Dismissed

Sri H M Manjunathappa v. Sri Prathap S/O Kalleshappa

Karnataka HC20 Mar 2023RSA/180/2011

Case brief

AI extract

What is this about?

In an appeal by a property purchaser, the High Court dismissed the challenge to a decree awarding shares in ancestral family properties to minors. The Court held the purchaser was bound by the sale restriction and that the minors were entitled to their shares.

What did the court decide?

Appeal dismissed confirming the first appellate court's decree awarding 1/6th share each to the minor plaintiffs.

Sri H M Manjunathappa Vs Sri Prathap S/O Kalleshappa — Partition | Karnataka HC (2023)

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RSA No. 180 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 180 OF 2011 (DEC)

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BETWEEN:

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SRI H M MANJUNATHAPPA S/O H MAHESHWARAPPA AGED ABOUT 46 YEARS AGRICULTURIST R/O.KOGUNDI VILLAGE CHITRADURGA TALUK CHITRADURGA DISTRICT - 577 501.

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…APPELLANT

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(BY SRI. B M SIDDAPPA, ADVOCATE)

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AND:

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Digitally signed by YASHODA KRISHNAPPA

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Location: HIGH COURT OF KARNATAKA

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SRI PRATHAP S/O KALLESHAPPA AGED ABOUT 9 YEARS.

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SMT. VIDYA S/O KALLESHAPPA AGED ABOUT 7 YEARS.

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SMT. VINODAMMA W/O KALLESHAPPA AGED ABOUT 35 YEARS

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RESPONDENTS 1 AND 2 ARE MINORS REP:BY NEXT FRIEND NATURAL GUARDIAN i.e., RESPONDENT No.3 THE MOTHER. ALL ARE R/O. URALUKATTE VILLAGE, JAGALUR TALUK, CHITRADURGA DISTRICT- 577 528.

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RSA No. 180 of 2011

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4. SRI KALLESHAPPA S/O SHEKARAPPA

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AGED ABOUT 41 YEARS.

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SRI SHEKARAPPA S/O PATRAPPA

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AGED ABOUT 70 YEARS.

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BOTH ARE AGRICULTURISTS R/O CHADURAGOLLA VILLAGE JAGALUR TALUK CHITRADURGA DISTRICT – 577 528.

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…RESPONDENTS

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(BY SRI M R HIREMATHAD, ADVOCATE FOR R3 R4 & R5-SERVED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 2.11.2010 PASSED IN R.A.NO.116/2009 (OLD NO.182/2005) ON THE FILE OF THE II ADDL. DISTRICT JUDGE, DAVANGERE, PARTLY ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 14.2.2005 PASSED IN O.S.No.59/2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN) JAGALUR.

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THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Defendant No.3 has filed this appeal against plaintiff

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Nos.1 to 3 and defendant Nos.1 and 2, praying to set-aside

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the judgment and decree passed by the II Additional District and Sessions Judge, Davanagere dated 02.11.2010

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in R.A.No.116/2009 (old R.A.No.182/2005) and prayed to

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confirm the judgment and decree passed by the learned Civil Judge (Jr.Dn.), Jagalur in O.S.No.59/2003 dated 14.02.2005.

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Respondent Nos.1 to 3 were the plaintiffs and respondent Nos.4 and 5 were defendant Nos.1 and 2 in O.S.No.59/2003, on the file of the Civil Judge (Jr.Dn.), Jagalur. The said suit has been filed for partition and separate possession of share of plaintiff Nos.1 and 2 in the properties described in schedule ‘B’ and ‘C’. The said schedule properties are as under:

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‘B’ SHEDULE

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“The agricultural land bearing S.No.33 measuring 3

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acres 22 guntas situated at Chadargolla village, Jagalur Taluk bounded as follows:-

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EAST - Road WEST - Land of A.K. Gadaga Hanumanthappa NORTH - Land of Chikkarakere Rangappa SOURTH - Land of Bheemappa.”

