Dismissed

Sri Harish v. Sri K N Jayaram

Karnataka HC28 Mar 2023RSA/396/2010

Case brief

AI extract

What is this about?

Appellants challenged a second appeal judgment dismissing their partition suit. The High Court held that the property sold by the plaintiffs' uncle and brother was ancestral, sold for legal necessity, and the suit was barred by limitation and non-joinder of daughters, dismissing the appeal.

What did the court decide?

The second appeal is dismissed; the suit for partition is not maintainable.

Sri Harish Vs Sri K N Jayaram — Partition | Karnataka HC (2023)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 28^TH DAY OF MARCH, 2023

¶4

BEFORE

¶5

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

¶6

R.S.A NO. 396 OF 2010 (PAR)

¶7

BETWEEN:

¶8

1 . SRI HARISH

¶9

S/O SRI K M KRISHNAPPA AGED ABOUT 33 YEARS

¶10

R/O KOODLU VILLAGE, ANEKAL TALUK, BANGALORE DISTRICT-562106.

¶11

2 . SRI ASHOK S/O SRI K M KRISHNAPPA AGED ABOUT 31 YEARS, R/O KOODLU VILLAGE, ANEKAL TALUK, BANGALORE DISTRICT-562106.

¶12

3 . SRI ARUN S/O SRI K M KRISHNAPPA AGED ABOUT 31 YEARS, R/O KOODLU VILLAGE, ANEKAL TALUK, BANGALORE DISTRICT-562106.

¶13

4 . SRI MANJUNATH S/O SRI K M KRISHNAPPA AGED ABOUT 29 YEARS, R/O KOODLU VILLAGE, ANEKAL TALUK, BANGALORE DISTRICT-562106.

¶14

5 . SMT LEELAVATHI D/O SRI K M KRISHNAPPA

¶15

¶16

AGED ABOUT 35 YEARS, R/O KOODLU VILLAGE, ANEKAL TALUK, BANGALORE DISTRICT-562106.

¶17

...APPELLANTS

¶18

(BY SRI.G S BALAGANGADHAR, ADVOCATE)

¶19

AND:

¶20

1 . SRI K N JAYARAM DEAD BY LRs

¶21

1A. SMT.LALITHA W/O LATE K.N.JAYARAM AGED ABOUT 70 YEARS

¶22

1B. SMT.RAJESHWARI D/O LATE K.N.JAYARAM AGED ABOUT 48 YEARS

¶23

1C. SMT. BHUVANESHWARI D/O LATE K.N.JAYARAM AGED ABOUT 46 YEARS

¶24

1D. SRI.MURALIDHAR S/O LATE K.N.JAYARAM AGED ABOUT 44 YEARS

¶25

ALL ARE R/AT NO.2095 EAST END B-MAIN ROAD, 9^TH BLOCK, JAYANAGAR, BANGALORE - 560009.

¶26

2 . SRI K N KRISHNAPPA S/O LATE K ABBAIAH

¶27

LR OF DECEASED RESPONDENT NO.2 A). SMT PAPAMMA W/O LATE KRISHNAPPA, AGED ABOUT 60 YEARS, R/AT KUDLU VILLAGE, ANEKAL TALUK, BANGALORE RURAL DISTRICT-562106.

¶28

3 . SRI K N SRINIVAS S/O LATE K ABBAIAH AGED ABOUT 63 YEARS

¶29

*Page No.2 Retyped and Replaced vide chamber order Dated: 07.12.2023

¶30

¶31

R/AT NO. 543, 22ND CROSS 14TH MAIN, MARENAHALLI, J.P.NAGAR, BANGALORE-560 078

¶32

4 . SRI K N GOPALAKRISHNA

¶33

S/O LATE K ABBAIAH

¶34

LRs OF DECEASED RESPONDENT NO.4

¶35

a. SMT.RAMADEVI W/O LATE K.N.GOPALKRISHNA AGED ABOUT 65 YEARS

¶36

b. SMT.SAHANA D/O LATE K.N.GOPALKRISHNA AGED ABOUT 39 YEARS

¶37

c. SMT. SUMANA D/O LATE K.N.GOPALAKRISHNA AGED ABOUT 37 YEARS

¶38

ALL ARE R/AT NO.253, 6^TH CROSS, 2^ND MAIN, AECS LAYOUT, 3^RD STAGE, RMV EXTN, 2^ND STAGE, SANJAY NAGAR, BANGALORE – 560094.

