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

J U D G M E N T

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

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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

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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

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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

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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

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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,

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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.

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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]

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