1. Defendant Nos. 1, 2 and 4 in O.S. No. 90 of 1970, on the file of II Additional Civil Judge, Belgaum, have filed this appeal against the judgment and decree for partition dated 30-6-1975, made by the Civil Judge.
2. Respondent Nos. 1 and 2, hereinafter referred to as plaintiffs-1 and 2 as in the Court below, are related among themselves as full brothers brought the above suit OS. 90/70 for partition of three agricultural lands, bearing S.Nos. 257/1 measuring 25 Gs., 257/2 - measuring 24 Gs and 258 -measuring 10 acres 14 Gs, and four houses, bearing VPC Nos. 11, 111, 112 and 147, situated at Salapur Village in Ramadurg taluk, Belgaum District, contending inter alia, that theproperties were the joint family properties and although they were living separately and messing separately for the sake of convenience, the family and the properties were still joint and there was no partition of the joint family proper-ties. According to them, the open site, on which a house bearing VPC No. 147 was standing, was purchased in the name of Balappa, the father of 1st defendant, and the house thereon was constructed out of joint family funds. The cause of action for the suit accrued to them when, after the Sanadi land in S.No. 258 was regranted in favour of defendant No 1, defendant No. 2, mother of defendant No. 1, who is the grand-son of their brother Fakirappa, in collusion with defendant No 4, obtained permission to alienate the same and inspite of demanding partition have refused to give share in the month of July, 1970.
3. Defendant Nos. 1 and 2 filed written statement con-testing the suit and contended that the properties in suit were no longer joint family properties. According to them, there was already a partition in the year 1936 and in the said partition, while the land S.No. 257/1 and house bearing VPC No. 112 had been allotted to the share of plaintiff No.l the land S.No. 257/2 and house bearing VPC. No. Ill had been allotted to plaintiff No. 2, and the land in S.No. 258 being a Sanadi Watan land had been allotted to the share of grandfather of defendant No l along with house bearing VPC No. 11 andever since the partition the properties were in possession of the respective parties according to their respective shares. They also denied that either any open site was purchased or the house bearing VPC No. 147existing thereon was later on constructed by the joint family funds. On the other hand, they contended that the open site and the house were there since the time of grand-father of defendant No. 1 and the suit for partition was not, there-fore, maintainable.
4. The appellant Bhimappa, who was defendant No. 4, and the Respondent Venkangouda, who was defendant No. 5 in the suit, were arrayed as parties to the suit since they also claimed to be in possession of the land S.No. 258 as its tenants. Defendant No. 5 filed the written statement admit-ting the case of plaintiffs. Defendant No. 4 filed a memo adopting the contentions raised by defendant Nos. 1 and 2.
5. On these pleadings the Learned Civil Judge raised the following issues:
(1) Whether the suit properties are joint family properties ?
(2) Whether S.No. 258 is Sanadi land regranted and plaintiffs have no right to claim any share?
(3) Whether there was partition in the Family in or about 1936?
(4) Do plaintiffs prove that the open site in Pujari lane at Salapur, on which a house is built and which is described asl (c) property in the plaint was purchased in the name of Bailappa Fakeerappa Kambar fromBheemappa Nandi, out ofthe joint family funds, as alleged?
(5) Whether the court fee paid is not sufficient?
(6) What is the share to which plaintiff or defendants 3 and 5 are entitled and from which property?
(7) What decree or order?
6. On behalf of plaintiffs, plaintiff No. 1 examined him-self as PW-1 and got marked extracts of Record of Rightsand Property Register as Exs. P-l to P--5. On behalf of defendants, three witnesses including defendants-2 and 4 were examined and as many as 34 documents were got marked as Exs.D-1 to D-34, of them only some appear to be relevant.
