http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

CASE NO.: Appeal (civil)  7133 of 2000

PETITIONER: Thimmappa Rai

RESPONDENT: Ramanna Rai & Ors

DATE OF JUDGMENT: 09/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J.

1.      Defendant in the original suit is the appellant before us being  aggrieved by and dissatisfied with the judgment and decree dated 4.3.1999  passed by the High Court of Karnataka at Bangalore in RFA No. 377 of  1992 affirming the judgment and decree dated 31.3.1992 in a suit for  partition filed by the respondents herein passed by the Court of Civil Judge,  Puttur, D. Kannada.  

2.      The relationship between the parties herein is not in dispute which  would appear from the genealogical table given hereinafter.  Narayana Rai | | _____________________________________________________________ | | | | | | | | | | | | (Thimmappa  Rai\026elder son ) (def.1- Appellant) (Aithappa  Rai Younger  son-since  deceased (Subbayya Rai  (son since  deceased) =  Sunanda) (wife)  (defendant no.  4- respondent  no. 4 (Ramanna  Rai \026son) (plaintiff- respondent

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

No. 1 (Padmavathi  daughter)  (Def. No. 2- Respondent  No. 2 (Savithri  (daughter)  (deft. No. 3 \026  respondent  No. 3

3.      Wife of Narayana Rai whose wife pre-deceased him.

4.      Respondent herein filed a suit for partition in respect of the properties  described in schedules "B", "C" and "D" of the plaint.  The property  described in schedule "B" of the plaint belonged to one Muddekatta  Ramappa Gowda.  The same had been taken on lease by Narayana Rai on  ’chalageni’ basis long back.   Allegedly parties hereto were holding the same  jointly with the said Narayana Rai.  Improvements have allegedly been  effected therein.   The parties had been living together.

5.      In or about 1960 a deed of lease was, however, executed in favour of  the appellant.  He was aged about 17 or 18 at that point of time.   After  coming into force of the Karnataka Land Reforms Act, 1961 he filed a suit  for declaration that he had been cultivating the said leasehold property for  and on behalf of all the heirs and legal representatives of Narayana Rai.    Occupancy right was granted in his favour by an Order dated 6.6.1979.  A  patta was also granted in his favour by the State of Karnataka on or about  21.12.1980.  It is not in dispute that Aithappa died intestate without leaving  any heir and his 1/5th share devolved on plaintiff and defendant Nos. 1 to 3  as well as defendant No. 4 (widow of Subbayya Rai).

6.      So far as the "C" Schedule property is concerned, there is not much  dispute in respect thereof.  It belonged to Aithappa.   He applied for grant of  sanction of the State therefor, which having been granted, the same was  assigned in his name.   It was the self acquired and thus, absolute property of  Aithappa Rai.  On his death, it devolved upon all his heirs.   

7.      Insofar as the properties described in Schedule "D" of the plaint, are  concerned, Narayana Rai obtained the same in a partition by and between  him and his sisters which took place on 8.8.1962.  Thus, on his death the  same devolved upon his children.  It was furthermore the case of the first  respondent that late Subbayya Rai relinquished his share and right in favour  of the defendant No. 1  in terms of a registered deed dated 9.3.1978.   In a  similar manner, defendant No. 2 who inherited 1/5th share in the "D"  Schedule property exchanged his share with the plaintiff and defendant  No.  1 under a deed of exchange dated 15.9.1976.  The plaintiff, therefore,  claimed 2/5th share in the said property.

8.      The learned Trial Judge rejected the claim of the appellant holding  that the settlement made in his favour by grant of occupancy right in the year  1974 enured to the benefit of all the heirs and legal representatives of  Narayana Rai.  Admission on the part of the appellant who examined  himself as D.W. 1, according to the learned trial judge, established that it  was Narayana Rai who had taken the said property on lease and only on his  advice and at his instance the deed of lease was executed by the landlord in  favour of the appellant.  The said finding of the learned trial judge has been  affirmed by the High Court.