¶39

5 . SRI NARAYANA REDDY S/O LATE MUKKADA REDDY AGED ABOUT 55 YEARS, R/AT RAMASAGARA VILLAGE, ANEKAL TALUK BANGALORE DISTRICT – 562106.

¶40

6 . SRI T SUNKA REDDY

¶41

S/O LATE THIMMARAYA REDDY AGED ABOUT 57 YEARS, R/AT CHANDAPURA VILLAGE, ANEKAL TALUK, BANGALORE – 562106.

¶42

7 . SMT SUDHA

¶43

W/O MR.T RAMASWAMY REDDY AGED ABOUT 37 YEARS, R/AT CHANDAPURA VILLAGE, ANEKAL TALUK,

¶44

*Page No.3 Retyped and Replaced vide chamber order Dated: 07.12.2023

¶45

¶46

…RESPONDENTS

¶47

BANGALORE DISTRICT – 562106.

¶48

(BY SRI.VIVEK S.REDDY, SR.COUNSEL FOR SRI.K.N.SUBBA REDDY, ADVOCATE FOR P.sd. R1-R6 ON IA.2/2023; SMT.B.V.MALLA REDDY, ADVOCATE FOR C/R5; SMT.NALINA, ADVOCATE FOR SRI.S.K.VENKATA REDDY, ADVOCATE FOR R6 & R7;

¶49

SRI.A.SHIVANNA, ADVOCATE FOR R7 IN IA.2/2013; V/O DATED: 15-02-2017 A1 TO A5 ARE THE LRs OF DECD.R2; V/O DATED: 11-12-2014 NOTICE ON P.sd. R8 TO R12 H/S; V/O DATED: 12-09-2011 NOTICE TO R2-R4 D/W V/O DATED: 30-04-2015 NOTICE TO R4(A TO C) H/S; V/O DATED: 23-03-2020 NOTICE TO RS(A) & RS(D) H/S; R1(B), R1(C), R2(A) ARE SD. & UNREPRESENTED; PROPOSED R13 SD. ON IA-2/2013)

¶50

THIS RSA IS FILED U/S 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 8.12.2009 PASSED IN R.A.NO.146/2009 ON THE FILE OF THE PRL. DISTRICT & SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 14.7.2009 PASSED IN O.S.NO.1431/06 (OLD NO. 2796/2005) ON THE FILE OF THE CIVIL JUDGE (SR.DN) & JMFC., ANEKAL.

¶51

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 18.08.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶52

¶53

JUDGMENT

¶54

The captioned second appeal is filed by unsuccessful plaintiffs feeling aggrieved by the divergent findings of the Courts below wherein the Appellate Court has allowed the appeal and has proceeded to dismiss the partition suit filed by plaintiffs.

¶55

For the sake of brevity, the parties are referred to as per their rank before the trial Court.

¶56

The family tree is as under:

¶57

Abbaiah |

¶58

Nanjamma (Wife) |

¶59

--------------------------------------------------------------------------| | | | | | Narayanamma Jayaram Krishnappa Srinivas Gopalkrishna Bhagyamma (Daugther) (Son) (Son) (Son) (Son) (Daughter) (1^st Def) (2^nd Def) (3^rd Def) (4^th Def) | Papamma | ------------------------------------------------------| | | | | Leelavathi Harish Ashok Arun Manjunath (Daughter) (Son) (Son) (Son) (Son) 5^th Pltf 1^st Pltf 2^nd Pltf 3^rd Pltf 4^th Pltf