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‘C’ SHEDULE

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RSA No. 180 of 2011

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“Block tiled house bearing Katha No.144, measuring 11 feet East-West – north south 50 feet situated at Chadargolla village, Jagalur taluk, bounded by:-

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EAST – House of Kalleshappa,

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WEST – House of Angadi Veeranna, NORTH – Thrashing flour of Eranna, SOUTH – Road.”

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It is the case of the plaintiffs before the Trial

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Court that defendant No.1 is the husband of plaintiff No.3 and father of plaintiff Nos.1 and 2. Defendant No.2 is the father of defendant No.1. It is their further case that ‘B’ and ‘C’ schedule properties are the Joint Family Properties of the parties to the suit and each one of them are in possession and enjoyment of the same. It is their further case that due to some mis-understanding between plaintiff No.3 and defendant No.1, quarrel arose between them and in pursuance of such quarrel, defendant No.1 has driven out plaintiff No.3 with her children ie., plaintiff Nos.1 and 2 without any reasonable excuse and as they have been deserted by defendant No.1, the plaintiffs are residing in the parental house of plaintiff No.3.

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RSA No. 180 of 2011

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It is their further case that taking undue advantage of the absence of the plaintiffs in the family, defendant Nos.1 and 2 were trying to alienate ‘B’ and ‘C’ schedule properties to defeat the plaintiffs’ legitimate share in the suit schedule properties. It is stated that plaintiff Nos.1 and 2 are having 1/6^th share each in the suit schedule ‘B’ and ‘C’ properties. It is their further case that the plaintiffs demanded their legitimate share in the suit schedule properties, but defendant Nos.1 and 2 refused to give their share. Plaintiff Nos.1 and 2 were minors as on the date of filing the suit. Therefore, plaintiff No.3 being the mother and next friend of plaintiff Nos.1 and 2, has filed the suit.

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Originally, the suit was filed only against defendant Nos.1 and 2 and during the pendency of the suit, defendant No.2 filed the written statement contending that they have sold the suit schedule ‘B’ property in favour of one Sri.H.M.Manjunathappa. The plaintiffs added the said purchaser Sri.H.M.Manjunathappa as defendant No.3,

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RSA No. 180 of 2011

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who appeared through a counsel. Defendant Nos.1 and 3 did not chose to file the written statement. It is only, defendant No.2 who has filed the written statement. Defendant No.2 has admitted the relationship between the plaintiffs, defendant Nos.1 and 2, but they contend that ‘B’ schedule property is the self acquired property and there were loan liabilities of several persons including the Cooperative Societies and Banks and therefore, in order to discharge the loan liability, he has executed the sale agreement of the suit property on 05.04.2002 and handed over the possession to the purchaser and subsequently, sold schedule ‘B’ property to defendant No.3. It is contended that the said sale is in the benefit of the family to discharge the family loans and therefore, the same is binding on the plaintiffs.

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6. Defendant No.2 further contended that the ‘B’

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schedule property was his self acquired property and in the ‘C’ schedule, he has got 1/3^rd share only and other sharers ie., Sri.Kallanna and Sri.Bheemanna are not made parties

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RSA No. 180 of 2011

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to the suit and contended that the suit in the present form

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is not maintainable. Based on the said pleadings, the Trial

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Court has framed the following issues:

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“1. Whether the plaintiffs prove that suit ‘B’ & ‘C’ schedule properties are ancestral joint family properties of the plaintiffs and defendants?

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2. Whether the defendant No.2 proves that suit schedule ‘B’ property is his self acquired property?

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3. Whether defendant No.2 proves that the plaintiffs have no right to claim the suit schedule ‘C’ property?

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4. Whether the defendants prove that this court has no pecuniary jurisdiction to entertain this suit?

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5. Whether plaintiffs are entitled to 1/6^th share each in the suit schedule properties?

