A joint family property remains so despite claims of prior partition; a coparcener retains rights to inheritance under the Hindu Succession Act.

JUDGMENT :

R.NATARAJ, J.

Defendants No.1 to 4 in O.S.No.21/2017 on the file of the Additional Senior Civil Judge & JMFC., Ranebennur (hereinafter referred to as the ‘trial Court’ for short) have filed this regular first appeal challenging the judgment and preliminary decree dated 20.12.2019 passed therein, by which it was declared that the plaintiff was entitled to 1/4^th share in the suit schedule properties.

2. The parties shall henceforth be referred to as they were arrayed before the trial Court.

3. The plaintiff claimed that she and defendant Nos.1 to 3 are children of Sri.Kariyappa and Smt.Suvarnamma. She claimed that Kariyappa died on 06.03.2008 and Smt.Suvarnamma died on 12.12.2009. She contended that all of them constituted a joint family which owned and possessed the suit schedule properties. She claimed that after the death of the propositus, she and defendants No.1 to 3 succeeded to the estate. She claimed that defendant No.1 had got his name entered in the revenue records of certain properties and some properties in the names of defendants No.4 to 6 and hence, they too were arrayed as parties. She claimed that all the suit schedule properties were ancestral joint family properties and all of them were in joint possession and cultivation and that they were not subject to partition. She claimed that she was entitled for 1/4^th share in the suit schedule properties and when she requested the defendants to partition and hand over her 1/4^th share, they refused. Therefore, the plaintiff sued for partition and separate possession of her 1/4^th share in the suit properties. The suit schedule properties were agricultural lands and some residential properties.

4. The suit was contested by defendant No.1. He admitted that the propositus died on 06.03.2008 and Smt.Suvarnamma died on 12.12.2009. He contended that the couple had five children including the plaintiff, among whom the eldest son Shivayogappa died as bachelor. He however, denied all other averments of the suit and also claimed that the plaintiff is not entitled to any share in the suit properties. He claimed that all the properties of the family were not included and a complete family tree was not furnished and therefore, the suit was liable to be dismissed for non-joinder of necessary parties. He also denied that the plaintiff had ever made any demand for partition of her share as stated in the plaint. He claimed that the suit was wholly undervalued as the value of the suit properties was more than 35 lakhs and therefore, the Court did not have pecuniary jurisdiction to consider the suit.

5. He contended that the suit schedule agricultural properties were not joint family properties of the plaintiff and defendants No.1 to 4. He claimed that defendants No.1 to 4 had partitioned the properties on 04.11.2004 and from that day onwards the suit properties fell to his share and therefore was his self acquired properties. He claimed that since the properties were partitioned before the Hindu Succession (Amendment) Act, 2005 came into force, the plaintiff is not entitled for any share. He claimed that as per Diary No.1783 of Belur Village, the propositus and his brother had partitioned the family properties in terms of which suit Items No.1, 2, 3 and 5 fell to the share of his father. He claimed that the propositus had given Rs.1,00,000/- and 10 tholas of gold to the plaintiff at the time of her marriage in the year 1974. Therefore, it was contended that plaintiff gave up all her right, title and claim in respect of the properties of the family. He contended that the plaintiff was never in joint possession of the suit properties. He contended that since the propositus