7. The learned Civil Judge appreciating the oral and documentary evidence adduced on behalf of the parties held that although as evidenced from the Record of Rights and extract of Property Register the properties were standing in the name of different persons, but there was no indication to show that such registration of the names in the Record of Rights and Property Register was made pursuant to any partition, and concluded that defendants have failed to prove the antecedent partition alleged by them. He also held that the properties in suit were joint family properties and plaintiffs have their right to claim their shares in-Section. No. 258 regranted in the name of 1st defendant and each of plaintiffs were entitled to l/3rd share and 1st defendant is entitled to l/3rd share in all the suit properties and in that view, he having decreed the suit, defendant Nos. 1, 2 and 4 have filed this appeal.
8. Mr. Desai, Learned Counsel appearing for the appellants argued that the view taken by the Court below that there was no partition was erroneous. He also contended, the land S.No. 258 being Sanadi Watan land was impartible and the Court below as not justified in making a decree for partition in the said land. He also argued that the open site on which, house bearing VPC. No. 147 has been constructedexclusively belong to defendants-1 to 3 and was not purchased or constructed by joint family funds as alleged by plaintiffs and the decree passed by the Court below, therefore, being erroneous was not at all sustainable
9. Mr. Gachina Mutt, Learned Counsel appearing for the Respondents-plaintiffs 1 and 2, however, supported the Judgment and decree as passed by the Civil Judge.
10. In the light of the contentions urged by the Counsel on both sides, the points that arise for decision are :
(1) Whether defendants prove that there was a partition in the year 1936 as contended by them ?
If not, whether S. No. 258 being a Sanadi Watan land was impartible?
(2) Whether plaintiffs prove that site on which the house bearing VPC No. 147 stands was purchased by joint family funds and the house constructed thereon was out of joint family funds as alleged ?
11. The normal presumption being that a Hindu Family continues to be joint, the burden heavily lies on the defend-ants to prove the antecedent partition set up by them.Defendant No. 2 having stepped into the witness box has no doubt stated there was such a partition and the particular properties, as stated earlier, had been allotted to plaintiff Nos. 1 and 2 in the said partition and the land S. No. 258 had fallen to the share of the grand father of defendant No, l Admittedly, she has no personal knowledge about the said partition. In fact, she was not even married when the alleged partition took place. Defendant No. 4, who has been examined as DW-2, of course, has stated that during the life time of Fakirappa, who was the brother of plaintiffs, a division in the family properties had taken place between plaintiffs and Fakirappa and that suit land bearing S. No. 258 had fallen to the share of Fakirappa in the saidpartition. He has also stated that S.No. 257/1 and S. No. 257/2 had been allotted to the share of plaintiff Nos. 1 and 2; similarly the house properties in their respective possession were allotted to their shares. He has also stated that during the life time of Fakirappa he rendered Sanadi services and after the death of Fakirappa one Chikkalabbi Bhimappa rendered Sanadi services for a period of 10 to 12 years;during the minority of Balappa, father of defendant No. 1 and after the death of Bailappa, Bhimappa, who is father of defendant No. 2 rendered Sanadi Services. In effect,according to him, plaintiffs had at no point of time rendered Sanadi services and that land in S.No. 258 had also been leased to him by defendant No. 2 and he has beencultivating the same for and on behalf of defendant Nos. i and 2. DW-3, who claims to have been present at the time of partition, has stated in the examination-in-chief in favour of the case of defendants ; but what is elicited in the cross-examination shows that S. No. 258 being a fertile 'land, wheat, cotton and jower crops are grown on it, and at the time of partition Fakirappa refused to give any share in the land S. No. 258 to any of his two brothers and although he (witness) told that giving of the entire land to Fakirappa would be improper and unreasonable, and inspite of that he refused to give any share in the said land to plaintiffs. He also admitted, at the time of partition no moveables like ornaments etc. of the joint family were divided. On the basis of these answers elicited in the cross-examination, Mr. Gachina Mutt submitted that there was no partition as suck and it may at best be some family arrangement made leaving the land S.No. 258 for the enjoyment of defendants and giving two small pieces of lands to plaintiffs.Mr. Desai, on the other hand, relying upon the entries made in the record of rights and in the property register argued that the very fact that the lands as also house properties are standing in different names indicates that there was a general partition and, therefore, the view taken by the Court below that there was no partition at all was not sustainable.
