Smt. Mallawwa Laxman Yadahalli Vs Shri. Siddappa Mkallappa Khavatakoppa

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NC: 2025:KHC-D:8692 RFA No. 100340 of 2017

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF JULY, 2025

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R

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR FIRST APPEAL NO. 100340 OF 2017 (PAR/POS)

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BETWEEN:

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SMT. MALLAWWA LAXMAN YADAHALLI, SINCE DECEASED BY HER LR’S.,

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SMT. PARVATI W/O VASANT GORAWADE, AGE: 37 YEARS, OCC: AGRICULTURE, R/O: HARUGERI CROSS, HARUGERI-591 220, TAL: RAIBAG, DIST: BELAGAVI.

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… APPELLANT

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(BY SRI. A.P. MURARI, ADVOCATE)

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AND:

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SHRI SIDDAPPA MALLAPPA KHAVATAKOPPA, AGE: 59 YEARS, OCC: AGRICULTURE, R/O: BADABYAKUD, TAL: RAIBAG, DIST: BELAGAVI.

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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SHRI IRAPPA MALLAPPA KHAVATAKOPPA, AGE: 54 YEARS, OCC: AGRICULTURE, R/O: BADABYAKUD, TAL: RAIBAG, DIST: BELAGAVI.

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SHRI DUNDAPPA MALLAPPA KHAVATAKOPPA, AGE: 52 YEARS, OCC: AGRICULTURE, R/O: BADABYAKUD, TAL: RAIBAG, DIST: BELAGAVI.

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SHRI SHIVAPPA MALLAPPA KHAVATAKOPPA, AGE: 37 YEARS, OCC: AGRICULTURE, R/O: BADABYAKUD, TAL: RAIBAG, DIST: BELAGAVI.

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SHRI MURIGEPPA MALLAPPA KHAVATAKOPPA, AGE: 34 YEARS, OCC: AGRICULTURE,

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R/O: BADABYAKUD, TAL: RAIBAG,

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DIST: BELAGAVI.

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SHRI SADALING GURUPAD TAKKANNAVAR, AGE: 59 YEARS, OCC: AGRICULTURE, R/O: BADABYAKUD, TAL: RAIBAG, DIST: BELAGAVI.

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SHRI SIDDAPPA SADALING TAKKANNAVAR, AGE: 39 YEARS, OCC: AGRICULTURE, R/O: BADABYAKUD, TAL: RAIBAG, DIST: BELAGAVI.

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SHRI BASAPPA SADALING TAKKANNAVAR, SINCE DECEASED BY HIS LR’S., RESPONDENT NO.12 IS ALREADY ON RECORD.

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SMT. BORAWWA W/O SIDDAPPA SASALATTI, AGE: 49 YEARS, OCC: HOUSEHOLD WORK, R/O: KHEMALAPUR, TAL: RAIBAG, DIST: BELAGAVI.

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SMT. NEELAVVA W/O MAHADEV PATIL, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O: ALAKHANUR, TAL: RAIBAG, DIST: BELAGAVI.

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SMT. BHAGAVVA W/O BASAPPA KITTUR, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, C/O. SMT. NEELAVVA W/O MAHADEV PATIL, R/O: KHEMALAPUR, TAL: RAIBAG, DIST: BELAGAVI.

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SHRI. ANNAPPA S/O BASAPPA THAKKANNAVAR, AGE: 39 YEARS, OCC: AGRICULTURE, R/O: ALAKHANUR, TAL: RAIBAG, DIST: BELAGAVI.

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… RESPONDENTS

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(BY SRI. VINAY S. KOUJALAGI, ADVOCATE FOR SRI. V.M. SHEELVANT, ADVOCATE FOR R12; R12 IS LR’S OF DECEASED R8 V/O/D 06.03.2023; SRI. RAJASHEKHAR R. BURJI, ADVOCATE FOR R1; SRI. GANAPATI M. BHAT, ADVOCATE FOR R2, R4, R5, R9, R10 AND R11; R3, R6 AND R7 ARE SERVED)

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HC-KAR

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 18.08.2017 PASSED IN O.S. NO.181/2013 ON THE FILE OF THE LEARNED SENIOR CIVIL JUDGE, RAIBAG, DISMISSING THE PLAINTIFF’S SUIT FOR PARTITION AND SEPARATE POSSESSION OF HER ½ SHARE IN THE SUIT PROPERTIES AND TO DECREE THE SUIT O.S. NO.181/2023 WITH COSTS.

