Joint family property retains its character unless proven otherwise; sales by co-parceners without all parties' consent do not extinguish shared rights.

JUDGMENT :

Ashok S. Kinagi, J.

1. These Appeals and Cross Objection arise out of the Judgment and preliminary decree dated 22.07.2019, passed in O.S.No.63/2016 by the learned Principal Senior Civil Judge and JMFC, Mudhol (for short ‘the trial Court’)

2. For convenience, the parties are referred to, based on their rankings before the Trial Court as per RFA No.100433/2019. The appellants were defendant Nos.9 and 10, Respondent No.1 was the plaintiff, and the other respondents were the other defendants.

3. Brief facts, leading rise to the filing of these appeals and the cross objection are as follows:

3.1 The plaintiff filed a suit against the defendants for a partition and separate possession. It is the case of the plaintiff, one Yamanappa Kolar was the original propositus. He had a wife by name Yallavva. Yamanappa had three sons, namely Hanmappa, Ramappa, Laxmappa. Defendant No. 1 and 2 are the wife and son of Hanamappa Kollar, Defendant No. 3 and 4 are the wife and daughter of Ramappa Kollar and Defendants No. 5 to 8 and the plaintiff are the legal heirs of Laxmappa Kollar. Yamanappa died on 13.08.1976, and his wife died, subsequently. The sons of Yamanappa died on 30.10.1990, 21.08.1990 and 03.02.2004, respectively. The suit ‘B’ and ‘C’ of plaint schedule properties are the joint family properties. The plaintiff and defendant Nos.1 to 3, 5 and 6 are in joint possession and enjoyment of these properties. It is contended that the plaintiffs and defendant Nos.1 to 6 are the members of a Hindu undivided joint family and no partition has been effected. The plaintiff demanded a partition and separate possession, but defendant Nos.1 to 6 refused to effect a partition. It is contended that, the defendants to deprive the legitimate rights of the plaintiff, sold two items of the suit property in favour of defendant Nos.9. Defendant Nos. 9 in turn, sold the property in favor defendant No.10. The sale deeds executed by defendants No. 1 and 2 in favour of defendant Nos.9 and 10 are not binding on the plaintiff’s share. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, the plaintiff prays to decree the suit.

3.2 Defendant Nos.1 to 4 filed a written statement denying the averments made in the plaint, and contented that there is no cause of action to file a suit for partition and separate possession. It is contended that, there was a prior partition in between the sons of Yamanappa and hence there was a severance of status within the family. Therefore, the suit filed by the plaintiff is not maintainable. Defendant Nos.1 to 4 also sought a counterclaim regarding plot No.10 situated at Mudhol. It is contended that the said property was purchased out of the joint family nucleus in the name of defendant No.6. Therefore, prays to dismiss the suit of the plaintiff and decree the counterclaim regarding plot No.10 of counterclaim property.

3.3 Defendant No.2, filed an additional written statement contending that the properties bearing R.S.No.39/5 and 39/6 of Metgudd village were purchased by him under two different registered sale deeds dated 24.07.2009. It is contended that the suit properties in R.S.No.39/5 and 39/6 of Metgudd village are the self acquired properties of defendant No.2 acquired out of his own earnings. Accordingly, prays to dismiss the suit.

3.4 Defendant Nos.5 to 8 filed a written statement admitting the contents of the plaint and contended that the defendant No.1 to 4 have no right over plot No.10 situated at Mudhol, which is the self acquired property of defendant No. 6. These Defendants sought a counterclaim seeking a 4/15^th share in B schedule properties and a 4/10^th share in the C schedule properties, along with court costs.

3.5 Defendant Nos.9 and 10 filed their written statement denying averments made in the plaint and contended that Defendant No. 9 sold 7 acres of land in RS NO. 80/1 and 14 acres in RS No. 80/2 in favor of Defendant No 10. Defendant No. 1 and 2 were