12. There is no dispute and indeed there cannot be say dispute about the legal position. It is open to the members of thecoparcener to arrange amicably separate possession and enjoyment of the family properties without effecting partition or disruption of the joint family, but at the same time whether co owners in exclusive possession of different portions of joint family property held the same in partition or under an arrangement as to the possession, depends upon the intention of the parties which has to be gathered from the facts and circumstances of each case. Where direct evidence of intention is available, there is no difficulty in determining the question. In cases where such direct evidence of intention is wanting, the fact that the members have been living separately and enjoying the properties separately may be taken into consideration in arriving at the conclusion, but that is not conclusive.
13. Apart from this, there is some difficulty in accepting the contention of Mr. Desai because it cannot be presumed that there would have been such a partition of the properties some members taking small extent of land and one taking large extent of land. S. No. 258, as stated earlier, measures in all 10 acres 14 Gs , whereas S. Nos. 257/1 and 257/2 arc small pieces of lands measuring 25 and 24 guntas. They are not in possession of these landsproportionate to their respective shares. Where exclusive possession of land by co-owners is not in conformity with the shares of respective parties, generally, the indication is that it is not a partition, but it may be an arrangement not intended to be permanent. Therefore, the fact that parties were in possession of different properties and different properties have been entered in their individual name in the record of rights, is not by itself sufficient to hold that there was such a partition. There is hardly any other acceptable evidence in this case. As noticed bythe Trial Judge, there is not even an indication in the record of rights to show that the names of the parties came to be entered pursuant to any partition. The relevant mutation entry which ought to have been produced has not been produced to show that the entries in the record of rights and property register were made pursuant to such partition. In the absence of any such evidence, we cannot but reject the contention of Mr. Desai. The Counsel, however, contended that no family arrangement could have continued for such a long time. In our opinion, nothing turns out from this long duration. It depends upon the affinity and nature of the relationship of the parties. A provisional arrangement which for some reason continued for a long time without objection does not take away its provisional character and make it permanent. There must be some other evidence indicating that the parties have been living separately under a permanent arrangement or partition. No such evidence has been adduced in this case. Therefore, we agree with the conclusion of the Court below and hold that defendants have failed to prove the antecedent partition as alleged by them.
14. Coming to the other part of the first point, there is no dispute that the land S. No. 258 was held by the family as Sanadi Watan. But, in the absence of any original grant or the Sanad, under which the land was granted or in the absence of any other evidence regarding the custom in the family, it is difficult to hold that Sanadi land S.No. 258 was impartible or it had to go to the senior member of the family by rule of primogeniture. No evidence worth the name is adduced to show that there was any such long standing custom in the family by which senior member in the family is entitled to exclusive possession and enjoyment of the land.
15. In Lalsaheb Gudusaheb Deginal -v.- Dastagira Saheb Gudu Saheb Deginal and Others, RFA No. 50 of 1971 dated 23-8-1973 this Court, after referring to several decisions, observed as follows :
'In so far as a Shet Sanadi land is concerned both the High Court of Bombay and this Court have in a number of cases consistently taken the view that it is only a fraction of the assessment of the said land that was treated as remuneration for the services rendered by the holder of thehereditary office but not the land itself. Such land has been held to be hereditableand partible [vide-(l) Vishnu Shankar Kulkarni -v.- Shankar Vasudeo & others (AIR 1933 Bombay 123) ; (2) Thippanna Fakirappa -v.-Ittappa Shingadeppa & Others (1962 Mysore L.J. 373) ; (3) Imambu kom Husenkhan Nurullikanavar -v.- Husenkhan Ahmed Khan & Another (WP. No. 1137/66 Decided on 4-2-1969) ; (4) Karbasavva Kom Guru-shiddappa Ambannavar & Another -v.- Yallappa Fakirappa Divatagi & Another (R.S.A. No. 30/1969, decided on 8-9-1972].'
