A property must reflect active participation from all family members to be considered joint family property; claims based on mere assertions are insufficient for legal recognition.

JUDGMENT :

R.NATARAJ, J.

The plaintiffs in OS No.64/2017 on the file of the Principal Senior Civil Judge and CJM, Haveri [hereinafter referred to as ‘trial Court’ for short] have filed this Regular First Appeal challenging the judgment and decree dated 29.07.2019 by which the suit for partition and separate possession of their undivided share in the suit property was dismissed.

2. For the sake of convenience and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court.

3. The plaintiff Nos.1 and 2 and defendant Nos.1 and 2 are siblings and plaintiff No.3 is their mother. The plaintiffs claim that they all constituted a joint family. They contended that the suit property was a joint family ancestral property and that the same was purchased out of the joint earnings of all the members of the family by their father in terms of the sale deed dated 27.07.1993. They contended that their father died in the year 2009 and after the death of their father, they came to know that defendant No.3 took advantage of the fact that their father was addicted to alcohol and obtained a fraudulent sale deed dated 20.08.1988. They contented that they came to know about the fraudulent sale deed only about a month before the suit was filed. They therefore claimed that the suit property was sold without their consent, knowledge and notice and consequently, did not bind their right, title or interest. They also contended that each of them are entitled to an undivided share in the suit property and therefore, filed the instant suit for partition and separate possession of their 1/5^th share in the suit schedule property and to declare that the sale deed in favour of defendant No.3 did not bind their right, title or interest.

4. The suit schedule property is a vacant site bearing Plot No.12 in R.S.No.29/B measuring 2 Guntas 2 Annas situated at Ijarilakamapur, Haveri taluk. The defendant Nos.1 and 2 filed a written statement, admitting the assertions made by the plaintiffs in the plaint and prayed that their 1/5^th share may be demarcated and separate possession be handed over to them. They also claim that they were not bound by the sale deed executed in favour of defendant No.3.

5. The defendant No.3 filed a written statement denying the assertions made in plaint and contended that the father of the plaintiff Nos.1 and 2 and defendant Nos.1 and 2 had lawfully sold the suit property for lawful consideration and that the defendant No.3 was placed in possession of the suit property. She contended that the allegation of the plaintiffs that the sale deed dated 20.08.1998 was fraudulent and that the defendant No.3 had exploited the situation of the father of the plaintiffs and obtained the sale deed was false. She claimed that the father of the plaintiffs did not challenge the said sale deed during his lifetime and that the plaintiffs who were aware of the sale deed and the fact that the defendant No.3 was in possession of the suit property did not take any steps from the year 1998 to challenge it till the father of the plaintiff Nos.1 and 2 died in the year 2009 and also thereafter. Therefore, it was contended that the suit was highly belated. She also claimed that the property was not the ancestral joint family property as contended by the plaintiffs, but contended that it was purchased by the father of the plaintiffs in terms of a sale deed dated 27.07.1993.

6. Based on these contentions, the trial Court framed the fol