGE AND POST BIDARAHALLI HOBLI, VIA VIRGONAGARA POST BANGALORE EAST TALUK BANGALORE - 560 049.

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2 . A M SHAMANNA S/O LATE ANJENAPPA MAJOR, R/O CHIKKAGUBBI VILLAGE

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DODDAGUBBI POST, BIDARAHALLI HOBLI BANGALORE EAST TALUK BANGALORE - 560 049. ..RESPONDENTS

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(BY SRI ANOOP, ADVOCATE FOR SRI ASHOK HARNAHALLI ASSTS. FOR R-1 R-2 IS SERVED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 13.12.2006 PASSED IN O.S.No.849/2003 ON THE FILE OF THE I ADDL.CIVIL JUDGE (SR.DN.), BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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THIS RFA COMING ON FOR HEARING THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Appeal is directed against the Judgment and decree dated 13.12.2006 passed in O.S.No.849/2003 by the I Additional Civil Judge, Senior Division, Bengaluru Rural District, Bengaluru, wherein the suit of the plaintiffs came to be dismissed with cost.

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In order to avoid overlapping and confusion parties are addressed in accordance with their status and rankings as stood before the trial court.

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The suit is for declaration of title and permanent injunction and the subject matter is immovable property consisting agricultural land. Suit came to be dismissed with cost. Hence, it is appeal by the plaintiffs.

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The substance of the case of the plaintiffs is that plaintiff No.1 M.S.Muniraju, M.S.Nagaraju, M.S.Narayanaswamy and M.S.Krishnappa are all sons of one Sanjeevappa. Defendants are M.A.Muniyappa and A.M.Shamanna. Both are sons of Anjinappa.

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The said Sanjeevappa and Anjinappa are brothers and name of another brother is Nanjappa.

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All the said three persons namely Sanjeevappa, Anjinappa and Nanjappa are the sons of one Gummanna. Said Gummanna is dead and the three sons of Gummanna stated to have partitioned the joint family property on 21.09.1953 and got their respective shares of properties is not disputed. After the said partition, Nanjappa came out of family. However, Sanjeevappa and Anjinappa continued in the joint family.

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Land in survey No.77 measuring 30 guntas out of 01 acre 23 guntas, land in survey No.126 (old) new Sy.No.190 to the extent of 05 acres 01 gunta and land in survey No. 189 (old Sy.No.187) to the extent of 05 acres 02 guntas situate at Mandur Village were purchased in the name of Anjinappa under the registered sale deeds dated 18-10-1954, 02-03-1956 and 23-07-1959 out of joint family funds. Since

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Anjinappa was elder, the properties were purchased in his name. But Sanjeevappa and Anjinappa continued in joint family. After the death of Anjinappa oral partition took place between the defendants and father of plaintiffs. The suit schedule properties were allotted to Sanjeevappa, father of the plaintiffs.

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Land measuring 33 guntas in Survey No.77 and 05 acres 02 guntas in Survey No.189 fell to the share of defendants. There was mis understanding between plaintiffs and their father Sanjeevappa. Hence partition was effected and revenue authorities were approached and Anjinappa's children/defendants gave consent for effecting change of katha and revenue entries in respect of the suit schedule properties recognizing the share of Sanjeevappa and accordingly, mutation was accepted in the name of Sanjeevappa as per MR No.25/1992-93 dated 26-10-1992. Thus,

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according to plaintiffs, the partition that was effected subsequent to death of Anjinappa was a total and complete one and binding on both the parties. Other than the properties that fell to the share of Anjinappa's children /defendants, they have no right, title or interest and possession in respect of the suit schedule properties which are thus fell to the share of plaintiffs' father Sanjeevappa.

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It is further contended that defendants without having any right, title or interest over the suit properties have started interfering with the possession and enjoyment of the suit schedule properties and they have also raised a dispute before the Assistant Commissioner, Bangalore North Sub-Division by filing R.A.No.113/2000-2001 challenging the mutation effected in the name of Sanjeevappa. The Assistant Commissioner set aside the mutation and remanded the matter to the Tahsildar for fresh enquiry and

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thereafter, Special Tahasildar passed an order to effect revenue entries in the name of defendants in respect of the suit schedule properties.

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9. The plaintiffs' further claim that revenue entries

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were transferred in the name of defendants from the name of plaintiffs through unauthorized and unlawful manner. The records of the properties were transferred in the name of plaintiffs' father recognizing the legal effect of the partition that is stated to have been entered into between the plaintiffs' father and defendants.

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Defendant Nos. 1 and 2 entered appearance through their counsel, but defendant No.2 has not chosen to file his written statement and contest the suit. Defendant No.1 filed his written statement.

