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2011 Supreme(Kar) 794
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
A.S. Pachhapure, J.
Chinnappa Reddy — Appellant
Vs.
C. Nanjundappa — Respondent
Regular Second Appeal No. 1249 of 2007
Decided on : 17-02-2011
Advocate Appeared:
Mr. B.C. Rajeeva, For the Appellant.
Mr. V.F. Kijmbar, For the Respondent.
A partition between family members can be reopened only if obtained by fraud, coercion, misrepresentation, or undue influence. If an item of joint family property is left out in the partition, the rights of the coparceners in the excluded property are not lost and can be enforced through a fresh partition. The cause of action for partition arises when the defendants refuse to effect division.
Headnote:
Partition of joint family properties was the main issue in this case. The court analyzed the partition deed and considered the principles of Hindu Law. The court also referred to precedents from the High Courts of Kerala and Madhya Pradesh to support its decision. The court held that the suit properties were joint family properties and the plaintiff was entitled to a share. The court also held that the partition could be reopened only if obtained by fraud, coercion, misrepresentation, or undue influence. The court further held that the cause of action for partition arises when the defendants refuse to effect division. The court dismissed the appeal and upheld the lower courts' decision.
Fact of the Case:
The plaintiff filed a suit for partition and separate possession of two properties. The defendants claimed that the suit properties were self-acquired and that the partition deed in 1974 settled all joint family properties. The Trial Court and the First Appellate Court both held in favor of the plaintiff, granting 1/2 share in the suit properties. The defendants appealed to the High Court, arguing that the partition deed should be interpreted to exclude the suit properties. The High Court rejected this argument and upheld the lower courts' decision, stating that the suit properties were joint family properties and the plaintiff was entitled to a share. The appeal was dismissed.
Finding of the Court:
The High Court analyzed the partition deed and found that it did not specifically exclude the suit properties. The court also considered the oral evidence and the fact that the suit properties were used jointly by the parties even after the partition. The court held that the plaintiff had a right to seek partition and that the suit was not barred by time. The court relied on precedents to support its decision.
Ratio Decidendi: A partition between family members can be reopened only if it was obtained by fraud, coercion, misrepresentation, or undue influence. If an item of joint family property is left out in the partition, the rights of the coparceners in the excluded property are not lost and can be enforced through a fresh partition. The cause of action for partition arises when the defendants refuse to effect division.
Result: The High Court dismissed the appeal and upheld the lower courts' decision, granting the plaintiff 1/2 share in the suit properties.
A.S. PACHHAPURE, J.—The unsuccessful defendants have approached this Court in second appeal challenging the judgment and decree granting 1/2 share to the respondent in the suit properties and to effect the division by metes and bounds.
2. The facts relevant for the purpose of this appeal in brief are as under:
The parties are referred to as per their rank before the Trial Court for the purpose of convenience.
The appellants herein were the defendants, whereas, the respondent is the plaintiff who instituted a suit for partition and separate possession of two Items of properties, i.e., S. No. 1/2 measuring 0.12 guntas and S. No. 1/19 measuring 1 gunta with the boundaries described in the schedule to the plaint. The plaintiff and father of defendants are the full brothers. The father of the defendants was the eldest member in the family and they were living jointly and it. is claimed that the father of the defendants being the eldest member was managing the affairs of the joint, family and in view of some differences amongst the members, there was a partition between the parties under the registered partition deed dated 17.7.1974. In the said partition, the suit properties were not included. The plaintiff contends that the suit, properties alongwith S. No. 4/1 and 45/2 measuring 6 acres 35 guntas and 2 acres 24 guntas respectively were granted by an order of the Tahsildar dated 4.2.1959 in the name of Dodda Avalappa the father of the defendants, as they were inam lands. In the partition that, was held the land bearing S. No. 4/1 and 45/2 were partitioned and the share of the plaintiff was given in the said properties in addition to the other joint family properties as mentioned in the partition deed dated 17.7.1974.
3. The plaintiff claims that though there was a partition in the year 1974. the suit properties were kept for joint use of the plaintiff and the defendants and item No. 1 of the suit property was used as a thrashing yard, whereas item No. 2 was used as a manure pit. The pleadings also reveal that the defendants have put up the construction of a house in item No. 1 of the property measuring 12 guntas. The plaintiff claims that he requested for effecting the division in these two properties and as the defendants refused to effect the division, alleging that they are the self acquired properties, the plaintiff was constrained to institute the suit for partition and separate possession of his share in the suit properties.
4. The relationship between the parties is not in dispute. But any how, it is the contention of the defendants that all the ancestral and joint family properties were divided and the partition deed to that effect was registered on .17.7.1974 and as the suit items were not the joint family properties, the plaintiff has no right or title to claim any share in the said properties. It is their further contention that in the registered partition deed, the plaintiff himself has admitted that there are no other joint family properties except those which were partitioned and hence, the question, of granting share does not arise at all. So also, it is the contention of the defendants in the written statement that when once the partition was held in the year 1974, the suit to he instituted cannot be for partition again and that the plaintiff has to institute a suit for reopening the partition and the present suit in the present form is not. maintainable in law. So also, it is their contention that since from the year 1974 onwards, the suit properties were exclusively in possession and enjoyment of the defendants, and the suit instituted is barred by limitation. It is also contended that, their father Dodda Avalappa submitted an application for grant of occupancy rights of the suit lands and that the said survey numbers were exclusively granted to their father and the plaintiff having not applied for the registration of the rights is barred from claiming any share in the suit properties. On these grounds, the de
