A suit for partition may be maintainable without including all properties, and claims of prior arrangements need substantial evidence to be valid.

JUDGMENT :

S.R. KRISHNA KUMAR, J.

This appeal by defendant Nos.1 to 3 in O.S.No.200 of 2018 is directed against the impugned judgment and decree dated 19.03.2021 passed by the Additional Senior Civil Judge and JMFC, Mudhol, [Hereinafter referred to as “the Trial Court for short.,] whereby, the said suit filed by respondent No.1 and 2/plaintiffs against the appellants/defendant Nos.1 to 3 and respondent Nos.4 and 5/defendants No.4 and 5 for partition and separate possession of their alleged share in the suit schedule immovable properties was decreed by the Trial Court in favour of the plaintiffs against the defendants.

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

3. Briefly stated, the facts giving rise to the present appeal are that plaintiffs are the daughters of late Pandappa Galagali and Tarawwa (defendant No.1) and defendant No.2 is the brother of the plaintiffs and only son of Pandappa Galagali and Tarawwa. It is an undisputed fact that the original propositus Pandappa Galagali died intestate on 12.04.2018, leaving behind his wife Tarawwa (defendant No.1) and Kallappa (defendant No.2) as well as two daughters (plaintiff Nos.1 and 2) to succeed to his estate including the suit schedule properties. It is also not in dispute that the suit schedule properties originally belonged to Pandappa Galagali and upon his demise, defendant Nos.1 and 2 and the plaintiffs succeeded to his estate and became entitled to their legitimate share each in the suit schedule properties. Defendant Nos.4 and 5 are said to be the purchasers of sugarcane produce arising out of the cultivation from the suit schedule properties.

4. The plaintiffs instituted the aforesaid suit inter alia contending that pursuant to the demise of the aforesaid Pandappa Galagali, defendant No.2 attempted to get the khata mutated into his individual name and tried to deprive the plaintiffs of their legitimate share in the suit schedule properties. As a result of which, the plaintiffs were constrained to file the instant suit seeking partition, separate possession and other reliefs against the defendants.

5. Defendant Nos.1 and 2 filed their common written statement inter alia disputing and denying the various allegations and claims made by the plaintiffs. It was contended that the marriages of both the plaintiffs, were performed by defendant Nos.1 and 2 and late Pandappa Galagali. It was also contended that the financial support and help was continuously given to both the plaintiffs for their day to day as well as medical expenses and a family arrangement came into existence about 12 years prior to the demise of Pandappa Galagali, in which, the plaintiffs received money, gold ornaments, etc. and relinquished their share in the suit schedule properties in favour of defendant Nos.1 and 2. It was also contended that defendant No.3 is the wife of defendant No.2.

6. At paragraph No.11A of the written statement, defendant Nos.1 and 2 took up a specific contention that the suit for partial partition was not maintainable, since a house property situated in Malali Village, Mudhol Taluk, originally belonging to Pandappa Galagali was not included among the suit schedule properties and as such, suit was liable to be dismissed.

7. The Trial Court framed the following issues.

“::ISSUES::

1. Whether plaintiffs proves that the suit schedule properties are the joint family properties to them and defendant Nos.1 and 2?

2. Whether plaintiffs are entitled for the relief sought for?

3. What Order or Decree?

ADDL. ISSUE DATED 26.11.2020

1. Whether defendant Nos.1 to 3 prove that suit is bad for non-inclusion of all the joint family properties in common hotch-pot?

8. Plaintiff No.2 examined herself as PW1 and one witness as PW2 and documentary evidence at Exs.P1 to P9 were marked on their behalf. Defendant Nos.1 and 2 examined themselves as DW1 and DW2 and two witnesses as DW3 and DW4, while defendant No.3 examined herself as DW5 and documenta