K. Keshava Bhat Vs.
Devaki Amma & Ors.  INSC 1590 (18 September 2008)
JURISDICTION CIVIL APPEAL NO. 5734 OF 2008 (ARISING OUT OF SLP(C) NO.5462 OF
2008) K. Keshava Bhat ...Appellant (s) Devaki Amma & Ors. ... Respondent
O R D E R
Leave granted. Heard
learned counsel for the parties.
appeal arises out of a suit for partition filed by respondents 1 to 5. The
appellant and the sixth respondent were respectively the defendants 1 and 2.
For convenience, we will also refer to the parties by their rank in the trial
stated, the facts are : Keshava Bhat - the first defendant, Narayana Bhat - the
second defendant, and late Anantheshwara Bhat (husband of plaintiff no.1 and 2
father of plaintiffs 2 to 5) were sons of one Sham Bhat who died around the
year 1964. The plaintiffs filed the suit for partition of the joint family
properties in the year 1971. In addition to defendants 1 and 2, the plaintiffs
impleaded as defendants, the six sons of first defendant (defendants 3 to 8),
the only son of second defendant (defendant no.9), the widow of Sham Bhat
(defendant no.10), two daughters of Sham Bhat (defendants 11 and 13) and a
daughter of a deceased daughter of Sham Bhat (defendant no.13). Sham Bhat's
widow (10th defendant) died during the pendency of the suit. The plaintiffs
alleged that the first plaintiff was a young widow and the plaintiffs 2 to 5
were all minors when the suit was filed 37 years ago; that they were kept away
from the joint family properties; and that they had no access to the records
pertaining to the joint family properties.
plaintiffs alleged that the immovable properties described in Schedule `A' and
the movables described in Schedule `B' to the plaint were the joint family
properties which required to be partitioned. Schedule `A' consisted of four
parts (referred to as `items' in the plaint) of the following description:
3 (i) Part I of `A'
Schedule enumerates the muli right properties, that is, properties which
belonged to the joint family. They were in the possession of tenants and were
the subject matter of tenancy claims by tenants. It is not in dispute that none
of these lands is available for partition, as occupancy rights in respect of
these lands have been granted to the tenants under the Karnataka Land Reforms
(ii) Part II of `A'
Schedule enumerates the mulgeni properties, that is, lands held by the joint
family on perpetual tenancy. It is admitted that these are joint family
properties and are in the possession of the family (except an extent of 23
cents in survey No.94/1B and an extend of 1A.56 Cents in survey No.97/2).
(iii)Part III of 'A'
Schedule enumerates the chalgeni properties, that is, lands held under tenancy
at will in regard to which claims for occupancy rights in Form No.7 under the
Karnataka Land Reforms Act were filed by the first defendant and occupancy
rights have been registered in the name of first defendant. The plaintiffs
contend that they are the joint family 4 properties as they were earlier in
the occupation of Sham Bhat and that the first defendant as the eldest son of
Sham Bhat was representing the family in the tenancy claim proceedings and
benefit received by registration of occupancy rights in his favour would enure
to the joint family and therefore, the said lands were liable for partition.
The first defendant on the other hand contended that they were his self-
acquired properties. He denies that his father Sham Bhat was the tenant of any
of these lands.
(iv) Part IV of `A'
schedule refers to properties which were added as joint family properties,
subsequent to the filing of the suit, by an amendment to the plaint.
Item (a) stood in the
name of Sham Bhat and items (b), (c) and (d) stood in the names of the first defendant.
issues were framed by the trial Court.
three witnesses and defendants examined two witnesses. The documentary evidence
of plaintiffs consisted of Ex.P1 to Ex.P22 and the documentary evidence of
defendants consisted of Ex.D1 to D80. After considering the oral and
documentary evidence, the trial Court, by judgment and decree dated 31.3.2005
decreed the suit in 5 part. The trial Court held that the plaintiffs together
were entitled to a share of 31/108, the first and second defendants were each
entitled to a share of 37/108, and defendants 11, 12 and 13 were each entitled
to a share of 1/108, in the following joint family properties :
(i) All lands
described in Part-II of 'A' Schedule (excluding Sy. No.94/1B measuring 23 Cents
and Sy. No. 97/2 measuring 1.56 Acres).
(ii) Land described
as item (a) of Part IV of `A' Schedule, that is Sy. No.96/2A measuring 6A.24
described in the `B' Schedule.
Insofar as properties
described in Parts I, III and items 2 to 4 of Part-IV of Schedule 'A', the
claim of plaintiffs for partition was rejected.
aggrieved by refusal of relief in regard to the properties enumerated in
Part-III of Schedule `A' to the plaint, the plaintiffs filed a first appeal before
the High Court. When the appeal was listed for admission on 21.9.2005, the High
court indicated that the appeal will be 6 heard finally at the stage of
admission itself. Accordingly it heard the appeal on merits on several dates of
hearing, without admitting the matter and ultimately by judgment and decree
dated 27.8.2007 allowed the appeal. The High Court held that the lands
described in Part-III of 'A' Schedule were joint family properties and that the
appellants, first defendant, and second defendant were entitled to one-third
share each in those lands. The judgment of the trial Court in regard to other
items of the plaint schedule was not disturbed. The said judgment and decree of
the High Court is challenged by the first defendant in this appeal.
of the submissions made by the appellant (first defendant) is that the High
Court had reversed the decision of the trial Court by completely ignoring the
evidence of the first defendant. The appellant pointed out that the 80
documents were exhibited by him in support of his contention that the
properties described in Part-III of the Schedule were his self acquired
properties, and none of them were either referred or considered by the High
Court in its judgment.
perusal of the judgment, we find that there is considerable force in the
submission of the appellant.