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The defendants being the offsprings of Anjinappa are two in numbers and opposed the claim of the plaintiffs. The contention of defendant No.1 in substance is that, the joint family originally headed by Gummanna got disrupted admittedly on 21-9-1953. Thereafter, plaintiffs' father and defendants' father started holding their share as divided members of Hindu Joint Family. There was no question of continuation of joint family between the plaintiffs' father and Anjinappa nor was their any reunion between Sanjeevappa or his children and Anjinappa or his children. It is their further contention that the schedule properties form the exclusive properties of Anjinappa in respect of which plaintiffs have no any kind of right title, interest or possession.

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The learned trial Judge on the basis of the pleadings and contentions of the parties framed the following issues and answered as under:

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"1. Whether the plaintiffs prove that they are the owners of suit schedule properties?

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Whether the plaintiffs prove that they are in lawful possession of the suit schedule properties as on the date of suit?

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Whether the plaintiffs prove that the alleged interference by the defendants?

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Whether the 1^st defendant proves that the suit as brought is not maintainable?

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What Order or Decree?

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During the trail, the plaintiff has been examined as P.W.1 and other three witnesses have been examined as P.Ws.2 to 4 and got marked Ex.P.1 to Ex.P.42. The first defendant examined as D.W.1 and got marked Ex.D.1 to Ex.D.31 and closed the side.

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I have heard the arguments of both the Learned Counsel and perused the records.

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My finding on the above issues are as under:-

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Issue No.1 in the Negative Issue No.2 in the Negative Issue No.3 in the Negative Issue No.4 in the Affirmative. Issue NO.5 As per final order."

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Learned trial Judge was accommodated with the following oral and documentary evidence on behalf of

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the both the parties:

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Plaintiff:

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"P.W.1.M.H.Muniraju P.W.2. Muninanjinappa P.W.3 Ramnajinappa P.W.4 Appaji Gowda.

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Ex.P.1 Genealogical Tree Ex.P.2 to P.4 are the C.C. of the Sale Deeds. Ex.P.5 to 25 are the R.T.C. Extracts Ex.P.26 Mutation Register Extract Ex.P.27 Form No.21 Ex.P.28 Assistant Commissioner's Orders. Ex.P.29 and P.30 are the Kandayam Paid Receipts. Ex.P.31 and P.32 are the Pathanis. Ex.P.33 to P.36 are the Objections Copies Ex.P.37 to C.C. of the Tahsildar's Orders Ex.P.38 C.C.of the Ordersheet. Ex.P.39 C.C. of the orders in W.P.No.16061/04. Ex.P.40 C.C. of Orders in W.P.No.16061/04. Ex.P.41 C.C. of Orders in R.A.No.54/2004-05. Ex.P.42 C.C. of the Interim orders.

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Defendants:

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D.W.1. M.A.Muniyappa Ex.D.1. Partition Deed dated 21.9.1953 Ex.D.1(a) Typed Copy of D1. Ex.D.2 Original Sale Deed dated 18.10.1954. Ex.D.3 Original Sale Deed dated 23.07.1959. Ex.D.4 Original Sale Deed dated 29.09.1954. Ex.D.5. Record of Rights.

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Ex.D.6. Index of land. Ex.D.7 Pahani Ex.D.8 and D.9 are the Mutation Register Extracts. Ex.D.10 to D.18 are the Pahanis. Ex.D.19 to D.22 are the Tax Paid Receipts. Ex.D.23. C.C. of the Orders in R.A. Ex.D.24. C.C of the Orders in R.R.T.(DS)27/2002-03. Ex.D.25. C.C. of the Orders in R.A.No.80/2003-04. Ex.D.26. C.C. of the Orders in R.A.No.54/2004-05. Ex.D.27. C.C. of the orders in W.P.No.16061/04. Ex.D.28 and D.29 are the Police Acknowledgements. Ex.D.30 and D.31 are the Pahanis."

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Upon conclusion of the trial, learned trial Judge answered issue Nos. 1 to 3 in the negative, issue No.4 in the affirmative and as per final order, dismissed the suit of the plaintiffs. Aggrieved by the same, the plaintiffs have preferred this appeal.

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Learned counsel Mr.Vijay Krishna Bhat for plaintiffs submitted that the learned trial Judge erred seriously in dismissing the suit of the plaintiffs. The learned trial Judge erred in losing sight of established principles of joint Hindu family. Learned counsel also

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emphasizes on the point that there was consent for bifurcating the katha of item No.2 of the schedule property. The defendants legally tendered their consent for katha to be effected for 30 guntas in the name of the plaintiffs. Learned counsel further stresses that when the total extent of land is 01 acre 23 guntas and there was no reason for the defendants to give consent for change of katha. Learned counsel would further emphasize on the point that when katha is transferred in the name of the plaintiffs by consent of the defendants which invariably amounts to recognition of the right of the plaintiffs over the schedule property. In the said connection, defendants are estopped from contending to the prejudice of the plaintiffs. Learned counsel would further submit regarding RTC extract produced at Ex.P14 and in the column meant for possession showed the name of 'Anjinappa'. The name of 'Anjinappa' is bracketed and

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thereafter name of 'Sanjeevappa' is mentioned. Learned counsel submits that it is not uncommon for reunion of a partitioned family among Hindus, as such, if joint family members once partitioned there is no embargo for them to reunite and to have the continuation of the joint family. It is in this connection though the sons of Gummanna got partitioned, Sanjeevappa and Anjinappa decided to continue.