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THIS APPEAL, COMING ON FOR DICTATING JUDGMENT THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON’BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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This Regular First Appeal is filed by the plaintiff challenging the judgment and decree dated 18.08.2017 passed in O.S.No.181/2013 on the file of Senior Civil Judge and JMFC, Raibag (for short, ‘Trial Court’), thereby, the suit filed for partition and separate possession is dismissed.

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For the sake of convenience and easy

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reference, the parties are referred to as per their rankings before the Trial Court.

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The plaintiff has filed the suit for partition and separate possession by metes and bounds for claiming 1

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½ share by pleading that the suit schedule properties are

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the joint family properties.

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4. The genealogy of the plaintiff and defendants

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family are as under:

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Basagouda Gurulingappa Takkannavar (Dead)

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=Tangewwa (Dead)

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Kallawwa Mallawwa
(Dead) (Plff.)
Siddappa Irappa Dundappa Shivappa Murigeppa
(D-1) (D-2) (D-3) (D-4) (D-5)

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According to the plaintiff, one Basagouda

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Gurulingappa Takkannavar was the original propositus, who died on 07.05.1984. His wife, Tangewwa, has also passed away. They had two children, namely Kallawwa and plaintiff i.e., Mallawwa. Kallawwa died, leaving behind five children, who have been arrayed as Defendant Nos.1

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to 5. It is pleaded that the alleged adoption of a son by Defendant No.1, claimed to be the adopted son of Basagouda and Tangewwa, is illegal and unproven. Therefore, according to the plaintiff, the original propositus

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Basagouda, and his wife Tangewwa, had only two daughters. As such, the plaintiff claims entitlement to a half share in the suit schedule properties and has accordingly filed the suit for partition as above stated.

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6. Defendant Nos.6 to 8 have appeared through

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their counsel and filed their written statement. Defendant No.1 has denied the plaintiff’s claim and asserted that he

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is the adopted son of Basagouda and Tangewwa. He further stated that the properties bearing R.S. Nos. 78 and 99 were transferred in his name as the adopted son, and accordingly, the revenue entries were recorded and acted upon. Therefore, the plaintiff is not entitled to any share in the suit properties. Defendant No.2 has filed a written statement supporting the contentions of defendant No.1.

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Defendant Nos.6 to 8 have filed their written

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statement and contended that defendant No.1 is the adopted son of Basagouda and Tangewwa. It is further contended that defendant No.1 sold 1/3^rd share of the suit scheduled properties in the name of defendant No.7, who is a bonafide purchaser of properties. Consequently, defendant Nos.6 to 8 are in possession of the said properties by virtue of Sale Deed. Hence, they have prayed for dismissal of the suit.

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Defendant No.12 has filed a written statement

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supporting the contentions of defendant Nos.6 to 8. Hence, prays to dismiss the suit.

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Based on the pleadings of the parties, the Trial Court has framed the following:

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ISSUES

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Whether the plaintiff proves that, the suit properties are joint family properties defendant No.1 to 5?

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Whether the defendant No.1 proves that, deceased Basagouda and his wife adopted him on 01.10.1975 through adoption deed is valid under law?

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Whether the suit is barred by limitation?

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Whether the plaintiff is entitled to ½ share and separate possession in the suit properties?

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What order or decree?

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The plaintiff to substantiate her case, the Special

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Power of Attorney holder was examined as PW.1 and got marked 13 documents as Ex.P1 to Ex.P13. Defendant No.2 was examined as DW.1, defendant No.1 was examined as DW.2, defendant No.3 was examined as DW.3 and defendant No.12 was examined as DW.4 and got marked 234 documents as Ex.D1 to Ex.D234.

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The Trial Court has dismissed the suit by assigning the reason that the plaintiff has failed to prove that the suit schedule properties are joint family properties. Further, the Trial Court assigned the reason that the suit filed for partition and separate possession is

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barred by limitation. Further assigned the reason that the plaintiff was aged 70 years as on the date of filing of the suit, she might have been born prior to 1956. As on the date of 09.09.2005, the father of the plaintiff was not

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alive. The father of the plaintiff died in the year 1984. Therefore held that the suit is barred by limitation under Article 110 of the Limitation Act, 1963 (for short, ‘Act, 1963’). Hence, dismissed the suit relying on the judgment of Hon’ble Apex Court in the case of Prakash and Others

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Vs. Phulavathi and Others¹ .

