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2013 Supreme(Kar) 1401

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
N. Kumar, B. Sreenivas Gowda, JJ.
Smt. Ramakka and Ors. - Appellants
Vs.
Smt. Thanamma Since Deceased by Legal Heir, P Srinvas and Ors. - Respondents
R.F.A. Nos. 2116 and 2117 of 2010
Decided On: 06.06.2013

Advocates:
Advocate Appeared:
For the Appellants: Sri Y.R. Sadashiva Reddy
For the Respondents: Sri. O. Shivaram Bhat, for R. 1, R. 2, Sri. M. Narayana Reddy, for R. 3, Sri. V. Lakshminarayana, for R. 4, Sri. G. Chandrashekaraiah, for R. 6 - R. 8, M/s. ACC Associates for R. 10, R. 11, Sri. M.C. Narasimhan Associates for Proposed R. 13, R. 14, R. 15, R. 16, R. 17, R. 18, R. 20, R. 22, R. 24, R. 25, R. 26, R. 27, R. 28, R. 31, R. 32, Sri. Srinivasa Raghavan of Indus Law for Impleading Proposed R. 33, Sri. C. Gowrishankari, for R. 5, R. 1, Sri. B.L. Nandakumar Associates for R. 12 and for R. 2, Sri. H.S. Satish Kumar, for R. 9 and Sri C. Chandrashekararaiah, for R. 3 to R. 5

Headnote:HINDU LAW - Ancestral properties: [N. Kumar & B. Sreenivase Gowda, JJ] Suit for partition and separate possession - Partition between 2 sons of propositor in 1941 - Second son having two wives died - two wives were sisters - Dispute between second wife and legal heirs of two wives - Properties comprising of agricultural land, garden land and grape vine yard - Suit was decreed by the Trial Court - Relationship of second wife and paternity of her children were disputed - Held, As the parties are all residents of Bangalore, which was a part of Princely State of Mysore and that all properties are situated within the Princely State of Mysore the Act of 1937 has no application. It is the Act of 1933, which is applicable. As the 1956 Act does not deal with a share to a female heir at a partition, 1956 Act has no overriding effect insofar as Section 8(a) & (b) of 1993 Act is concerned. Therefore, the rights conferred on a female under Section 8(a) & (b) of the 1933 Act is intact. Finding of the Trial Court that unmarried daughters are also entitled to a share by virtue of Section 8 of the 1933 Act is ex-facie illegal, as, on the date of partition, they were all married.

       HINDU LAW - Marriage: [N. Kumar & B. Sreenivase Gowda, JJ] Proof of - Held, Merely because no documentary evidence is produced in proof of the marriage, which took place about 60 years prior to the filing of the suit, it cannot be said that marriage is not proved. The normal course of human conduct is to be kept in mind coupled with the fact that in 1920s and 1930s, especially among the rural folk, this concept of printing invitation cards was not prevalent. Even persons who were present at the time of marriage could not be examined because of lapse of time. It is in those circumstances, what the Court could look into is only the circumstantial evidence.

       HINDU LAW - Suit for partition: [N. Kumar & B. Sreenivase Gowda, JJ] Once there was a partition in the family, the suit for partition is not maintainable.

       KARNATAKA LAND REFORMS ACT, 1961 - Section 48-A, Form 7: [N. Kumar & B. Sreenivase Gowda, JJ] Grant of occupancy right - Where the entire family was cultivating the land, the fact that karta made an application for grant of occupancy right, and the same was granted in his name, it cannot be said that he alone was the tenant of the land and not the Joint Family Property.

JUDGMENT :

N. Kumar, J.

1. These two appeals are preferred against the common judgment and decree passed in O.S. No. 2640/1988 and O.S. No. 5075/2000 decreeing the suit of the plaintiffs. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

2. O.S. No. 2640/1988 is filed by Smt. Thanamma and her daughters against Smt. Pillamma and her son Muniyallappa and the legal heirs of her another son Govindappa who are defendants 3 to 5. Defendants 6 and 7 are the daughters of Pillamma. The tenth defendant - Manjunath is the son of yet another daughter of Pillamma by name Padmamma who died prior to the filing of the suit. Defendants 8 and 9 are the daughters of the first plaintiff. Defendants 11 to 15 are the daughters of Govindappa. The other defendants are the alienees from both Muniyallappa and Govindappa.

3. The subject matter of these suits are agricultural land, garden land and grape vine yard, which are more particularly described in the schedules 'A' 'B' and 'C'. The property described in the 'B' schedule are lands situate in kaneshumari number.

4. The case of the plaintiffs is, one Arasikuttappa is the propositor. He had two sons by name Chinnanna and Muniyellappa. Muniyellappa had two wives, Smt. Pillamma - the first defendant and Smt. Thanamma - the first plaintiff. Pillamma had two sons by name Govindappa and Muniyellappa and two daughters by name Venkatamma and Jayamma. Thanamma had five daughters by name Gowramma, Narayanamma, Saraswathamma, Susheelamma and Parvatamma. Yet another daughter of Pillamma by name Padmamma is no more and her son is Manjunath.

5. The further case of the plaintiffs is, they are all members of Hindu Undivided Family. There was a partition in the year 1941 between Chinnanna and Muniyallappa. Muniyallappa died in the year 1945, leaving behind two wives and their children. After the death of Muniyallappa, his eldest son Govindappa started to manage the affairs of the joint family. His name was entered in the village records. Plaintiff No. 1 did not have any male issue. Her position was rendered helpless and she had to struggle even for her survival. After the death of Govindappa, all the income from the properties is enjoyed by the defendants, i.e. defendant No. 1 - Pillamma along with her sons and daughters. Plaintiff No. 1 has been virtually driven out of her family house and presently she is staying along with her eldest daughter Smt. Gowramma. Plaintiffs have been in joint possession of the schedule properties as members of the Hindu undivided family. The joint family has got several immovable properties which are fully described in the plaint schedule. All these properties are ancestral properties. They are situated in three villages. In para. 6 of the plaint the plaintiffs have clearly set out the survey numbers. Six survey numbers are situated at Cholanayakanahalli, seven survey numbers in Guddadahalli and six survey numbers in Hebbal. Out of these lands, Sy. No. 69/2 measuring 2 acres 4 guntas was a tenanted land which was cultivated by the joint family. This land belongs to the joint family though the occupancy rights were conferred in the name of Govindappa. Sy. No. 2/2 measuring 28 guntas and Sy. No. 2/3b measuring 2 acres 27 guntas situated in Guddadahalli are purchased by Govindappa who was managing the affairs of the family, from out of the income of the joint family properties. Therefore, all the properties are ancestral properties belonging to the Hindu undivided family and the plaintiffs have got share in these properties under the Hindu Succession Act, 1956. As per the genealogy, late Muniyellappa and his brother late Chinnanna would get half share each in the entire joint family properties. In the half share which were to fall to the share of Muniyellappa, the plaintiff No. 1 being the widow of Muniyellappa would have got 1/4th share on notional partition. Plaintiff Nos. 1 to 6, namely the widow and daughters of Muniyellappa would get e































































































































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