IN THE HIGH COURT OF KARNATAKA AT BAN
Daued this the 2nd day of March. 20 10"".
PRESENT
TI-IE I--ION'BLE MR.
AND
THE I-ION'BLE MR. Jijsifrcs
REGULAR FIRST APPEAL. 698' QF 200:3.
BETWEEN :
Sri S. ' '
Aged about 74 yea1*s. a " "
S/ late S NEL$1*e1:niVasa.Rafigz§ch.a1'
Since-_ decease'd,_by .h.is L,Rs'".,
" V' -a] " . C'S1?11t. S¢ethe1"mfr1'a S
.. _ Aged abcaut 70 years
V _ WV/Q iafc. Rangaswamy Iyengar
" .__«R]ai:_~vsy;1§:'o'.55/2, Saragur Village
Near 'Gm'. Hundi, H B Saragur
Kcite Taluk
Myééore District ---- 571 £21
L}. _ ';Smt;. S R Usha Ravikumal"
"Aged 47 years
W/0 T S Ravikumar
D / 0 late S. Rangaswamy Iyengar
No. 1017, 8"' Main, 111 Stage
Gokulam Doc:t;or's Comer
1\/fysoxa 570 002
V Myso1*e~VDEs€;,rViet ~--'--.
'(-3
Smt. S R Pushpa
Aged about 4.5 years
W/o M R Srmath
D/o late S. Rangaswamy Iyengar
R/at No.51, FCI Layout
Near Ganapathy Temple
Deepanjali
Bangalore
Jayashree
Aged about 43 years V __ _
D / o S. Rangaswamy..§yen'gar A _4 V
R/at Sy.No.55/2, S'at'gt1r--.\71Z{lage"'-.LA AA 'A .
Near G. Hundt, H B S-aragur' '
H D Kote Taluk V g _ .
Mysore I)is'i;ri(:t M» 5373:. ' ll
Sri Gopalal<_rtsh'na l' A
Ageolyvaboyut '~*l:}_ ye:--t_rs_ "
S/0 lateA.Ra1t1gaswamy lyefigar
R'/at-_Sy .No_.5?, /£3, h,B';--- __Sa.ragur Village
Near G. HL1ndi':,e'~H' B_Saragur
H Dliote Tatuk,' . '
57;" 121
...Appellants
A (ByllS1*i-T N Raghupathy, Advocate)
lSri.lS Vi] ayaragh avach ar
Aged-abot1t 57 years
S / o_ late S M Sreen£vasa:'ar1gac:har
Residing at No.31.
I ll dayalakshmi Layout
RMV 11 Stage
Bangalore -- 560 084
Sri S M Sesha lyengar
Aged about 64 years
S / 0 late S M Sreerlivasarangaehar
3(b)
3(6)
Residing at N0.1397
4"' Cross. Krishnamurthlpuram
Mysore
Smt. Ranganayakamma
Since deceased by her L.Rs.. ._
Sri Ramakrishna
Aged about 72 years g _
S/0 late Sreenivasachar'
Sri Venkatanarasimhachai".-.. '
Aged about 70 years ' 'A _'
S/0 late Sreenivasa('ha.r }
Sri Rangaraju V "
Aged abe~u'L'5VG*years 3;
S/ 0 late 'Sreeéi1i.jvasaeh;xr
sf: Vijagzaragfifayafi ~ .
Aged about 6.5 'years " - ....
S/Q 1a._1;e Sree«r1'i«\rasa.(EharV._.
smt.V'Myth111' -_ A
;'251gC(31 abut 1t 68 yea:-5
LO Sate Sreer1_i_Vavsaehar
abyexgt 65 years
d D / O --1'ate'aISreenivasachar
" "Sinai. Mangaia
Aged about ~45 years
n D/0 late Sreenivasachar
Smt. Radha
Aged about 60 years
D / 0 late Sreenivasachar
3(1) Smi. Prabhu
Aged about 64 years
D / o iate Sreenivasachar
3[k} Smt. Seethalakshmi
Aged about 62 years I
D/ o late Sreenivasachar
Ail the respondents 3(a) Lr._)_ 3&1)
Are residing at No.565 ”
Halebandlkeri _ .._»
Venkataramanasvdaniy Temple Stfeei
KRD/Iohalla ” t I
Mysore -~ 24
Aged 57 ;Ieai;’s
4 Smt. S Jaya1aks_hrr}.i
W/o S’ ‘i V
Re_sidingVat1′.;_;_ as ~
2’4. Jvayas-hree:’§Eiuiidihg
4-!” Block’ — ‘
Thyag.ara}ana’ga1″= _ V _
Bangalore _ …Respondents
‘ * _[By’.Sr.i Nataiajaii. Advocate for R1 to R4}
under Section 96 of CPC against the
judgxinent :n3IijdA’a1dvvecree dated 16-4-2003 passed in os No.20/O7′
on iihe fiie -oiithe Civil Judge {Sr.E)n.) and JMFC, Husur. partly
” “‘~deCree1ng’ the suit for partition and interim reiief.
