Forfeiture for land revenue arrears does not extinguish title; ancestral character revives on discharge.

K.V. Honnusa (plaintiff), the first son of Venkobasa, filed a partition suit claiming that Item Nos. 1 to 15 of the suit schedule properties were joint family ancestral properties

Defendant No. 1 contested this, asserting Item Nos. 6 to 15 were self-acquired properties

Defendant Nos. 2 and 3 filed a written statement agreeing with the plaintiff that Item Nos. 6 to 15 were joint family ancestral properties and counter-claimed their legitimate share

The trial court, appreciating the evidence, held that Item Nos. 4, 5, and 9 to 15 were self-acquired properties of deceased defendant No. 1

It also found that K.G. Venkobasa, the plaintiff's father, had released his rights through a registered deed in 1934, not entitling the plaintiff to a share

Further, K.G. Narayanasa released his rights and interest over the suit property

The present appeal was filed by defendant Nos. 2 and 3, challenging the dismissal of their counter-claim regarding Item Nos. 6 to 15

Whether defendant Nos. 2 and 3 succeeded in substantiating that Item Nos. 6 to 15 are joint family ancestral properties?

Whether the trial Court erred in dismissing the counter-claim on the ground that Item Nos. 6 to 15 are self-acquired properties of defendant No. 1?

Whether the legal heirs of defendant No. 3 are estopped and would lose a right in view of an agreement executed by them, evidenced at Ex.D-28, thereby acknowledging the defendant No. 1's right and title over the suit schedule property?

Whether defendant Nos. 2 and 3 are to be non-suited on the ground that though a counter-claim was set up in a written statement, for non-payment of court fee, the counter-claim has to be non-suited?

The court applied principles of Hindu Law concerning coparcenary property, emphasizing that a coparcener's right accrues by birth and can only be divested by a registered instrument or lawful partition

It relied on Section 6 of the Hindu Succession Act, 1956 (as amended) and Section 8 for inheritance

The court also applied the Registration Act, stating that documents purporting to relinquish or declare ownership in immovable property require compulsory registration to affect such property

The doctrine of estoppel, as a rule of evidence, cannot create or extinguish title where none exists in law

For partition suits, the court reiterated that each coparcener is essentially a plaintiff, and deficiency of court fee is a curable procedural defect

The court particularly referred to Zaheera Banu Kareem vs. Gomathi Bai G. Kamath (ILR 1994 Kar 662) for the principle that forfeiture or a charge for land revenue arrears does not equate to absolute divestment of title and that the property reverts to its original character upon discharge of arrears

The court found that defendant Nos. 2 and 3 failed to provide independent documentary evidence to prove Item Nos. 10 to 15 were joint family ancestral properties, as required under a settled principle that the burden lies on the asserting party

Recitals in sale deeds describing property as ancestral were deemed insufficient without tracing title to a common ancestor

Regarding Item Nos. 6 to 8, the appellants failed to demonstrate that these lands were still available to the family after forfeiture due to non-payment of land revenue and subsequent grants to third parties

However, for Item No. 9, which was originally ancestral and incurred a revenue charge, the court, relying on Zaheera Banu Kareem, held that payment of arrears by defendant No. 1, who was a son of Govindasa, merely restored the ancestral character as it was a representative act, not an individual acquisition

The unregistered document Ex.D-28, acknowledging defendant No. 1 as the absolute owner, was held insufficient to extinguish the pre-existing coparcenary rights of defendant No. 3 and his children because it was unregistered, and such rights require a registered instrument for divestment

The doctrine of estoppel was also inapplicable to defeat a pre-existing statutory right in immovable property

Finally, in a partition suit, all coparceners are considered plaintiffs, and the absence of a formal counter-claim and non-payment of court fees are curable procedural defects, not a bar to seeking partition

The judgment and decree of the trial court were modified partly to the extent that defendant Nos. 2 and 3 are entitled to a 1/3rd share each in Item No. 9 of the suit schedule property

This entitlement is subject to the deposit of court fees by defendant Nos. 2 and 3 before the High Court

The rest of the decree by the trial court was affirmed

The preliminary decree will be drawn only after the deposit of court fees