TARABAI Vs. VENKATESH

JUDGEMENT

(1.) RSA No.7126/2008 has been tagged along with RFA No.1317/2007. As the result in this appeal, would have a direct bearing on the said appeal in RFA No.1317/2007, both are heard and are disposed of by separate judgments. The facts leading up to the appeals are as follows:

(2.) As can be seen, Kishan Rao claiming as the elder son of Mudagal Rao, who was the first son of Sheshagiri Rao, was the plaintiff. The case of the plaintiff was that he was the nearest heir and reversioner of Bhima Bai widow of Raghavendra Rao and that the suit property as per the suit schedule, namely, the land bearing Sy.Nos.25, 127 and 128 of Jewargi and land bearing Sy.No.289 and houses bearing Nos.2-50, 2-51 and 1-34 of Jewargi, belonged to Bhima Bai, widow of Raghavendra Rao. It was claimed that the suit properties were ancestral properties in her hands. That the husband of Bhima Bai had predeceased his father Bhima Rao and consequently the succession of Bhimrao was sanctioned in favour of his grand son Venkat Rao. Venkat Rao is said to have died much earlier and after the death of Venkat Rao who was the only son of Raghavendra Rao, Bhima Bai his mother became the owner and successor to the entire property including the suit schedule properties and the properties were shown in the revenue records as her properties. It was the plaintiff s case that after the death of his father the succession was sanctioned in favour of Sheshagiri Rao with a shikmi of the plaintiff and his brother Shrinivas Rao. It was alleged that the family was joint. But after the death of Sheshagiri Rao, due to differences, the lands were partitioned by way of a family settlement and thus the plaintiff became separate member of the family. It was also contended that the succession of Sheshagir Rao, the elder brother of the plaintiff was sanctioned in favour of Govind Rao who was the eldest son and the plaintiff and his other brother who continued as Shikmidars until 1953-1954, when the lands were in their respective possession were entered in the revenue records as their separate lands. It was also claimed that the office of Patwari was with Govind Rao and after his death, his brother Mudgal Rao who died in succession, the office had remained in the enjoyment of Tara Bai defendant No.1. It was further claimed that by virtue of the office of Patwari of Jewargi, the suit lands belonging to Bhima Bai were entered in her name at the time of Khasara revenue settlement that took place in the year 1953-1954. It is also claimed that the defendants and Tara Bai widow of Sheshagiri Rao started living with Bhima Bai in the suit houses and they continued in occupation of those houses. It was alleged that this was with the malafide intention of depriving the plaintiff and his brother of their right over the suit properties. It was further alleged that this was evident from the manner in which the revenue records had been manipulated and in any case, the said entries were made in the records without the knowledge of the plaintiff and behind his back and it is alleged that in order to strengthen their rights, a false suit was instituted by defendant No.1 against Bhima Bai in O.S.No.243/1 of 1959-60 for the relief of declaration, possession and injunction on the file of the Court of Munsiff, Gulbarga, and that by fraud and misrepresentation, a consent written statement of the defendant in that suit, namely, Bhima Bai, was filed and a false consent decree dated 23.12.1959 was obtained in favour of the plaintiffs therein. This was not to the knowledge of the present plaintiff and was not binding on him. It is further stated that Bheem Bai was an innocent woman and was not worldly-wise. On the other hand the elder Tara Bai, widow of Sheshagiri Rao was cunning and wily and had taken advantage of Bhima Bai s innocence and had further manipulated the records and finally obtained the consent decree to complete her designs of usurping the property to the detriment of the plaintiff. It is thus claimed that defendant Nos.1 and 2 acquired possession of the entire suit properties. It was also claimed that there were other lands which had been alienated by the defendants, which were all illegal, as Bhima Bai herself was not competent to alienate the same nor would the transactions bind the plaintiff. It is in this context that the suit was filed claiming that the alienation by Bhima Bai were incompetent and illegal and not binding on the plaintiff.

(3.) The suit was contested by defendant Nos.1 and 2 by filing a common written statement admitting the genealogical tree but denying that the plaintiff was the reversioner of Bhima Bai widow of Raghavendra Rao. It was also contended that Bheem Rao S/o Sheshagiri Rao had gone in adoption to another family and that the suit property belonged to that family and the plaintiff could not no longer claim any connection with the family of Bheem Rao. It was also denied that the suit property was ancestral property and the other plaint averments were generally denied and it was stated that defendant No.1 was the daughter of the brother of Bhima Bai and that she was brought up by Bhima Bai since her childhood and there was much love and affection between Bhima Bai and defendant No.1. It is stated that there was no male member in the family of Bhim Bai and that she lost her husband and therefore she brought Mudgal Rao the uncle of defendant No.2 into her family and gave defendant No.1 in marriage to him and she donated the suit land as a wedding gift. This was forty years prior to the suit. Mudgal Rao had come into possession of the suit lands in the above manner. After his premature death, defendant No.1 is said to have come in to possession of the land and had been in possession ever since and further that Bhima Bai of her own accord had made a gift of the suit property in favour of the defendants and put them in possession of the suit house in the year 1953. The gift deeds were duly executed and registered on 01.12.1953 and the defendants claim to be in possession of the suit houses pursuant to the gift deeds. As there was a misunderstanding between defendant No.1 and Bhima Bai, it is alleged that there was interference in the year 1959-1960 by Bhima Bai who sought to oust them from the property and therefore they had preferred a suit in O.S.No.243/1 of 1959-60 arraying Bhima Bai as the defendant for the relief of declaration of title and injunction. The same was contested but was decreed in their favour. Therefore the title to the property was perfected by virtue of the same. Bhima Bai was alive when the Hindu Succession Act, 1956 (Hereinafter referred to as the HS Act for brevity) Act 30 of 1956, came into force and the gift deed which was executed in the year 1953 even if it was claimed to be invalid by virtue of Bhima Bai allegedly being a limited owner with the coming into force of the HS Act, full title vested with the defendants by virtue of the alleged limited right of Bhima Bai blossoming into an absolute right under the provisions of the Act and therefore it was asserted that the properties being claimed as ancestral properties was misleading and that it was the absolute property of Bhima Bai which the defendants were conferred with and claimed that the suit was not maintainable. It is on the basis of these pleadings that the Trial Court had framed the following issues: