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2019 Supreme(Kar) 1740
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
N.K. Sudhindrarao, J.
Smt B Jayamma W/o Late B Bheemaiah Since Dead By Lrs And Ors. – Appellants
Versus
Smt Dhakshayini @ Latha W/o Late B.Ramachandraiah And Ors. – Respondents
R.S.A.No.630 of 2006
Decided On : 01-07-2019
Advocate Appeared:
For the Appellant :Sri. K.N. Nitish, Advocate For Sri K V Narasimhan
For the Respondent:Sri. M.R. Rajagopal, Advocate
Headnote:
Code of Civil Procedure, 1908 - Order XII Rule 6 - Property - Agricultural Land - Will - Partition of Property - Whether Courts below were justified in acting on Will under which even before acquiring property by way of grant order testator had bequeathed property excluding plaintiff - Whether testator had absolute right to bequeath said property - Whether it is open to propositus/eldest member of family to bequeath or dispose of properties irrespective of preexisting rights of legatees and others - Whether with concurrence of all members or on entitlement of members of joint family could there be mutation independently made but unequally, prevail over shares of other members - Whether a female member who stands at par with plaintiff and defendant and not made party to a partition suit regard being had to fact she neither contests by getting impleaded nor has filed a separate suit on her behalf, is entitled for a share that too when her relationship is admitted in addition to that no disqualification is attributed against her - Whether it is open to divide item No.1 of property to volition of plaintiff - Whether item No.1 of property is ancestral or not – Held, Features of partition of a joint Hindu family cannot be disrupted either by plaintiff through her selective and beneficial claim or by defendants claiming under WillEx.D1 - It is also claimed by defendant that suit averments are not proper and matter was not considered in frontline platform and it is sub-silentio before both trial and first appellate court - Only sin of Puttamma is that she did not come before court regard being had to fact that she was not made a party - Thus, plaintiff and defendants neglected her and at end of day she was deprived of her legitimate share – Court find the just and equitable action would be both parties should join in recognizing the rights of Puttamma in the same manner as that of other members. Thus it cannot be 1/4th for each member on other hand it shall be 1/5th share - In this connection neither Will nor consolidated representation of Jayamma and Ramachandra can take away rights of other members - Regard being had to fact that plaintiff alleges that Will came under suspicious circumstances as Chikkabasavaiah executed Will on which day he is reported to be dead - However, defendants claim that he breathed last after executing Will and same is enforceable - Claim of plaintiff regarding division of properties @ 50% each between plaintiff and defendants is liable to be rejected - Defendants-legal representatives of late Ramachandra claim half portion of item No.1 of schedule property on score that late plaintiff-Jayamma and late defendant-Ramachandra appeared before Land Tribunal and were allotted item No.1 in equal proportions by Land Tribunal - Item Nos.2 and 3 belonged to Chikkabasavaiah is not disputed and insofar as item No.1 of property was allotted to plaintiff and Ramachandra as Chikkabasavaiah died during proceedings before Land Tribunal and date of execution of Will is on basis of declaration by defendants - Admittedly fact of another daughter by name Puttamma is admitted - Now next aspect is granting her share subject to completion of formal procedure - Thus, when all materials are available and when there is no embargo in form of flaw, denials or part denials, there is no impediment either on its motion or parties to own on basis of admission - In this connection plaintiff is permitted to implead Puttamma as a party - Appeal partly allowed.
JUDGMENT :
Appeal is directed against the Judgment and decree dated 16.04.2004 passed by the Additional Civil Judge (Sr.Dn), Srirangapatna, wherein appeal was dismissed and Judgment and decree dated 25.01.1994 passed by the Munsiff, Srirangapatna, in O.S.No.326/89 came to be confirmed.
2. In order to avoid confusion and overlapping, the parties are referred in accordance with the rankings and status held by them before the trial court.
3. Originally suit in O.S.No.326/89 came to be filed by one B.Jayamma, w/o late Bheemaiah against Dhakshayini, Smitha and others seeking partition of suit schedule property claiming that she is the wife of late Bheemaiah and daughter of late Chikkabasavaiah.
4. Learned trial Judge was accommodated with oral evidence of PW-1 to PW3 and documentary evidence Exhibits P-1 to P-18 on behalf of plaintiff and oral of evidence of DW-1 to DW-3 and documentary evidence Exhibits D-1 to D-18 on behalf of defendants. Learned trial Judge on conclusion of trial disposed of the case by dismissing the suit, and same result was affirmed by the appellate Judge as well. Thus the present appeal is against the concurrent findings.
5. Appeal was admitted for considering the following substantial questions of law:
“i). Whether the Courts below were justified in acting on the Will under which even before acquiring the property by way of grant order the testator had bequeathed the property excluding the plaintiff?
(ii) When the land was granted to the family, whether the testator had the absolute right to bequeath the said property?”
6. In addition to said substantial questions of law the following additional substantial questions of law arise for consideration:
1. Whether it is open to propositus/eldest member of the family to bequeath or dispose of the properties irrespective of the preexisting rights of the legatees and others?
2. Whether with the concurrence of all the members or on the entitlement of members of the joint family could there be mutation independently made but unequally, prevail over the shares of other members?
3. Whether a female member who stands at par with the plaintiff and defendant and not made party to a partition suit regard being had to the fact she neither contests by getting impleaded nor has filed a separate suit on her behalf, is entitled for a share that too when her relationship is admitted in addition to that no disqualification is attributed against her?
7. Learned counsel for appellant Sri K.N.Nitish would submit that item No.1 of the property is agricultural land in Sy.No.91/1 to the extent of 2 acres 29 guntas and Sy.No.94/2 to the extent of 3 acres 22 guntas of Bommur Agrahara Village situated at Srirangapatna that was granted to plaintiff-Jayamma and her brother –Ramachandra and the Land Tribunal identified ½ share for each of them i.e., Jayamma and her brother –Ramachandra. Learned counsel would further submit that item No.2 of the schedule property is 24 ankana house and she seeks 1/4th share in it (6 ankana) and item No.3 -1/4th share.
8. Learned counsel would further submit that thus this being the fact and principles of law, calculations and arrangements were disrupted by the defendants by laying their hands over the legitimate share of the plaintiff.
9. Learned counsel would further submit that mutation entries of the properties were done contrary to well known principles of revenue laws.
10. It was further submitted that the Will marked as Ex.D-1 if to be presumed as genuine a major question requires to be answered as to why it was not produced before the Land Reforms Authorities who were considering the matter.
11. Learned counsel Sri M.R.Rajagopal for respondents 1 and 2 would submit that no illegality was effected by executing a Will by deceased Chikkabasavaiah nor shares were demarcated by effecting undue favours in favour of one member and to the prejudice of the other. The effecting of mutation is exactly done in accordance with recognized revenue principles. It is also submitted b
