The central legal point established in the judgment is the concept of legal necessity for the sale of joint family properties and the duties of the head of the family in protecting the interests of the family.

JUDGMENT :

N.K. Sudhindrarao, J.

These appeals are directed against the judgment and decree passed by the Fast Track Court-III, Bengaluru Rural District, Bengaluru in R.A.No.54/2003 on 30.03.2007, wherein the Appellate Judge has partly allowed the appeal by partly setting aside the decree passed by the learned Civil Judge (Sr.Dn.), Doddaballapur in O.S.No.31/2002 dated 07.10.2003. The Trial Judge in O.S.No.31/2002 decreed the suit against defendant Nos.3 and 4. The operative portion of the order reads as under:

"1. The suit of the plaintiff is partly decreed and the suit against the defendants 3 and 4 is hereby dismissed.

2. The plaintiff is entitled to 1/3rd share in item Nos.1 to 3, 6 and 7 of the suit schedule properties. He is also entitled to take his separate possession of his 1/3rd share out of item Nos.1 to 3, 6 and 7 of the suit schedule properties.

3. The first defendant is hereby directed to effect partition and put the plaintiff in separate possession of his 1/3rd share out of item Nos.1 to 3, 6 and 7 of the properties.

4. There shall be an equity U/O. 20 Rule 12 of CPC to ascertain mesne profits from item Nos.1 to 3, 6 and 7 of the suit schedule properties.

5. Draw preliminary Decree accordingly.

6. Under the circumstances, there is no order as to costs."

2. In order to avoid confusion and overlapping, the parties are referred to in accordance with the status and rankings as held by them before the Trial Court.

3. Since both the appeals arise out of a common judgment, they are taken up together for common disposal.

4. Rsa No.1710/2007 is filed by defendant No.3 - Sri.R.Chandrashekar against the order of the first appellate court. RSA No.2067/2007 is filed by the plaintiff - Sri M. Anjanappa against dismissal of the suit in respect of item No.4 of the suit schedule property.

5. The facts in substance are; the suit was filed by the plaintiff against defendants seeking partition of the suit schedule properties claiming 1/3rd share and separate possession and for mesne profits.

The plaintiff and defendant Nos.1 and 2 are siblings being the sons of late Muthappa. They constituted a Hindu co-parcenary Joint family and defendant No.1 being the eldest member is the kartha of the family. The suit schedule properties are their ancestral joint family properties. Thus, the khatha and records of the properties stood in the name of defendant No.1.

Defendant No.1 was addicted to vices and was acting detrimental to the interests of joint family and started exhausting the joint family properties without the consent of or rather much against the will of the plaintiff and defendant No.2. There was no legal necessity for defendant No.1 to meddle with and dispose of the properties of the joint family. However, defendant No.1 was bent upon in disposing of the joint family properties.

The plaintiff and defendant Nos.1 and 2 being the members of the joint family are in joint possession and enjoyment of the properties. The suit schedule properties consist of 7 items. Out of them, item No.5 is said to have been purchased by defendant No.3 under registered sale deed dated 01.08.1995 at Ex.D.16 and item No.4 said to have been purchased by defendant No.4 under the registered sale deed dated 11.1.1988 at Ex.D.1 from defendant No.1. Thus, defendant Nos.3 and 4 are seriously contesting parties.

6. The Trial Court on completion of the trial found the joint family properties existed in respect of item Nos.1, 2, 3, 6 and 7 of the plaint schedule properties and accordingly, decreed the suit in favour of the plaintiff and held plaintiff is entitled to 1/3rd share in respect of the same. However, insofar as item Nos.4 and 5 of the plaint schedule properties are concerned, it did not consider the two items of land as available for partition to hold that defendant No.1 sold the same in derogation of principles of Hindu law and detrimental to the interest of the joint family.

7. Being aggrieved by the same, the plaintiff preferred regular appeal in R.A.No.54/2003 before