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2020 DIGILAW 896 (KAR)

Huchhegowda v. Basavegowda And Others

2020-05-21

SREENIVAS HARISH KUMAR

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JUDGMENT 1. This appeal is by the first defendant in O.S.249/2002 on the file of Senior Civil Judge, Channarayapatna. The first respondent was the plaintiff, now that he is dead, his legal representatives have been brought on record. 2. In all about 10 landed properties described in schedule A, a house property mentioned in schedule B and an amount of Rs.56,869/- as shown in schedule C to the plaint, the plaintiff claimed partition and separate possession of his 1/3rd share. One Marihuchha was the propositus, he had a son namely Sannabasavegowda. The plaintiff, the defendant and Kempegowda, the father of defendants 2 and 3 are the three sons of Sannabasavegowda. The plaintiff stated that all the plaint schedule properties belonged to the joint family having ancestral character. There was no partition of joint family properties. After the death of his father, Kempegowda became the manager of the joint family. The defendants 2 and 3 obtained katha of joint family properties in their names after the death of Kempegowda. They did not render accounts of the income and they offered some of the lands as security for obtaining loan although there was no necessity to raise loan. Therefore, he demanded for partition of all the properties by issuing a notice. His demand having gone in vain, he brought the suit. 3. The appellant/first defendant admitted the relationship and contended about past partition. Very specifically, with regard to item No.1 of A schedule, he stated that it was his self acquisition as it was granted to him exclusively. As regards the compensation amount mentioned in plaint C schedule, he stated that he alone was entitled to the compensation amount as the land acquired was a part of his self acquired property in item No.1 of the plaint A schedule. He pleaded for dismissal of the suit. 4. Defendants 2 and 3 filed their statement supporting the plaintiff. 5. The trial court raised the following issues : - '1. Whether the plaintiff proves that himself and defendants are the members of the Hindu Joint family? 2. Whether the plaintiff proves that the suit schedule properties are the joint family properties of himself and defendants? 3. Whether the plaintiff proves that there was no family partition in between himself and defendants in respect of the suit schedule properties? 4. Whether the plaintiff is entitled for 1/3rd share in the suit schedule properties as sought? 2. Whether the plaintiff proves that the suit schedule properties are the joint family properties of himself and defendants? 3. Whether the plaintiff proves that there was no family partition in between himself and defendants in respect of the suit schedule properties? 4. Whether the plaintiff is entitled for 1/3rd share in the suit schedule properties as sought? 5. What relief plaintiff is entitled for? 6. What order or decree?' 6. It appears that issue 3 was wrongly framed, the burden of proving past partition should have been placed on the first defendant as it was he who positively asserted about partition. Anyway, it does not matter and even it is nobodys case that issue is wrongly framed. 7. The trial court after assessing the evidence, recorded findings that all the properties belong to the joint family, that past partition as contended by the first defendant has not been established, and that even the first item of plaint schedule belongs to joint family. In this regard the trial court has arrived at a conclusion that although the first item was granted to the first defendant, there was no partition of joint family and therefore the grant in the name of the first defendant did not enure to his exclusive right. With these reasons, the trial court decreed the suit granting 1/3rd share to the plaintiff. 8. Learned counsel for the appellant while arguing, though commented on the findings of the trial court that past partition has not stood established, ultimately confined his argument assailing the finding of the trial court that first item of plaint schedule is not the self acquisition of the first defendant. He referred to the deposition of PW1 to argue that PW1 has also admitted in the cross-examination that the grant was made to the first defendant. He argued that the said land once belonged to the joint family, but it was forfeited to Government due to non payment of land revenue. The first defendant paid the arrears of land revenue and other charges and then got that land granted to him. His testimony is corroborated by DW2. After the grant, part of that land was acquired by the Government and therefore the plaintiff and the defendants 2 and 3 have no right to claim share in the compensation amount. The first defendant paid the arrears of land revenue and other charges and then got that land granted to him. His testimony is corroborated by DW2. After the grant, part of that land was acquired by the Government and therefore the plaintiff and the defendants 2 and 3 have no right to claim share in the compensation amount. Placing reliance on a judgment of this court in Vijaylaxmi and Others v. Yankanna Agsar and Others [2017 (5) KCCR 761] , he argued that since item No.1 of A schedule stands in the name of first defendant, presumption can be raised that it is his self acquired property as the plaintiff has failed to prove existence of joint family properties. 9. Learned counsel for L.Rs of the first respondent, arguing for sustaining the findings of the trial court, mainly contended by referring to Rule 119 of the Karnataka Land Revenue Rules that item No. 1 of plaint schedule earlier belonged to the ancestor Marihuchha. After forfeiture of this land to the Government for non-payment of land revenue, the first defendant might have obtained the grant of the land to his name by paying the arrears of land revenue. But that grant to the first defendant was nothing but restoration of the land to the joint family; it was not an absolute grant to the first defendant. Evidence shows that there was no past partition and therefore the first item of plaint A schedule also belongs to the joint family. He garnered support for his argument from a judgment of the Supreme Court in the case of Achuthan Nair v. Chinnamu Amma and Others [ AIR 1966 SC 411 ] . 