¶60

¶61

The facts leading to the case are as under:

¶62

One Abbaiah is the propositus who had four sons and

¶63

two daughters. The plaintiffs are the children of Krishnappa who is arrayed as defendant No.2. Therefore, the children of defendant No.2 namely Krishnappa have filed a suit for partition by contending that suit property is joint family ancestral property and that it was purchased by their grandfather Abbaiah under registered sale deed dated 20.05.1960. The plaintiffs contend that defendant Nos.1 to 4 and plaintiffs have succeeded to the estate of Late Abbaiah and therefore, they are entitled for their legitimate share in the joint family property. It is the case of the plaintiffs that defendant Nos.1 to 4 and plaintiffs are coparceners and therefore, they are entitled for their legitimate share in the suit schedule property. Plaintiffs further contended that after death of Abbaiah, they along with defendant Nos.1 to 4 continued to reside as undivided joint family and they are in

¶64

¶65

joint possession and enjoyment over the suit schedule property.

¶66

The present suit is filed by the plaintiffs alleging that defendant Nos.1 to 4 have sold the suit schedule property without consent of plaintiffs and thereby have created third party rights over the suit schedule property. The present suit for partition is filed alleging that defendant Nos.1, 3, 4 and their father i.e., defendant No.2 have been displaying hostile attitude towards them and by alienating the property have made wrongful gain depriving plaintiffs legitimate right over the suit schedule property. On these set of grounds, the present suit for partition is filed.

¶67

Defendant No.1, who is the uncle of plaintiffs and brother of defendant No.2 filed written statement and stoutly denied the entire averments made in the plaint. Defendant No.1 contended that it is plaintiffs and their father who persuaded the other family members to dispose of the suit

¶68

¶69

schedule property as they were in need of money. At para 14 of the written statement, defendant No.1 alleged that defendant No.2 was in need of money to complete the construction of his house and also to perform the marriage of his daughter i.e., plaintiff No.5 herein. Therefore, defendants contended that it is defendant No.2 and plaintiff No.1 who approached defendant Nos.1, 3 and 4 and persuaded to sell the suit schedule property. At para 10 of the written statement, defendant No.1 also contended that suit schedule property was sold by defendant Nos.1 to 4 for legal necessity and hence, prayed for dismissal of the suit.

¶70

The defendant No.5 who is the purchaser filed written statement and also specifically contended that defendant Nos.1 to 4 had to sell the property under compelling reasons and the alienation was for legal necessity. The defendant No.5 and other purchasers claimed that they are bonafide purchasers and pursuant to purchase, they have applied for conversion, land is converted and the same is

¶71

¶72

developed and now an apartment has come up in the suit schedule property. Defendants also contended that out of sale consideration paid to defendant Nos.1 to 4, defendant No.2 who is the father of the plaintiffs has shared the sale consideration by paying it to plaintiffs to construct the house as well as to solemnize the marriage of plaintiff No.5. The defendant No.5 also contended that plaintiffs and defendant No.2 are residing together at Kudlu Village. The second limb of defence raised by defendant No.5 was that propositus Abbaiah was the original owner in possession and enjoyment of suit schedule property and he acquired the same under registered sale deed dated 20.05.1960. On these set of defences, the purchaser also sought for dismissal of the suit by contending that alienation was for legal necessity of the family of defendant Nos.1 to 4.

¶73

The plaintiffs and defendants to substantiate their respective claims have let in oral and documentary evidence.

¶74

¶75

The Trial Court, after conclusion of trial, assessed

¶76

the entire material on record and proceeded to decree the suit by recording a finding that the suit schedule property is joint family ancestral property and that the alienation made by defendant Nos.1 to 4 in favour of defendant Nos.5 to 7 is not binding on the plaintiffs share. Issue No.6 which relates to maintainability of suit on the ground that suit is for partial partition was answered in the negative. Trial Court decreed the suit granting 1/5^th share to the plaintiffs in all the suit schedule properties.

