Dismissed

Smt M P Kamala Poovanna W/O Late M B Poovanna v. M B Nanjamma W/O Late Belliappa

Karnataka HC27 Sept 2024RFA/2193/2006

Case brief

AI extract

What is this about?

First appeal challenging a trial court decree in a partition suit. The appeal argued non-joinder of necessary Coorgi family members and rules against alienation. The High Court dismissed the appeal, finding the trial court justified in decreeing the suit due to lack of rebuttal evidence from the legal heirs of the defendant regarding necessary parties or property division.

What did the court decide?

The first appeal filed by the legal heirs of Defendant No. 1 was dismissed, upholding the trial court's decree granting a 1/4th share to the plaintiffs.

Smt M P Kamala Poovanna W/O Late M B Poovanna Vs M B Nanjamma… — Partition | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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R.F.A NO.2193 OF 2006 (PAR)

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BETWEEN:

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1 . SMT. M.P. KAMALA POOVANNA W/O LATE M.B. POOVANNA AGED ABOUT 65 YEARS

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2 . SRI. M.P. RASANNA S/O LATE M.B. POOVANNA AGED ABOUT 25 YEARS

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BOTH ARE R/O KADANOOR VILLAGE AND POST VIRAJPET TALUK KODAGU DISTRICT-571 218.

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...APPELLANTS

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(BY SRI. K. SAROJINI MUTHANNA, ADVOCATE)

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AND:

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1 . M.B. NANJAMMA W/O LATE BELLIAPPA AGED ABOUT 58 YEARS

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2 . M.B. BHEEMAIAH S/O LATE BELLIAPPA AGED ABOUT 30 YEARS

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2(A) SMT. SHARIN BEEMAIAH W/O LATE M.B. BEEMAIAH

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2(B) MISS. MAHIMA BEEMAIAH D/O LATE M.B. BEEMAIAH

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2(C) MISS. INCHARA BEEMAIAH D/O LATE M.B. BEEMAIAH

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R/AT MAHINCHARA 2/3 GURURAJ LAYOUT, 3^RD CROSS DODDANEKUNDI, MARATHALLI BANGALORE-37.

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3 . M.B. SOMAIAH S/O LATE BELLIAPPA AGED ABOUT 28 YEARS

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ALL R/O CHIKPET, VIRAJPET KODAGU DISTRICT EXCEPT R2(A), R2(B) AND R2(C)

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4 . SMT. SHARADA MAJOR W/O LATE CHENGAPPA NO. 446, 1ST CROSS ANJANEYA TEMPEL ROAD KUVEMPUNAGAR, MYSORE.

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5 . P.S. KAVERIAPPA MAJOR KUNJALGERI VILLAGE BELLUMADU POST, KODAGU DISTRICT.

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6 . M.U. ACHAIAH MAJOR S/O LATE UTHAPPA

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7 . M.U. PONNAPPA MAJOR S/O LATE UTHAPPA

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BOTH R/O FIELD MARSHAL CARIAPPA ROAD, MADIKERI KODAGU-571 201.

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[CAUSE TITLE AMENDED V/O DTD 07.12.2023]

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…RESPONDENTS

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(BY SRI. RAHUL KARIAPPA, ADVOCATE FOR R1, R2(A TO C) AND R3;

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V/O DATED 14/03/2011 R5 IS DELETED; R6 AND R7 ARE SERVED;

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V/O DATED 03/01/2023 APPELLANTS ARE EXEMPTED FROM BRINGING LRs OF DECEASED R4 ON RECORD)

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THIS RFA IS FILED UNDER SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 05.07.2006 PASSED IN O.S.NO.44/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) VIRAJPET, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS RFA HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.08.2024, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER:

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CORAM: HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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JUDGMENT

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The captioned first appeal is by the legal heirs of

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defendant No.1 questioning the judgment and decree rendered in a partition suit bearing O.S.No.44/2003.

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2. For the sake of convenience the parties are

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referred to as per their rank before the trial Court.

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3. The family tree is as under:

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PONNAPPA

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|
|
KARUMBAIA
||
H
|
||
|
MADAIAH
|____
|
|
AIYANNA| |---|---|---|---|---|---| |
|
KUTTAIAH
|

THIM
|
|
MAIAH
||||| |

AIY

|______
|
ANNA

|_
|
BELLI
|
|
THIMMAIAH
|_____
|
APPA MADAIAH

|
BHEEMAIAH
|||| |
|
BELLIAPP
||

CH
|
|
INGAPPA PEM
|
| |
MAIAH UTHAPPA
||_______
|
THAMMAIAH
|
|
POOVANNA
|| |
||
|__
||
| |||
|| |M.B. BHEEMA
SON
DEF.NO.2

|IAH

|M.B. NANJAMMA
SON
PTF.NO.1

M.U.

