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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5646 OF 2008
(Arising out of SLP (C) No. 21197 of 2006)
K.V. Sudharshan ...Appellants
VERSUS
A. Ramakrishnappa & Ors. ...Respondents
JUDGMENT
TARUN CHATTERJEE, J.
1. Leave granted.
2. This is an appeal by special leave against the
judgment and final order dated 24th of July, 2006 of
the High Court of Karnataka at Bangalore in RFA
No. 126/2006 whereby the High Court had affirmed
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the decision of the Trial Court dismissing the suit of
the appellant for partition and separate possession
along with mesne profits.
3. The relevant facts leading to the filing of this
appeal, as emerging from the case made out by the
appellant in the plaint, are as under :-
Late Anjanappa had two sons viz.,
Ramakrishnappa and Venkataramachar, arrayed as
defendant Nos. 1 and 2 in the suit. Defendant
No.2/respondent No.2 is the father of the
plaintiff/appellant. Defendant No. 3/respondent No.3 is
the wife of Defendant No. 1/respondent No.1. When
Anjanappa was alive, he was serving as an Archak of
Sri Anjaneya Swamy Temple situated in Belesivalaya
and there were Devadaya inam lands attached to the
temple, which were cultivated by him. After
Anjanappa's death, the said lands were granted to the
2
respondent No. 1 with the consent of the Tehsildar
obtained on the ground that he was the eldest son of
Anjanappa. Apart from these inam lands, Late
Anjapppa also possessed ancestral and self acquired
properties and after his demise, the respondent No.1
was acting as the manager of the family but the joint
family of the appellant and the respondents possessed
all these properties as joint family properties described
in Plaint Schedule A to D of the plaint. Schedule A
consisted of ancestral properties viz., two agricultural
lands measuring 4.11 acres and 1.34 acres respectively
and five house sites. Schedule B property was a vacant
site. Schedule C property consisted of two agricultural
lands, which were inam lands, granted subsequently in
the name of respondent No.1. Schedule D properties
were moveable properties. There was no partition
effected by metes and bounds and the respondent No.1,
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taking advantage of the simplicity of respondent No.2
was managing all the properties and had also refused to
effect partition. On 4th of July, 1988, the appellant
issued a legal notice to the respondent No.1 demanding
partition of the joint family properties. The respondent
No.1 replied to the said notice alleging that the
moveable properties had already been partitioned on
23rd of April, 1962 and subsequently on 8th of May,
1996, the immoveable properties were also partitioned.
Since the respondent No. 1 refused to partition the
immovable properties, the appellant was constrained to
file the suit for partition and separate possession of his
share in Plaint A to D schedule properties along with
mesne profits.
4. The respondent no.1 and 3 entered appearance by
filing a written statement in which they denied the
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material allegations made in the plaint. In the written
statement, it was alleged by them that since partition
had already been effected between respondent no.1 and
respondent no.3 i.e. the father of the appellant and that
they were separately enjoying the properties that had
fallen to their respective shares. It was further alleged
that after the death of Anjanappa, respondent No.1,
became the archak of the said temple and he was
looking after and cultivating the lands attached to the
said temple i.e. `C' schedule properties of the plaint.
After coming into force of the Mysore (Religious and
Charitable Inams) Abolition Act, 1955, (in short `the
Act') the respondent No.1 filed an application for grant
of occupancy rights in respect of `C' schedule
properties as the Archak of the temple which was
conferred on him.
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5. The respondent No.2 supported the plaint case
and deposed that there was no partition of the
properties by metes and bounds and that the
respondent No.1 did not allow him to cultivate the
lands belonging to the joint family but only a small
portion of the same was allowed to be cultivated. The
reason behind staying under separate mess was stated
to be the quarrel between the women in the family.
6. The Trial Court by the judgment and order dated
25th of January, 1996 dismissed the suit filed by the
appellant on the ground that the parties were shown to
be in possession of separate portion of the lands and
having separate mess. Relying on the deposition of
respondent No.2, it held that prior partition was
established in view of the admission of respondent
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No.2 and as such the appellant could not demand
partition. Against this decision of the trial court, the
appellant filed an appeal before the High Court, which,
however, was dismissed. The appellant filed a review
petition in the High Court, which was also dismissed.
It is this decision of the High Court, which is
impugned in this appeal in respect of which leave has
already been granted.
7. Before we proceed further, we may note that the
notice in the instant appeal has been issued confined to
the claim in relation to Schedule `C' properties of the
plaint and accordingly, the dispute in the instant appeal
also revolves only concerning Schedule `C' properties
of the plaint.
