Point of law: “Conduct of indifference or Acquiescence and held that, it is settled law that an estoppel may arise as against persons who have not willfully made any misrepresentation, and whose conduct is free from fraud or negligence, but as against whom inferences may reasonably have been drawn upon which others may have been inducted to act”

JUDGMENT :

This second appeal is filed challenging judgment and decree dated 29.09.2006 passed in R.A.No.213/2004 on the file of the II Additional District Judge, Tumakuru and confirm the judgment and decree dated 13.10.1997 passed in O.S.No.9/1993 on the file of the Munsiff and J.M.F.C., Koratagere.

Heard the learned counsel for the appellants and learned counsel for the respondents.

2. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.

3. The factual matrix of the case of the plaintiffs, while seeking the relief of partition and separate possession of their 2/3rd share in the suit schedule property is that suit schedule property is the ancestral Hindu Joint Family property i.e., the plaintiffs and second defendant. The plaintiffs and second defendants were in joint possession of the suit schedule property. The family of the plaintiffs and second defendant was in affluent circumstances and there was no need to the family to incur the debts. The first defendant is a stranger to the family and second defendant has no exclusive right and possession over the suit schedule property to sell the same. The first defendant is interfering with the possession of the suit schedule property. When questioned the same, the first defendant denied the title of the plaintiffs over the suit schedule property by saying that he has purchased the suit schedule property from the second defendant. It is contended that the second defendant has no manner of right to alienate the suit schedule property in favour of any person, much less the first defendant. The second defendant at worst, can alienate his share and not the share of the plaintiff Nos.1 and 2. If any alienation is made by the second defendant in favour of the first defendant, the same is not binding on the plaintiffs. Hence, sought for the relief of partition.

4. In pursuance of the suit summons, the first defendant appeared before the Court and filed the written statement contending that age of the first plaintiff at the time of filing the suit was 30 years and the second defendant was 28 years of age and the plaintiffs have given false age as 20 years and 18 years at the time of filing the suit. It is contended that, in order to prove the fact that the suit is within the law of limitation, false averments are made in the plaint and suit is barred by limitation. It is contended that, suit is not filed within three years, after they have attained the age of majority. It is contended that the suit schedule property is also not the Hindu Joint Family property as contended by the plaintiffs and second defendant and they are also not in joint possession as contended in the plaint. It is contended that, immediately on the date of sale itself, possession was delivered in favour of the first defendant and hence, the question of joint possession does not arise. The sale is made by the second defendant for valuable sale consideration and in order to clear the loan, he had sold the property and the same is for the family benefit and legal necessity and hence, there is a cause of action for filing the suit. It is also contended that, property was sold in the year 1974 and suit was filed in 1993, almost after 19 years of sale of the property and that too, the second defendant had obtained loan from P.L.O. Bank, Koratagere for some other persons and for himself and his family benefit and in order to discharge the said loan, he had sold the property.

5. The Trial Court, based on the pleadings of the parties, framed the issues whether the plaintiffs prove that the suit schedule properties are the joint family property enjoyed by the plaintiffs and second defendant, whether the plaintiffs prove that the second defendant has any right to alienate suit schedule properties in favour of the first defendant, whether the plaintiffs and second defendant are in possession over the suit schedule properties, whether the plaintiffs ar