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2023 DIGILAW 396 (KAR)

Vijay v. Appasaheb Desai

2023-03-07

ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Anant Ramanath Hegde, J. - This appeal is filed by the unsuccessful plaintiffs in O.S.No.88/2005 on the file of the Civil Judge (Sr.Dn.), Bilagi (for short, the 'Trial Court'). The said suit was for partition and separate possession. The genealogy of the parties is as under: 2. One Vyasappa Desai was the propositus. He had two sons Sangappa and Mallappa. Both Sangappa and Mallappa are dead. Mallappa died in the year 1917, this is a relevant year. Mallappa was survived by his wife Bhagirathi. In the year 1937 Bhagirathi took Gurusangappa in adoption. Said Gurusangappa is the plaintiff No.1. Gurusangappa had two wives Tangevva/plaintiff No.1A and Kamalavva/Plaintiff No.6. The children of second wife Kamalavva are plaintiffs No.2, 3, 4 and 5. Plaintiff No.1A is first wife and plaintiff No.1B is daughter. After the demise of Gurusangappa during the pendency of the suit, his first wife Tangevva/plaintiff No.1A and daughter Bhagirathi/plaintiff No.1B came on record. The suit is filed against Appasaheb who is the adopted son of Bhimrao and Bhimrao is the son of Sangappa. The suit for partition is filed on the premise that the property inherited by Mallappa from his father Vyasappa Desai would devolve upon Gurusangappa and through Gurusangappa, the plaintiffs inherited the properties and they are entitled to ½ share. 3. The defendants who represent the branch of Sangappa contested the suit. The defendants took the stand that the properties exclusively belonged to the defendants and plaintiffs cannot claim any share in the suit properties. It is also contented that Bhagirathi the wife of Mallappa had obtained a Court order for maintenance and to settle her claim based on order relating to maintenance, the lands in Sy.Nos.62 and 63 of Shiraguppi village, Bilagi Taluk were transferred in the name of Bhagirathi and as such the Gurusangappa cannot claim any share over the properties. 4. The Trial Court has framed issues based on the pleadings. The issue No.2 is relating to the contention of the plaintiffs that the suit properties are joint family properties and this issue is answered against the plaintiffs holding that the properties are not joint family properties. 5. Aggrieved by the judgment and decree dismissing the suit, the plaintiffs are in appeal. 6. Heard the learned counsel for the appellants and the respondents. 7. Sri. 5. Aggrieved by the judgment and decree dismissing the suit, the plaintiffs are in appeal. 6. Heard the learned counsel for the appellants and the respondents. 7. Sri. S.S.Patil, learned counsel for the appellants would submit that Gurusangappa who was adopted by Bhagirathi under the registered adoption deed in the year 1937, would acquire all the properties held by Mallappa. To substantiate his contention, he would refer to the registered adoption deed which is marked at Ex.P16. In Ex.P16, it is recited that Gurusangappa would acquire all the property rights held by Mallappa. Referring to this registered adoption deed and also referring to the finding where the Trial Court has given, adoption is established. He would also contend that adoption is established and the adoption deed is recited that the adopted son will acquire all property rights of Mallappa who died in 1917. On this premise, it is contented that the plaintiffs have established their case, as Mallappa has inherited ½ share of Vyasappa Desai and as such prayed to pass decree for ½ share in favour of the plaintiffs. It is also contended by the learned counsel for the appellants that the finding of the Trial court is erroneous and the Trial Court primarily placed reliance on the suit filed by the Gurusangappa against his mother Bhagirathi in respect of properties bearing Sy.Nos.62 and 63 of Shiraguppa village, Bilagi Taluk. It is urged that the dismissal of the above said suit will not come in the way of plaintiffs filing a suit for partition in respect of properties originally belonging to the Vyasappa Desai. It is contended that the suit for partition filed by the Gurusangappa against Bhagirathi was only in respect of two properties bearing Sy.Nos.62 and 63 and dismissal of the said suit in respect of those two properties cannot come in the way of plaintiffs claiming ½ share in the properties of Vyasappa Desai. It is also urged that one more suit filed by the plaintiffs in O.S.No.226/1999 is dismissed for want of pecuniary jurisdiction and said dismissal cannot be a ground to dismiss the present suit and as such prayed for allowing of the appeal. 