The property would form the individual property of the person who derives the same under the partition.

JUDGMENT/ORDER

SURAJ GOVINDRAJ, J. - Appellant in RFA No.100224/2015 who was defendant No.1 and appellant in RFA No.100135/2014 who was defendant No.3 in OS No.32/2012 on the file of the Principal Senior Civil Judge and JMFC, Hubballi, are before this Court impugning the judgment and decree dtd. 5/7/2014 passed in the said matter.

2. The suit in OS No.32/2012 had been filed seeking for the following reliefs:

2.a) The Hon'ble Court be pleased to pass a decree for partition and separate possession to the extent of 1/3rd share to the each of the plaintiffs in the suit property;

2.b) It be declared that the sale deeds dtd. 29/11/2010 registered under document No.HBL-1-10473-2010-11 dtd. 30/11/2010 under CD No.HBLD181 is null, void, illegal and not binding on the plaintiffs to the extent of their 1/3rd shares each;

2.c) The Hon'ble Court be pleased to pass an order of permanent injunction against the defendants from alienating the suit property to the extent of 1/3rd share each to the plaintiffs;

2.d) Cost of the suit be awarded.

2.e) Such other reliefs as the court deems fit on awarded.

3. The facts of the case are:

3.1. Plaintiff No.1 claims to be the son of defendant No.1 and plaintiff No.2 claims to be the wife of defendant No.1. It was alleged that the property along with open space consisting of ground floor and first floor bearing R.S.No.135/1, bearing House No.MIG.91/1, measuring East-West 50 feet and North-South 80+82/2 feet total area of 4050 sq.ft. in which a house has been constructed in an area of 2648 sq.ft and in first floor the constructed area is 1784 sq.ft., RCC house bearing Municipal Ward No.39 which is situated within the KHB Colony, Channapeth, Old Hubli, which is bounded by East: House No.MIG-90, West: H.No.MIG-92, North: Road, South: total area 3292 Sq.Ft., belongs to the joint family and as such, the plaintiffs have right over the same.

3.2. It is alleged that, at the time of marriage of plaintiff No.2 and defendant No.1, defendant No.1 was doing steel business at Rajajinagar, Bengaluru. After the marriage, they resided at Bengaluru for six months. Since defendant No.1 was not looking after the plaintiffs, they returned back to the maternal home at Tumkur.

3.3. After some time, defendant No.1 closed the steel business at Bengaluru and shifted to Hubballi. Defendant No.1 had neglected and deserted the plaintiffs completely. It is in that background, plaintiffs filed Crl.Misc.No.495/2008 under Sec. 125 Cr.P.C. on the file of JMFC, Tumkur, seeking for maintenance. The said Court granted maintenance of Rs.5, 000.00 per month to the plaintiffs. The said order has not been complied with by defendant No.1 there being huge balance.

3.4. It is alleged that the suit property was purchased by the father of the defendant No.1, namely Sri. Venkatesh Kelagade. This property was inherited by defendant No.1 after the death of his father. A partition was effected between defendant No.1 and his brothers and sisters on 7/7/2004 in pursuance of which the northern portion of the property was allotted to defendant No.1 and southern portion was allotted to one Sri. Devanand V. Kelagade, the brother of defendant No.1.

3.5. Defendant No.1 sold his portion of the property to Sri.Charantayya Shanmukhayya Chikkmath and Smt.Neelamma W/o.Charantayya Chikkmath, on 11/11/2005. Later, defendant No.1 and defendant No.2, who is stated to be the 2nd wife of defendant No.1, have repurchased the property on 17/9/2008 and subsequent thereto, defendants No.1 and 2 sold their share in the property along with the brother Devanand Venkatesh Kelagade, who was allotted the southern portion, in favour of defendant No.3 on 29/11/2010.

3.6. It is claimed that the sale made in favour of defendant No.3 on 29/11/2010 was in violation of the orders dtd. 18/3/2006 passed in O.S.No.476/2005 by the III Addl. Civil Judge (Jr.Dn.), Hubballi, wherein an order of permanent injunction was granted in favour of the plaintiffs restraining defendant No.1 from alienating the prope