The ancestral property, while partitioned, remains joint family property, allowing children of a coparcener to claim their legitimate share despite their father's sale to others.

JUDGMENT :

S.R. KRISHNA KUMAR, J.

This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure , 1908, [Hereinafter referred to as the ‘CPC’], by the defendant No.2 challenging the judgment and decree dated 24.04.2018 passed in O.S.No.47/2011 by the Principal Senior Civil Judge and Chief Judicial Magistrate, Belagavi, [Hereinafter referred to as the ‘Trial Court’], whereby, the said suit filed by the respondents No.1 and 2/plaintiffs No.1 and 2 against the appellant/defendant No.2, respondent Nos.3 and 4, who are arrayed as the defendant Nos.1A and 3 respectively before the Trial Court, for partition and separate possession of the plaintiffs’ alleged 1/3^rd share in the suit schedule immovable property, was decreed in favour of the plaintiffs against the defendants.

2. For the purpose of convenience, the parties are referred to as their respective ranks before the Trial Court.

3. The plaintiffs are the sons of defendant No.1-Ajit S/o. late Kugappa Padmannavar, since deceased, represented through his legal representative Smt.Sunita W/o. Late Ajit Padmannavar and defendant Nos.2 and 3 are purchasers of the suit schedule immovable property from defendant No.1, vide registered sale deeds dated 24.08.2006 and 16.08.2007. The plaintiffs instituted the aforesaid suit inter alia contending that in the year 1951 there was a partition between the grandfather of the plaintiffs by name Kugappa and his brother Parisappa, in which, the total extent of land bearing R.S.No.84/1 measuring 8 acres 30 guntas was equally divided between the aforesaid Kugappa and Parisappa by allotting southern half (½) portion measuring 4 acres 15 guntas in favour of Kugappa and northern half (½) portion measuring 4 acres 15 guntas in favour of Parisappa. It is alleged that Kugappa was married to one Ratnawwa and they had three sons namely, Ashok, Mahaveer and Ajit. The plaintiffs are the children of the aforesaid late Ajit-defendant No.1.

4. The plaintiffs alleged that after the demise of Kugappa, his widow Ratnawwa and three sons i.e. Ashok, Mahaveer and Ajit entered into a registered partition deed dated 30.10.1999, whereby, all the joint family properties, including the aforesaid land bearing R.S.No.84/1 measuring 4 acres 15 guntas was divided and partitioned between the said persons. It is alleged that, under the aforesaid registered partition deed dated 30.10.1999, the suit schedule ‘A’ property was allotted to the share of defendant No.1-Ajit, as a result of which, the suit schedule ‘A’ property measuring 1 acre 18 guntas in R.S.No.84/1 became ancestral property in the hands of defendant No.1-Ajit, qua his children, and the same was the ancestral property insofar as the plaintiffs were concerned. It was alleged that the suit schedule property was the joint family property of the plaintiffs and defendant No.1. Therefore, the defendant No.1 was not entitled to alienate the entire extent of suit schedule property in favour of any third party including the defendants No.2 and 3. As a result, the registered Sale Deeds dated 24.08.2006 and 16.08.2007 executed by the defendant No.1 in favour of defendant Nos.2 and 3, are not binding upon the plaintiffs 2/3^rd share (1/3^rd + 1/3^rd share each) in the suit schedule ‘A’ property. Accordingly, the plaintiffs instituted the aforesaid suit seeking partition and separate possession of their legitimate 1/3^rd shares each in the suit schedule ‘A’ property. They also sought a declaration that the Sale Deed dated 24.08.2006, executed by the defendant No.1-Ajit Kugappa Padmannavar in favour of defendant No.2, is not binding upon their share in the suit schedule property.

5. It is a matter of record and an undisputed fact that a portion of suit schedule ‘A’ property was sold by the defendant No.1 in favour of defendant No.3 through a registered Sale Deed dated 16.08.2007. Subsequently, the defendant No.3 amicably settled the dispute with the plaintiffs by filing a compromise petition dated 02.09.2014. The said com