SMT. RAJASHREE v. SHRI. APPASAB @ APPASAHEB

Judgment

#1. SHRI. APPASAB @ APPASAHEB S/O. RAOSAHEB DESAI AGE: 89 YEARS, OCC: AGRICULTURE, R/O: MUTWAD, TQ. SAUNDATTI, DIST. BELAGAVI.

#2. SMT. SHANTABAI W/O. APPASAHEB DESAI AGE: 79 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: MUTWAD, TQ. SAUNDATTI, DIST. BELAGAVI. - 2 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017

#8. RAOSAHEB S/O. APPASAHEB DESAI AGE: 62 YEARS, OCC: AGRICULTURE, R/O: MUTWAD, TQ. SAUNDATTI, DIST. BELAGAVI.

SMT. ANNAKKA W/O. BABUSAB KITTURKAR DESAI AGE: 60 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: BUDAGAON, TQ. AND DIST. KOLHAPUR (MAHARASHTRA). SMT. JAYASHREE W/O. TATASAHEB DESAI AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O: VANNUR , TQ. BAILHONGAL AND DIST. BELAGAVI. SHRI. PRABHULING S/O. APPASAHEB DESAI AGE: 47 YEARS, OCC: AGRICULTURE, MUTWAD, TQ. SAUNDATTI, DIST. BELAGAVI. SMT. MALA CHANNAPPA DESAI AGE: 39 YEARS, OCC: HOUSEHOLD WORK, R/O: MUTWAD, TQ. SAUNDATTI, DIST. BELAGAVI. SHRI. RAMALINGAPPA S/O. MALLAPPA SANKAMMANAVAR SINCE EXPIRED ON 21.01.2019, NOW REPRESENTED BY HIS LR’S RESPONDENT Nos. 8(A) TO RESPONDENT 8(E) - 3 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017 8(A) GANGAVVA W/O. RAMALINGAPPA SANKAMMANAVAR, AGE: 50 YEARS, OCC: AGRICULTURE, R/O: MUTWAD, TQ. SAUNDATTI, DIST. BELAGAVI. 8(B) NAGRAJ S/O. RAMALINGAPPA SANKAMMANAVAR, AGE: 29 YEARS OCC: AGRICULTURE, R/O: MALLUR, TQ. SAUNDATTI, DIST. BELAGAVI. 8(C) SRIDEVI W/O. SHANKARGOUD PATIL, AGE: 28 YEARS, OCC: AGRICULTURE, R/O: MALLUR, TQ. SAUNDATTI, DIST. BELAGAVI. 8(D) NETRAWATI W/O. SOMALINGAPPA NAGNUR, R/O: MALLUR, TQ. SAUNDATTI, DIST. BELAGAVI. 8(E) ADRUSH S/O. RAMALINGAPPA SANKAMMANAVAR, AGE: 25 YEARS, OCC: AGRICULTURE, R/O: MUTWAD, TQ. SAUNDATTI, DIST. BELAGAVI. …RESPONDENTS (BY SRI. GIREESH C. KATTIMANI, ADVOCATE FOR R3 AND R7. SRI. G.I. GACHCHINAMATH, ADVOCATE FOR R1, R2, R6 AND R7. R4, R5 SERVED AND UNREPRESENTED. SRI. GURURAJ R. TURAMARI, ADVOCATE FOR R8(A TO E)) AGAINST THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF DECREE CPC., DATED:07.10.2017 PASSED IN O.S.NO.76/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, SAUNDATTI, I/C. SENIOR CIVIL JUDGE, BAILHONGAL, DISMISSING THE SUIT FILED FOR DECLARATION, PARTITION AND SEPARATE POSSESSION. JUDGMENT AND THE THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017 CORAM: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD THE HON'BLE MR. JUSTICE C M JOSHI JUDGMENT (PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD) The appellant is the plaintiff in OS No.76/2013 on the file of the Senior Civil Judge, Saundatti, and the appellant’s suit is dismissed by the impugned judgment and decree dated 07.10.2017 by the Senior Civil Judge, Bailhongal who was holding in-charge of the aforesaid Court. The Court of the Senior Civil Judge, Bailhongal, for reasons of convenience, is referred to as ‘the civil Court’. The appellant has filed different applications in the present proceedings to implead certain members of the extended family and also include certain other properties.

#2. It is undisputed that Sri Appa Saheb Senior [the propositus] had two sons, Sri Rao Saheb and Sri Basavant Rao. Sri Rao Saheb and his wife, Smt. Kashibai, did not have children, and therefore, they have taken Sri Basavant Rao’s eldest son, Sri. Appa Saheb Junior [the first defendant], in adoption in the year 1951. The present - 5 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017 dispute is because the appellant, who is the daughter of the Sri Appa Saheb Junior has filed the suit for partition arraying her mother [Smt. Shantha Bai] as the second defendant and her brothers and wife of the deceased brothers as other defendants. The appellant has also arrayed the eighth defendant [the eighth respondent] because the third defendant [the third respondent] has transferred one of the suit schedule properties in his favour. The parties for reason of convenience are referred to in terms of the ranking before the civil Court.

#3. The plaintiff has essentially asserted that the properties described in the plaint schedule are joint family properties contending that these properties are re- granted to Sri Appa Saheb Junior under the provisions of Bombay Pargana and Kulkarni Vatan Abolition Act, 1950, that these properties are ancestral properties though it could be contended that Sri Appa Saheb Junior has transferred certain properties in favour of some of the defendants [the second, third and sixth defendants] and those transfers are invalid and there must be partition of all - 6 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017 the suit schedule properties. The plaintiff has also contended that certain revenue entries were given effect to at the instance of Sri Appa Saheb Junior (ME No.1140) only because of the ceiling on holding of lands and that itself cannot indicate or establish any exclusive right in any of the defendants.

#4. Sri Appa Saheb Junior [the first defendant] has filed written statement contending that he is the absolute owner of the suit schedule properties, and as such, he has gifted certain properties in favour of his wife, Smt. Shanta Bai [the second defendant] and transferred certain other properties in favour of his sons [the third and sixth defendants). Sri Appa Saheb Junior has furnished details of the properties that he has either gifted or transferred in favour of his wife and sons as aforesaid. Sri Appa Saheb Junior has also contended that he has given up rights in certain properties granted under the 1950 Act in favour of his genitive brothers who are the sons of Sri Basavant Rao Saheb and without his legal heirs being included with all the properties brought into the suit’s fold, the suit cannot be - 7 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017 maintained. The sixth defendant has also filed written statement in similar lines. Further, the defendants have asserted that the second defendant has transferred the property gifted in her favour to the third defendant.

#5. The Civil Court has framed Issues which require the plaintiff to prove that the suit properties are joint family properties and the defendants to prove that the suit is hit by non-joinder of proper parties and properties. The plaintiff to prove her case that the suit properties are joint family properties and that the transactions affected by Sri Appa Saheb Junior do not bind her share has examined herself as PW.1 and another, Sri. Shivappa S/o Basavaneppa, as PW.2. The plaintiff has marked Ex. P1 to P22 which are essentially the revenue records of the suit schedule properties, the gift deed executed by Sri Appa Saheb Junior in favour of the second defendant and certified copies of the mutation register including mutation extracts in ME No.1140. On behalf of the defendants, Sri. Appa Saheb Junior is examined as DW1, the eighth defendant is examined as DW.2 and two other witnesses i.e. the sixth and - 8 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017 third defendant are examined as DW.3 and 4. These defendants have also marked certain mutation extracts, record of rights and copy of the sale deed in favour of the eighth defendant (Ex.D.30).

#6. The civil Court has opined that the initial burden is on the plaintiff to prove that the suit properties were granted in favour of Sri Appa Saheb Junior for the benefit of the family and therefore, these properties are ancestral properties, but the plaintiff has not discharged the burden. The civil Court has further opined that it is undisputed that the suit properties originally belonged to Sri Appa Saheb Senior and because the plaintiff has not included the properties that have devolved from him and all the family members including, the legal heirs of Sri Basavant Rao [the second son of Sri Appa Saheb Senior], the suit must be dismissed for non-joinder of parties. The civil Court has emphatically concluded that the plaintiff has failed to establish that the suit schedule properties are joint family properties. - 9 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017