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Learned counsel Mr.Anoop for defendants would submit that suit is filed against the well established principles of Hindu law relating to joint family. The partition of the year 1953 is not disputed and on the other hand, it is admitted positively by the plaintiffs. There is no question of reunion of family thereafter and as such the acquisition made by Anjinappa, father of defendants never belonged to joint family with Sanjeevappa, father of plaintiffs. Thus, the acquisition made by Anjinappa formed the property of

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his separate family consisting of Anjinappa and his children being defendant Nos. 1 and 2.

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In the meanwhile, father of the plaintiffs has managed to get the revenue records in his name and it is due to misrepresentation. Regard being had to the fact that it is not binding on the defendants. The defendants are in actual possession and enjoyment of the schedule properties.

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In the context and circumstances of the case,

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the following points are amply clear:

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Existence of joint family led by Gummanna, father of Anjinappa, Sanjeevappa and Nanjappa at earliest point of time is not disputed;

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The partition dated 21-9-1953 effected among the three brothers, namely Anjinappa, Sanjeevappa and Nanjappa is not disputed;

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The properties are stated to have been allotted to the siblings, namely Anjinappa, Sanjeevappa and Nanjappa;

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After the partition, Nanjappa went away from the joint family and there is no participation from his side for any of the development thereafter.

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It is the stance of the plaintiffs that subsequent to partition of the year 1953, Sanjeevappa, father of plaintiffs and Anjinappa, father of defendants continued in joint family and three items of land and properties were purchased by Anjinappa, in the name of Anjinappa on 18-10-1954, 02-03-1956 and 23-07-1959 namely; (1) Survey No.77 measuring 01 acre 23 guntas on 18-10-1954; (2) survey No.126 (Old)New No.190 measuring 05 acres 02 guntas on 23-07-1959 and (3) Survey No.137 (old) new No.189, 5 acres 02 guntas on 02-03-1956 marked as Exs.P2 and P3.

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Plaintiffs claim that subsequent to the death of Anjinappa, Sanjeevappa who is the brother of Anjinappa and the children of Anjinappa who are the

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defendants divided the suit three items of properties, wherein plaintiffs' father got the suit schedule property i.e. one full item and half item in the another out of three items of the properties. It is in this connection, plaintiffs claim that purchasing of properties in the name of Anjinappa is only as a mark of heritage and respect as Anjinappa was the eldest son of Gummanna.

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Though it is a regular first appeal under Section 96 of CPC, it also involves the question of law regarding the rules of partition under the Hindu law, recognition of the divided members and the legal effect therein.

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Insofar as the claim of the plaintiffs is concerned, disruption of the joint family as per the partition dated 21-9-1953 was not a genuine and complete one as subsequently, plaintiffs' father Sanjeevappa and

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defendants' father Anjinappa continued to be joint as the members of joint family. Regard being had to the fact that it was only Nanjappa who chose to be separate by virtue of partition. Thus, it is the stance of the plaintiffs that the joint family both disrupted and reunited. Nodoubt, both are not foreign to Hindu law regarding joint family.

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Insofar as the concept of 'partition' is concerned,

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the properties are divided at the time of partition which may be partial or total. It is partial when only some of the joint family properties are divided and rest are kept to be joint and in which event, the status of the joint family would continue in respect of the properties that are not divided. Equally, partition may be with reference to only one or some of the members of the joint family, in which event, only the outgoing member gets disconnected with the joint family and terminates all relationship except the

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blood relationship. In which event also, the partition is partial. At this stage, I am reminded of the principles that parties by themselves enter into a partial partition, but there cannot be a suit for partial partition which is based on the principles that all the properties of the joint Hindu family and all the parties are to be included in the suit for partition. The popular mode of a partial partition wherein one or some of the members of the total joint family get partitioned is also regarded as 'release'. It is in the said connection, plaintiffs claim that second partition was effected subsequent to 1953.

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The claim of the appellants as the plaintiffs in the trial court is for declaration of title and permanent injunction. According to them the partition that was effected on 21.09.1953 was only in connection with one of the joint family member namely Nanjappa.

