IMPORTANT POINT
The main legal point established in the judgment is the mandatory nature of providing the parties with an opportunity to file objections to the findings on additional issues, as required under Order XLI Rule 26 of the Civil Procedure Code.

JUDGMENT :

Ravi V. Hosmani, J.

Challenging impugned judgment and decree dated 24.01.2020, passed by Principal District and Sessions Judge, Chitradurga, in R.A.No.49/2013, this appeal is filed by defendants no.7 and 8.

2. With consent of Learned Advocates appearing for parties, matter is taken up for final disposal.

3. Appellants herein were defendants no.7 and 8 in suit and respondents no.7 and 8 in first appeal. Respondent no.1 herein was plaintiff in suit and appellant in first appeal. Respondents no.2 to 7 herein were defendants no.2 to 6 and 9 respectively in suit and respondents no.2 to 6 and 9 in first appeal. For sake of convenience, they shall be referred to as per their ranks in original suit.

4. O.S.No.22/2012 was filed by plaintiff seeking for relief of partition and separate possession of her 1/6th share in suit scheduled properties consisting of three agricultural lands (herein after referred to as ‘suit properties’). In plaint, it was stated that plaintiff, defendant no.2 and defendants no.7 and 8 were children of defendant no.1, while defendants no.3 to 6 were his grand-children. It was stated that suit properties were ancestral joint family properties, wherein item no. 1 sold by defendants no.1 to 8 to defendant no.9 was not binding on plaintiff, as it was sold without legal necessity. It was stated that no partition had taken place between plaintiff and defendants and she was entitled for share in suit properties. Though, she demanded partition, it was refused and defendant no.1 intended to sell suit properties without any legal necessities to deprive plaintiff of her lawful share in joint family properties.

5. On service of suit summons, defendants entered appearance and filed written statement admitting relationship with plaintiff, but denying existence of joint family status between them. It was contended that plaintiff was not entitled for relief as her marriage was performed about 25 years prior to filing of suit by giving gold and other valuable articles in lieu of her share and thereafter she was residing in her husband’s house. Sale of item no.1 of suit property without legal necessity was denied. It was asserted that on 21.03.2012, defendant no.1 and his children including plaintiff received balance consideration of Rs. 1,90,000/- from defendant no.9, executed sale deed and handed over possession on same day. Thereafter, sale consideration was divided between plaintiff and defendants. At that time, though defendants agreed to said oral partition, plaintiff stated that she did not intend to take share in immovable properties. Therefore, she was given Rs. 40,000/- as her share. An agreement to said effect was also executed by plaintiff and defendant nos.2 to 6. Subsequently, defendant no.1, 7 and 8 partitioned item no.2 of suit property. In view of above, as no joint family property exists, there was no cause of action for filing suit.

6. Defendant no.1 filed additional written statement, claiming item no.3 of suit property as self-acquired property and therefore, suit was not tenable.

7. Based on pleadings, Trial Court framed following issues:

1. Whether plaintiff proves that suit schedule properties are the ancestral and joint family property of herself and defendants?

2. Whether the defendants proves that plaintiff is not the member of the joint family and she has executed the sale deed along with other defendants. Hence, sale deed dated 21.03.2012 is binding on the share of plaintiff?

3. Whether defendants prove that 1st defendant and his sons 7th and 8th defendants have executed the sale deed dated 13.12.2011 in respect of the item No.1 of the property in favour of 9th defendant and plaintiff is a party to the said sale deed?

4. What order or decree?

8. To substantiate pleadings, plaintiff got herself examined as PW.1 and another witness as PW.2. Exhibits P1 to P5 were marked. On behalf of defendants, defendant no.8 and 9 were examined as DWs.1 and 2. Four others were examined as Dws.3 to 6. Exhibits D1 to D5