¶77

Feeling aggrieved by the judgment and decree of the trial Court, the defendant Nos.5 to 7 preferred an appeal before the Appellate Court.

¶78

The Appellate Court while taking cognizance of the grounds urged in the appeal, formulated points and being a final fact finding authority has re-assessed the entire evidence on record independently. The Appellate Court on re-

¶79

¶80

appreciation of evidence on record, however, declined to concur with the findings and conclusions recorded by the trial Court. The Appellate Court while examining point No.3 held that the suit for partial partition is not maintainable. While examining point No.4, Appellate Court held that defendant Nos.5 to 7 have succeeded in demonstrating that the sale by defendant Nos.1 to 4 is for legal necessity and therefore, plaintiffs are not entitled to seek relief of declaration that the sale deed executed by defendant Nos.1 to 4 is not binding on them. On re-appraisal of entire material on record, Appellate Court held that defendant Nos.5 to 7 have made out a case and therefore, the findings and conclusions recorded by the trial Court would warrant interference at the hands of the Appellate Court. Consequently, Appellate Court proceeded to allow the appeal and dismiss the suit.

¶81

Feeling aggrieved by the divergent findings, the plaintiffs have preferred the appeal.

¶82

¶83

This Court vide order dated 04.07.2014 was

¶84

pleased to admit the appeal on the following substantial questions of law:

¶85

“1. Whether the suit as brought by the appellants/plaintiffs is barred by limitation?

¶86

2. Whether the First Appellate Court is justified in holding that the suit is bad for non-joinder of necessary parties?

¶87

3. Whether the First Appellate Court is justified in holding that the property has been sold by the sons of propositus Abbaiah for legal necessary?”

¶88

Heard learned counsel appearing for plaintiffs and learned counsel appearing for defendant Nos.5 to 7.

¶89

The present suit is filed by the children of defendant No.2. Before I advert to the substantial questions of law, it would be necessary to look into the pleadings of the respective parties. Trial Court while answering issue No.6 in the negative has recorded a finding that defendant Nos.5 to 7

¶90

¶91

have failed to substantiate that the plaintiffs family owns other ancestral properties. If the family of plaintiffs and defendant Nos.1 to 4 did not possess any other lands, then the pleadings at para 4 of the plaint would have a direct bearing on the claim made by the plaintiffs. Para 4 of the plaint reads as under:

¶92

“4. The Plaintiffs and Defendant No.1 to 4 are members of Hindu Undivided Joint Family. The suit schedule property is joint family properties and the same is ancestral property. The suit properties originally belonged to the ancestor of the parties herein namely Abbaiah through a registered Sale Deed dated 20.5.1960 vide No. 671/60-61, Book-I, Volume 885 at Pages 235 to 237, registered in the office of the Sub-Registrar, Anekal, Bangalore District.”

¶93

Para 6 of the plaint would be also relevant and the same

¶94

reads as under:

¶95

“6. The Plaintiff respectfully submits that Sri. Abbaiah died intestate leaving behind the Plaintiffs and Defendant No.1 to 4 as his legal heirs. Thus the plaintiffs have become entitled 1/4^th share in the suit schedule property and they are in joint possession of the suit properties.

¶96

¶97

The suit properties continued to be the joint family properties and there was no division or partition amongst the members of the family at any point of time. The Defendant No.1 to 4 have been assuring the plaintiffs that they will be given their legitimate 1/4^th share in the suit property. The Plaintiffs being legal heirs of Sri. Abbaiah they have made requests and demands with the Defendant No.1 to 4 to make give their share. The Plaintiffs further submits that even inspite of their several requests and demands to effect partition of the suit schedule property their metes and bounds but the Defendant No.1 to 4 have refused to do so and they are rejected the requests of the Plaintiffs for the one reason or the other.”