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Being aggrieved by dismissal of the suit, the plaintiff has preferred the present appeal by raising various grounds and the learned counsel for the appellant in consonance with the grounds raised, has submitted that the father of plaintiff and Kallawwa was granted occupancy rights. Therefore, it is joint family property. Hence, the appellant is entitled to ½ share, being daughter of original propositus-Basagouda.

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1 2015(4) KCCR 3265 (SC)

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Further submitted that Siddappa has not gone in adoption to the family of his grandfather namely, Basagouda and Tangewwa and it is disputed by the plaintiff. Therefore, submitted that the grant of occupancy right is enuring to the benefit of joint family consisting of Basagouda and daughters-Kallawwa and plaintiff-Mallawwa and the said Basagouda had no male children and hence, the plaintiff and Kallawwa being daughters are entitled to ½ share in the suit schedule properties. But this is not correctly appreciated by the trial Court, hence, resulting in passing erroneous judgment and decree. Therefore, prays to allow the appeal by decreeing the suit.

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The learned counsel for the appellant places reliance on the judgments of Hon’ble Supreme Court and High Court which are as follows:

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i. N. PADMAMMA AND OTHERS VS. S. RAMAKRISHNA REDDY AND OTHERS² (Padmamma’s Case)

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ii. NAGABHUSHANAMMAL (DEAD) BY LEGAL REPRESENTATIVES VS. C.

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2 (2015) 1 SCC 417

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CHANDIKESWARALINGAM³ . (Nagabhushanammal Case)

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iii. VIDYA DEVI ALIAS VIDYA VATI (DEAD) BY LRS. VS. PREM PRAKASH AND OTHERS⁴ . (Vidya Devi Case)

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iv. SRI ARVIND AND ANOTHER VS. SMT. SUNANDA AND OTHERS⁵ . (Arvind’s Case)

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v. VISHNU AND OTHERS VS. SMT. BUDDAVVA AND OTHERS⁶ . (Vishnu S/o Irappa Ilager Case)

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vi. ISHWAR (DEAD) BY LRS VS. SMT. JATTAMMA @ MASTAMMA KOM MANJAPPA NAIK AND OTHERS⁷ . (Ishwar Case)

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Further submitted that the suit is not barred by limitation, which is wrongly observed by the trial Court without assessing any reasons. Therefore, dismissal of the suit is arbitrary. Hence, prays to allow the appeal.

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On the other hand, learned counsel for respondent/defendant No.1 and other respondents submitted that the plaintiff being married daughter is not entitled to share in the lands where father is granted

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3 (2016) 4 SCC 434

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4 (1995) 4 SCC 496

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5 RFA NO. 100149/2014

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6 RSA NO. 100608/2019

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7 RSA NO.100212/2017

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occupancy rights, as the married daughter is not coming within the definition of family as per provisions of the

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Karnataka Land Reforms Act, 1961 (for short, ‘KLR Act’).

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Further submitted that defendant No.1-Siddappa has gone in adoption to the family of Basagouda and Tangewwa. Therefore, Basagouda has given varadi to the revenue authorities to mutate the name of defendant No.1. Thus, the plaintiff is not entitled to any share in the property.

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It is further submitted that Basagouda was granted occupancy rights in his name and became exclusive owner of suit schedule property and beside Basagouda had made enter the name of defendant No.1 in the records. Hence, bequeathed all the properties in the name of defendant No.1. Thus, in this way, the plaintiff does not have any claim over the suit schedule properties, which is correctly observed by the trial Court. Hence, prays to dismiss the appeal.

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Learned counsel for respondents places reliance

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on the judgments of Hon’ble Supreme Court and this Court

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which are as follows:

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i. HAR NARAINI DEVI AND ANOTHER VS. UNION OF INDIA AND OTHERS⁸ . (Har Naraini Devi Case)

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ii. NIMBAVVA AND OTHERS VS. CHANNAVEERAYYA AND OTHERS⁹ . (Nimbavva’s Case)

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Upon hearing the arguments from both sides

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and on perusal of evidence on record and other materials, the points that arise for consideration are as follows:

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i. Whether, under the facts and circumstances involved in the case, the plaintiff proves that the suit schedule properties are joint family properties as her father- Basagouda acquired the suit schedule properties by virtue of order of grant of occupancy rights as per Section 41 of the Karnataka Land Reforms Act, thus, is entitled to share in the suit schedule properties?