10. Therefore, the only point to be examined here is, Whether the trial courts conclusion that the grant of the first item land of plaint A schedule did not enure to the exclusive benefit of the first defendant is correct? 11. I have gone through the entire evidence. The trial courts conclusion that there was no past partition cannot be disturbed. Reassessment of evidence does not lead to take a contrary opinion. If really there had taken place partition, while cross-examining PW1, he should have been suggested at least that certain properties had been allotted to him; there is no suggestion to this effect at all. The trial courts conclusion that there was no past partition cannot be disturbed. Reassessment of evidence does not lead to take a contrary opinion. If really there had taken place partition, while cross-examining PW1, he should have been suggested at least that certain properties had been allotted to him; there is no suggestion to this effect at all. Past partition can be proved even by circumstances, which kind of evidence is also not forthcoming. Therefore, confirming the findings of the trial court in this regard, its further conclusion that grant of item No.1 was not to the first defendant, is to be examined. 12. There is no dispute that item No.1 of plaint A schedule earlier stood in the name of Marihuchcha or Chikka Marihuchha. Ex.P6 evidences this aspect. There is no dispute that this land was forfeited to the Government for non-payment of land revenue, and that the first defendant paid the arrears. In fact, DW2 is examined to prove that her father helped the first defendant to apply to the Government for granting the land to him. Actually this was not a grant, as contended by the first defendant, it was restoration of forfeited occupancy under Rule 119 of the Karnataka Land Revenue Rules. Whenever a forfeited occupancy is restored, it may be stated that it is restoration of the status that existed at the time of forfeiture, unless there are circumstances indicating contrary. In the case of Vijaylaxmi (supra), a decision cited by appellants counsel, facts are some what different. In a suit for partition, a specific defence was taken that a few items of properties standing in the names of defendants 2 and 3 were actually purchased from joint family funds. What is held by a co-ordinate bench of this court is that if the property stood in the name of a particular defendant, presumption could be drawn that it was his self acquired, but the burden was on the plaintiff to establish that the purchase of a property in the name of a defendant was from joint family income. The evidence in that case showed that the plaintiff failed to prove that aspect. But here the evidence shows that there was no partition. 13. In Achuthan Nair (supra), the Supreme Court reiterated the settled principle in the following words : - '.. The evidence in that case showed that the plaintiff failed to prove that aspect. But here the evidence shows that there was no partition. 13. In Achuthan Nair (supra), the Supreme Court reiterated the settled principle in the following words : - '.. Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law' 14. But in the case on hand, the factual position is restoration of land; it is not the stand of the first defendant that he acquired item No.1 of plaint A schedule for the first time. He might have paid arrears of land revenue and other charges for restoration, it is altogether different. If required, and if really he made a huge payment for restoration of land, it may be taken into account at the time of drawing final decree. The trial court has excerpted a passage from Mynes Hindu Law dealing with conferment of an estate by the Government. It is stated, 'Where a confiscation made by the Government is subsequently annulled, and no grant to any third party was ever made, it was held that old title revived for the benefit of all persons capable of claiming under it'. This principle is applicable to the facts of the case on hand. If the restoration of land is to benefit a particular individual of a joint family, there must be clinching evidence to that effect, or, the circumstances must indicate to hold that view. Here there is no such evidence as to benefit the first defendant. Past partition is not proved, the defendants 2 and 3 also plead for partition despite the fact that certain items of the properties stand in the name of second defendant as evidenced by Ex.P7. 15. Here there is no such evidence as to benefit the first defendant. Past partition is not proved, the defendants 2 and 3 also plead for partition despite the fact that certain items of the properties stand in the name of second defendant as evidenced by Ex.P7. 15. The learned counsel for appellant referred to a judgment of the Supreme Court in the case of Vidhyadhar v. Mankikrao and Another [ AIR 1999 SC 1441 ] and argued that the claim of defendants 1 and 2 should be rejected as neither of them entered the witness box. In my opinion, this is a misplaced reliance for, defendant No.1, there, was the contesting defendant and he did not enter witness box. This was the reason for claim of the first defendant being rejected by the Supreme Court. But here the defendants 2 and 3 supported the plaintiff for partition. There was no need for them to have entered the witness box. 16. Therefore, from the above discussion, I do not find any infirmities in the reasons assigned by the trial court to grant decree for partition. Appeal is therefore dismissed with costs.