9.      Ms. Kiran Suri, the learned counsel appearing on behalf of the  appellant, however,  would draw our attention to the fact that grant of lease  in favour of a tenant at the material time was governed by the provisions of  the Madras Cultivating Tenants Protection Act, 1955 to contend that by  reason thereof, the appellant alone became the lesser in respect of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

property in suit as Section 4-B of the said Act provides for the mode and  manner in which a deed of lease is to be executed, from a perusal whereof, it  would appear that it was only the lessee named in the said deed would retain  with him a copy of the deed of lease towards the point at to show that each  such demise must be held to be made in favour of the tenant.    

10.     It was urged that upon coming into force of the Karnataka Land  Reforms Act, 1961 the tenants were required to file declaration and as the  Land Tribunal has the exclusive jurisdiction to determine the question as to  whether the lease in terms of 1955 Act had been granted in favour of the  appellant for the benefit of the entire joint family or not, even could not have  been determined by the Civil Court.   The learned counsel would submit that  occupancy right could not have been granted  in favour of Narayana Rai  although he might have been the original lessee.  Ms. Suri submitted that the  parties admittedly are governed under Aliyasanthana Customary Law and  not under the Mitakshara School of Hindu Law and in that view of the  matter, the concept of joint family property as is ordinarily understood could  have been applied for determination of the issues involved in the suit.  The  learned Trial Judge as also the High Court, therefore, have committed a  serious error in passing a decree for partition in respect of Schedule (B)  property.    

11.     Findings of the courts below, so far as Schedule (C) property is  concerned, is not in issue.   A finding of fact has been arrived at that same  belonged to Aithappa and thus it devolved upon all the parties in equal  shares.  The said finding cannot be disturbed.

12.     Finding of the courts below in respect of Schedule (D) appears to be  that although same was the exclusive property of Narayana Rai and thus on  his death the same devolved upon his heirs and legal representatives in equal  shares. As the appellant herein was held to be in cultivating possession of  the Schedule (B) property, the amount of consideration paid to Subbayya  Rai for the purpose of obtaining relinquishment of his share was held to have  been met from the joint family fund.

13.     Madras Cultivating Tenants Protection Act, 1955 was enacted for  protection from eviction of cultivating tenant in certain areas in the then  State of Madras.   Cultivating Tenant has been defined in Section 2(a) of the  said Act  to mean; 2 (a) "Cultivating tenant" in relation to any land  means a person who carries on personal cultivation on  such land, under a tenancy agreement, express or  implied; and includes \026

(i)     any such person who continues in possession  of the land after the determination of the tenancy  agreement, and  

(ii)    the heirs of such person, but does not include  a mere intermediary or his heirs."   

14.     Thus, inter alia a person, who thus, carries on personal cultivation of  said land under a tenancy agreement expressed or implied, including one  who continues in land after determination of the tenancy agreement in terms  of the provisions of the Act, would be a cultivating tenant under the said Act  and a landlord is prohibited from evicting him whether in execution of a  decree or an order of a court or otherwise.

15.     The properties described in Schedule (B) of the plaint was, thus,   subject matter of mortgage.   Narayana Rai allegedly had become weak and  was not in a position to cultivate the lands personally. The cultivation work,  therefore, was entrusted to and carried on by his eldest son, the appellant  herein.  He however, on his own showing, was cultivating the said lands not  only on his own behalf, but also on behalf of his brothers and sisters.   

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

Section 4-B of 1955 Act to which our attention was drawn by Ms. Suri  provides for the mode and manner in which a deed of lease is required to be  executed.   The said Act, however, does not contain any prohibition from  obtaining a lease by the cultivating tenant for and on behalf of other  members of family.

16.     In absence of any public policy having been laid down under the  statute, we are of the opinion that the said Act cannot be construed to  provide of exclusive title only upon the lessee named in the deed of lease  irrespective of the fact as to whether he himself was a cultivating tenant or  had been continuing in the cultivating possession on behalf of all members  of his family.    

17.     Karnataka Land Reforms Act came into force in 1961.  Joint family  has been defined in Section 17 therein to mean not only an undivided Hindu  family in the case of persons governed by Hindu Law but also a group or  a  unit, the members by which are by custom joint in estate or residence.  A  finding of fact has been arrived at by the learned Trial Judge that the parties  herein as also the said Narayana Rai had been in joint possession of the  properties and were having a joint residence at all material times.

18.     Section 4 of the 1961 Act provides that a person lawfully cultivating  any land belonging to another person shall be deemed to be a tenant, if such  land is cultivated personally by the owner.  

19.     We have noticed hereinbefore that upon constitution of the Land  Tribunal, a declaration was filed by the appellant himself categorically  admitting and acknowledging his possession to be for and on behalf of all  the members of the family.  There was no lis  pending before the Land  Tribunal on the said issue and the Court was not required to enter into the  question as to whether the said properties belong to the parties hereto jointly  or the appellant herein exclusively.   It is on the basis of the said declaration  and keeping in view the fact that lease had been granted in favour of the  appellant herein, it was declared to be an occupancy right  in terms of  Section 45 and Section 48A of the said Act.   Form No. 7 to which our  attention has been drawn does not militate against the contention of the  plaintiff that such a declaration on the part of the appellant is not  impermissible in law.

20.     A certificate of registration granted in favour of a tenant as an  occupant under Section 55(1) of the Karnataka Land Reforms Act, 1961 and  Rule 21 of the Karnataka Land Reform Rules, 1974 as specified in form 10  also is not of much significance.  Submission of Ms. Suri that the Civil  Courts have no jurisdiction in this behalf cannot be accepted.   It may be true  that in terms of Section 48A of the 1961 Act, the Tribunal has jurisdiction to  go into all questions of tenancy, grant or refusal of occupancy right and rival  claims in respect of their leasehold right,  but this would not mean that  although there had been no determination as such by the learned Tribunal  and parties proceeded on the basis of the admission made by the appellant  himself that the Schedule (B) Properties were jointly possessed by the  parties, a suit for partition would not be maintainable.

21.     Strong reliance has been placed by Ms. Suri on a full bench decision  of the Karnataka High Court in Booda Poojary v Thomu Poojarthy reported  in ILR 1992 Kar. 1359, wherein it was held; "... The legal position that emerges is, while  deciding the rights of rival claimants, if it becomes  necessary to decide questions incidental and or  ancillary to the main question to be decided, the  main question being who is entitled to be  registered as an occupant, the Tribunal has to  necessarily examine the question as to whether the  applicant is a tenant or not and without deciding  such question it cannot effectively discharge its  duty of disposing of the applications filed under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

Section 48A of the Act.   The grant of occupancy  rights by the Tribunal to an individual in respect of  joint family tenanted lands will not have the effect  of converting that into a separate property of that  individual nor the occupancy rights granted in  respect of personal tenancy of that individual  would acquire a different character."

22.     The said decision therefore does not assist the appellant.

23.      On the other hand in Veerabhadrappam & Ors. v Virupaxappa  Totappa Bilebal [ILR 1998 Kar. 2508], it was categorically held; "6.     This Court has already taken the view that  once the tenancy is granted even to one member of  the family, it is for the benefit of the family.  In  this case, admittedly, it is the joint tenancy.  The  Tribunal has declared that it is a joint tenancy or in  the eye of law it is a joint tenancy, even if it is  given to one of the members.  In my opinion, it is  only an acquisition of the property by two  members of the joint family, and certainly the  Civil Court has jurisdiction to decide the same is  the view expressed by me in SRI RUDRAYYA vs  BASAYYA AND OTHERS."

24.     We have noticed hereinbefore the definition of a joint family.   It is  not correct to contend that the courts below wrongly proceeded on the basis  that the parties are governed by the Mitakshara School of Hindu Law.  A  joint family, as its definition show, may consist a group of persons, and,  thus,  they need not be joint tenants.   They may be tenants in common but  still then if they are in joint possession of a property, the same would vest in  all of them, although certificate may be granted in favour of only one.

25.     An admission made by a party to the suit in an earlier proceedings is  admissible as against him.   Such an admission being a relevant fact, the  courts below in our opinion were entitled to take notice thereof for arriving   at a decision relying on or on the basis thereof together with other materials  brought on records by the parties.   Once a party to the suit makes an  admission, the same can be taken in aid, for determination of the issue  having regard to the provisions of Section 58 of the Indian Evidence Act.          26.     In this view of the matter, the findings of the learned Trial Judge as  affirmed by the High Court, in our opinion, could not be held to be bad in  law only because the parties are not governed by the Mitakshara School of  Hindu Law.