DE

|M.B.SOMAIAH |
SON |
PTF.NO.3 |
|
_________|_
|
ACHAIAH
SON
FT.NO.4

|
M.P. KAMA
WIFE
DEFENDANT|

_
|
M.U.PONNAP
SON
DEFT.NO.5 (EXP

_______

LA

.NO.1(1)
||
|
|
|
|
|
PA |
|
ARTE) |
|
|_____
|
M.P.PRASANNA
SON
DEFT.NO.6
B1(A) DISMISSED
APST DEFT.|

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4. The facts leading to the case are as under:

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One Bheemaiah is the propositus of plaintiffs and defendants who had six sons. The elder son Belliappa is the husband of plaintiff No.1 and father of plaintiffs 2 and 3. Plaintiffs contend that even after death of Bheemaiah, the schedule property is held jointly by the sons of Bheemaiah. Defendant No.1 is residing in Kunjelgeri village as it is more convenient and feasible to maintain the suit schedule properties. Plaintiffs contend that first defendant is managing the suit schedule properties on behalf of plaintiffs and defendants 2, 4, 5 and 6. Plaintiffs contend that though defendant No.1 initially was sharing the crops grown in the suit schedule properties, he has abruptly stopped from sharing the income generated from the suit schedule properties since 1997. Plaintiffs are also aggrieved by the defendants' action of obtaining the CRC and transferring the Jamabhandhi to his name

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with regard to the portion of the suit schedule properties without consent of the plaintiffs. Apprehending that defendant No.1 is trying to alienate the suit schedule properties, plaintiffs issued a legal notice on 22.6.1999 calling upon defendant No.1 to effect partition. Present suit is filed alleging that defendant No.1 has declined to effect partition and issued a vague reply asserting that the suit schedule properties belongs to him. On these set of pleadings, plaintiffs instituted a partition suit.

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Defendant No.1, on receipt of summons, tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. Defendant No.1 contested the suit by contending that suit schedule properties are not yet divided among the family members and the lands are cultivated according to their convenience. Defendant No.1 contended that he is in exclusive possession of

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item No.6 since 1980-81 and remaining lands and other survey numbers are cultivated by the family members as per their convenience.

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Defendant No.1 specifically contended that

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suit is bad for non-joinder of necessary parties on the premise that all the family members belonging to Mukkatira family are not made parties to the suit and hence, prayed to dismiss the suit for non-joinder of necessary parties.

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Defendant No.1 also alleged that plaintiffs

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and defendants have divided their father's property on 9.2.1998 by way of a partition mahazar and the plaintiffs and defendants have sold the properties partitioned. Defendant No.1 also contended that items 1 to 3 are not in his possession and hence, prayed for dismissal of the suit.

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Pending suit, defendant No.1 died and his L.Rs were brought on record.

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Based on the pleadings of the parties, the trial Court framed issues. Plaintiffs to substantiate their claim let in oral and documentary evidence. Though legal heirs of defendant No.1 were brought on record, none of them have chosen to mount the witness box. On the contrary, L.Rs of defendant No.1 have led evidence through G.P.A. holder.

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Trial Court on appreciation of oral and documentary evidence answered Issue Nos.1 and 2 in the affirmative. Trial Court held that plaintiffs have succeeded in proving their joint possession of suit schedule properties. While answering Issue No.4 in the negative, trial Court held that defendants have failed to substantiate that suit is barred by nonjoinder of necessary parties. On these set of

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reasoning, trial Court decreed the suit filed by the plaintiffs.

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Heard the learned counsel for the plaintiffs

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and the learned counsel appearing for defendant No.1.

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Learned counsel appearing for the legal heirs of defendant No.1 reiterating the grounds urged in the appeal memo has vehemently argued and contended that the present suit for partition is not maintainable for non-joinder of necessary parties. Plaintiffs would contend that the suit schedule properties are not partible and there is no division in the family. He would point out that the present suit is filed by impleading only Bheemaiah's branch and therefore, the suit schedule properties cannot be partitioned without arraying all the family members. She would vehemently argue and contend that the suit schedule properties are privileged lands and

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therefore, plaintiffs do not get proprietary rights. She would vehemently argue and contend that there is absolutely no evidence let in by the plaintiffs that Mukkatira family properties are partitioned and that suit schedule properties were allotted to the share of propositus Bheemaiah. It is argued that the suit schedule properties are in possession of defendant No.1 and is cultivating the land for last 25 years. Referring to Manual of Coorg Civil Law, she would contend that alienation is prohibited under Chapter VI while partition is also impermissible under Chapter X of the said Manual. In support of her contentions, she has placed reliance on following judgments:

