The right to partition in joint family properties persists regardless of contest, and the trial court’s decree must be grounded in evidence of joint possession.

JUDGMENT :

(M.G.S. KAMAL, J.)

1. This appeal is filed by defendant No.1 since deceased by his legal representatives and defendant No.2, being aggrieved by the judgement and decree dated 13^th December 1996, passed in O.S. No.2/1993 by the Civil Judge at Haveri (for short “the trial Court”) which is confirmed by the judgment and order dated 13^th August 2012, passed in R.A. No.89/2011, by the District Judge at Haveri (for short “the First Appellate Court”).

2. By the said judgment, the suit filed by the plaintiff [now represented by respondents Nos.1(a) to 1(c) herein] was decreed declaring that the plaintiff was entitled to a 3/10^th share in plaint “A” and “C” schedule properties and a 1/3^rd share in plaint “B”, “D” and “E” schedule properties. Defendant Nos.1 to 6 were directed to deliver possession of the plaintiff’s respective shares in plaint “A” to “E” schedule properties. Further, the trial Court held that defendant No.7 was entitled to a 3/10^th share in plaint “A” and “C” schedule properties and a 1/3^rd share in plaint “B”, “D” and “E” schedule properties. Defendant Nos.8 and 9 each were held entitled to a 1/20^th share in plaint “A” and “C” schedule properties, and defendant Nos.10 to 12 each were also held entitled to a 1/20^th share in plaint “A” and “C” schedule properties. The said judgment and decree was.

3. Brief facts of the case are that, one Mahadevappa was the original propositus, who had four sons and two daughters, namely (i) Shivappa, (ii) Kushappa (defendant No.1), (iii) Vittappa (defendant No.7), and (iv) Pandappa (plaintiff), (v) Mahananda and (vi) Sadubai. The first son Shivappa is said to have been born to the Mahadevappa through his first wife and he died about 35 years ago as a bachelor. The second wife of Mahadevappa namely Smt. Sakkubai died in the year 1952, leaving behind her husband Mahadevappa and their three sons and daughters as her sole surviving heirs. Thus, the family, upon her death, consisted of the original propositus, Mahadevappa and the aforesaid three sons. The propositus, Mahadevappa died on 29.07.1961. The sister of the plaintiff’s namely Mahananda, died in the year 1981, leaving behind two daughters namely Gangavva and defendant No.8. Gangavva also passed away, leaving behind defendant No.9 as her legal heir. Another sister of the plaintiff’s namely Sadubai, died about 20 years ago, leaving behind her sons, defendant Nos.10 and 11 and her daughter, defendant No.12 as her surviving heirs. Defendant No.2 is the wife of defendant No.1. Defendant Nos.3 to 6 are the children of defendant No.2, and they are residing in the joint family.

4. The suit schedule properties are in the joint possession of the plaintiff and the defendants, and have all along been cultivated and enjoyed by the members of the joint family. Since the original propositus, Mahadevappa, was innocent and not having worldly knowledge, defendant No.1, Kushappa, managed the affairs of the family even during the lifetime of his father.

5. Plaint “B” schedule property is joint family tenanted land, which had been cultivated by all the members of the joint family. The land was granted in favour of defendant No.1 on behalf of the joint family comprising the plaintiff and the defendants.

6. Thus plaintiff claiming his 3/10^th share in the plaint “A” and “C” schedule properties and 1/3^rd share “B”, “D” and “E” schedule properties has filed the above suit for partition and separate possession.

7. Defendant Nos.7 and 10 to 12 filed written statements, adopted by defendant Nos.8 and 9 adm