27.     We may, furthermore, notice that in a case involving ’Shet Sanadi’  land despite Karnataka Village Offices Abolition Act, 1961, it was held that  re-grant in the name of the eldest son would not take away the right of the  junior member of the family who has interest in village office to seek  partition and for possession of his share therein. [See Mohamadsa & Others   v Allisa & Others , 1988 (2) KLT 89].

28.     To the same effect, a division bench of this Court in Balawwa and  Another v Hasanabi and Others [(2000) 9 SCC 272], wherein the law was  stated in the following terms; "7.   Having examined the provisions of the Karnataka  Land Reforms Act and the aforesaid two judgments of  this Court, we have no doubt in our mind that the civil  court cannot be said to be ousted of the jurisdiction, in  granting the relief sought for.  It is too well settled that  when a Special Tribunal is created under a special statute  and the jurisdiction of the civil court is sought to be  ousted under the said statute, it is only in respect of those

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

reliefs which could be granted by the Special Tribunal  under the special statute, the jurisdiction of the civil court  cannot be said to be ousted.

8.      Looking at the provisions of Section 48-A of the  Karnataka Land Reforms Act and the relief which is  sought for in the present case, it is difficult to hold that  the Tribunal had the jurisdiction to grant the said relief so  as to oust the jurisdiction of the civil court.  Under  Section 48-A, the Tribunal can only grant the relief of  declaring the occupancy right in favour of an applicant  provided the preconditions for the same are satisfied,  namely, that the land was in the possession of the tenant  concerned on the relevant date.  That being the position  and the Tribunal under the Land Reforms Act not having  the jurisdiction to grant relief of partition, the civil court  itself has the jurisdiction to entertain the suit for partition.   The first contention of the learned counsel for the  appellants is, therefore, devoid of any force."

29.     Reliance, however, has been placed by Ms. Suri on Mudakappa v  Rudrappa and Ors.[(1994) 2 SCC 57].   The said decision has been noticed  in Balawwa (supra).  In Mudakappa (supra) itself it was held that such a  question can be gone into by the Tribunal.  It was no doubt opined that civil  court’s jurisdiction under Section 99, Code of Civil Procedure by necessary  implication stood ousted, but, apart from the fact that it was rendered in a  case where the decision of the Land Tribunal was in question but in this case  the tribunal had proceeded to grant certificate of occupancy right having  regard to the declarations made by all the members of the family, the suit for  partition in our opinion was maintainable.   Furthermore, the question as to  whether the Civil Court had jurisdiction or not was not in issue in the suit.    Such a contention has also not been raised before the High Court.

30.     We, therefore, are of the opinion that the finding of the courts below  in respect of Schedule (B) properties cannot be interfered with.   

31.     Sofar as Schedule (D) properties are concerned, we are, however, of  the opinion that the learned Trial Judge was not correct in arriving at the  conclusion that only because the appellant herein was in possession of the  Schedule (B) properties on behalf of other co-owners, the same would itself  give rise to a presumption that the amount of consideration paid for  acquisition thereof, was  not from the joint family fund.   There being  absence of any ’joint family’ governed by the School of Hindu Law, there  could not have existed any joint fund, which conceptualizes existence of a  nucleus.   The parties were tenants in common.   They had definite share in  the properties in suit.   Only because they were residing together or  possessing some cultivating lands jointly, the same by itself would not give  rise to a presumption that there existed a joint family fund having a joint  nucleus.

32.     It was, for the plaintiff to specifically plead and prove the same. There  is neither any pleading in that behalf, far less any proof. A presumption has  been raised by the learned Trial Judge wherefor there existed no legal basis.   The finding of the learned Trial Judge or the High Court in this behalf,  therefore, cannot be upheld.   

33.     For the foregoing reasons, the appeal is allowed in part namely in  respect of the properties described in Schedule (D) of the plaint to the effect  that the appellant herein was also be entitled to 1/5 share of the Subbayya  Rai as also property obtained by him and the first defendant herein jointly  from one of the sisters.

34.     The judgments of the Trial Court as also the High Court in respect of  the properties described in Schedule (B) and (C) of the plaint are affirmed.   

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

However, in respect of Schedule "D" property, it is set aside.  Appeal is  allowed in part.  In view of the facts and circumstances of the case, the  parties shall pay and bear their own costs.