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"1. Coravanda A Nanjappa and others .vs. Coravanda Thimaya and others [1963 (2 Mys.L.J) P 486

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2. B.R. Sharathchandra and others .vs. K.D. Poovaiah and others [ILR 2006 KAR 3605]

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3. Brig. Maletira A. Devaiah .vs. State of Karnataka and others [WA.No.55534/23 and connected cases D.D. 25.7.2024]

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Referring to the law laid down by this Court in the case of B.R. Sharathchandra and others, she would contend that there is prohibition to file suit for partition and division of properties, more particularly, when the family is undisputedly a Coorg family.

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Per contra, learned counsel appearing for plaintiffs would vehemently argue and contend that defendant No.1 and the present legal heirs of defendant No.1 cannot deny plaintiffs' legitimate share in the suit schedule property. Referring to the findings recorded by the trial Court, he would contend that neither defendant No.1 nor legal heirs of defendant No.1 have stepped into the witness box and they have failed to discharge their burden and therefore, trial Court was justified in decreeing the suit filed by the plaintiffs. He would contend that the plaintiffs suit can be non-suited provided the legal heirs of defendant No.1 are able to demonstrate that

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suit is bad for non-joinder of necessary parties. He has vehemently argued and contended that there is no rebuttal evidence and hence, he would requests to dismiss the appeal.

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This Court has meticulously reassessed the pleadings and oral and documentary evidence. The following point would arise for consideration:

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i) Whether the judgment and decree rendered by the trial Court in decreeing the suit suffers from perversity?"

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This case arises from a partition suit

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initiated by the plaintiffs, seeking a declaration of their rights to a share in the ancestral property belonging to the Kunjalageri-Mukkattira family. The defendant, specifically Defendant No.1, has filed a written statement contending that the suit is flawed due to the non-joinder of necessary parties. In the written statement, Defendant No.1 details the lineage of the

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family and asserts that the properties have not been partitioned, arguing that all members of the family must be included as defendants in the suit for a just resolution.

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The pertinent extracts from the written statement, particularly paragraphs 9 to 16, provide an extensive genealogy of the family and assert that most properties in question remain undivided. Defendant No.1 claims exclusive possession of certain properties since 1980-81 and emphasizes that these properties are still held in the name of the original pattedar, Sri. Achaiah. This contention is critical, as it seeks to establish the necessity of including all family members in the proceedings, alleging that the failure to do so renders the suit defective.

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Before this Court delves upon the finding recorded on Issue No.4, this Court deems it fit to examine the stand taken by defendant No.1 in the written statement. Paras 9 to 16 are relevant, which are extracted as under:

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"9. That the Kunjalageri- Mukkattira family with their common ancestors Ponnappa, got 3 sons Karumbaiah, Madaiah, Aiyanna, among 3 sons Karumbaiah, had two sons Kuttaiah and Thimmaiah and Thimmaiah, had 3 sons Aiyanna, Belliappa and Madaiah. Belliappa, had 2 sons Thimmaiah, and Bheemaiah. The said Bheemaiah, is the fathers of the defendant No.1 and father - in - law of 1st plaintiff and 2nd defendant and grand father of plaintiff 2 and 3 defendant No. 3.

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10. That the property belongs to the Mukkattira family is not divided among the family members and most of the family members have cultivated the wet and bane lands according to their convenience and necessity the defendant No.1 cultivated Item No.6 of the suit schedule property in the year 1980-81. Out of the family land and it is in exclusive possession and enjoyment of the Defendant No.1 since from 1980-81 and the remaining bane land is in the same sy No.27/1 and other survey numbers cultivated by

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the family members according to their convenience and lying vacant also. Item No.5 of the suit schedule property 6.60 acres of Coffee cultivated land has been purchased by the first Defendant from his member Kashiyappa, for a consideration of Rs.65,000/in the year 1990 wherein Mr.Kashiyappa, has cultivated the said property as a family member.

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11. The other suit schedule property along with other wetlands are in the possession of the family members along with the plaintiff and defendants.

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12. That there are other bane lands belong to the Mukkattira family lying vacant without cultivation.

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13. That the suit is bad for non - joinder of necessary parties as all the family members belongs to the Mukkatira family must be made as a party to the suit as entire family property is not divided among the family members by meets and bounds and all the properties are stands in the name of the Pattedar Mukkatira Achaiah, and he also not made as a party to the suit.

