A partition suit must prove ancestral status of properties; claims of prior partition require corroborative evidence, which was insufficient in this case.

JUDGMENT :

ASHOK S. KINAGI, J.

This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 05.03.2013 passed in R.A.No.40/2011 by the learned District Judge, Fast Track Court at Srirangapatna, and the judgment and preliminary decree dated 07.02.2011 passed in O.S.No.270/2006 by the learned Additional civil Judge (Sr.Dn.), Srirangapatna.

2. For convenience, the parties are referred to, based on their rankings before the trial Court. The deceased appellant was defendant No.1, respondent No.1 was plaintiff No.1, and the deceased respondent No.2 was defendant No.3.

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

The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that one Venkategowda was the original propositor. The plaintiff and defendant Nos.1 and 2 are the children of the original propositor, i.e., Venkategowda, who passed away on 18.12.2005 leaving behind the plaintiff and defendant Nos.1 and 2. The plaintiff and defendant Nos.1 and 2 are the members of a Hindu undivided family and no partition is effected. The suit schedule properties are the ancestral properties of the plaintiff and defendant Nos.1 and 2. The plaintiff demanded for partition and separate possession, but defendants Nos.1 and 2 refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession claiming 4/9^th share in the suit schedule properties.

3.1. The defendants filed a written statement denying the averments made in the plaint and contended that during the lifetime of Venkategowda, the plaintiff and 1^st defendant's marriage was solemnized and it is contended that, during the marriage, to meet out the marriage expenses, he sold 3 acres 20 guntas of land in Sy.No.53 of Mogarahalli Village under sale deed dated 10.03.1980 under two registered sale deeds and retained item No.2 of the suit schedule property. It is contended that during the lifetime of Venkategowda, Panchayath was held and in the said Panchayath, under oral partition, and an oral partition was effected in the presence of Panchayathdars. In the said partition, item No.1 was allotted to the share of Venkategowda, and item No.2 was allotted to the share of defendant No.1. As of the date of filing the suit, there was a severance of status in the family and defendant Nos.1 and 2 have succeeded to the said property and on the basis of oral partition, the properties were transferred in the name of defendant Nos.1 and 2. It is contended that defendant No.1 being the owner of item No.2 sold the said land in favour of defendant No.3. Hence, prays to dismiss the suit against defendant Nos.1 and 2.

3.2. Defendant No.3 filed a written statement contending that defendant No.1 being the owner of item No.2 of the suit schedule property sold the said land in favour of defendant No.3 under a registered sale deed dated 25.07.2007 for valid consideration. From the date of purchase of item No.2, defendant No.3 is in possession of the said suit schedule property as the owner and it is also contended that the suit for partial partition is not maintainable as the plaintiff has failed to include house property situated at Belagola village standing in the name of Devamma. Hence, prays to dismiss the suit against defendant No.3.

3.3. The Trial Court, based on the above said pleadings, framed the following issues and additional issue:

Issues:

1) Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties and are amenable for partition?

2) Whether the defendants prove that there is already a oral partition in the family and in the said partition item No.2 had fallen to the share of 1^st defendant and item No.1 had fallen to the share of deceased Venkategowda?

3) Whether the defendants further prove that for the family necessity they have sold item No.2 which was allotted their share?

4) Whether