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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
P.S. Dinesh Kumar, T.G.Shivashankare Gowda, JJ.
Sri. Niroop D J S/O Sri Jayaramegowda - Appellant
Versus
Sri. D.A. Jayarame Gowda, S/O Late Anne Gowda and ors.– Respondents
RFA NO.1410 of 2017 C/W RFA CROB. NO. 3 of 2020 (PAR)
Decided On : 13-10-2023
Partition and possession of joint family property. The court found that the suit was incomplete as it did not include all the properties and necessary parties. The court directed the parties to include all properties and implead necessary parties before deciding the case on merits.
Fact of the Case:
Plaintiff filed a suit for partition and separate possession of his share in the joint family property. Defendants claimed that certain properties were self-acquired and not part of the joint family property. Trial Court dismissed the suit for partial partition. Both parties appealed against the judgment. High Court held that the suit was incomplete and directed the parties to include all properties and necessary parties, and remanded the case to the Trial Court for a decision on merits.
Finding of the Court:
The High Court found that the suit was incomplete as it did not include all the properties and necessary parties. The Trial Court should have given the plaintiff an opportunity to include the omitted properties and implead necessary parties before deciding the case. The High Court set aside the judgment and remanded the case to the Trial Court for a decision on merits.
Ratio Decidendi: In a suit for partition, all necessary parties and joint family properties must be included. If the suit is incomplete, the court should defer the judgment and allow the plaintiff to include the omitted properties and implead necessary parties before deciding the case on merits.
Result: The appeal is allowed, the judgment is set aside, and the case is remanded to the Trial Court for a decision on merits.
Key Points: - The High Court held that in a suit for partition, all necessary parties and joint family properties must be included; if incomplete, judgment should be deferred and omitted properties/parties should be added before deciding on merits. (!) (!) (!) - The Court remanded the case to the Trial Court directing inclusion of all properties and D.T. Goutham as a party, with pleadings completed and evidence permitted, so as to decide the case on merits. (!) (!) - The decision nullified the Trial Court’s dismissal as a partial partition and set aside the judgment, noting the suit was incomplete for not including all joint family properties and necessary parties. (!) (!) (!)
JUDGMENT :
T.G.Shivashankare Gowda, J.
In R.F.A.No.1410/2017, the plaintiff has challenged the judgment and decree dated 29.06.2017 passed in O.S.No.57/2011 on the file of the 2nd Additional Senior Civil Judge and JMFC, Chikkamagaluru (for short 'the Trial Court'), dismissing the suit for partition and separate possession.
2. In RFA.Cr.Ob.No.3/2020, the defendants have challenged the impugned judgment seeking setting aside of the finding recorded on re-casted issue No.1, issue Nos.2 to 4 and additional issues.
3. For the sake of convenience, parties shall be referred to as per their ranking in the Trial Court.
4. Brief facts of the case are, defendant Nos.1 and 2 are husband and wife; plaintiff, defendant Nos.3 and 4 are their children. Plaintiff has brought the instant suit for partition and separate possession of his 1/4th share in the plaint 'B' schedule property (for short 'suit schedule property'). It is the case of the plaintiff that through registered Partition Deed dated 30.05.1979 between defendant No.1 and his brothers, suit schedule property was allotted to the share of defendant No.1. Plaintiff and defendants are in joint and constructive possession of the properties. The khata stands in the name of defendant No.1. On 05.03.2011, plaintiff demanded defendant No.1 to effect partition, but his request was not heeded. Defendant No.1 taking advantage of the khata standing in his name executed a Gift Deed dated 10.03.2011 in favour of defendant Nos.2 to 4 gifting the suit schedule property in their favour. Aggrieved by the same, the plaintiff has filed the instant suit seeking his 1/4th share.
5. The defendants have admitted the relationship, acquisition of suit schedule property by defendant No.1 in the partition between himself and his brother on 30.05.1979 under a registered Partition Deed. According to them, item No.4 of the suit schedule property was acquired by defendant No.1 on 27.09.1989 from one D.L.Bhadregowda and his sons, which is his self-acquired property. Defendant No.1 was doing soap-nut and paddy business earning income, he has used the said income for acquisition of the said properties, so also he has constructed house and shop in item Nos.7 to 10 of the suit schedule property by spending Rs.10 lakhs. Defendant No.1 has performed the marriage of the plaintiff. After marriage, wife of plaintiff could not cope-up with the family members due to her lavish life. For this reason, defendant No.1 has purchased 1 acre 3 guntas of land in Sy.No.218/P1 at Doddamagaravalli village in the name of plaintiff and also acquired 10 acres of land in Sy.No.107 of Haliyuru village in the name of plaintiff and his cousin brother D.T.Goutham out of joint family funds. Defendant No.1 also consented for change of khata of joint family property bearing Sy.No.540 measuring 2 acres, Sy.No.250 measuring 7 guntas and Sy.No.310/2 measuring 20 guntas at Doddamagaravalli village, in the name of the plaintiff. Defendant No.1 had also given more than 20 acres of land called as 'Mavinahaklu Estate' to the share of plaintiff. These are the properties which are not included in the suit. Hence, the suit is bad for non-joinder of the properties.
6. Defendant No.1 had gifted item Nos.2 to 4 of the suit schedule property in favour of defendant Nos.2 to 4 and retained 5 acres 30 guntas in Sy.No.202/P1 for his share. Since plaintiff has already obtained his share of property from out of joint family funds, he has no right or share in the suit schedule property and sought for dismissal of the suit.
7. Defendant No.3 while opposing the suit in her written statement, which is adopted by defendant No.4, contended that the share allotted to them by way of gift deed by her father was meager compared to the land allotted to the share of plaintiff measuring more than 20 acres. Hence, fresh partition has to be effected allotting equal share to the daughters subjecting all the joint family properties to the partition excluding self-acquired properties of defenda
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The court established that unregistered documents affecting rights in immovable property are inadmissible in evidence, and that joint family properties are subject to partition among all rightful hei....
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