Ancestral properties must be equitably divided between legal heirs, and failure to adjudicate claims on such properties constitutes judicial error.

JUDGMENT :

ASHOK S.KINAGI, J.

1. This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 20.12.2013 passed in R.A. No.103 of 2011 (old R.A. No.290 of 2007) on the file of the Senior Civil Judge and JMFC, Malur and the judgment and decree dated 18.07.2007 passed in O.S. No.146 of 1991 on the file of the Additional Civil Judge (Jr.Dn.), Malur.

2. For convenience, the parties are referred based on their rankings before the Trial Court, i.e., the appellant was the plaintiff and the respondents were the defendants.

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

4. The plaintiff—Venkoba Rao filed a suit O.S. No.146 of 1991 against the defendants for partition and separate possession. It is the case of the plaintiff that one Ramjirao was the original propositus, who had two sons by the name of Narayan Rao i.e., defendant No.1 and Munioji Rao, i.e., the plaintiff’s father. Ramji Rao and his two sons constituted a Hindu joint family and the said Ramji Rao was very much aged and as such, his son Narayan Rao was looking after all the suit schedule properties and all the joint family properties stood in his name.

5. Ramji Rao and his sons continued to enjoy the suit schedule properties jointly and about 15 years back, Munioji Rao died and after one year, Ramji Rao also died.

6. According to the plaintiff, in 1951, there was a misunderstanding between Ramji Rao and his two sons and they got divided the properties. In the said partition, the first portion of item No.1 of suit schedule “A” properties fell to the share of Ramji Rao and his wife; and after their demise, their shares were to be divided equally between the plaintiff's father and defendant No.1; even though they were separated, after the reconcilement, both were enjoying the family properties jointly. About ten years back, the plaintiff's mother died and even then also, the family stood joint and all the properties were jointly being enjoyed by both of them.

7. When things stood thus, defendant No.1 sold item No.1 of suit schedule ‘A’ properties to defendant No.2 under the registered sale deed despite having no independent right or interest over the said property.

8. The plaintiff demanded for his share and to effect a partition and separate possession of the properties, but the defendants refused to effect partition. Hence, a cause of action for partition arose, allowing the plaintiff to file a suit for partition and separate possession and accordingly, he prays to decree the suit.

9. Defendant No.1 filed a written statement contending that item No.1 of suit schedule “A” properties was self-acquired property of defendant No.1, which was granted by the Government about 40 years ago. Since he is the absolute owner of Item No.1 of “A” schedule properties, he sold the same in favour of defendant No.2. Defendant No.2 is cultivating item No.1 of suit schedule ‘A’ properties and contended that the plaintiff has no right to claim a share in the self-acquired property of defendant No.1 i.e., Item No. 1 of suit schedule ‘A’ properties. Hence, he prays to dismiss the suit.

10. The legal representatives of defendant No.2 filed a written statement denying the averments made in the plaint and contended that 1^st defendant’s daughter by name Lakshmi Bai has filed the suit in O.S. No.7 of 2004 against defendant No.2 and admitted the fact that the suit item No.1 of the suit schedule was the self-acquired property of Narayan Rao (defendant No.1).

11. According to the legal representatives of defendant No.2, they are the absolute owners of item No.1 of suit schedule ‘A’ pro