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6. What order and decree?”

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The plaintiffs, in order to prove their case, got

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examined their Power of Attorney holder as PW1 and got examined one more witness as PW2 and got marked

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RSA No. 180 of 2011

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Exs.P1 to P6. The defendants have not led any oral evidence, nor they have cross examined PWs.1 and 2.

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The Trial Court by its judgment and decree

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dated 14.02.2005, has answered all the issues against the plaintiffs and dismissed the suit.

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The plaintiffs have challenged the said judgment and decree in R.A.No.116/2009. During the pendency of the said appeal, the appellants/plaintiffs have filed I.A.No.2 under Order 41 Rule 27 of CPC. The said application came to be allowed by order dated 02.08.2010 and the appellants/plaintiffs were permitted to produce the additional evidence. Thereafter, plaintiff No.3 has been examined as PW3 and got marked the certified copy of the registered partition deed dated 20.04.1979 as Ex.P7. Plaintiff No.3 has been cross examined by the counsel for defendant No.3. PW3 has not been cross examined by defendant Nos.1 and 2.

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RSA No. 180 of 2011

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The Appellate Court, after hearing the

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arguments of both sides and on perusal of the records has formulated the following points for consideration:

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“1. Whether the appellants/plaintiffs prove that ‘B’ and ‘C’ schedule properties are the joint family properties of the parties to the suit and the same are liable for partition among the plaintiffs and defendants No.1 and 2?

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2. Does the defendant No.2 proves that ‘B’ schedule properties were his self-acquired properties and plaintiffs cannot claim their share in the same?

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3. Whether the plaintiffs prove that the findings of the learned trial court in the impugned judgment are oppose to law, facts of the case and the same are perverse and illegal one and all such findings are liable to be interfered by this court sitting in appeal?

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4. Whether plaintiffs are entitled for their share in the suit properties?

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5. What order or decree?”

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RSA No. 180 of 2011

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The Appellate Court answered point Nos.1 and 3 partly in the affirmative, point No.3 in the negative and point No.4 in the affirmative and allowed the appeal and decreed the suit of the plaintiff and awarded plaintiff Nos.1 and 2, 1/6^th share each in ‘B’ and ‘C’ schedule properties.

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The Appellate Court considering Ex.P7, has held that schedule ‘B’ property is not the self acquired property of defendant No.2, but it is allotted to defendant No.2 in the said partition, which took place between himself and his brothers on 20.04.1979 (Ex.P7) and it is the ancestral property which has been divided between defendant No.2 and his two brothers along with other properties.

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The First Appellate Court also considered that defendant Nos.1 and 2, after they entered appearance in the suit and in violation of the interim order dated 05.07.2003 restraining them from alienating the ‘B’ schedule property, have sold schedule ‘B’ property in favour of defendant No.3 by sale deed dated 29.07.2003.

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RSA No. 180 of 2011

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The First Appellate Court has held that Ex.P5 - sale deed dated 29.07.2003 has been executed by defendant Nos.1 and 2 during the pendency of the suit and inspite of the temporary injunction order passed against them, violating the Court order. The First Appellate Court has held that plaintiff Nos.1 and 2 being the coparcenaries of the Joint Family Properties have got their legal share in the ‘B’ schedule property. The First Appellate Court also held that ‘C’ schedule house property allotted as per Khata extract Ex.P4 would not stand in the name of defendant Nos.1 and 2, but it was standing in the name of one Sri.Kallappa, brother of defendant No.2. But in the written statement, defendant No.2 has contended that he is entitled to 1/3^rd share in the ‘C’ schedule property and the remaining 2/3^rd share would be of Sri.Kallappa and Sri.Bheemanna who are his brothers.