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8. Let us, therefore, look at the rival submissions of
the parties advanced before us. The learned senior
counsel for the appellant, Mr. S.B. Sanyal, strongly
contended that in respect of the Schedule C properties
(inam properties granted to respondent No. 1), the
High Court had committed an error by holding that
since the appellant and the respondent No.2 had not
performed the duties as Archak of the Inamdar Temple
and they had not personally cultivated the said lands,
they were not entitled to the grant of the Inam lands. In
this regard, he submitted that the courts below were
not justified in holding that Inam lands were granted to
the respondent No.1 in his individual capacity as
Archak of the temple. In support of his contention, he
relied on a decision of this court in Nagesh Bishto
Desai Vs. Khando Tirmal Desai [(1982) 2 SCC 79].
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9. These submissions of the learned senior counsel
for the appellant were contested by the learned senior
counsel for the respondent Nos. 1 and 3, Mr. A.K.
Ganguli. Mr. Ganguli submitted that the respondent
no.1 had got the Schedule `C' properties vacated from
the tenants who were cultivating the same and was
personally cultivating them and accordingly, after
coming into force of the act, an application for grant of
occupancy rights was moved on his behalf which was
conferred on him by the competent authority after
proper inquiry and therefore, the `C' schedule
properties were the self acquired properties of the
respondent no.1 and accordingly, the appellant could
not claim partition of the same. Mr. Ganguli relied on
Section 6A of the Act and submitted that the
respondent no.1 was admittedly the archak of the
temple and he was also cultivating the properties
9
personally for a continuous period of 3 years prior to
the date of vesting and therefore, he was entitled to
apply for registration of his rights under the act to the
competent authority. He vehemently contended that the
grant of such right is a personal right which cannot be
characterized as an ancestral right because in this case,
even if Anjanappa was alive, he could not have
become entitled to grant of occupancy rights because
he was not cultivating the lands and that the lands were
being cultivated by the tenants. He also submitted that
the authority relied upon would not apply to the
present case as it pertains to Karnataka Village Offices
Abolition Act whose scheme is entirely different from
the present act.
10. At this stage, we may note the findings of the
High Court as also the trial court with regard to the
10
properties comprised in Schedule `C' only. The High
Court arrived at the following findings: -
".........once there is division of status, the
same is applicable to the granted or
tenanted lands also. It is also to be noted
that Anjanappa died in the year 1964 and
thereafter, admittedly and undisputedly it is
defendant no.1 who alone was the Archak of
the temple. Only after coming into force of
the land reforms act, he has got the
occupancy rights conferred on himself. On
perusal of the evidence of both plaintiff and
his father/defendant No.2, it is clear that
there was absolutely no evidence to show
that at any point of time either plaintiff of
his father/defendant no.2 acted or
performed the archakship of the temple and
also enjoyed the lands................If one
peruses the Karnakata Land Reforms Act
and the Karnataka Hindu Religious
Institution and Charitable Endowments act,
under Section 6(a) of the Act which came
into force on 7.12.1973 two types of people
were entitled to grant of occupancy rights...
............As we find that neither plaintiff has
performed the duties of Archak to the temple
nor there is any material to show that along
with the defendant no.2, he cultivated and
enjoyed the lands, the grant of occupancy
rights of these inam lands must be held in
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the individual capacity of the Archak viz.,
defendant no.1......."
11. Having heard the learned counsel for the parties
and after examining the judgment of the High Court as
well as of the trial court and other materials on record
including the depositions of respondent Nos.1 and 2
before the trial court, we are of the view that this
appeal deserves to be allowed for the reasons set out
hereinafter.
12. Let us first see if the submission of the appellant
regarding Schedule C properties, which, as noted
herein earlier, are the inam lands granted to the
respondent no.1 holds any water. In order to ascertain
this, we need to see whether the respondent no.1 had
been granted occupancy rights in his individual
12
capacity as an Archak under Section 6A of the Act. It
is clear from the judgment of the High Court that it has
proceeded on the assumption that since only the archak
of the religious institution is entitled to be granted such
inam lands, it becomes self acquired and individual
property of such grantee. In Nagesh Bishto Desai Vs.