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8 AIR 2022 SC 4632

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9 2015 (1) KCCR 205

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ii. Whether, under the facts and circumstances involved in the case, the defendant No.1 prove that he has been adopted by Basagouda and Tangewwa and entitled full share in the suit schedule properties excluding the daughters of Basagouda?

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iii. Whether, the judgment and decree passed by the Trial Court requires interference by this Court?

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The genealogy as stated in the plaint is not in dispute. Therefore, the relationship between the plaintiff and defendants No.1 to 5, 9 to 11 are not in dispute. Defendants No.6 to 8 and 12 are stated to be purchasers of the property from the defendant No.1. Hence, they are strangers to the family of plaintiff and defendants No.1 to 5 and 9 to 11. It is also not in dispute that Basagouda was granted occupancy rights in respect of suit schedule properties as per the provisions of KLR Act. Basagouda has filed application for issuance of Form No.7 for grant of occupancy rights and land Tribunal has granted occupancy rights in favour of propositus- Basagouda is not in dispute.

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The defendants No.6 to 8 and 12 are claiming to be purchasers of 1/3^rd share of the suit schedule properties through defendant No.1 is also not in dispute. The only grievance of the plaintiff is that the defendants No.6 to 8 and 12 are not bonafide purchasers from the defendant No.1.

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It is strenuously argued by the counsel for the defendant No.1 that the plaintiff being married daughter is not entitled share in the suit properties which are agricultural land of which occupancy rights were granted in favour of Basagouda, as the plaintiff is not coming within the meaning of ‘Family’ & ‘Joint Family’ as defined under Sections 2(12) and 2(17) of the KLR Act. He also places reliance on the judgment of Hon’ble Supreme Court in the

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case of HAR NARAINI DEVI (supra). This judgment is arising in the context of the Delhi Land Reforms Act, 1954. There is similar provision in the said Delhi Land Reforms Act as that of the Karnataka Land Reforms Act defining the ‘Family’.

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In the above said case, the Constitutional validity of Section 50(a) is challenged but the Hon’ble Supreme Court has upheld the Constitutional validity of Section 50 of the Delhi Land Reforms Act. Just because, the Honb’le Supreme Court has upheld Section 50 of the Land Reforms Act that does not mean that the daughter is not entitled partition and share in the suit schedule properties. There is analogues provision in the Delhi Land Reforms Act and the Karnataka Land Reforms Act defining what is ‘Family’. But the question is whether the plaintiff being married daughter is also entitled to share in the suit schedule land is a question to be considered in the present appeal. Therefore, the facts and circumstances and issues involved in the case of HAR NARAINI DEVI (supra) are different compared to the facts and circumstances and issues involved in the present case. Therefore, HAR NARAINI

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DEVI case is not applicable in the present case.

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Further, it is submission made by the counsel for the defendant No.1- respondent No.1 that as per

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judgment of this court in NIMBAVVA’S CASE (supra), the married daughter is not entitled share in the lands, wherein the father has acquired through grant of occupancy rights by the land Tribunal. The judgment of

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NIMBAVVA’S CASE is considered by the Hon’ble Supreme Court and it is overruled while making interpretation of the provisions in the KLR Act.

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It is worthwhile to record few of the provisions in the KLR Act and the interpretation made in this regard covering the issue directly held in the present case.

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In the case of VISHNU S/O IRAPPA ILAGER

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(supra) of this Court has held at paragraph Nos.14, 15, 16, 17, 18, 19, 20, 26, 28 as follows:

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“14. Section 2(12) of the Act defines as follows:

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“Family “

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(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;

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

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(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

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

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Section 2(17) of the Act defines as follows:

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“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;

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As per the Section 2(17) of the Act, in the case of persons governed by Hindu law, an undivided Hindu joint family means a group or unit, the members of which are by custom joint in estate or residence. Therefore, definition of Section 2(17) is larger than

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Section 2(12) of the Act so far as the concept of undivided Hindu joint family is concerned.

