Sri. Angad S/O Thaku Gunagi Vs Smt. Bagaribai @ Rukma D/O Rumma Gunagi

THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING THAT THE JUDGMENT AND DECREE PASSED IN O.S.NO.48/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, KARWAR, DATED 27.06.2018, MAY PLEASE BE SET ASIDE WITH COST.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND

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THE HON'BLE MR. JUSTICE RAJESH RAI K

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NC: 2025:KHC-D:8281-DB RFA No. 100337 of 2018

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)

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The defendants 1 to 6 in O.S.No.48/2014 on the file of

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the Senior Civil Judge, Karwar, have filed this appeal against the judgment and decree dated 27.06.2018 by which the Court declared that the plaintiffs 1(a) and 1(b) are entitled for half share in suit schedule ‘A’ properties and also compensation amount in respect of suit schedule ‘B’ properties, and the plaintiffs 2 to 8 are together entitled to 1/24^th share and defendant No.7 is entitled to 1/24^th share in the suit schedule ‘A’ and ‘B’ properties. It was further held that the defendant No.1 was entitled for 1/24^th share while defendants 2 to 6 together are entitled for 1/6^th share and 1/24^th share in all the suit schedule ‘A’ and ‘B’ properties.

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For the sake of convenience and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court.

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The suit in O.S.No.48/2014 was filed for partition and separate possession of half share of deceased plaintiff No.1

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and share of plaintiffs 2 to 8 in suit ‘A’ and ‘B’ properties. The

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plaintiffs contended that their genealogy was as follows:

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Madu Gunagi (Dead) 1935
Thaku (Dead) 1992 Rumma (Dead) 1975
(Son) (Son)
Devaki Hemi Angad Huva Madi (Dead) 1985
(Dead 2004) (Daughter) (D-1) (Dead 2013) Widow
(Daughter) Defendant (Son) (Son)
Nilya No.7
Bagari
(Husband)
daughter
(Dead)
(Plaintiff No.1)
Kamala (Widow) D-2 )
Digamber Madhukar Prakash Nila Mangala Vimala Balu
(Son) (Son) (Son) (Daugher) (Daugher) (Daugher) (Son)
Pltf.2 Pltf.3 Pltf.4 Pltf.5 Pltf.6 Pltf.7 Pltf.8
Shridhar Dilip Rajani Kalpana
(Son) (Son) (Daughter) (Daughter)
Deft.No.3 Deft.No.4 Deft.No.5 Deft.No.6

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The plaintiffs claimed that the mother of plaintiffs 2 to 8 (Smt.Devaki) died on 15.12.2004 and their grandfather (Thaku) died on 21.12.1992. After the death of Thaku, the

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name of his son Huva was entered in the revenue records as per M.E.No.3362 of Arga village. The said Huva Thaku Gunagi

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had submitted a Varadi on 28.10.1998 to the Tahasildar, Karwar wherein he had clearly mentioned that the suit schedule ‘A’ properties were the joint family ancestral properties. The plaintiffs contended that there was no partition between the branch of plaintiff No.1 and the branch of plaintiffs 2 to 8, defendant No.1, defendant No.7 and defendants 2 to 6 in respect of the suit schedule ‘A’ properties. They contended that the suit schedule ‘B’ properties were the ones that were acquired by the State Government for ‘Sea Bird’ project. When the defendant No.1 and father of defendants 3 to 6 received the compensation, which was deposited in the Court, they demanded their 25% share. However, the defendant No.1 and father of defendants 3 to 6 assured that the share of the plaintiff No.1 and plaintiffs 2 to 8 would be paid shortly. However, neither defendant No.1 nor Huva Thaku Gunagi shared the compensation as promised by them. Therefore, the plaintiffs approached the defendants 1 to 6 again on 28.09.2014 demanding their legitimate share in the compensation amount. However, the defendants 1 to 6 had agreed to co-operate with the plaintiffs regarding getting back the compensation amount and thereafter advised the plaintiffs

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to get their share out of the compensation amount as well as the share in the suit schedule ‘A’ properties. The plaintiffs, therefore, contended that the defendants 1 to 6 were trying to dupe them of their legitimate share in the suit schedule ‘A’ lands as well as the compensation amount payable in respect of suit schedule ‘B’ properties. The plaintiffs therefore, sought for partition of their respective shares in the suit schedule ‘A’ and ‘B’ properties.