Khando Tirmal Desai etc. [(1982) 2 SCC 79], it was
held that inam lands granted to a member of joint
family upon abolition of inams cannot be considered as
indvidual property of such grantee and should be
considered as a joint family property available for
partition. In the present case, the grant in favour of
respondent no.1 was made because his father was the
archak of the temple and he, being the eldest in the
family, there was no objection expressed for granting
the land to him. In this view of the matter, we are of
the considered opinion that the inam lands cannot be
13
regarded as the individual property of the grantee and
the High Court has committed an error by holding that
since the appellant has not performed functions as
archak, nor cultivated the land personally, he was not
entitled to seek partition. We are not inclined to accept
the submission of the learned counsel for the
respondent Nos. 1 and 3 that the decision in Nagesh
Bishto's case (supra) would not apply to the facts of
the present case.
13. There is another aspect of the matter. Under the
scheme of the Act, inam lands are liable to be granted
to the tiller of such lands, be, as it may, as tenants,
archaks or office bearers of the inamdar temple.
Accordingly, we are of the view that such grants are
meant for the benefit of the family of the tiller and not
him individually and for this reason, there can be no
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justification to disregard the rights of the junior
members of the family if their eldest member was
performing the duties of archak with the consent of
others. For this reason and in view of the decision of
this court in Nagesh Bishto's case [supra], we are of
the view that grant of land to archak cannot disentitle
the other members of the family of the right to the land
and such granted land, therefore, is also available for
partition. Furthermore, it also emerges from the
judgment of the Trial Court that the tenants cultivating
the land had stated that respondent no.2 had requested
his father, Anjanappa to allow him to cultivate the
lands who accordingly gave his consent before the land
tribunal also. Such being the position, if other
members of the family had not objected to his
becoming the archak of the temple because he was the
eldest and also allowed him to cultivate the lands then,
15
if subsequently he was, by virtue of the fact that he
was the archak and also personally cultivating the
lands, granted the lands, he cannot take away the rights
of such other members of the family in the granted
lands.
14. We may look at this case from yet another angle.
It is pellucid that respondent no.2 is relying only on
Section 6A to submit that he was granted the
occupancy rights. When we look at Section 6A, it is
clear that the respondent no.2 satisfied the conditions
enumerated therein and for that reason, he was granted
the occupancy rights. If we look at this in isolation, we
may well come to the conclusion that since respondent
no.2 had fulfilled the conditions of Section 6A, he was
granted the occupancy rights and the question of
bringing the other family members did not arise.
16
However, we are not inclined to look at Section 6A in
isolation. If seen in totality, it is discernible that the
father of respondent no.2 gave his consent and allowed
respondent no.2 to cultivate the land after taking the
same from the tenants. Even the land tribunal, while
passing the order granting occupancy rights, had not
confined itself to the fact that the conditions in Section
6A were fulfilled. Rather, the land tribunal had
observed that the father of respondent no. 2 was the
archak and anubhavdar of the temple and this was a
prime consideration in granting occupancy rights to the
respondent no.2. Therefore, it would be wrong to hold
that simply because the conditions in Section 6A were
fulfilled, the respondent no. 2 was granted occupancy
rights and it was his individual rights. The truth is that
the respondent No.2 became the Archak after the death
of his father because he was the eldest in the family
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and only then came the question of satisfying the
conditions of Section 6A.
15. Apart from this, it is wrong on the part of the
respondent no.2 to say that his father, even if he had
been alive, would not have been granted occupancy
rights because the lands at that time were cultivated by
the tenants. For grant of occupancy rights, personal
cultivation is just one condition. The other conditions
include that if a person is managing the properties,
which his father was doing, would also be entitled to
the grant of occupancy rights. We are, therefore,
clearly of the view that the respondent no. 1 was made
archak after the death of his father because he was the
eldest member of the family. Being the archak, he
cultivated the lands and obtained occupancy rights. In
such circumstances, it would be highly unjust to
deprive the other members of the family from getting
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their share in Schedule `C' properties by relying only
on Section 6A. Therefore, we are also of the opinion
that the granted lands are also available for partition.
In our view, grant of occupancy to one member will
not disentitle the other members. This principle can
also be found in the case of Appi Belchadthi & Ors.
vs. Sheshi Belchadthi & Ors. (1982) 2 Karnataka
Law Journal 565.
16. For the aforesaid reasons, the impugned
Judgment is set aside and the appeal is remanded
back to the High Court to decide the share of each
party in respect of Schedule `C' properties within
3 months from the date of supply of a copy of this
judgment to it. The appeal is thus allowed to the
extent indicated above. There will be no order as
to costs.
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........................J.
[Tarun
Chatterjee]
New Delhi; .....................
...J.
September 15, 2008. [Harjit Singh Bedi] 20
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