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Defendant Nos.1 and 2 have not challenged the said judgment and decree passed by the First Appellate Court in R.A.No.116/2009. It is defendant No.3 who is

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RSA No. 180 of 2011

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before this Court in this second appeal challenging the judgment and decree passed by the First Appellate Court in R.A.No.116/2009. This appellant / defendant No.3 is the purchaser of schedule ‘B’ property during the pendency of the suit in O.S.No.59/2003.

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This second appeal came to be admitted to consider the following substantial questions of law:

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“1. Whether the first Appellate Court is legally correct in holding that the sale made in favour of defendant No.3 is not binding on the plaintiffs and is contrary to the law declared by the Apex Court reported in 1996 (8) SCC 54?

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2. Whether the apportionment of shares by the first Appellate Court among the members of joint family is contrary to the law declared by the Apex Court in 2009 AIR SCW 4075?”

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Heard learned counsel for the appellant and learned counsel for the respondent Nos.1 to 3. Respondent Nos.4 and 5 who were defendant

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RSA No. 180 of 2011

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Nos.1 and 2 before the Trial Court have remained absent

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and unrepresented, inspite of service of notice on them.

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Learned counsel for the appellant argued that defendant No.2 is the Kartha of the Joint Family and he is having the right and power to alienate the Joint Family Properties as the Kartha of the Hindu undivided family and no permission of the Court is required to sell the interest of the minors ie., plaintiff Nos.1 and 2. On that point, he placed reliance on the decision of the Hon’ble Apex Court in the case of Sri.Narayan Bal and Others Vs. Sridhar Sutar and Others reported in (1996) 8 SCC 54 .

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He further argued that the property of the father who had separated from his family, on his death will be inherited and will be held by his son in his individual capacity and son’s son will have no right therein as a coparcener. On that point, he placed reliance on the decision of the Co-ordinate Bench of this Court in the case

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of Mrs.Mallika and Others Vs. Chandrappa and Others

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reported in ILR 2007 Kar 3216 .

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RSA No. 180 of 2011

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He further argued that omission of Section 23 of the Hindu Succession Act, by the amendment Act of 2005 is prospective in nature. On that point, he placed reliance on the decision of the Hon’ble Apex Court in the case of G.Sekar Vs. Geetha and Ors reported in 2009 AIR SCW

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4075 .

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Learned counsel for respondent Nos.1 to 3 would contend that the schedule properties at the hands of defendant No.3 is the ancestral and Joint Family properties and defendant Nos.1 and 2 have no absolute right to alienate the same, affecting the interest and share of the plaintiffs’ who are the members of the Joint Family. He contended that defendant Nos.1 and 2, only in order to deprive the right and share of the plaintiffs in the suit schedule properties, alienated the schedule ‘B’ property during the pendency of the suit, in violation of the Court order. He contends that the First Appellate Court has rightly appreciated the evidence on record and considering the evidence of P.W.3 and Ex.P7 – partition deed dated

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RSA No. 180 of 2011

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20.04.1979 has held that the schedule ‘B’ property is the ancestral property and any alienation made by defendant Nos.1 and 2 will not bind on the share of the plaintiffs. He supported the reasoning assigned by the First Appellate Court.

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Schedule A of plaint contains genealogical tree. As per the said genealogical tree plaintiffs 1 and 2 are son and daughter of defendant No. 1 – Kalleshappa and his wife Smt. Vinodamma (plaintiff No. 3). Said defendant No. 1 is the son of defendant No. 2 – Shekarappa. Said defendant No. 2 is son of Patrappa. Defendant No. 2 has filed written statement and has admitted the relationship between the parties. Defendant No. 2 in his written statement also stated that he is having two brothers, namely, Kalappa and Bheemanna and they are sons of Patrappa. In Ex.P.7 partition deed dated 20.04.1979 there is also mention that defendant No. 2 – Shekarappa, Bheemanna/Bheemappa and Kalappa are brothers and they are the children of Patrappa. Therefore, said