8. Sri. P.N. Hosamane, learned counsel appearing for respondents No.3(A and B) who are plaintiffs No.1A and 1B would also support the contention of the learned counsel appearing for the appellants. 8. Sri. P.N. Hosamane, learned counsel appearing for respondents No.3(A and B) who are plaintiffs No.1A and 1B would also support the contention of the learned counsel appearing for the appellants. He would submit that the respondents No.3(A and B) are none other than wife and daughter of late Gurusangappa and they together acquire share of the properties held by the Gurusangappa and as such the dismissal of the suit is erroneous. 9. Sri. Chandrashekhar P.Patil, Learned counsel appearing for respondents No.1A and 2 would defend the impugned judgment and decree. It is his contention that the land tribunal has passed an order taking into consideration the ceiling limit and has held that except the properties shown in the suit schedule other properties belonging to the family were treated as excess lands and they were taken over by the Government and by referring to the land tribunal order, he would submit that the order of the land tribunal would indicate that the properties standing in the name of Appasaheb were the exclusive properties of Appasaheb and his family and the plaintiffs are nothing to do with the suit scheduled properties. 10. This Court has considered the rival contentions raised at the Bar. 11. The point to consider in this case is whether the plaintiffs are in a position to establish that the suit scheduled properties are joint family properties of plaintiffs and defendants. 12. From the facts narrated above, it is apparent that originally the properties belonged to Vyasappa Desai. He had two sons, Sangappa and Mallappa. Mallappa died in the year 1917. After the death of Vyasappa Desai, Sangappa and Mallappa jointly inherited the properties standing in the name of Vyasappa Desai. After the death of Mallappa in the year 1917 as per the law stood then ½ share of Mallappa were inherited by Sangappa his brother through survivorship as Mallappa Desai had no male issues. His wife Bhagirathi did not inherit in any properties as per the law prevailing then. Gurusangappa was adopted in the year 1937, when he was adopted, Mallappa was not alive. He was adopted by Bhagirathi and she became adoptive mother. When Gurusangappa came into the family as adoptive son, there were no properties standing in the name of Mallappa or Bhagirathi the adoptive mother. Gurusangappa was adopted in the year 1937, when he was adopted, Mallappa was not alive. He was adopted by Bhagirathi and she became adoptive mother. When Gurusangappa came into the family as adoptive son, there were no properties standing in the name of Mallappa or Bhagirathi the adoptive mother. That being the position, the adoption which has taken place in the year 1937 does not divert the rights of Sangappa in respect of the suit scheduled properties which Sangappa has acquired through survivorship. 13. For the aforesaid reasons, this Court is of the view that the suit of the plaintiffs is not maintainable as the plaintiffs are not in a position to establish that the suit schedule properties are joint family properties. 14. It is also borne out from the record that in view of her claim of maintenance, Bhagirathi was given properties bearing Sy.Nos.62 and 63 of Siraguppi village, Bilagi Taluk as per evidence/ME.No.373 marked at Ex.D2. The fact that Bhagirathi retained the suit properties in view of her claim for settlement is not in dispute. In fact the suit was filed by Gurusangappa against Bhagirathi claiming share in the above suit properties and that suit was dismissed. This is one of the circumstances which indicate that Gurusangappa was aware that he is not the heir of Mallappa as far as properties of Mallappa are concerned. 15. From the facts narrated above and for the discussions made above, this Court does not find any fault with the judgment and decree passed by the Trial Court dismissing the suit of the plaintiffs. For this reason, there is no merit in the appeal and accordingly, the appeal is dismissed.