Equal birth rights of daughters in ancestral properties and the burden of proving legal necessity for property transactions.

JUDGMENT

RAJENDRA BADAMIKAR,J. - This appeal is filed by the plaintiffs against the judgment and decree dtd. 17/8/2015 passed in O.S.No.275/2012 by the III Additional Senior Civil Judge, Hubballi ("the Trial Court" for short), whereby the Trial Court has decreed the suit of the plaintiff in part by granting half share to plaintiff No.3 alone in CTS Nos.610/10 and 610/1A and rejected the claim of the plaintiffs in agricultural land.

2. For the sake of convenience, parties herein are referred with the original ranks occupied by them before the Trial Court.

3. The plaintiffs have filed a suit for partition and separate possession in respect of the suit schedule properties which are described in the schedule. Defendant No.1-Ganapathsa is the father of the plaintiffs and according to the plaintiffs, suit schedule properties are fallen to the share of Ganapathsa in the family partition. It is also asserted that defendant No.1 without there being any legal necessity, sold the agricultural land in favour of defendant Nos.2 and 3 and the sale is not for any legal necessity. Hence, the plaintiffs assert that they being the daughters and son of defendant No.1 are entitled for equal share in the suit schedule properties. Hence, the suit is filed.

4. After registering the suit, notices have bee issued to the defendants and defendant No.1 appeared through his counsel and filed written statement denying the plaint allegations and further specifically asserted that, the sale deed was got executed by playing fraud and misrepresentation and O.S.No.771/2002 is filed for declaration in this regard. He admits the relationship between the parties and denied the share of the plaintiffs. Hence he would seek for dismissal of the suit.

5. Defendant Nos.2 and 3 appeared through their counsel and filed their written statement denying the plaint allegations and further contended that it is a collusive suit filed by defendant No.1 along with plaintiffs and the suit in O.S.No.771/2002 filed by defendant No.1 was already dismissed. He would also contend that the sale is for legal and family necessity and hence defendant Nos.2 and 3 would seek for dismissal of the suit.

6. On the basis of the above pleadings, the Trial court has framed the following.

: ISSUES :

"1. Whether the plaintiffs prove that they and the defendant No.1 are the members of an undivided joint Hindu family and the suit schedule properties are their ancestral/ joint family properties?

2. Whether the plaintiffs are entitled for 1/6th share in the suit schedule properties by metes and bounds?

3. Whether the plaintiffs are entitled for the declaration declaring that the alleged registered sale deeds dtd. 4/5/2006 in favour of the defendant No.2 bearing Reg.No.897/06-07 by the defendant No.1 and the sale deed executed by defendant No.2 in favour of defendant No.3 bearing registration No.8406 dtd. 16/9/2011 are to be declared as illegal, null and void abinito and the suit properties are their ancestral properties.

4. Whether the plaintiffs are entitled for the consequential relief of permanent injunction against the defendant No.1 restraining him from alienating the suit property No.2 bearing CTS No.610/10 and 610/1A situated at Gavi Oni, Hubballi to any third party in any manner?

5. Whether the plaintiffs are entitled for the permanent injunction against the defendant No.2 and 3 restraining them from alienating the suit properties bearing R.S.No.657, hissa 1A/2, plot No.1 and plot No.2 situated at unkal, measuring 21 guntas.

6. Whether the plaintiffs are entitled for the declaration that the mutation entry got mutated by the defendant No.2 and 3 is to be declared as illegal, null and void abinitio?

7. Whether order or decree?

: ADDITIONAL ISSUES :

1. Whether defendant No.2 and 3 proves that plaintiff No.1 to 5 and defendant No.1 have colluded with each other and filed a collusive suit to defeat the legitimate right of defendant No.2 and 3 over suit Sl.No.1 property?

2. Whether defendant No.2 and