Co-owners are entitled to partition despite restrictions, and the principle of subrogation under the Transfer of Property Act does not confer higher rights through unilateral action.

JUDGMENT :

(ASHOK S. KINAGI, J.)

This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 15.12.2015, passed in R.A.No.4/2009 by the learned I Additional District and Sessions Judge, Mangaluru, D.K., and the judgment and decree dated 31.10.2008, passed in O.S.No.95/2003 by the learned II Additional Civil Judge (Sr. Dn.), Mangaluru, D.K.

2. For convenience, parties are referred to based on their rankings before the trial Court. The appellants were defendant Nos.1 and 7, respondent Nos.1 and 2 were the plaintiffs and other respondents were the other defendants.

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

The plaintiffs filed a suit against the defendants for partition of plaint ‘A’ schedule property. It is the case of the plaintiffs that suit ‘A’ schedule property belonged to plaintiffs and defendants No.1 to 3, which was settled upon them by their grandfather, late Dr.Pejavar Anand Rao, as evidenced by the registered settlement deed dated 07.02.1941 executed by him. The plaintiffs do not have the original settlement deed. Each of the plaintiffs and defendants No.1 to 3 are entitled to an equal share i.e., 1/5th share in the suit schedule ‘A’ property. It is contended that defendant No.1 is the eldest among the plaintiffs and defendants No.2 and 3. The plaintiffs reside in Bangalore, and defendant No.1 was appropriating all the income from the said property. As the co-owners, the plaintiffs are in joint possession of ‘A’ schedule property. Since they no longer wish to continue jointly any longer, they issued a legal notice dated 08.01.1999, calling upon defendant No.1 to divide and partition the ‘A’ suit schedule property into 5 equal shares and hand over to the plaintiffs, their 2/5^th share. The defendant No.1 refused to comply with plaintiffs’ legal demands and issued a reply raising untenable claims. All the attempts at an amicable settlement have failed. The plaintiffs have no alternative but to file a suit for partition and separate possession of their 2/5^th share in the schedule ‘A’ property. It is contended that defendants Nos.4, 5 and 6 have no share in ‘A’ schedule property; they are made formal parties. It is contended that defendant No.1 collusively alleges that defendant No.7 is in possession of a part of the building in ‘A’ schedule property. Hence, defendant No.7 is made a party to the suit. Hence, prays to decree the suit.

3.1. In pursuance of suit summons defendant Nos.4 to 6 have not chosen to appear before the Court. Hence, they have been placed exparte. Defendant Nos.1 to 3 and 7 appeared before the Court through their counsel.

3.2. Defendant No.1 filed a written statement contending that Dr.Pejavar Anand Rao, by settlement deed dated 07.02.1941, settled the ‘A’ schedule property in favour of defendant No.1 and others, reserving the life interest in favour of defendant No.1’s father, P.Sundar Rao, without the right of alienation. Plaintiff No.1 mortgaged the suit schedule property under a registered deed of usufructuary mortgage dated 30.10.1961 for a sum of Rs.3,500/-. A suit for redemption of mortgage was filed and the said suit was decreed by the Munsiff Court, Mangalore, as per the judgment dated 27.08.1983 in O.S.No.945/1979 and the final decree was drawn on 20.09.1986 in FDP No.19/1985. It is contended that there is a specific clause in the settlement deed restraining the owners from alienating any portion of ‘A’ schedule property in any way, and further, the person who alienates the property, loses right. In view of the clause in the