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The suit was contested by the defendants 1 to 7, who contended that there was no joint family comprised of Thaku and Rumma, who are children of Madu Gunagi. They claimed that Thaku and Rumma were half brothers born to Madu Gunagi and they never resided under one roof and never cultivated the suit schedule ‘A’ and ‘B’ properties and was never the joint family tenanted lands. They further contended that the Form No.7 filed by Thaku was not on behalf of the joint family but the Tribunal had granted the occupancy rights in his favour and not as a person representing the joint family. They also denied the entitlement of the plaintiff No.1 to half share in the schedule ‘A’ lands and half share in the compensation amount

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deposited in LAC No.271/1994. They contended that the compensation amount deposited in the Court was already paid to them. They further contended that the land bearing Survey No.71/2, being item No.2 of ‘B’ schedule, was purchased by Thaku Madu in terms of a sale deed dated 14.03.1955, following which revenue entries were made in his name as per M.E.No.1929 dated 23.05.1955. Likewise, Thaku Madu had purchased the land bearing Survey No.79, which was item No.3 of ‘A’ schedule and therefore, these two properties were the absolute properties of Thaku and the plaintiff No.1 did not have any share in the said properties.

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Based on these contentions, the Trial Court framed

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the following issues:

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1. Whether the plaintiffs prove that the suit schedule properties were the tenancy properties of Thaku and Rumma?

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2. Whether the plaintiff No.1 proves that he has ½ right in 'A' suit property and ½ in 'B' suit property?

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3. Whether the plaintiff No.2 to 8 prove that they have 1/8th share in 'A' and 'B' suit property?

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4. Whether the defendant's prove that late. Thaku contracted the tenancy for and on behalf of himself in his individual capacity after the death of his father and before his marriage?

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5. Whether the suit is maintainable in view of the provision of Sec. 18 & 30 of Land Acquisition Act?

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6. Whether the suit is barred by time?

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7. Whether the plaintiff's are entitled for the relief sought for?

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8. What decree or order?

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The plaintiff No.2 was examined as PW1 and he marked Exs.P1 to P24. The defendant No.1 was examined as DW1 and he marked Exs.D1 to D29.

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Based on the oral and documentary evidence, the

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Trial Court held that the suit properties were the properties of the family and were jointly owned, possessed and cultivated by the plaintiffs and defendants. It also held that the land bearing Survey Nos.71/2 and 79 were not the exclusive properties of Thaku as contended by the defendants 1 to 7, but were purchased when the family was joint. Consequently, it held that plaintiff No.1, representing the branch of Rumma, was entitled to half share in the suit schedule properties while the other

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plaintiffs and defendants were entitled to succeed to the share of Thaku in separate moieties. Being aggrieved by the said judgment and decree, the defendants are before this Court in this appeal.

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The learned counsel for the defendants contended that PW2, who is the legal heir of deceased plaintiff No.1, admitted in categorical terms that the suit properties were cultivated separately by Thaku and Rumma. He, therefore, contends that there is nothing on record to show that the suit properties were cultivated jointly at any point of time and therefore, the Trial Court committed an error in decreeing the suit and declaring that the plaintiff No.1 is entitled to half share. He also contends that the plaintiffs 2 to 6 are the children of Smt.Devaki, who was married prior to 1956, while the defendant No.7 was married prior to grant of the lands in question in favour of Thaku. He, therefore, contends that the plaintiffs 2 to 8 and the defendant No.7 are not entitled to any share in the suit schedule properties. He also contends that the plaintiff No.1 was married prior to the year 1974 and therefore, was not a part of the family as defined under Section 2(12) of

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the Karnataka Land Reforms Act, 1961. He relied on the judgment of Division Bench of this Court in the case of Nimbavva and others v. Channaveerayya and others reported in ILR 2013 KAR 6202 and contended that the daughters, who were married prior to the land being granted, were not entitled to succeed to the tenanted property and therefore, were not entitled to any share therein. Besides this, he contends that the suit items 1, 2 and 4 of ‘A’ schedule and items 1, 3 and 4 of ‘B’ schedule were granted to Thaku in his individual capacity and not as a member of the joint family and therefore, the plaintiff No.1 cannot claim a share in the suit schedule properties.