Wdaielivereci the following:
i This RFA coming on for hearing this day. N. KUMAR J
J U D G M E N ‘1’
This is first defendants appeal against the and
decree of the trial Court, which has decreed_A-the’A:slti’i’t«.:o’i”–..the
plaintiff for partition and separate possessionf ” *
2. For the purpose of (:onvenie_n’c_e,’:”t’he”pa.rtiesy areV.__ 4_j
referred to as they are referred to in th.el’originVa1′.’,suit.:
3. Late S.I\/I. Siinivasarangacharl “;Va_é_~_ the””pm”pos1t;:s.
He ‘four S. Rangaswamy Iyengar,
S. H S.N. Sheshaiyengar and
SN. Vi}ayaraghavachar…17 They constituted ancestral joint
fa:Ifil..y, schedul.e…properties are agricultural land, House
‘ properties at B-schedule and items–1 and 2 at 13 Schedule
and are joint family properties. SM.
Sriniyasarangachar passed away in 1973, leaving behind his
2 .. ‘1’o’u:_sol1s and a daughter, Sowmyavalli, the third defendant in
The second son S. Lakshminarsimhachar died in the
V “year 1990 leaving behind his wife Kamalamma as his only heir
who is the second plaintiff in the suit. All these persons are
t
6
entitled to the share according to Hindu Law in the suit
schedule properties. They are all impleaded as parties.
4. The plaintiffs and the defendants are in enjoyment
and possession of the suit schedule properties
the joint Hindu family and of late, the of
lands is being managed by the 15? defendant, -the:_.Velde_s’t’V’son of
late S.i\/I. Srinivasarangachar, other ” sons gbewirig
employed and in service elsewhere, i.e§; ._out the village.
Taking unfair advantagepf thellabsegncepf hislbrothers the first
defendant ‘tine property and utilising the
entire In spite of repeated demands
andgrequests made tdthevllfirst defendant by the other sharers,
V. _ v,rilling'”to”‘get the properties duly partitioned amongst
_ ithe”sh’arel arid also not accounting for the income of more than
i<s_;i5o,0_§)o'Lia07' to Rs.60.000–O0 derived annually from the
property; item No.2 of the 'B' schedule. house property, has
A {f built out of the usufructs of the joint family properly, it is
and deemed to be the joint family property. liable to be
'partitioned and divided amongst the members of the joint
family. As per the provisions of the Hindu Law, the plaintiffs
and the defendants–1 and 2 are entitled each to 6/25*" share
and the 3"?' defendant is entitled to 1/2531 share in all..the suit
schedule properties.
5. After service of summons, the defendant’ eiiteired,
appearance. The first defendarit”‘4fil_e’l:l
statement contesting the Claim of I*I§,is
contesting defendants in ll-ie :’vnot:”Vdispute the
relationship between the partie’s,–..”deathlof-their father and
brother and the fact f:=.o”ri-S were all employed
elsewhere avray he denied the right of the
plaintifis to a ,inv’t_he.property. The specific case pleaded
by the first defendant vvas that the first defendant and other
de:fe11d_antsf2 and””‘3’Vand the plaintiff have partitioned the
long back orally and also the plaintiff and
.defendantls}?..s::and 3 have agreed and gave consent to the first
defendantvto cultivate the suit schedule property as the owner
A nbylvpaying kandayam to the Government since 1973. The
plaintiff and defendants–2 and 3 have received the usufructs
l from the suit schedule property, i.e., ten pallas of paddy every
year and other usufructs in the suit schedule property.