#7. Sri. Santosh B. Rawoot, Sri. G. I. Gachchinamath and Sri. Gireesh C. Kattimani, the learned counsels on record for the parties, are heard and they are categorical in their submissions that the different suit schedule properties are part of the properties that are re- granted to Sri Appa Saheb Junior under the provisions of the 1950 Act and that after the grant of the suit schedule properties and such other properties, Sri. Appa Saheb Junior has relinquished and otherwise transferred certain properties to the sons of Sri. Basavant Rao Saheb. If Sri. Appa Saheb Junior has transferred certain properties to the legal representatives of Sri. Basavant Rao Saheb, neither the properties allotted to them nor they would be necessary parties to the proceedings because it would be in lieu of their interest. Therefore, the questions for consideration would be: [a] Whether the properties that were held by Sri Appa Saheb Junior after the arrangement as aforesaid in favour of his genitive brothers [sons of Sri Basant Rao Saheb] could be called his absolute properties, - 10 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017 if it cannot be held accordingly, whether it could be reasonably opined that the appellant has failed to establish that she has a share in the suit properties as the daughter, and [b] Whether Sri Appa Saheb Junior could have created any exclusive interest either by way of gift in favour of the second, third and sixth defendants.

#8. The question whether re-grant of the properties under the 1950 Act would not take the nature of joint family properties has been settled way back, and this Court must make an immediate reference to the decision of Hon’ble Apex Court in the case of Nagesh Bisto Desai and others Vs. Khando Tirmal Desai and others, reported in (1982) 2 Supreme Court Cases 79. The Supreme Court, while considering the provisions of Section 3 and Section 4 of the 1950 Act [and the provisions of another Act viz. Bombay Inferior Village Watan Abolition Act, 1958] has categorically opined thus: - 11 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017

#38. The Watan Act contemplated two classes of persons. One is a larger class of persons belonging to the watan families having a hereditary interest in the watan property as such and the other a smaller class of persons who were appointed as representative watandars and who were liable for the performance of duties connected with the office of such watandars. As already indicated, it would not be correct to limit the word 'watandar' only to his narrow class of persons who could claim to have a hereditary interest both in the watan property and in the hereditary office. Watan property had always been treated as property belonging to the family and all persons belonging to the watan family who had a hereditary interest in such watan property were entitled to be called 'watandars of the same watan' within the Watan Act. That being so, the members of a joint Hindu family must be regarded as holders of the watan land along with the watandar for the time being, and therefore the regrant of the lands to the watandar under sub-section (1) of Section 4 of Act 60 of 1950 and under Section 3 of Act 22 of 1955 must enure to the benefit of the entire joint Hindu family.

#9. This Court in the light of this exposition and the admitted facts as aforesaid must opine that Sri Appa Saheb Junior did not hold the property exclusively to the exclusion of the other family members including the - 12 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017 plaintiff. It remains indisputable that Sri Appa Rao Saheb Junior held the suit schedule properties as ancestral properties. If this remains an unassailable position in law and on facts, it must follow that Sri Appa Saheb Junior could not have settled or gifted properties any of these properties selectively in favour of some family members. Therefore, the questions for consideration must be answered in favour of plaintiff and that she is entitled to 1/7th share in the suit schedule properties along with the mother and her five siblings.

#10. As regards the documents executed and the arrangements made by Sri Appa Saheb Junior in favour of his wife [the second defendant) and his sons [the third and defendants], arrangement/transfer must necessarily be confined to the share that could be allotted to them in these properties and consequentially they would be entitled to their share and the share of the mother’s based on the transfer in their favour. Further, this Court must observe that the gift deed executed by the second defendant in favour of the sixth defendants because of the gift in her - 13 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017 favour Sri Appa Saheb Junior must also be dealt with accordingly. This Court cannot but observe that in the final decree proceedings, while working out equities the third to sixth defendants must be at liberty to contend that the properties settled in their favour must be allotted to their share as a matter of working out equities and also in recognition of the share that they would be entitled to the shares that are settled in their favour. In the light of the above, the following: ORDER The appeal is allowed, and the civil Court’s impugned judgment and decree is set aside decreeing the suit declaring that: [a] the plaintiff is entitled for 1/7th share in the suit schedule properties. [b] The third to sixth defendants are entitled to the share of Sri Appa Saheb Junior in the suit schedule properties corresponding to the documents executed in their favour and - 14 - NC: 2024:KHC-D:11807-DB RFA No. 100408 of 2017 these defendants shall also be at liberty to seek for working out of equities in the light of the aforesaid transactions so that they can retain these properties. [c] There shall be no costs, and the Office is directed to draw decree. [d] Consequently, all pending applications are stands dismissed. Sd/- (B.M.SHYAM PRASAD) JUDGE Sd/- (C M JOSHI) JUDGE HMB LIST NO.: 1 SL NO.: 25