¶98

If para 4 and 6 are meticulously examined, the present plaintiffs are asserting right over the suit schedule property not as coparceners. On meticulous examination of para 4 and para 6, what can be inferred is that this property was purchased by the grandfather of plaintiffs herein namely Abbaiah under registered sale deed dated 20.05.1960 and if plaintiffs claim that Abbaiah died intestate and therefore, they claim share by way of inheritance, then the finding of the trial

¶99

¶100

Court that the suit schedule properties are joint family ancestral properties and that the alienation made by defendant Nos.1 to 4 would not bind on plaintiffs legitimate share, is not only perverse, but the said finding suffers from serious infirmities and therefore, the conclusions arrived at by the trial Court is found to be patently erroneous. If from the pleadings, it is forthcoming that Abbaiah has purchased the property under registered sale deed, then his fours sons i.e., defendant Nos.1 to 4 would inherit the suit schedule property in their individual capacity under Section 8 of Hindu Succession Act. Therefore, Appellate Court was justified in holding that the property that is sold by the sons of propositus Abbaiah for legal necessity would bind on the plaintiffs.

¶101

This Court would go one step further. The alienations would bind the plaintiffs on two counts. If the family did not possess other properties and that there was no nucleus, then the property purchased by propositus Abbaiah would devolve upon his four sons by way of inheritance.

¶102

¶103

Therefore, the sale deed would bind on the plaintiffs. This sale deed would also bind on the plaintiffs in view of statement made by defendant No.1 at para 10 and para 14. Defendant No.1 who is the uncle of plaintiff Nos.1 to 4 and younger brother of defendant No.2 has specifically stated at paras 10 and 14 that it was at the instance of defendant No.2 and plaintiff No.1, the other defendants i.e., defendant Nos.1, 3 and 4 were compelled to sell the suit schedule property. At para 14, defendant No.1 has claimed that defendant No.2 was in need of money to complete the construction of his house and also to perform the marriage of his daughter i.e., plaintiff No.5. The pleadings at para 10 and 14 would be relevant and therefore, this Court deems it fit to cull out the same which reads as under:

¶104

“10. In Re-Para-10 is totally false and baseless. The sale made by the defendant No.1 to 4 in favour of defendant 5 to 7 is valid and binding on the plaintiffs. The deed of sale is registered and hence has conferred a absolute right, title and interest in the suit property in favour of defendants 5 to 7, as the plaintiffs father, defendant No.2, has executed

¶105

¶106

the sale deed after receiving his share of sale consideration and the plaintiffs have also utilized the same to their legal necessities and benefits. The defendants 1 to 4 have handed over the possession of the suit property to defendants 5 to 7 and since then they are in uninterrupted absolute possession and enjoyment of the suit property. The suit of the plaintiffs for partition itself is not maintainable as the same is bad for non-joinder of necessary parties. As the plaintiff's have not made the entire legal heirs of Late Abbaiah as parties to the suit. The plaintiffs have included any other properties of late Abbaiah in this suit, is the clear proof of the illegal intention of the plaintiffs to make wrongful gain. The plaintiffs are not entitled for any reliefs or share, as the defendant 2, has taken the share and utilized the same for the benefit of his family.

¶107

14. It is significant to submit that, it was the defendant No.2, who was in need of money to complete the construction of his house and to perform the marriage of his daughter, the plaintiff No.5 herein. The defendant No.2 and plaintiff No.1, approached the other defendants 1, 3 and 4 and persuaded them to sell the suit property jointly to defendants 5 to 7 and they only negotiated the transaction with the defendants 5 to 7 and from their share of sale consideration they completed the

¶108

¶109

construction of their house and performed the marriage of plaintiff No.5.”