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Per contra, the learned counsel for the plaintiffs contended that the defendants had marked Ex.D13, which is Form No.7 filed by Thaku in respect of the land bearing Survey Nos.108/5A, 78/2, 12/1A and Survey Nos.18/1B, 56/1, 244/3 wherein he had declared that the said properties were cultivated for nearly 70 years by his forefathers. He, therefore, contends that these were tenanted properties of the family, which came into the hands of Thaku and after the promulgation

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of the Karnataka Land Reforms Act, 1961, an application in Form No.7 was filed by Thaku claiming occupancy rights. Therefore, he contends that there is substantial evidence to establish that the aforesaid lands were granted to Thaku not in his individual capacity but as the eldest male member of the joint family. Insofar as the land bearing Survey Nos.78/2, 71/2 and 79 that was allegedly purchased by Thaku in the year 1955, he contends that the family did not possess any other land and Thaku did not have any other independent source of income and therefore, the irresistible conclusion would be that the said properties were purchased by Thaku out of the income generated from the tenanted lands. Therefore, he contends that all the suit properties were properties that belonged to the joint family and after the death of Thaku and Rumma, the plaintiff No.1 was entitled to half share while other plaintiffs were entitled to the share of their predecessor Smt.Devaki. Thus, he contends that the impugned judgment and decree of the Trial Court is just and proper in view of the facts and circumstances of the case. He also contends that in view of deletion of Section 4 (2) of the Hindu Succession Act, 1956, the inheritance of tenancy rights under the Karnataka Land Reforms Act, 1961,

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has no bearing on succession. He, therefore, contends that for the purposes of Hindu Succession Act, 1956, if the property is held by a joint family, then all the members of the family are entitled to an undivided share. He submits that the judgment of Division Bench of this Court in the case of Nimbavva (referred supra) , was not good law in view of the judgment of the Apex Court in the case of N.Padmamma v. S.Ramakrishna Reddy reported in 2015 (1) SCC 417 , which was followed by Division Bench of this Court in RFA No.100149/2014. Therefore, he contends that it does not lie in the mouth of the defendants that the suit properties were the absolute properties of Thaku. He, therefore, contends that the impugned judgment and decree is just and proper and does not warrant interference at the hands of this Court.

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We have considered the submissions of the learned counsel for the defendants as well as the learned counsel for the plaintiffs. We have also perused the records of the Trial Court as well as the judgment and decree impugned herein.

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The only points that would arise for consideration of this appeal are:

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i) Whether the suit properties viz., items 1, 2 and 4 of ‘A’ schedule and 1, 3 and 4 of ‘B’ schedule were granted to the family or granted to Thaku, who was then eldest male member of the family?

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ii) Whether the purchase of suit item No.3 of ‘A’ schedule and suit item No.2 of ‘B’ schedule by Thaku could be construed as his independent property?

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The relationship of the parties is not in dispute. It is also not in dispute that Rumma predeceased Thaku in the year 1975. Therefore, Thaku being the eldest male member of the family was steering the family, which then comprised of his four children viz., Devaki, Hemi, Angad and Huva as well as the widow and daughter of deceased Rumma viz., Madi and Bagari. It is not in dispute that the suit item No.1, 2 and 4 of ‘A’ schedule and item No.1, 3 and 4 of ‘B’ schedule were the lands that were cultivated by the family. Thaku had filed an application in Form No.7 as per Ex.D13, in which Thaku declared as follows:

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“£ÀªÀÄä »jAiÀÄgÀ PÁ®¢AzÀ ¸ÀÄªÀiÁgÀÄ 70 ªÀµÀðUÀ½AzÀ

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gÉÊvÀ£ÁvÉ¬ÄAzÀ ¸ÁUÀÄªÀ½ ªÀiÁqÀÄvÉÛÃªÉ.”

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It is, therefore, evident that the suit properties aforesaid were not cultivated by Thaku in his individual capacity but inherited the tenancy from his predecessors. The revenue entries in the name of the father of Thaku in respect of the tenanted lands, which were marked as Ex.P12 to P21, bear testimony to the above fact. Therefore, though it is contended by the defendants that the tenanted lands were granted to Thaku in his individual capacity, the documents produced by the defendants themselves establish that it was not so, but was cultivated by the joint family. Therefore, the point No.(i) framed by this Court has to be answered in favour of the plaintiffs. Therefore, we are of the opinion that the lands mentioned in the point No.(i) were granted in the name of Thaku on behalf of the joint family.

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Insofar as point No.(ii) is concerned, it is not the case of the defendants that the family possessed any other properties, which was capable enough or generating enough to purchase the lands bearing Survey Nos.79 and 71/2 in the year 1955 in the name of Thaku. Since it is not in dispute that the family was cultivating six items of the properties, the revenue

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generated from those items could have aided Thaku in purchasing the lands bearing Survey Nos.79 and 71/2. There is no evidence on record to establish that Thaku had any independent source of income. Since the joint family possessed several tenanted lands, the only conclusion that could be drawn, in the absence of any material evidence to show that Thaku had any independent source, is that the aforesaid two items of properties were also purchased from out of income generated by the joint family. Therefore, the claim of the defendants that the aforesaid properties were not available for partition between the plaintiff No.1 and other parties is liable to be rejected.

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Insofar as contention of the defendants that deceased plaintiff No.1 and the predecessor of the plaintiffs 2 to 8 were married prior to the land being granted in the name of Thaku and therefore they are not entitled to share therein, what has to be considered is the labour that was contributed by deceased plaintiff No.1 and the predecessor of the plaintiffs 2 to 8 in cultivating the lands, which were tenanted. If that be so, the deceased plaintiff No.1 and plaintiffs 2 to 8 were entitled to

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the corresponding fruits of their labour i.e., a share in the suit schedule properties. The contention of the learned counsel for the defendants that the deceased plaintiff No.1 and predecessor of the plaintiffs 2 to 8 were not the members of the family as defined under the Karnataka Land Reforms Act, 1961, and therefore, they are not entitled to a share as they had not inherited the tenancy rights, may not be the correct position of law in view of the judgment of the Apex Court in the case of N.Padmamma (referred supra) . In that view of the matter, we hold that the judgment and decree passed by the Trial Court is just and proper in the facts and circumstances of the case and do not merit any interference.

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Before parting, it was brought to the notice of the Court that the defendant No.1 and the father of defendants 3 to 6 have constructed a house in item No.1 of the suit ‘A’ schedule property i.e. land in Survey No.108/5A of Arga village. It is therefore, prayed that while partitioning the properties, the Court may be directed to workout equity by allotting item No.1 to the defendant No.1 and defendants 3 to 6.

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If the defendant No.1 and defendants 3 to 6 have constructed a residential house on Survey No.108/5A and if the properties bearing Survey No.108/5A are comparable to the other properties, then the Final Decree Court may consider allotting the land bearing Survey No.108/5A to the defendant No.1 and defendants 3 to 6 and set off the share of the plaintiffs and other defendants in other properties to meet their respective shares.

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With the above observation, the appeal stands

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dismissed.

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SD/(R.NATARAJ) JUDGE

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SD/(RAJESH RAI K) JUDGE

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YAN CT:PA LIST NO.: 1 SL NO.: 23

Sri. Angad S/O Thaku Gunagi v. Smt. Bagaribai @ Rukma D/O Rumma Gunagi

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Sri. Angad S/O Thaku Gunagi v. Smt. Bagaribai @ Rukma D/O Rumma Gunagi

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