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However the joint family with reference to plaintiffs father and Anjinappa father of defendants continued. Interestingly plaintiffs' claim is against the context and circumstances of the case. The partition deed Ex.D-1 is effected among all the three brothers namely Anjinappa, Sanjeevappa and Nanjappa and there is no recital in the said deed regarding the continuation of joint family between plaintiffs' father Sanjeevappa and Anjinappa or his children (defendants). There could have been another document or circumstance or materials reliable in case the plaintiffs' father Sanjeevappa, Anjinappa or his children had continued in the joint family. It is in this connection Mr.Vijay Krishna Bhat learned counsel for plaintiffs/appellants would submit that it was a oral understanding and partition between Sanjeevappa and children of Anjinappa namely defendants continued jointly.

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Learned counsel emphasized that request was given for opening khatha of 33 guntas in favour of Anjinappa in respect of land in Sy.No.77 and it could have been request for entire extent of 1 acre 23 guntas in the name of Anjinappa. Reason for foregoing 30 guntas and confining khatha to 33 guntas raises a big question.

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Mr.Bhat learned counsel for appellants submits that the oral understanding or partition was effected between Sanjeevappa and legal representatives of Anjinappa somewhere during the year 1978. This was controverted by learned counsel for defendants saying that the age of the defendant No.1 as per the plaint cause title is 58 years as on 2003. However it is denied that no partition had taken place. The prime principle accepted for partition is that all the

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properties are to be included and all the necessary parties to be included to the suit for partition.

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The claim of continuation of joint family even after partition deed Ex.D-1 dated 21.09.1953 is not evidenced by documents as stated by the plaintiffs. But there must be some enabling documents on the revenue side. When a khatha is agreed to be changed or transferred or modified by virtue of a partition wherein participating parties have no dispute khatha will be changed in accordance with the arrangement or family partition. In this connection there should have been transfer of khatha being made in the name of both the parties. In the relevant column of RTC or mutation normally in the regional language the term used for effecting khatha on the basis of partition is 'vibhaga' or 'panchayat palupatti'. But no such document is placed. Insofar regarding khatha of item

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No.1 of Schedule property is concerned, learned counsel for defendants would submit that effecting of khatha was not within the knowledge of the defendants. It is in this connection the defendants have not explained as to why or what was the reason for delay in taking action regarding change of khatha from the name of plaintiffs. It was submitted that Sanjeevappa being paternal uncle played fraud and got the revenue entries beyond the back of the defendants. However revenue proceedings were initiated during 2001. Again in this connection it is necessary to mention such change of entry is regarding item No.2 of schedule properties. In continuation of my observation regarding including of all the properties, participation of all the parties to the partition, it is necessary to mention that when the partition did not happen between plaintiffs' father and Anjinappa, father of defendants or if happened and it

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was reunited there should be an account in respect of all the properties and total number of properties when Nanjappa went out of the house as it is partial. According to plaintiffs except exclusive share taken by Nanjappa the remaining properties should have been continued as joint family properties. But as per the partition deed 13 items of property fell to the share of Sanjeevappa now deceased and 12 properties to Anjinappa, father of defendants. But the sharing of two items of properties it does not give any meaning at all. Again it cannot be partial partition against brothers. Neither there is document or enabling material or circumstances in that connection. Further if the earlier properties if continued or if Sanjeevappa and Anjinappa had reunited subsequent to partition the joint family should give account for total properties. Oral partition of the year 1978 plaintiffs are accounted for the division of properties. Plaintiffs

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are tight lipped with regard to other properties. Insofar as other properties allotted in the partition deed of the year 1953, it is quite pertinent to note schedule properties could not have been in existence in the year 1953 as it was acquired by Anjinappa subsequent to partition. It is not the case of the plaintiffs that those properties were remained joint family properties but left out in the partition. It is not the case that plaintiffs and Anjinappa, father of defendants earned three items of property from the earnings of joint family properties. Examined from any angle plaintiffs does not make out a case for declaration of title or permanent injunction. The isolated entry regarding RTC extract cannot be claimed that was made in the name of plaintiffs and was subsequently restored in the name of defendants. The entry in the name of plaintiffs cannot be taken advantage by the plaintiffs. It is on the part of the

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plaintiffs to explain the legitimacy or legal sources of revenue entry. Neither plaintiffs had acquired it nor contributed any efforts to acquire said property nor it is devolved upon them in law. More over plaintiffs also cannot take advantage of a lapse or irregularity in the case of defendants for establishing their case. The plaintiffs have to sink or sail on the basis of their own case. The said momentary entry in the revenue records does not support the case of the plaintiffs.

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In the whole circumstances, I find the Judgment and decree passed by the learned trial Judge does not call for interference but deserves to be confirmed. In the result, appeal stands dismissed. No order as to cost.

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SBN/tsn*

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Sd/JUDGE

M S Muniraju v. Sri M a Muniappa

Case brief

What is this about?

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M S Muniraju v. Sri M a Muniappa

Case brief

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