¶110

If the stand taken by defendant No.1 is further

¶111

examined in the context of admissions elicited by defendant Nos.5 to 7 in cross-examination of plaintiffs, then this Court is of the view that the entire issue stands clinched and the same would go to the root of the case and that would ultimately turn out to be fatal to the plaintiffs case. The relevant crossexamination which is found at para 3 of the crossexamination, it is clearly forthcoming that plaintiffs have admitted in unequivocal terms that the property was sold for legal necessity. The relevant portion is culled out and the same reads as under:

¶112

“£À£Àß vÁvÀ C§âAiÀÄå ¸ÀvÀÛ £ÀAvÀgÀ DvÀ£À £Á®ÄÌ d£À ªÀÄPÀÌ¼ÁzÀ ¥ÀæwªÁ¢ 1 jAzÀ 4 EªÀgÀÄ PÀÄlÄA§zÀ ªÀåªÀºÁgÀUÀ¼À£ÀÄß £ÉÆÃrPÉÆ¼ÀÄîwÛzÀÝgÀÄ JAzÀgÉ ¸Àj. ¥ÀæwªÁ¢ 1 jAzÀ 4 EªÀgÀÄ dAnAiÀiÁV vÀªÀÄä PÀÄlÄA§zÀ ¸ÀªÉð £ÀA.193-2 gÀ d«ÄÃ£À£ÀÄß gÁªÀÄgÉrØ J£ÀÄßªÀªÀjUÉ ¢£ÁAPÀ 10-08-2004 gÀAzÀÄ ªÀiÁgÁl ªÀiÁrzÁÝgÉ JAzÀÄ ºÉÃ½zÀgÉ ¸Àj. ¸ÀzÀj d«ÄÃ£À£ÀÄß ¥ÀæwªÁ¢ 1 jAzÀ 4 EªÀgÀÄ PÀÄlÄA§zÀ CªÀ±ÀåPÀvÉUÁV ªÀiÁgÁl ªÀiÁrzÁÝgÉ JAzÀÄ ºÉÃ½zÀgÉ ¸Àj. £À£Àß d£Àä ¢£ÁAPÀ 4-41976. zÁªÉ ºÁPÀÄªÀ PÁ®PÉÌ zÁªÁ D¹ÛAiÀÄÄ DUÀ¯ÉÃ PÀÈ¶AiÉÄÃvÀgÀ d«ÄÃ£ÁV ¥ÀjªÀvÀð£ÉUÉÆArgÀÄªÀÅzÀÄ £À£ÀUÉ UÉÆwÛvÀÄÛ JAzÀÄ ºÉÃ½zÀgÉ ¸ÀjAiÀÄ®è. zÁªÁ D¹ÛAiÀÄ

¶113

¶114

¥ÀºÀtÂ ¥ÀwæPÉAiÀÄ£ÀÄß £Á£ÀÄ £ÉÆÃrAiÉÄÃ E®è. FUÀ £ÁªÀÅ ªÁ¸ÀªÁVgÀÄªÀ ªÀÄ£ÉAiÀÄ£ÀÄß PÀlÄÖªÀÅzÀPÁÌV ªÀÄvÀÄÛ £À£Àß ¸ÀºÉÆÃzÀj ªÁ¢ 4 °Ã¯ÁªÀwAiÀÄ ªÀÄzÀÄªÉ ªÀiÁqÀÄªÀÅzÀPÁÌV ªÀÄvÀÄÛ £ÀªÀÄä PÀÄlÄA§zÀ CªÀ±ÀåPÀvÉUÁV ¥ÀæwªÁ¢ 1 jAzÀ 4 EªÀgÀÄ dAnAiÀiÁV zÁªÁzÀ D¹ÛAiÀÄ£ÀÄß ¢£ÁAPÀ 24-8-1995 gÀAzÀÄ ¥ÀæwªÁ¢ 5 jAzÀ 7 EªÀjUÉ ªÀiÁgÁl ªÀiÁrzÁÝgÉ JAzÀÄ ºÉÃ½zÀgÉ £À£ÀUÉ UÉÆwÛ®è.”

¶115

If these materials are taken into consideration,

¶116

then what emerges is that there is ample evidence on record which would indicate that defendant Nos.1 to 4 had to sell this property for legal necessity. The averments made at para 10 and 14 of the written statement filed by defendant No.1 coupled with recitals in the sale deed vide Ex.D-4 would clinch the issue relating to legal necessity.

