Point of Law: Section 54 of the Transfer of Property Act, 1882 is “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

JUDGMENT :

The above appeal is filed by the Appellant who is arrayed as Defendant No.6 in OS No.225/2021 challenging the order dated 14.1.2022 passed on IA.No.5 in the said suit by the Court of the Senior Civil Judge and JMFC, Sindhanur (hereinafter referred to as the 'Trial Court').

2. For the sake of convenience, the parties herein are referred to as per their rank before the

Trial Court.

3. The Plaintiffs who are arrayed as Respondent Nos.1 and 2 herein filed a suit in OS.No.225/2021 seeking for the following reliefs:

"1) To pass the preliminary decree of partition and separate possession of the plaintiffs’ 1/6th share jointly in the suit schedule properties.

(2) To send the decree to the Deputy Commissioner, Raichur for effecting the partition by deleting the name of the Defendants in the revenue records by adding the Plaintiff’s names.

(3) To declare the Doc No.1336/21-22 dated: 12.06-2021 as null and void and not binding on the Plaintiffs and also mutation entries in the revenue records vide No.H11/15-16 dated: 30-09-2015.

(4) Any other relief or reliefs may also be granted which deems fit and proper under the facts and circumstances of the case, and Cost of the suit may be awarded, in the interest of justice."

4. The Defendant No.1 (Respondent No.3 herein) is the grand father of the Plaintiffs. The Defendant No.2 (Respondent No.4 herein) and the father of the Plaintiffs are the sons of the Defendant No.1, Defendant Nos.3, 4 and 5 (Respondent Nos.5, 6 and 7 herein) are the daughters of the Defendant No.1. The father of the Plaintiffs died on 4.5.2021 leaving behind his wife (mother of the Plaintiffs) and the Plaintiffs as his successors.

5. It is the case of the Plaintiffs that the Defendant No.1 was their grand father and had acquired ancestral properties as mentioned in the schedule to the plaint through a partition amongst his two brothers and that they are the joint family properties of the Plaintiffs and Defendant Nos.1 to 5. The Defendant No.1 being the Kartha of the family was managing the suit properties even during the lifetime of the father of the Plaintiffs and no legal partition took place between the father of the Plaintiffs and Defendants 1 to 5. Hence, the suit properties are the joint family properties having common ownership and common possession. The Plaintiffs also state that the revenue records pertaining to the suit schedule properties are in the name of the Defendant Nos.1 and 2 and the wife of the Defendant No.1; that the Defendant Nos.1 and 2, without the knowledge of the Plaintiffs or their mother have entered into an agreement to alienate the first item of the suit schedule properties to Defendant No.6 (hereinafter referred to as the 'Company/Defendant No.6') and that the said agreement was made without the knowledge of the Plaintiffs. After coming to know of the agreement, the mother of the Plaintiffs demanded partition and since the same was refused, the suit was filed.

6. Along with the plaint, inter alia, IA.No.2 was filed to restrain the Defendant No.2 from alienating the first item of the suit schedule properties. The Trial Court vide order dated 3.9.2021 granted an ex-parte order of Temporary Injunction as prayed for in IA.No.2 and restrained the Defendant No.2 from alienating the first item of the suit schedule properties.

7. Upon service of notices, the Defendant Nos.1 to 5 entered appearance before the Trial Court through their Counsel and filed written statement, wherein, while admitting that the suit schedule properties were the ancestral properties of the Defendant No.1, they contend that there was an oral family partition between the Defendant Nos.1 to 5 and the father of the Plaintiffs in the year 2015; that in the said oral partition, an extent of 35 acres 25 guntas of land in Sy.No.176 of Mallat village, Manvi Taluk (now Sirwar), Raichur District, fell to the share of the father of the Plaintiffs and the said property was deliberately not included in the schedule to the plaint; it is pursua