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14. That all the family members of Mukkattira family belongs to single branch and there is no defendant branches in Mukkatira family and all the property stands in the name of one Pattedar Sri. Achaiah.

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15. That the plaintiff with a motive to grab the property of 1st defendant not included the other property of Mukkatira family and there are other properties which is in the possession of the family members cultivated with coffee as well as bane lands are not included in the suit schedule property.

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16. That the plaintiff and the defendants have divided their fathers property on 9.2.1988 by a partition Mahazar and accordingly they have sold some of their share of properties accordingly. The plaintiff sold some of their property on 24.10.1990 to B.S. Nagendra Rao, and others of Heggala village. Wherein the plaintiff have admitted the partition and all these years they have enjoyed the fruits of the properties and with a motive for illegal gain the plaintiff have filed the suit."

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Upon reviewing the pleadings presented by Defendant No.1, the defense appears to be intricate and multifaceted. While it is acknowledged that there has been no formal partition within the Mukkatira family, Defendant No.1 simultaneously claims exclusive rights to certain properties and asserts that

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the plaintiffs have also engaged in the cultivation of some family lands. This duality suggests a complicated relationship among the family members regarding possession and management of the properties.

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The assertion that the plaintiffs have not included all family members as necessary parties is a serious claim. However, the evidence provided fails to substantiate this argument. During the proceedings, neither Defendant No.1, during his lifetime, nor his legal heirs have produced credible evidence to demonstrate that the plaintiffs' failure to join additional parties impacts the validity of the suit. D.W.1’s testimony, as revealed in cross-examination, underscores a significant lack of knowledge regarding family transactions, further diminishing the credibility of the defense.

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D.W.1 has pleaded his ignorance relating to family transactions. He has gone to the extent of exhibiting his ignorance in regard to the properties held by propositus Bheemaiah. It would be useful for this Court to cull out relavant portion of his crossexamination, which reads as under:

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"¥ÀÆªÀtÚ£ÀªÀgÀ CdÓ£À ºÉ¸ÀgÀÄ ¨É½îAiÀÄ¥Àà JA§ÄªÀÅzÀÄ UÉÆÃwÛ®è. £À£ÀUÉ CªÀgÀ ªÀA±ÀªÉÊPÀë PÀÄjvÀÄ UÉÆwÛ®è. ¥ÀÆªÀtÚgÀªÀgÀ vÀAzÉ ©üÃªÀÄAiÀÄå ¤d. ©üÃªÀÄAiÀÄågÀªÀgÀ ¸ÀºÉÆÃzÀgÀgÀÄ ºÁUÀÄ ©üÃªÀÄAiÀÄå CªÀgÀ D¹ÛUÀ¼À£ÀÄß ¥Á®Ä ªÀiÁrPÉÆArzÀÝgÉA§ÄªÀÅzÀÄ £À£ÀUÉ UÉÆwÛ®è. zÁªÁ¹ÛAiÀÄÄ ¥Á°£À°è ¸À¢æ ©üÃªÀÄAiÀÄågÀªÀjUÉ §AzÀ D¹Û JA§ÄzÀÄ £À£ÀUÉ UÉÆwÛ®è. ªÀÄÄPÁÌngÀ PÀÄlÄA§PÉÌ PÀÄAd®UÉÃjAiÀÄ°è ºÉÆgÀvÀÄ ¥Àr¹ ¨ÉÃj JqÉ D¹ÛUÀ½®è. ©üÃªÀÄAiÀÄågÀªÀjUÉ ¨É½îAiÀÄ¥Àà, ¥ÀÆªÀtÚ, vÀªÀÄäAiÀÄå, aAUÀ¥Àà, ºÁUÀÆ ¥ÉªÀÄäAiÀÄå ªÀÄvÀÄÛ GvÀÛ¥Àà JA§ ªÀÄPÀÌ¼ÀÄ ¤d. vÀªÀÄäAiÀÄå C«ªÁ»vÀgÁV ªÀÄÈvÀ¥ÀlÖgÀÄ. aAUÀ¥Àà ªÀÄÈvÀ¥ÀnÖzÁÝgÉ. ¥ÉªÀÄäAiÀÄågÀªÀgÀ EgÀÄªÀÅ ºÀ®ªÀÅ ªÀµÀðUÀ½AzÀ w½zÀÄ§A¢®è ¤d. zÁªÁ¹ÛUÀ¼À£ÀÄß ©lÖgÉ ©üÃªÀÄAiÀÄågÀªÀjUÉ ¨ÉÃgÉ D¹ÛUÀ¼ÀÄ E®è JA§ÄªÀÅzÀÄ £À£ÀUÉ UÉÆwÛ®è. zÁªÁ¹ÛUÀ¼ÀÄ

