Oral relinquishments of joint family property rights are insufficient without written documentation; statutory rights persist despite prior agreements made by family members.

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JUDGMENT :

V. SRISHANANDA, J.

Heard Sri. M.B. Chandrachooda, learned counsel for the appellant. None appears for the respondents.

2. Defendant No.2 is the appellant challenging the decreeing of the suit for partition and separate possession in O.S.No.85/2009 confirmed in R.A.No.196/2016 connected with R.A.No.199/2016.

3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under:

3.1. Plaintiff - Sri.G.K.Ramu who is respondent No.1 in the present appeal, filed a suit in O.S.No.85/2009 for partition and separate possession in respect of the landed properties (hereinafter referred to as suit properties).

3.2. Plaintiff contended that himself and defendant Nos.1 and 2 are the sons of Kemparamaiah. They also had two sisters namely Venkataramakka and Gangamma. Sisters of the plaintiff are no more and defendant No.3 is the grandson of Venkataramakka.

3.3. It is contended that suit properties are joint family ancestral properties and plaintiff and defendant No.1 are educated in the family and were in service. After retirement from the service as an engineer, plaintiff approached the defendants for partition of the properties which was denied whereby suit came to be filed.

4. Pursuant to the suit summons, all the defendants appeared before the Court below and defendant Nos.1 and 3 filed written statement admitting that suit item Nos.1 to 7 and 10 and 11 are the joint family properties were as item Nos.8 and 9 are the self acquired properties of defendant No.1.

5. It is also contended by defendant No.1 that he purchased item Nos.8 and 9 of the suit properties by his self earnings and with ulterior motive, plaintiff included those items also as joint family properties.

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6. Further, defendant No.1 admits that plaintiff and defendant No.1 were educated whereas defendant No.2 was looking after the family properties by staying in the village.

7. It is also admitted in the written statement that defendant No.1 and plaintiff had assured their father that they will not seek share in the suit properties and for that, defendant No.2 had improved the ancestral properties with his hard labour.

8. Defendant No.2 filed a separate written statement denying entire averments made in the plaint. Further, defendant No.2 contended that suit item Nos.1 to 7 and 10 and 11 are the joint family properties and as per the directions of their father – Kemparamaiah, plaintiff and defendant No.1 were directed not to claim any share in the suit properties.

9. In other words, defendant No.2 maintained that plaintiff and defendant No.1 relinquished orally their share in the suit properties as per the directions of Kemparamaiah.

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10. Based on the rival contentions, learned Trial Judge raised necessary issues and after due contest, suit came to be decreed.

11. Operative portion of the judgment reads as under:

“Suit of the plaintiff is partly decreed for partition and separate possession of his 1/3^rd share in suit items No.1 to 9, 12 and 13. However the suit in respect of items No.10 and 11 are hereby dismissed.

The parties are directed to bear their own cost.

Office is directed to draw preliminary decree accordingly.”

12. Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court in RA No.196/2016 to the extent of denying the share in item Nos.10 and 11 whereas defendant No.3 who is the grandson of Venkataramakka filed separate appeal before the First Appellate Court in RA No.199/2016.

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13. Pertinently, defendant No.1 was a party in both the appeals. He did not choose to file any separate appeal nor cross-objections before the First Appellate Court against the decree of the learned Trial Judge. But defendant No.2 did not fi