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RSA No. 180 of 2011

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defendant No. 2 is having two brothers by name Kalappa and Bheemanna/Bheemappa. Said defendant No. 2 in his written statement has contended that B schedule property is his self acquired property. Plaintiffs contend that B and C schedule properties are ancestral joint family properties of plaintiffs and defendants. The trial Court based on the oral evidence of P.W.1 and P.W.2, documents Ex.P.2 to Ex.P.6 has held that the suit schedule B property is not ancestral joint family property of plaintiffs and defendants. In the first appellate Court the plaintiffs led additional evidence i.e., plaintiff No. 3 is examined as P.W.3 and got marked Ex.P.7 certified copy of registered partition deed dated 20.04.1979. Said Ex.P.7 has not been produced by the plaintiffs before the trial Court. Said partition deed (Ex.P.7) is between defendant No. 2 and his two brothers Kalappa and Bheemanna/Bheemappa. There was a partition of two agricultural lands between the said three brothers. In the said partition (Ex.P.7) survey No. 36/4 measuring 5 acres has been allotted to the share of Kalappa (first party), survey No. 32/2 which is totally measuring 7 acres 6

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guntas out of which 3 acres 23 guntas has been allotted to Bheemanna/Bheemappa (second party) and 3 acres 23 guntas has been allotted to the share of Shekarappa (third party) who is defendant No. 2 herein. The first appellate Court while considering the said Ex.P.7 – partition deed has noted that 7 acres 6 guntas of land in survey No. 32/2 has been allotted to the share of defendant No. 2. Said observation made by the first appellate Court is not correct in view of the recitals in Ex.P.7 – partition deed. Said survey No. 32/2 is totally measuring 7 acres 6 guntas out of which 3 acres 23 guntas each has been allotted to the

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share of Bheemanna/Bheemappa and Shekarappa. Therefore what has been allotted to defendant No. 2 is 3 acres 23 guntas in survey No. 32/2. How defendant No. 2 and his two brothers have acquired the said two properties i.e., survey No. 36/4 measuring 5 acres and survey No. 32/2 measuring 7 acres 2 guntas has not been stated in Ex.P.7. Defendant No. 2 has contended that suit schedule B property i.e., survey No. 32/2 measuring 3 acres 23 guntas is his self acquired property. Defendant No. 2 has

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RSA No. 180 of 2011

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not led any oral evidence and not produced any documents

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to establish the same. In the absence of such materials

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what is to be presumed is that the said property i.e., suit schedule B property is the joint family ancestral property of the parties. Plaintiff No. 3 who has been examined as P.W.3 in the first appellate Court in her chief examination

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has stated that survey No. 32/2 measuring 3 acres 23 guntas i.e, suit schedule B property is the ancestral property. In her cross-examination she has stated that the said property is property of grand-father of defendant No. 2. Said aspect has not been denied by defendant Nos. 1 and 2 or by defendant No. 3. Defendant Nos. 1 and 2 have not let in any oral and documentary evidence and have also not cross-examined P.W.1 and P.W.2. Therefore there is division of joint family ancestral property between defendant No. 2 and his two brothers.

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Learned counsel for appellant placing reliance on a coordinate Bench decision of this Court in the case of Mrs. Mallika and others Vs. Mr. Chandrappa and

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RSA No. 180 of 2011

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others reported in ILR 2007 Kar. 3216 would contend that property of the father who had separated from the his family, on his death will be inherited and held by his sons in their individual capacity and son’s son/sons will have no right therein as coparceners. In the said case the son has inherited the self acquired property of his father and therefore it is held that the said property shall be treated as the individual property of son and the heirs of the son will have no right in the said property as coparceners. While deciding the said case a coordinate Bench of this Court has also referred to the decision of the Hon’ble Apex

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Court in the case of Commissioner of Wealth Tax, Kanpur Vs. Chaner Sen reported in AIR 1986 SC 1753 . In the said case there was a partital partition in 1961 in the family by which the business was divided between father Rengilal and the son Chander Sen and thereafter it was carried on by a partnership consisting of the two. After the death of father leaving his son, Chander Sen and Chander Sen’s sons. On the death of Rengilal, there was credit balance of Rs.1,85,043/- in his account in the books