¶103

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¸ÀA¥ÀÆtðªÁV ¥ÀÆªÀtÚ£ÀªÀgÀ ¸Áé¢üÃ£ÀzÀ°è EªÉ JA§ÄªÀÅzÀÄ ¸ÀjAiÀÄ®è. zÁªÁ¹ÛUÀ¼À£ÀÄß 1£ÉÃ ¥ÀæwªÁ¢AiÉÄÃ ¥ÀÆtðªÁV C£ÀÄ¨sÀ«¸ÀÄvÁÛ §A¢zÁÝj JA§ÄªÀÅzÀÄ ¸ÀjAiÀÄ®è. ¨É½îAiÀÄ¥Àà §zÀÄQgÀÄªÁUÀ zÁªÁ¹ÛUÀ¼À£ÀÄß PÀÄAd®UÉÃjUÉ §AzÀÄ £ÉÆÃrPÉÆ¼ÀÄîwÛzÀÝgÀÄ JA§ÄzÀÄ ¸ÀjAiÀÄ®è. zÁªÁ¹ÛUÀ¼À°è ªÁ¢AiÀÄªÀjUÉ 3£ÉÃ MAzÀÄ ¨sÁUÀ EzÉ JA§ÄªÀÅzÀÄ ¸ÀjAiÀÄ®è. ©üÃªÀÄAiÀÄågÀªÀgÀ PÀÄlÄA§zÀ D¹ÛUÀ¼À°è AiÀiÁªÀÅzÉÃ ¥Á®Ä CUÀzÉÃ CªÀÅUÀ¼À£ÀÄß ¸ÀA¥ÀÆtðªÁV 1£ÉÃ ªÁ¢ C£ÀÄ¨sÀ«¸ÀÄwÛgÀÄªÀÅzÀÄ £À£ÀUÉ UÉÆwÛzÀÝgÀÆ ¸ÀÄ¼ÀÄî ºÉÃ¼ÀÄvÁÛ EzÉÝÃ£É JA§ÄªÀÅzÀÄ ¸ÀjAiÀÄ®è.

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ªÀÄgÀÄ «ZÁgÀuÉ : E®è.

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N ºÉÃ PÉÃ ¸À EzÉ."

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The critical issue of non-joinder is examined closely. The legal principle surrounding the joinder of necessary parties is intended to ensure that all parties with a significant interest in the outcome of the litigation are included in the proceedings. In this instance, the legal heirs of Defendant No.1 did not

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present any substantial evidence or testimony to support their claim. D.W.1, who was expected to provide clarity on this issue, exhibited a marked ignorance of key family affairs, failing to establish any meaningful connection to the claims regarding necessary parties.

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Given this lack of evidence, it is difficult to accept the contention that the absence of additional family members impacts the legality of the suit. The Court notes that the suit schedule properties are recognized as joint family ancestral properties, and the absence of a serious dispute regarding this fact further bolsters the plaintiffs' position. The Court is inclined to conclude that the plaintiffs are entitled to the relief sought.

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The findings recorded by the trial Court on Issue Nos.1 and 2 and issue No.4 do not suffer from

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any infirmities. In absence of rebuttal evidence let in by defendant No.1 and legal heirs of defendant No.1, the trial Court was justified in answering Issue No.4 in the negative. Defendants have failed to discharge their burden by proving Issue No.4. Therefore, this Court is of the view that the decree granted by the trial Court in granting 1/4^th share to plaintiffs does not warrant any interference.

¶114

Another argument presented by the legal heirs of Defendant No.1 pertains to the alleged embargo on partition and alienation of properties among members of the Coorgi community. This point, however, is raised for the first time during the appeal process and lacks any prior pleadings or framing of issues in the trial court. The Court observes that legal arguments must be rooted in the initial pleadings and cannot be introduced ex post facto. Consequently, this

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claim cannot be examined or considered in the

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present proceedings, as it lacks proper foundation.

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In view of the foregoing reasons, this Court proceeds to pass the following:

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ORDER

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The appeal is devoid of merit and accordingly,

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stands dismissed.

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SD/(SACHIN SHANKAR MAGADUM) JUDGE

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*alb/-

Smt M P Kamala Poovanna W/O Late M B Poovanna v. M B Nanjamma W/O Late Belliappa

Case brief

What is this about?

What did the court decide?

Smt M P Kamala Poovanna W/O Late M B Poovanna v. M B Nanjamma W/O Late Belliappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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