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Karnataka High Court
BEERAPPA - Appellant
Versus
FAKIRAPPA BEE RAPPA BANDROLLI - Respondent
Decided On : 10-31-06
Regular First Appeal No. 204 of 2006.
Cases Referred: ILR 2006 Kar 4170, AIR 1982 SC 887; AIR 1989 SC 1042; AIR 1995 SC 895; AIR 1984 Sc 1121.
Karnataka Village Offices Abolition Act, 1961- Holder - Section - Holder - Meaning. [Bannurmath S. R. and Subhash B. Adi, JJ]: As far as holders of village office is concerned, holder means a person having an interest in the village office means and includes the right to survivorship of the members of the joint family. In the joint family even though the plaintiffs belong to junior branch, their right to succeed to the office in the event none is availabel in the senior branch to succeed wuld survive. The right to succession by survivorship is a right accrued to the members of the joint family in respect of joint family property. Therefore, the junior members of the family had the interest in the village office and they have to be considered as the holders of the village office.
Cases Referred: ILR 2006 Kar 4170, AIR 1982 SC 887; AIR 1989 SC 1042; AIR 1995 SC 895; AIR 1984 Sc 1121.
Karnataka Village Offices Abolition Act, 1961- Junior Branch of joint family - Section 5 - Junior Branch of joint family - Entitlement of. [Bannurmath S.R. and Subhash B. Adi, JJ]: It is not in dispute that till the land continued to be attached to the village office and till it became Ryotwari, the land was not available for partition. Now in the light of the abolition of the village office, in the light of the resumption of the land in the State and regrant of the same in favour of one of the members of the joint family, succession by survivorship, the junior branch of the joint family would also become entitle to share in the land regranted to the family. There is no evidence on record to show that at any point of time, the junior branch has expressed its intention to cease to be member of the joint family or to cease to have any interest in respect of the suit shedule property. In turn, the decree passed in favour of the plaintiffs and defendants continued to be joint family members and the properties also continued as joint family property. Till the land was not regranted, it remained as impartiable land and not available for division. As such, till 1968 it continued to be impartiable land being not available for partition, question of defendant No.1 exclusively holding the land to the exclusion of the plaintiffs does not arise.
Cases Referred: ILR 2006 Kar 4170, AIR 1982 SC 887; AIR 1989 SC 1042; AIR 1995 SC 895; AIR 1984 Sc 1121.
Karnataka Village Offices Abolition Act, 1961- Preamble - Preamble - Efect of Act - It does not affect personal law of parties.
Cases Referred: ILR 2006 Kar 4170, AIR 1982 SC 887; AIR 1989 SC 1042; AIR 1995 SC 895; AIR 1984 Sc 1121.
Karnataka Village Offices Abolition Act, 1961 - Holding of Office - Section 4 - Holding of Office - Effect. [Bannurmath S.R. and Subhash B. Adi, JJ]: Any person holding the office will be holding the said office on his behalf and also in behalf of other members of the joint family. The question as to whether the inam lands granted to the family would enure to the benefit of the other members of the joint family has been set at rest by various decisions of this Court as well as by Apex Court. In a judgment in ILR 1987 Kar 3155 (supra), this Court has held, that the junior members of the family are also the holders of village office and after the abolition of village office and resumption on regrant under Section 5, land becomes available for partition, the junior members are entitled to seek partition as per personal law. This Court has also referred the earlier decisions and has held that, merely because the regrant is made in favour of one of the members of the joint family, it does not exclude other members of the joint family and does not even amount to relinquishment or abandonment of their right.
Cases Referred: ILR 2006 Kar 4170, AIR 1982 SC 887; AIR 1989 SC 1042; AIR 1995 SC 895; AIR 1984 Sc 1121.
This is an appeal by plaintiff 2, questioning the judgment and decree dated 21-9-2005 in O.S. No. 108 of 2002 on the file of the Civil Judge (Senior Division), Saundatti.
2. The suit is one for partition and separate possession. Case of the plaintiff is that, Fakirappa, son of Gadigeppa Bandrolli and Smt. Mayawwa, daughter of one Kanappa Mangasuli were the original propositus for both the families of plaintiffs and defendants 1 to 3. Fakirappa had two sons namely, Beerappa and Yallappa. Defendants 1 to 3 are the children of Beerappa. Plaintiff 1 is the wife of Yellappa, plaintiff 2 is the son. Original propositus Fakirappa died in the year 1927 leaving behind Beerappa and Yellappa. Beerappa died in the year 1946 at Saundatti. His wife also died subsequently. Defendant 1 is the son of Beerappa. Defendants 2 and 3 are daughters. Second son of Fakirappa namely, Yellappa also died in the year 1989 leaving behind first plaintiff Smt. Dyamawwa, the wife and Beerappa, the son. Yellappa had another son by name Fakirappa. However, Fakirappa has gone in adoption to Ningappa Pattadakal family. The propositus Fakirappa was rendering Gram Chakaraki (Halabaki) and the lands were inam lands attached to that office. After the death of Fakirappa, the Chakari was continued by his two sons namely, Beerappa and Yellappa. Defendant 1Fakirappa is settled in the village Halagatti in Ramdurg Taluk. Defendants 2 and 3 are given in marriage. The suit CTS property bearing Nos. 2223 and 2226 are standing in the name of plaintiff 2, CTS No. 2225 is standing in the name of the plaintiff 2 along with defendants 4 to 6. Defendants 4 to 6 are owners in possession to the extent of 1/3rd portion on the northern side of CTS No. 2225 and plaintiffs have not made any claim to the said portion. However, only for formality, defendants 4 to 6 have been impleaded.
3. The suit properties are joint family properties in the enjoyment of plaintiffs and defendants 1 to 3. There is no partition at any point of time and they are all governed by principles of Hindu Law. Plaintiffs demanded for partition, however, the defendant 1 refused to the same, stating that the plaintiffs have no right to seek partition of the suit schedule property and also claimed that the lands belong to him. As such, plaintiffs were constrained to file the suit for partition.
4. Defendant 1 filed a written statement inter alia alleging, that the suit is frivolous and capricious and not maintainable in the eye of law. Defendant 1 claimed that his father Beerappa was doing Halabaki Chakari of Saundatti and therefore, he was rendering the service and lands were granted to him as a Chakari inam land as per M.E. No. 3951, dated 11-5-1942. The name of Beerappa was ordered to be kept under suspension in respect of the suit landed property under the order of the Controller, dated 22-4-1942 and as per the order of Tahsildar, dated 30th April, 1942, a mutation was effected and ordered to recover the amount from 25-8-1940. In view of the provisions of the Karnataka Village Offices Abolition Act, 1961, the Chakari inams were cancelled and further under Sections 5 and 6 of the Village Offices Abolition Act, the inam land was regranted in favour of defendants. The entry is effected as per the Mutation Entry No. 9760. Further, defendant 1 claimed that he has paid three times of the assessment of the land as per the order of the Assistant Commissioner, Bailhongal and got his name entered to the suit land by M.E. No. 9879, dated 27-2-1968 and the same was certified on 29-5-1968. Defendant 1 claimed that he is the absolute owner of land bearing Block No. 413 measuring 27 acres 6 guntas of Saundatti Town.
5. He also claimed that he is in actual possession and enjoyment of the suit land and he has paid the revenue regularly and has availed loan to the tune of Rs. 43,500/- and the land was hypothecated to Canara Bank, Saundatti and the said loan was repaid by the defendant 1. He also alleged that CTS Nos. 2223 a
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