Ancestral properties in joint family require unanimous consent for valid alienation; prior partitions without necessary family consent are not binding on co-parceners.

JUDGMENT :

(H.P. SANDESH, J.)

This matter is listed for admission and I have heard learned counsel for the appellant.

2. This appeal is filed against concurrent finding granting 1/6^th share in favour of the plaintiffs, who are daughters of defendant No.1 and defendant Nos.2 and 3 are also the daughters of defendant No.1.

3. The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of partition and separate possession is that plaintiffs and defendant Nos.2 and 3 are the children of defendant No.1. The suit schedule properties are ancestral and joint family properties of themselves and defendant Nos.1 to 3 and contend that the partition entered between the defendant Nos.1 and 4 is not binding on the plaintiffs.

4. The defendants appeared and filed the written statement denying the claim of the plaintiffs and mainly contend that suit is filed only with an intention to harass defendant No.4 and the same is bad for mis-joinder and non- joinder of necessary parties. The plaintiffs and defendant Nos.1 to 3 have alienated Sy.No.215/16 to an extent of 1 acre 2 guntas to one Sathish on 21.02.2012 and the said property is not included in the suit and suit schedule properties are also self-acquired properties of defendant No.1 in partition between the family members. Item No.1 of the suit schedule properties by oversight had fallen to the share of defendant No.1, but actually item No.1 of the property was also allotted to defendant No.4 and thereafter, rectification of the same by the defendant No.1 and 4 and they have jointly partitioned through and item No.1 of the suit schedule property was allotted to defendant No.4 under registered partition and revenue records mutated in the name of defendant No.4 and from the date of partition, the defendant No.4 is in physical possession of the said land and she is cultivating the same and paying the necessary taxes to the concerned Department. The suit schedule properties are self-acquired properties of defendant No.1 and now, the plaintiffs and defendant Nos.1 to 3 colluded with each other and filed the suit.

5. The Trial Court having considered the grounds which have been urged in the plaint as well as grounds urged in the written statement framed the issues and allowed the parties to lead evidence. The plaintiffs, in order to prove their case, examined plaintiff No.1 as P.W.1 and got marked the documents as Exs.P1 to P10. On the other hand, the GPA holder of defendant No.4 examined himself as D.W.1 and got marked the documents as Exs.D1 and D2.

6. The Trial Court, having considered both oral and documentary evidence, comes to the conclusion that suit schedule properties are ancestral properties and partition between the defendant Nos.1 and 4 is not binding on the plaintiffs and also taken note of certified copy of sale deed dated 21.12.2012 at Ex.D2 and the very contention of the defendants that property which was sold in favour of one Sathish under sale deed at Ex.D2 on 21.12.2012 was not included in the suit. The Trial Court having considered both oral and documentary evidence comes to the conclusion that property which was sold on 21.12.2012 is for family necessity with the consent of all the parties and the said contention cannot be accepted. The Trial Court also while considering the material on record comes to the conclusion that suit schedule properties devolves upon the father i.e., defendant No.1 vide partition deed dated 15.07.2010 and the same are joint family properties which devolves upon the grand-father Ramaiah and comes to the conclusion that defendant No.1 had no exclusive right t