6. The first defendant has spent nearly Rs.60,000 to
Rs.70,000 to improve the suit schedule property for better
cultivation and also he had borrowed loan for 1egal*n_eQ_essity
and family benefits from the State Bank of Mysore,’ _a
total sum of Rs.30,000–0O and also the.-
borrowed from other persons__ nealjly tor-
Rs.70,000–O0. The first ,’de_fendan_tf’ hast
accounts of expenses incurred.:l_V’ppi13_pp of schedule
property. The plaintiff:y_._:–‘fii}.*1d andvé have not paid
any amount to iA1fI’1p1’0V(3′”fl’_iv:(V.3’ fertilizer for the
purpose «of ‘land. The first defendant has
performed the obsecv3’uial”_.»rceremony of his father by spending
huge amount”; ~ that regard the plaintiff and defendants~2
3_f’haveA’*not participated to pay the expenses incurred in
iffhe first defendant had borrowed a loan from
service-._’.co»operatiVe society, Sargur to improve the land for
..agricu1tural purpose. The debts borrowed by the first
‘ ‘~_d’efendant are still pending.
7. One Javara Shetty, son of Chikkamada Shetty had
filed a case in R.A.No. 19 of 1987-88, against the first defendant
under Section 136(2) of the Land Revenue Act, 1964;.V_:”i1l1e first
defendant appeared in that case before_.§the””vl.’£issistanVt
Commissioner. Hunsur, by spending huge_-ai11ountV’to’pay_ the
Advocates fees and travelling expenses to preserve’ plaint
schedule property and also.*by_ paying’ the to
Government for the family benefitsband necessity.
8. Subsequently, by<\vayl.o:f ainendment to the written
staternent,-vvhitxh._vvas"aliowed, additional pleas were raised.
The additional pleas' raised are as under:
'8s.acres"'3C:i'guntas in Sy.No.6G, 11 acres 39 guntas in
o:"u't…_of which 8 acres 17 guntas was acquired by the
fi_1*.V""'the years 1971 to 1973 for the purpose of
cot'i«structioi'i of Kabini Right Bank Canal. 5 acres of which was
pl lying fallow since ten years due to the leakage of water from
it Right Bank Canal, hence the defendant could not
.,,_cultivate the land. The allegations made in the plaint in para
9, items 4 and 5 of the schedule. i.e., in Sy.No.60, 8 acres 16
guntas and in Sy.No.6l, 12 acres 10 guntas are false and
it/,,..e
concocted for the purpose of the suit. The not
maintainable for non–joinder of parties. Thereforef
for dismissal of the suit.
9. The plaintiffs filed’ reply said:
by the first defendant. They islvfutterly false
that there was any as falsely
alleged in para 5′ of the is very significant
that the first has’:.”r1ot”cared~–.t.oilstate when such oral
division allegedby’l”hirri”:55too:k-vlplace” and he does not at all
disclose any oral divisions. It is further false
that of4lthelpl–iairitiffs: 21″‘ and 3rd defendant gave any
consen’tr. to the defendant to cultivate these lands as the
flier;-o£_o1.o9.1973 or at any other time. Just because
the eldest member of the joint family he is
maintairpiiiiiglthe joint family properties described in the plaint
scheduleihand he is bound to give each of the other sharers the
A’ of paddy and other crops grown every year in the
l _,l_3.ands of their Value thereof from the inception of this suit until
a final division is made putting the sharers in possession of
their shares. Though it is true that each. of the sharers used to
{A/..
take his or her shares from the seasonal or annua.l__._produce
from the land they have been denied that share urilayyfuily by
the first defendant who has grabbed all cropspfrorng
after the filing of the suit.
10. The allegations niade ingjpaira
statement that the first defendant’ has to seventy
thousand rupees to iniprove false and it is
further false that a suniof was taken from
S.I3.M for anygbenelfit ofthie joint fainilyor for the improvement
of theat all he has borrowed any money
personallyitllis his “pe1’so”n.al if obligation and these plaintiffs or
the other shafcrsfolr their shares in the suit properties cannot
any obligation to discharge such liabilities of
The alleged loan incurred by the first
defendant stated in para 9 of the written statement is not
:”‘ad;Initte’d:’ and the plaintiffs are not accountable for that
‘.aceot’int. The allegations made in para 15{a) about the
.._acquisition of 8 acres 17 guntas out of 8 acres 30 guntas in
Sy.No.6O and 11 acres 39 guntas in Sy.No.61 in the year 1971-
73 are not true and not admitted only a small extent was
3/”
acquired for construction of Kabini Right Bank Canaland it is
further false that these lands were not cultivated joint
family. Even from these lands also the
realised very good crops during pyear_–‘l”99’cl#_’§.3l””avr’id
part of 93, he is accountable for the”.ot11,er:”Sharers.
Therefore, they sought for disrnissal of the suit; .