¶117

Now this Court has to also examine as to whether the alienee can be now called upon to explain the existence of legal necessity in 2005, when admittedly the sale was in the year 1995. If the property is sold in 1995, after long lapse of time, it is not reasonable to expect a full and detailed evidence of circumstances at the hands of a transferee. Though lapse of time does not affect the question of onus of proof regarding

¶118

¶119

necessity, but it might give rise to presumption of acquiescence or save the alienee from adverse inference arising from scanty proof. Therefore, the recitals in the sale deed in regard to existence of legal necessity is admissible in evidence. The recitals in the sale deed coupled with the pleadings at para 10 and 14 of the written statement filed by defendant No.1 coupled with categorical admissions elicited in cross-examination of plaintiff who has admitted that sale was for legal necessity would clinch the entire issue and therefore, even on this count, the suit for partition filed by plaintiffs after 10 years could not have been entertained by the trial Court.

¶120

Regarding the second substantial question of law as to whether Appellate Court was justified in holding that suit is bad for non-joinder of necessary parties, this Court is of the view that the finding arrived at by Appellate Court in answering point No.2 in the affirmative would not warrant any interference. The relationships are not in dispute. The family tree is culled out by the trial Court. The same indicates that

¶121

¶122

propositus Abbaiah had two daughters namely Narayanamma and Bhagyamma. If the property is joint family ancestral property, then Narayanamma and Bhagyamma being daughters are also entitled for legitimate share in the suit schedule property. If a specific defence was set up by the defendants pressing for dismissal of the suit for non-joinder of necessary parties, and if plaintiffs have not chosen to rectify the plaint in the light of defence set up by the defendants, then plaintiffs are bound to fail even on this count. The fact that Krishnappa’s branch have filed the present suit and defendant No.2 has not chosen to contest the proceedings would only give an indication that the present partition suit is a stale claim. The rebuttal evidence let in by the defendant Nos.5 to 7 clearly show that the nature of property has undergone change. The present suit is filed in respect of an agricultural land, while the rebuttal evidence indicates that defendant Nos.5 to 7 applied for conversion, the land is converted and an apartment is being constructed. Therefore,

¶123

¶124

the material on record clearly indicates that plaintiffs are not at all in possession of the suit schedule property. Therefore, the relief of declaration sought by the plaintiffs that the sale deed in not binding on the plaintiffs is barred under Article 58 of the Limitation Act. Though it is a formal declaration, the said declaration ought to have been sought within 3 years as the family had lost possession in 1995 itself. Therefore, Appellate Court was justified in holding that plaintiffs suit is barred by limitation.

¶125

Accordingly, this Court is of the view that the second appeal filed by the plaintiffs is devoid of merits. The substantial questions of law Nos.1 to 3 are accordingly answered in the affirmative.

¶126

For the foregoing reasons, I pass the following:

¶127

ORDER

¶128

The second appeal is dismissed.

¶129

¶130

The pending interlocutory applications, if any, do not

¶131

survive for consideration and stand disposed of.

¶132

Sd/JUDGE

¶133

Sri Harish v. Sri K N Jayaram

Case brief

What is this about?

What did the court decide?

Sri Harish v. Sri K N Jayaram

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

M/S Raghuveer Enterprises Represented Vs the Deputy Commissioner, Ballari

Smt. Gangawwa W/O Parappa Kadapatti Vs Smt. Jayashree D/O Annappa Kanagond

Chandrashekhar S/O Shiddayya Hiremath Vs Fakkirappa S/O Kariyappa Vaddellappanavar

Smt Shaiken Bee and Ors. Vs Smt Gousia Begum and Ors.

Smt.Supriya Vs the State

Ganesh S/O.Bharamappa Shavi Vs Hanumantappa S/O. Bharamappa Shavi