Joint family property principles do not apply to Christians under the Indian Succession Act; the plaintiff must prove joint ownership for partition.

JUDGMENT :

ASHOK S.KINAGI, J.

This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 30.03.2013, passed in R.A.No.110/2012 by the learned Fast Track Court, Chikmagalur, and the judgment and decree dated 01.09.2012 passed in O.S.No.104/2008 by the learned Additional Senior Civil Judge, Chikmagalur.

2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was defendant No.2, respondent No.1 was the plaintiff, and respondent Nos.2 to 4 were the other defendants.

3. Brief facts, leading rise to the filing of this appeal are as follows:

The Plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that the plaintiff is the daughter of the late Alex D’Souza, and defendant No.1 is the mother of the plaintiff, defendant Nos.2 and 3 are the brothers, and defendant No.4 is the sister of the plaintiff. During the lifetime of late Alex D’Souza, he acquired the suit schedule properties. The suit schedule properties are the joint family properties of the plaintiff and the defendants, and no partition effected by metes and bounds between the plaintiff and the defendants. The plaintiff demanded partition, and separate possession. The defendants refused to effect partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

3.1. Defendant No.1 filed a written statement admitting the relationship and denying the other averments made in the plaint. It is contended that she is the wife of Alex D’Souza, who passed away on 20.05.2003. After the demise of Alex D’Souza, the plaintiff and defendants reside together, and constitute a joint family. It is contended that during the lifetime of Alex D’Souza, he performed the marriages of the plaintiff and defendant Nos.2 and 4. The suit properties have not been partitioned. Defendant No.1 is entitled to a 1/3^rd share in the suit schedule properties, and accordingly, prays for a decree in the suit, and allotment of a share to defendant No.1.

3.2. Defendant No.2 filed a written statement admitting the relationship between the parties to the petition and denied the other averments made in the plaint. It is contended that item Nos.1, 2 and 5 were owned and possessed by Alex D’Souza to the extent of 1 acre, and the remaining item Nos.3 and 4 and remaining 1 acre and 15 guntas in item No.1 are the self-acquired properties of defendant No.2, and they are not the joint family properties. It is contended that the suit is bad for the non-joinder of necessary parties, as one Lucy Rebello, who was allotted a share, as per the judgment and decree passed in O.S.No.57/1996, is a necessary party to the suit. Three other suits are pending regarding the suit schedule properties. To overcome those litigations, by suppressing the true facts, the plaintiff filed the present suit, and accordingly, prays to dismiss the suit against defendant No.2 insofar as item Nos. 4 and 5 are concerned.

3.3. Defendant No.3 filed a written statement admitting the relationship between the parties to the suit, and denied the other averments made in the plaint. Defendant No.3 admitted that the plaintiff paid a sum of Rs.2,00,000/- to defendant No.3 while constructing the house. All the suit schedule properties are their joint family properties. It is contended that the newly built house by defendant No.2 has not been included in the suit. Hence, a suit for partial partition is not maintainable. Therefore, prays to dismiss the suit against defendant No.3.

3.4. The Trial Court, based on the pleadings of the parties, framed the following issues:

1) Whet