1 1. Though the othe’r»’defendants”e -have: also filed
separate written staten1.ent,_«”ttheyilliayeyg denied the partition
pleaded by the first defendant’v”and that they are
entitled to a th’e.Esui.t’schedule property.
12. On the afo_resaid'”pleadings, the trial Court framed four
issues on lCi8_;V10V..l’99.’2.. ‘T:However, subsequently nine issues
mg beenivsfaxned 05.01.1993, which includes the earlier
four’ whlieh reads as under:
1}. it/lthether the plainufis prove that they are the
members of joint Hindu family along with the
defendants as alleged?
3}
p5)
Do the plaintjfs prove that the are
the ancestral joint Hindi family properties? “a
Whether plaintiffs 1 and -ttde;fe’ndc¢nfts_.l 2,15
are entitled for,t’5/25 share eaCli’lV’l’cutn:d’. defelhaclm
No.3 is entitled the suit
properties ‘*~ .,
lzl/hether thlefllléi’ defenrlojnt proves that there was an
.t;et1_veenf.’the_§9latna;ffs and himself long
-.tie._::ivas-..per.;nitted by the plaintiffs and
._ « oVther”‘dej”e_ndants ‘to’cult1’vate his share?
~Wl1ether A”t.he” “V185 defendant proves that he had
zincL:,l’lI’eCi”CiV loan of Rs.30_.0OO/- from the State Bank
V “Mysore, Sargur Branch and Rs.60,000/- to
70,000/~ from public and also by loan from Co-
operative Society of Sargur for improvement of suit
properties and also for legal necessity and family
benefit?
§
6) Whether the 13′ defendant proves ‘spent
huge amount towards the litigatior’:.’fi’leda
R.A. No.19/87-88 i-“before-‘_t flAssis’Lantf’
Commissioner, I-Iunsur’.51V
7) Whether the 15$ defen.dant tthativhe is paying
kandayarn suit as owner?
8) Whether for mesne profits
H
” the parties are entitled?
13. V. _ su”pport””:of the case, the first p1aintiff-
,,.’AVij.éL3f1’aghavachafV “was examined as P.W–1, Kamalamma as
‘Vandpther witnesses Venkatesha and Doddegowda
exantiljezd as P.Ws–3 and 4. They produced eight
documenfts, which were marked as EXs.P-1 to P-8. On behalf
A ‘~?_” Vtdefendants, the first defendant was examined as D.W~1 and
second defendant S.M. Sheshaiyengar as D.W–2. They
‘produced 13 documents, which were marked as Exs.}Z)-1
to D~13.
14. The trial Court on appreciation of the aforesaid
oral and documentary evidence on record, the
plaintiffs have proved that they are the membersr of
Hindu family along with the defendants ‘l-The have it
also proved that the suit propertie_s’are
Hindu family properties. are to share
in the property which available’jfoivpartiftiorx the family.
The first defendant and there was a oral
partition between the long back and he
was _ and other defendants to
cultivate. his share;’:_jThe..dfefer1dants have failed to prove that he
had incurred a loanAoffF<'s.3O,000–00 from the State Bank of
Sargurfllflffirarich and Rs.60,000–O0 to Rs.7o,ooo-00
from also by loan from Co-operative Society of
forvfeiimlprovement of suit properties and also for legal
necessity and family benefit. The first defendant has failed to
A that he has spent huge amount towards the litigation
EK§.A.No.i9/87~88 before the Assistant Commissioner, Hunsur.
WThe first defendant also has failed to prove that he is paying
kandayam and cultivating the suit land as owner thereof. The
lg/.
16. Per contra, learned counsel Sri Natrajan appearing
for the respondents submit even if such loans are raised;._it has
to be raised with the permission of the other co_–jshare;-rs:
respect of which property that money is in.ves.te’fd Cviearf
The documents produced do not
61 is acquired by the Government. In.th’ose
judgment and decree passed dvbyithe Codurtldbeioviéfi is fair and
proper, no interference hands this Court.
17. stage.g learriedfounsel for the appellants
seek leave ‘oftVtiief¢ourt~.eto=.dismiss IA III/03 as not pressed.
Submission oriiddrecord. IA HI/O3 is dismissed as not
pressed .
light of the aforesaid facts and rival
contenti_’ons,<""the point that arise for our consideration in this
H appeal is as under:
Whether part of Sy.Nos.6O and 61 of “A” schedule
property was acquired by the Govemment and
not available for partition?