7 Paragraphs 1 to 7
of the judgment refer to the facts leading to the appeal. In paragraph 8, the
Court commented that the trial Court has not appreciated the documentary
evidence produced by the plaintiffs (Ex.P3 to Ex.P18) in the correct
perspective. In paragraphs 9 and 10, the High Court referred to Ex.P3 to Ex.P10
exhibited by plaintiffs.
Paragraph 11 stated
that the decisions relied on by the counsel for the first defendant were not
relevant. In paragraph 12, the High Court drew an adverse inference against the
first defendant for non-production of Form No.7 filed by him under the
Karnataka Land Reforms Act claiming grant of occupancy rights, recorded a
finding that the chalageni lands (enumerated in Part-III of `A' Schedule) were
earlier held by Sham Bhat, and therefore, they were the joint family
properties. In paragraph 13, it noted that second defendant who had supported
the case of the first defendant in the trial Court, had turned round and
supported the case of the plaintiffs at the hearing of the appeal, by stating
that the chalageni lands (described in Part-III of `A' Schedule) were indeed
joint family properties. In paragraph 14, the High Court allowed the appeal,
reversed the decree of the trial Court for the reasons stated in paras 9, 10
and 11 of its judgment, and allotted one-third share to the appellants, first
defendant 8 and second defendant in the lands described in Part-III of
Schedule `A' to the plaint.
8. The High Court did
not formulate any points for consideration. It did not refer to the evidence of
DW1 and DW2. It did not refer to the voluminous documentary evidence (Ex.D1 to
Ex.D80) tendered by the first defendant, on the basis of which the trial Court
had held that properties in Part-III of `A' Schedule were the self- acquired
properties of the first defendant. In fact not even a single document of first
defendant was referred. The High Court has not assigned any reason for ignoring
the said evidence. It did not also record any finding that the documents
exhibited by first defendant were not relevant.
In the circumstances,
we are of the view that allowing an appeal filed by plaintiffs by referring
only to the exhibits of the plaintiffs and not considering the evidence of the
defendants would amount to reversal of the decision of trial court without
consideration of the evidence.
judgment in appeal cannot be sustained. The matter requires to be remanded to
the High Court for fresh consideration and disposal in accordance with law. In
view of the above, it is not necessary for us to consider the various
contentions on merits.
disposing of the matter, certain incidental issues also require to be
addressed. They relate to grant of interim maintenance, impleading necessary
parties, reference to mediation etc.
the matter was pending in the trial Court, it is stated that there was a
direction that the first defendant should pay interim maintenance to the
plaintiffs in the form of produce namely 3.33 candies of areca nut (or money
equivalent to thereof) every year. One of the grievances of the plaintiffs is
that the first defendant has not been delivering/paying the same. On the other
hand, the first defendant contended that whatever was due has been given and
the plaintiffs were not entitled to the said payment after the disposal of the
suit by the trial court. After some arguments, ultimately, a consensus was
appellant shall deposit in the High Court, without prejudice, a lump sum of
Rs.6,00,000/- (Rupees six lakhs only) towards the interim maintenance to
plaintiffs and a lump sum of Rs.4,00,000/- (Rupees four lakhs only) towards
interim maintenance to second defendant. The appellant shall deposit half of
the said amounts by December 2008 and the remaining half by end of February 10
2009. The plaintiffs and second defendant will be entitled to withdraw the
same, without prejudice to their contentions. No separate security need be
taken in regard to such withdrawals as their share in the Schedule `A' Part-II
properties will be the security therefor. It is made clear that if the amount
is not so deposited, the order appointing of Receiver (passed by the Executing
Court) shall stand revived.
are told that defendants 3 to 9 and defendants 11 to 13 were made parties to
the appeal before the High Court. They were subsequently deleted because the
dispute was only in regard to Schedule `A' Part-III properties which first
defendant had claimed to be his own. However, it will be appropriate if they
remain to be parties to the appeal before the High Court.
long pending litigation (37 years) is among family members. The second
defendant was supporting the first defendant in the trial Court. He is
supporting the plaintiffs in the appellate stage. Some of the original parties
are said to be no more. Both sides agreed that having regard to the facts and
circumstances of the case, this is a fit case where a genuine effort should be
made 11 to arrive at a negotiated settlement by subjecting themselves to
mediation process in the High Court.
the pendency of the appeal before the High Court, an application was filed by
plaintiffs under Order 41 Rule 27 CPC. The second defendant had filed an
application seeking permission to file additional written statement. The appeal
was disposed of without considering those applications. All pending
interlocutory application may be disposed of by the High Court either
separately or along with the appeal.
therefore, allow this appeal, set aside the judgment and decree of the High
Court and remit the appeal to the High Court with the following incidental
(i) The High Court
may permit the appellants before it to re-implead other defendants who were
deleted. The learned counsel for appellant and respondents assure that there
will be no delay in either service or appearance of such additional
(ii) The High Court
shall refer the matter to the Bangalore Mediation Centre for attempting a
negotiated settlement before the appeal is heard on merits.
(iii) As the appeal
relates to a suit which was filed in the year 1971, the High Court shall
endeavour to dispose of the appeal expeditiously within six months from the
date of impleading the additional respondents.
12 (iv) The High
Court shall dispose of the pending interlocutory applications.
(v) Nothing stated
above shall be construed as expression of any opinion on merits of the case.
The parties shall
bear their respective costs.
( R.V. RAVEENDRAN )