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In the case of Sangappa Kalyanappa Bangi vs Land Tribunal, Jamkhandi¹⁰ at para 5 is held as follows:

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This case gives rise to a difficult and doubtful question, whether a devise under a Will would amount to an assignment of interest in the lands and, therefore, would be invalid under the provisions of Section 21 of the Land Reforms Act. What is prohibited under Section 21 of the Act is that there cannot be any sub-division or sub-letting of the land held by a tenant or assignment of any interest thereunder. Exceptions thereto are when the tenant dies, the surviving members of the joint family and if he is not a member of the joint family, his heirs shall be entitled to partition and sub-divide the land leased subject to certain conditions. Section 24 of the Act declares that when a tenant dies, the landlord is deemed to continue the tenancy to the heirs of such tenant on the same terms and conditions on which the tenant was holding at the time of his death. We

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have to read Section 21 with Section 24 to understand the full purport of the provisions. Section 24 is enacted only for the purpose of making it clear that the tenancy continues notwithstanding the death of the tenant and such tenancy is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death. The heirs who can take the property are those who are referable to in Section 21. If he is a member of the joint family, then the surviving members of the joint family and if he is not such a member of a joint family, his heirs would be entitled to partition. Again, as to who his heirs are will have to be determined not with reference to the Act, but with reference to the personal law on the matter. The assignment of any interest in the tenanted land will not be valid. A devise or a bequest under a Will cannot be stated to fall outside the scope of the said provisions inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will, though it operates posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the

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tenanted land, but that right will come into effect after the death of the testator. Therefore, though it can be said in general terms that the devise simpliciter will not amount to an assignment, in a special case of this nature, interpretation will have to be otherwise.

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(emphasis applied)

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Therefore, considering Section 2(17) of the Act, principles of law laid down in the above case, the married daughter are also considered as coparceners entitled for share in the suit schedule properties and as per the principles of law laid down above, who are the family members who are coparceners are entitled for inheritance is governed by their personal laws but not by the provisions of the Act. Plaintiffs, being daughters of Irappa are coparceners and are entitled to share in the properties. Therefore, in this regard, both the Court rightly held that plaintiffs are entitled to share in the properties.

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Upon considering the judgment of this Court in the case of Nagappa S/o Jatta Naik Vs. Smt. Mahadevi W/o Manjunath

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Naik¹¹ , wherein it is held in the similar facts and circumstances that the married daughters are also entitled for partition in the tenanted lands, by referring to various judgments of the Hon’ble Supreme Court, and it was held that married daughters are also entitled for partition in the suit properties in the tenanted lands and Civil Court has jurisdiction.

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Further, the Division Bench of this Court in the case of Ramesh Sangappa Ragha @ Raghannavar (supra) also held that the married daughter is entitled to share in the suit properties and Civil Court has jurisdiction.

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In Mudakappa’s case (supra), the facts are that the plaintiff filed a suit for injunction against the defendant’s uncles. The trial Court disposed of the suit; during pending appeal Karnataka Land Reforms (Amendment) Act No.1 of 1974 came into force; section 45-A conferred jurisdiction on the tribunal to decide the question of tenancy and nature of agricultural land and Civil Court was directed under section 173 to decide the other questions in the suit. The District Judge

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11 RSA No.100164/2018 D.D.21.06.2024

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by order referred the matter to the tribunal and the tribunal found that the tenancy was in favour of the joint family and not to the plaintiff alone. Therefore the District Judge had dismissed the appeal. In the Miscellaneous Second Appeal the Division Bench of this Court has dismissed the appeal. Therefore, the plaintiff preferred appeal before the Hon’ble Supreme Court and the Hon’ble Supreme Court has dismissed the appeal by holding that the Civil Court has jurisdiction to decide whether the grant of occupancy rights would enure to the benefit of joint family or exclusively for the grantees. The Hon’ble Supreme Court in paragraph No.7 has held as follows:

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It is seen that the words 'tenant', 'the Tribunal', and 'the joint family' have been defined under the Act. If one of the members of the family cultivates the land, it is for and on behalf of the joint family. Under these circumstances, pending the suit, when the question arose whether the appellant or Joint family is the tenant, that question should be decided by the Tribunal alone under Section 48-A read with Section 13 3 and not by the Civil Court. It is needless to mention that when the Tribunal constituted under the Act has been invested with the power and jurisdiction to determine

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the rival claims, it should record the evidence and decide the matter so that its correctness could be tested either in an appeal or by judicial review under Article 22 6 or under Article 22 7, as the case may be. But that cannot, by necessary implication, be concluded that when rival claims are made for tenancy rights, the jurisdiction of the Tribunal is ousted or its decision is subject of the decision once over by the Civil Court. It is clear from Section 48A(5) and Section 112B(bbb) read with S ection 13 3, that the decision of the Tribunal is final Under Section 133(iii) . The Civil Court has power only to decide other issues. It is, therefore, difficult to accept the contention that the rival claims for tenancy rights or the nature of the tenancy are exclusively left to be dealt with by the Civil Court.

