SANNU Vs. SANNI KOM SOMAYYA

JUDGEMENT

(1.) HEARD the arguments of the learned Counsel appearing for the appellants as well as the learned counsel for the respondents/ caveators and carefully perused the case papers including the impugned Judgments passed by both the Courts below, with their assistance.

(2.) THE plaintiffs are the appellants herein. They filed a suit for partition and separate possession of their 1/2 share in the suit properties and also for declaration that the Mutation Entry bearing no. ME 98 of Kerehittlu village is null and void and not binding on the plaintiffs. The plaintiffs and the defendant Nos. 9 and 10 are the children of one Somayya Gonda through his 1st wife. The defendant No. 1 Smt. Sanni is the 2nd wife of the said Somayya Gonda. The defendant Nos. 2 to 8 are the children of the deceased through his 2nd wife. The suit properties were the tenanted properties. During the life time of the deceased Somaiah, he filed an application for grant of occupancy rights in respect of these lands before the concerned Land Tribunal and he was accordingly granted the occupancy rights in respect of these suit lands. The said Somayya gonda had died on 14. 3. 1995. Before that it is stated in the year 1993 Somayya Gonda and the defendants had filed a joint vardhi and pursuant to which the disputed mutation entry No. 98 of kerehitthalu village came to made during the life time of the deceased Somayya Gonda which was alleged to be without notice to the appellants. Though the appellants stated to have preferred an appeal against such mutation entry, the same was partly allowed, but confirmed the entry. Thereafter it is stated that the appellants filed the present suit. The appellants/plaintiffs claimed that the suit properties are the joint family properties and hence they have got a share. The defendant No. 1 filed the written statement which was adopted by the defendants 2 and 3. The defendant Nos. 4 and 8 were minors and they were duly represented by their mother guardian the defendant No. 1. They denied that the suit properties are the joint family properties. They further set up a registered Will dated 10. 3. 1980 executed by Somayya Gonda bequeathing the suit properties in their favour. They also contended that in an oral partition which took place on 12. 8. 1972, a land bearing Sy. No. 1/1 was given to the plaintiff No. 1 by the deceased Somayya gonda and hence he ceased to be a member of the joint family. On these and other contentions taken by them, they contended that the appellants/ plaintiffs are not entitled to any share in the suit property. The defendant No. 5 also filed the written statement and she took more or less the same contention. The Trial Court decreed the suit holding that the plaintiffs 1 and 2 are entitled to 1/11th share each in the suit property. On appeal, the appellate Court allowed the appeal and set aside the Judgment and Decree of the Trial Court. Hence this Second Appeal by the appellants/plaintiffs.

(3.) LEARNED Counsel for the appellants has vehemently contended before me that when it is an admitted fact that the suit lands were tenanted lands granted to the deceased Somayya, the Courts below ought to have referred the question whether the lands in question were of the joint family or only of Somayya Gonda as it was the Tribunal which has jurisdiction to decide on this aspect of the matter. He contended that the Court below could not have taken it upon itself to decide the said question in view of the law laid down by the Hon'ble Supreme Court in the case of mudakappa v. RUDRAPPA. While placing reliance upon the said decision, he contended that when the question arises whether the member or joint family is the tenant, that question should be decided by the Land Tribunal alone under Section 48a r/w Section 133 of the karnataka Land Reforms Act and not by the Civil Court. He therefore contended that the judgment and Decree passed by both the Courts below is one without jurisdiction. He further contended that this being a question of law, it can be raised even in the second appeal as it relates to the jurisdiction of the Court. He further contended that the Courts below ought to have seen that the jurisdiction of the Civil Court was excluded in view of Section 133 of the karnataka Land Reforms Act and that being so, the finding of the Court below as to whether the suit property is the exclusive property or the joint family property is without jurisdiction and as such liable to be set aside. He further contended that the question whether the deceased had right to bequeath the property in favour of the respondents/defendants would hinge upon the finding whether the properties are the joint family properties or the individual properties of Somayya and hence it was necessary to refer the question to the Land Tribunal for its decision and the Courts below having failed to do so, the finding that the Will is valid and Somayya had the right to bequeath the same to the defendants/respondents is vitiated and liable to be set aside. He also contended that the Court below erred in finding that the if the defendants are able to prove the will, then he plaintiffs have no share in the suit properties and erred in proceeding to take points 1 and 2 for consideration together without framing point as to whether the suit properties are the joint family properties or the self acquired 1. , AIR1994 SC 1190 , (1994)2 SCC57 properties of the deceased Somayya. He contended that the questions involved in the suit would revolve round the point whether the lands in question were joint family properties or the exclusive properties of the deceased Somayya and on this point it is only the Tribunal which has jurisdiction and not the Civil Court. He therefore contended that the substantial questions of law as proposed in the memorandum of appeal would arise for consideration in this Second appeal filed by the appellants. He further contended that the joint family was only in respect of the suit property and not in respect of the land bearing Sy. No. 1/1. He therefore contended that the contention of the other side that Sy. No. 1/1 was given to the share of the plaintiff No. 1 is not correct and proper. While elaborating this submission, he contended that the land bearing Sy. No. 1/1 is concerned, the occupancy rights were conferred in the joint names of the 1st plaintiff and one Sanni who is the maternal aunt of the plaintiff No. 1 and if in fact the said property was a joint family property, it could not have been granted in the joint names of the 1st plaintiff and one Somayya. Further while drawing my attention to the definiton of the joint family as defined under Section 2 (A) (17) and Section 21 of the Karnataka Land Reforms Act, he contended that for the purpose of joint family, it is not the holding which is relevant but what is relevant is that the joint family was undivided and that if the tenant dies as an undivided member of a joint family, the property in question shall devolve upon the surviving members of the said family. This being the position of law, he contended that when the deceased Somayya had died and there being no division in the joint family, the property shall devolve upon the surviving members of the joint family, of which the deceased was also a member. Under the circumstances, he contended that the plaintiffs will certainly have a share in the property which has been rightly found by the Trial Court and wrongly reversed by the 1st Appellate Court.