We must, therefore, hold that the land S. No. 258 is partible and plaintiffs were entitled to a share in the land.
16. Mr. Desai next contended that after resumption of Watan under the Bombay Watan Abolition Act, the land in question has been regranted in favour of defendant No. 1 and plaintiffs cannot claim a share in the regranted land. There is hardly any substance even in this contention. All that the Watan Abolition Act does is that it effects a change in the tenure or the character of holding as Watan land, but it does not affect the other incidents of the propertyaccording to personal law. In other words, the property continues to be the joint family property or the property held by the tenants-in-common, as the case may be. The land, regranted although is in the name of one member, would ensure to the benefit of all the members of the family. This is also the view taken by the Bombay High Court in the case of Dhondi Vithoba -v.- Mahadeo, : AIR1973Bom323 . There is, therefore, absolutely no substance in the contention of Mr. Desai that plaintiffs were not entitled to any share in land S.No. 258.
17. This takes us to the second point formulated by us that is, whether the site on which the building VPC No. 147 stands was purchased with the aid of the joint family funds and if the house thereon was also constructed by the use of the joint family funds as contended by plaintiffs. On this point, there is hardly any evidence from both the sides. The Learned Civil Judge has also not properly considered this aspect of the case and he has proceeded to dispose of the issue raised on this point on the basis of his decision on issue Nos. 1, 2 and 3. As stated earlier, the case of plaintiffs is that the open site was purchased out of joint family funds and the house VPC No. 147 standing thereon was also constructed out of joint family funds and, therefore, it was a joint family property. The defendants, however, contended to the contrary. It is not disputed and indeed cannot be disputed that the site was purchased in the name of Bailappa who was a junior member of the family. The case sought to be made out in the Trial Court was that it was purchased after the partition in the year 1936 and it became, therefore, a separate property of defendant Nos. 1 to 3. The parties did not concentrate as to what should be its nature if the alleged partition of the year 1936 is not proved. The real question under issue No. (4) in view of the negative finding on the alleged partition is: Whether plaintiffs have proved that the property purchased in the name of junior member of the family is a joint family property. It must be borne in mind that when a property is so purchased in the name of a junior member of the family, there is no presumption that the property was purchased by the application of joint family funds. The law in this regard is as follows :
'Where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But, no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired.'
These principles of law have not been taken into consideration by the Court below. The parties also have not adduced any evidence in this regard. It seems to us an opportunity should be given to the parties to lead further evidence as to the nature of the property under VPC No. 147. If the Trial Court comes to the conclusion that the VPC No. 147 should be held to be a joint family property, it should be included in thehotchpot for division. If, on the other hand, it comes to the conclusion that property should be regarded as self-acquisition of Bailappa, it should be excluded from the hotchpot. The enquiry may be held in the final decree proceeding.
In the result and with the above observations, the appeal is allowed in part. The judgment and decree of the Court below is sustained except to the extent of VPC No.147, that is plaint item 1 - C. The decree of the Court below in other respects is kept undisturbed.
Before parting with the case, we must consider the last contention of Mr. Desai. He argued that the Trial Court was in error in awarding costs against defendants-1 and 2. The Learned Counsel, in our opinion, is justified in making this grievance because ordinarily the costs should come out of the estate. We see no reason to make a departure in this case. Parties are therefore directed to bear their own costs throughout.
This order shall not however come in the way of the Trial Court immediately sending the decree to the Deputy Commissioner under Section 54 C.P.C. for partition of the lands. It is needless to state that there shall be an equitable partition regard being had to the possession of the houses by the respective parties.