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RSA No. 180 of 2011

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of the firm. The said Chander Sen who constituted a joint family along with his sons filed a return of his net wealth. The return included the property of the family, which on the death of Rengilal passed on to assets of the business, which devolved upon Chander Sen upon the death of his father. The sum of Rs.1,85,043/- standing to the credit of Rengilal was not included in the net wealth of the family of Chander Sen on the ground that that amount devolved on Chander Sen in his individual capacity and was not the property of Chander Sen’s family. Therefore, the said decision relied upon by the learned counsel for appellant is not applicable to the case on hand.

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In the case on hand joint family/ancestral property has been divided by defendant No. 2 and his two brothers in the partition deed dated 20.04.1979. On that point it is relevant to consider the commentary by Mulla on Hindu Law 21^st Edition wherein in sub ( §) No. 4 of ( §) No. 221 it is discussed as under:

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RSA No. 180 of 2011

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(4) Share allotted on partition.- The share, which a coparcener obtains on partition of ancestral property, is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate, and if the coparcener dies without leaving a male issue, it passes to his heirs by succession. Reference may also be made to notes under Section 8 of the Hindu Succession Act, 1956 and the Supreme Court and High Court decisions as to ancestral property cited there.

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In a recent decision by the Punjab & Haryana High Court, where a partition had taken place between a father and his sons, and one of the sons sought to further alienate his share, it was held that the grandson could not challenge such alienation.

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Reliance was placed upon this commentary (Mulla), more particularly §§ 321 and § 322 to hold that the father held the property absolutely, to the exclusion of his sons. It is submitted that it is commented therein that on partition since shares are defined, the partition stands complete. It is submitted that coupled with the commentary in § 321 and 322, the same would have to be read in conjunction with the commentary in § 221 where it has been commented

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RSA No. 180 of 2011

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that any property inherited by a male Hindu from his father, fathers father or fathers father's father is ancestral property as regards his male issue. It is further observed that:-

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‘In the hands of the son, the property will be ancestral property and the natural or adopted son of that son will take interest in it and be entitled to it by survivorship, as joint family property."

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It is submitted that the decision of the High Court has quoted §§ 321 & 322 out of context and seems to have ignored the commentary in § 221 quoted above. It is submitted that even on partition, the property so, received would retain the character of jointness qua the separately allotted property with his sons, and the sons would be entitled to challenge any further alienation by their father, they being in a state of jointness with their father qua that property. It is therefore submitted that the judgment proceeds on a mis-reading of the provision as any further alienation by the father could obviously be challenged by the grandsons (his sons). Attention is also invited to the commentary on share allotted on partition where it is clearly mentioned that property allotted to him at the partition is separate property as regards, the divided members, but ancestral as regards his male issue.”

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RSA No. 180 of 2011

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In view of the above property allotted to defendant No. 2 by a partition is a separate property as regards the divided members i.e., his two brothers Kalappa and Bheemanna/Bheemappa but ancestral as regards his male issue i.e., defendant No. 1 and his two children i.e., plaintiff Nos. 1 and 2. Therefore the suit schedule B property is ancestral property wherein plaintiffs being the children of defendant No. 1 and grandchildren of defendant No. 2 are having undivided share in it.