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Therefore, when the nature of tenancy is decided by the tribunal, then once again the Civil Court cannot go into that question is the dictum of the Hon’ble Supreme Court in Mudakappa’s case (supra).

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Nimbavva’s case is also considered in the subsequent judgments by the Hon’ble Supreme Court and also by subsequent judgment of this Court and held that married daughters are entitled for share in the tenanted land where it is proved that the land granted is enuring to the benefit of joint

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family. Therefore Nimbavva’s case is also not helpful to the appellants/defendants.

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The Division Bench of this Court in ARVIND’S

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case (supra) under the similar facts and circumstances involved in the case at paragraph Nos.26, 27 and 28 has held as follows:

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In the case on hand, the property in question was admittedly cultivated by Sri Narasimha Venkatesh Kamat as a tenant and he filed an application seeking grant of occupancy rights and the occupancy rights were indeed granted to Sri Narasimha Venkatesh Kamat. Thus the lands that vested in the Government were divested in favour of Sri Narasimha Venkatesh Kamat thus creating a fresh right, title and interest and therefore, these lands became the absolute properties of Sri Narasimha Venkatesh Kamat. He having died intestate on 01.04.1989, there cannot be any doubt that his successors, who are the plaintiffs and the defendant Nos.1 to 6 are entitled to an undivided 1/9^th share in the suit schedule properties by operation of Section 8 of the Hindu Succession Act. The defendant

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Nos.2 and 3 / appellants herein were unable to show any provision in the KLR Act that determined the succession of the lands in question after the death of Sri Narasimha Venkatesh Kamat. As a matter of fact, there is no provision delineating the mode of succession to the lands that are conferred on tenants under the KLR Act and the only substantive provision that determines succession to such properties is section 8 of the Hindu Succession Act, 1956, which is a central legislation.

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The reliance of the defendant No.3 on section 4(2) of the Hindu Succession Act to contend that the provisions of the said Act would not affect the provisions of any law for the devolution of tenancy rights in respect of such holdings. It is to be noted that section 4(2) of the Hindu Succession Act was omitted with effect from 09.09.2005 and the present suit is filed in the year 2011. In addition, the relief sought for in the suit is not regarding the devolution of tenancy rights but relates to partitioning of an estate subsequent to confirmation of rights of tenancy. Therefore,

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this argument too does not take the case of the defendants any forward.

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In this regard, it is profitable to refer to judgment rendered by Full Bench of the Hon`ble Apex Court in the case of N. Padmamma and Others vs. S. Ramakrishna Reddy and others reported in (2015) 1 Supreme Court Cases 417, wherein it is held as under:

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“The suit in the present case was filed after the grant of occupancy rights . The question here is whether the grant of such rights is for the benefit of one of the members of the joint family or for all the heirs left behind by Ramachandra Reddy. Our answer to that question is in favour of the appellants. In our opinion, the grant of such occupancy rights in favour of Respondent 1 was for the benefit of all the legal heirs left behind by Ramachandra Reddy. Reliance upon Lokraj case (Lokraj v. Kishan Lal, (1995) 3 SCC 291), therefore, is of no assistance to the respondents. We are also of the view that the decision in Lokraj case, does not correctly apply the earlier decision of this Court in Bhubaneshwar Prasad Narain Singh Case (Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee, (1971) 1 SCC 556). With utmost respect to the Hon`ble Judges who delivered the decision in Lokraj case, the law was not correctly laid down, if the same

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was meant to say that even in the absence of a plea of ouster, a co-heir could merely on the basis of grant of the occupancy rights in his name exclude the other co-heirs from partition of the property so granted.”

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Therefore, the Hon’ble Supreme Court in the above decision while making interpretation of Sections 2(12) and 2(17) of the KLR Act has laid down principle of

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law that the married daughter is also entitled share in the lands which were granted by the Land Tribunal of granting occupancy rights.