L’/e
19. The material on record discloses that”therel’t.i:_:-rhino
dispute regarding the relationship betwe–en: .partie–s..l”–..
Similarly, both “A” and “B” schedule properties are l’
properties. Admittedly, there e’is_Kno
partition and separate possessioirof properties.
The defendant has setstipan Onvllappreciation of
the oral evidence Court has held
that oral parti’tio’n,set–dip is
20. llll afjjso:l.’goriellllthrough the oral evidence on
record we that the partition set–up by the
defendant es’jr.,ab’1ished from the said evidence. In fact,
writtenstatement, the defendant has categorically
stated has been giving the plaintiff his legitimate share
in every year. If there was a partition, the
questiong_of 15¢ defendant giving every year the share of the
ff produces to the other brothers would not arise. The evidence
on record shows the father died in the year 1973. Thereafter,
the second son also died. 19* defendant is the person who is
managing the entire properties as the other two brothers are
away from the village. Therefore, he is the person___who is
cultivating the land. It is his specific case that h*?::l’1′?:1.:’$’.:l””«”;!.lS(*:Cl
money for improvement of the property and that
received compensation for the landsmacquiredis ” theviliglit of .
these admitted evidence on record.’
plea of oral partition which iSlS_t5.’Ln~:j.1p only
deny the right of the plaintiffs_ legitirnateppvshare in the
schedule properties. .the:’:t1atter, We hold that
the schedule properties-Via-re:the’–jpc.intl.’1″airiily’properties and all
the parties. ‘are shares in the said
pr0pe1;_tieS__p . .
21. «Insofar Sy:l\’os’.60 and 61 in the “A” schedule is
concernedtthe’ defendant’ has taken a specific stand that they
,,o.ywe«re”:’acquired the”Government in the year 197 1-73 for the
ccnvslruction of Kabini Right Bank Canal. 5 acres of
fallow since ten years due to the leakage of
water the Kabini Right Bank Canal, hence defendant
not cultivate the said land and therefore, in substance,
he submits an extent of 11 acres 39 guntas in Sy.No.6O and 8
20
acres and 17 guntas in Sy,No.61 is not available for partition.
In support of the said plea, no evidence was adduced before the
Court. Therefore, the trial Court held the acquisition pleaded
is not established.
22. Admittedly, the defendant has not the
preliminary notification, final notification or the passed’
for acquisition of the said land. On ffliffl oontrary’,__itv’i’§.v clear T.
from the records that becauseof
Canal, the seepage of water 1’r§§1a:, the Canal “land, ls:
defendantwasl no’t»ableltdfraiselany crop; Gradually the fertility
of the soilwlraisvseriousiyiaffected. Therefore, 15′ defendant had
if represe’ntation to the authorities for payment of
pic’:-mpensaition.,v the compensation had been awarded and the
_of:land which was so affected is about 9 acres. In
the””-‘light’ the above, it is clear that the case of the 1st
defendant that the Government had acquired the land is not
“a:cc–e–ptab1e but it is a case where, as the land was affected by
….seepage of water and no crops could be grown, the defendant
had sought for compensation from the Government, which was
it,»
2!
granted. In those circumstances, the findings recorded by the
trial Court that the acquisition setup by the IS’ defendant is
not established, is proper and do not suffer frofI1_..€iIJ2yt’inll;rn3ity,
as such it does not call for interference. Accor(1’ingly;.:yve”faffii’Ifri
the said finding.
23. In that View of the we».’d_oA”not see_fao.y
justification to interfere with the”V.well “consi’d.e_”r_edV”jiidgrnent of
the trial Court. Appeal’ ‘
24. ._ 11v,iis;:..j–_, 3891/10, 3893/10 and
3895/10′ ‘arelfiled’by Athesiatpgfaellants to bring on record the legal
representatives deceased R3, to condone the delay in filing
to bring on record the legal representatives of
abatement and also condonation of delay in
filing the apfilication for setting aside abatement.
if Applications are not opposed. Hence they are
…_8i10W€d.
22
26. However, no notice was sent to the L.Rs of the
deceased third respondent as they had not preferred any
appeai against the impugned judgment and decree;e.oV_:Np»w. that
we have confirmed the judgment and decree of
these L.Rs of the deceased R-3 beggginade parties ginwithe fine!
decree proceedings and whatever, share: the ‘deceased “*ihird
respondent was entitled to, be -ailottedto the: the
defendant. Accordingiy, thesetvdédagiplicationsflare aiso disposed
of.
r ii i iiii sa/~
sex:
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