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Plaintiffs field the suit on 05.07.2003 and on that day on their application an ex-parte temporary injunction has been granted restraining defendant Nos. 1 and 2 from alienating suit schedule B and C properties. On suit summons, notice and temporary injunction order being served defendant Nos. 1 and 2 appeared through their counsel on 19.07.2003. The ex-parte temporary injunction granted by order dated 05.07.2003 has been made absolute by order dated 03.09.2003 passed on I.A. No. 1. During subsistence of that order of temporary injunction

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RSA No. 180 of 2011

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restraining defendant Nos. 1 and 2 from alienating the suit schedule B and C properties they sold schedule B property in favour of defendant No. 3 by sale deed dated 29.07.2003. Defendant Nos. 1 and 2 intimated regarding the sale deed dated 29.07.2003 to the Court. On an application by the plaintiffs the purchasers have been added as defendant No. 3. Defendant No. 3 has purchased suit schedule C property under sale deed dated 29.07.2003 (Ex.P.5) during the pendency of the suit and during the subsistence of an order restraining alienation. Therefore, said alienation i.e., sale deed Ex.P.5 is hit by principles of lis pendens enumerated under Section 52 of Transfer of Property Act. Therefore, defendant No. 3 who is purchaser of suit schedule B property during the pendency of the suit is bound by the decree passed in the suit.

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Plaintiff Nos. 1 and 2 were aged about 4 years and 2 years as on the date of filing the suit and they were represented by plaintiff No. 3 as next friend and natural guardian/mother. Defendant No. 2 in his written statement

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contended that the said sale made by him under Ex.P.5 sale deed in favour of defendant No. 3 alienating suit schedule B property is for family necessities, payment of debt, clearing hand loans which are availed for necessities of joint family of plaintiffs and defendants. To establish said aspect they have not placed on record any documents in that regard. Therefore, defendant Nos. 1 and 2 have failed to prove that they sold the suit schedule B property for family necessities.

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Learned counsel for appellant placing reliance on the decision of the Hon’ble Apex Court in the case of Sri. Narayan Bal and others Vs. Sridhar Sutar and others reported in 1996 (8) SCC 44 would contend that the kartha or an adult member of a joint Hindu family can sell/dispose of joint family property involving undivided interest of minor of the family therein and there is no necessity of any sale permission under Section 8 of the Hindu Minority and Guardianship Act, 1956. No doubt Kartha of a joint Hindu undivided family has right to

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alienate the joint Hindu family property involving undivided interest of the minor of the family. But, such alienation is for legal necessities and benefit of the estate. Even though legal necessity is pleaded by defendant No. 2 he failed to establish the same. More so, the sale made by defendant Nos. 1 and 2 to defendant No. 3 is during pendency of suit and in violation of an order of temporary injunction.

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In the plaint there is a pleading by plaintiffs that defendant Nos.1 and 2 are trying to alienate suit schedule property to defeat the plaintiff’s legitimate share in them. The defendant Nos. 1 and 2 appeared in the suit filed by the plaintiffs and alienated schedule B property immediately thereafter itself shows that they did it to defeat the plaintiffs’ legitimate share in the suit schedule properties. Considering all these aspects the first appellate Court has rightly held that plaintiff Nos. 1 and 2 are having share in the suit schedule properties. The first appellate Court also held that plaintiff Nos. 1 and 2 are having 1/6^th share each in plaint schedule B and C properties.

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RSA No. 180 of 2011

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The first appellate Court taking into consideration the admission by defendant No. 2 in his written statement that he is having 1/3^rd share in schedule C property awarded 1/6^th share in 1/3^rd share in schedule C property. The appellant being purchaser of schedule B property is in no way concerned with schedule C property. Defendant Nos. 1 and 2 have not chosen to challenge the judgment and decree passed by the first appellate Court granting share to the plaintiffs in schedule C property also. Therefore, this appellant/defendant No. 3 being purchaser of schedule B property is not having any right to challenge finding of awarding share to the plaintiffs in schedule C property. The claim of plaintiffs seeking share in C schedule property i.e., house property is by son and daughter. As the claim of share is made by a son seeking share in dwelling house, in that circumstance the daughter can also be granted share in it and Section 23 of Hindu Succession Act, 1956 does not come in the way. Therefore, the first appellate Court has not committed any error in decreeing the suit of plaintiffs and allotting them share in

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