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The law relating to Succession for Hindus namely The Hindu Succession Act, 1956 is self-contained and exhaustive so far as governing principle of succession among the Hindus. Just because in the KLR Act, the married daughter is excluded, that cannot deprive their legal right of married daughter to claim her share as per the provisions of the Hindu Succession Act. Therefore, so

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far as governing law of succession pertaining to the married daughters, the provision of Hindu Succession Act is having overriding effect over the Karnataka Land

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Reforms Act. The Karnataka Land Reforms Act does not govern what is Succession, but Hindu Succession Act governs substantively the principle of succession in case of Hindu male and female died. Therefore, as per law of succession, even married daughter is also entitled to share in the suit schedule lands which are granted occupancy rights in favour of father- Basagouda. Therefore, just because the Constitutional validity of the term ‘Family’ contained in Section 2(12) of the Karnataka Land Reforms Act and under the Delhi Land Reforms Act are upheld that does not exclude the right of plaintiff being married daughter to claim share in her father’s properties.

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This Court also has taken the same view in the case of VISHNU S/O IRAPPA ILAGER (supra) (Myself). Therefore, there is no merit found in the arguments canvassed by the counsel for the respondent that Mallawwa is not entitled share in her father’s properties which she was granted occupancy rights by the land Tribunal.

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Further, to meet the credential contentions urged by the plaintiff that Siddappa has not gone in adoption to the family of Basagouda and Tangewwa is concerned. Ex.D-20 is the registered adoption deed. DW-2 being defendant No.1 has stated that he has gone in adoption to the family of Basagouda and Tangewwa as per Ex.D20-registered adoption deed. DW-1 has stated that defendant No.1 has gone in adoption to the family of Basagouda and Tangewwa. Therefore, the adoption deed is proved to have been executed. Therefore, defendant No.1 had become adopted son of Basagouda and Tangewwa. To this aspect, the findings of trial Court is found to be correct.

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Then, the question comes for determination of share. Basagouda has only two daughters, the plaintiffMallawwa and Kallawwa. Kallawwa has five sons and three daughters as stated in the genealogy. The defendant No.1 went in adoption to the family of Basagouda and Tangewwa. Therefore, by virtue of adoption, the defendant

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No.1 is to be stated as adopted son of Basagouda and Tangewwa. Therefore, the defendant No.1, Kallawwa and Mallawwa are having equal three shares. Therefore, the plaintiff is entitled to 1/3^rd share in the suit schedule properties. The defendant No.1 is entitled 1/3^rd share in the suit schedule properties. The defendants No.2 to 5 and other three daughters -defendants No.9 to 11 are together entitled to 1/3^rd share being representative of share of Kallawwa.

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Considering the evidence placed by the defendants No.6 to 8 and 12, they have stated that they have purchased 1/3^rd share of defendant No.1. They have unequivocally admitted that they have purchased only 1/3^rd share but not entire property from the defendant No.1. Therefore, from this admission, it is proved that defendant No.1 knew that he has only 1/3^rd share in the properties. Therefore, dismissal of the suit by trial Court is not correct. Hence, the defendant No.1 has only sold his 1/3^rd share to the defendants No.6 and 8. Therefore,

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defendants No.6 and 8 are proved to be bonafide purchasers of 1/3^rd share of the schedule properties from the defendant No.1. Therefore, defendants No.6 to 8 and 12 shall workout their remedial share through defendant No.1 only without affecting the rights of plaintiffs and other defendants No.2 to 5 and 9 to 11. Hence, I answer point Nos.(i) and (iii) in the ‘affirmative’ and point No.(ii) in the ‘partly affirmative’.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is allowed in part.

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ii. The judgment and decree dated 18.08.2017 passed in O.S.No.181/2013 on the file of Senior Civil Judge and JMFC, Raibag is set aside.

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iii. The plaintiff is entitled to 1/3^rd share of

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partition and separate possession in all the

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suit schedule properties by metes and

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bounds.

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iv. The defendants No.6 to 8 and 12 shall work out their remedy through the defendant No.1 only without affecting the rights of plaintiff and defendants No.2 to 5 and 9 to

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11 in appropriate proceedings.

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v. No order as to costs.

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vi. Draw decree accordingly.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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PMP-Para Nos.1 to 11 RKM-Para Nos.11 to end CT:BCK LIST NO.: 1 SL NO.: 32

Smt. Mallawwa Laxman Yadahalli v. Shri. Siddappa Mkallappa Khavatakoppa

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Smt. Mallawwa Laxman Yadahalli v. Shri. Siddappa Mkallappa Khavatakoppa

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