IMPORTANT POINT
If the cause of action is joint and inseparable, the entire suit or the appeal abates if the legal representatives of the deceased party is not brought on record.

Sreenivas Harish Kumar, J.—This appeal is by the defendants No. 4 and 5 in O.S.200/1985 on the file of the I Additional Civil Judge (Junior Division), KGF. They have challenged the judgment of the Senior Civil Judge, KGF, in RA 47/2001, who reversed the judgment of dismissing the suit for partition and granted decree of partition holding that the plaintiff is entitled to 1/3rd share in the suit schedule properties.

2. The original plaintiff Rukkubai was the widow of one Balaji Singh. The first defendant Anantharam Singh, the second defendant Krishna Singh, the third defendant Rukkubai and Balaji Singh are all children of Hanuman Singh. The plaintiff sought partition of suit schedule properties which according to her belonged to the joint family being managed by the first defendant. At the inception of the suit, the plaintiff claimed partition only in respect of four items and after the amending the plaint, she included one more property at Sl. No. 2A in Sy. No. 6 measuring 4 acres. After the death of plaintiff, her daughter Saroja Bai came on record.

3. The defendants contended that none of the suit schedule properties belonged to the joint family. The first item of the schedule was the self acquired property of Hanuman Singh, the propositus, who during his lifetime gifted it to his grandson Poorna Singh, i.e., the fourth defendant. The first defendant succeeded to 3 acres 4 guntas of land in item No. 2 and a portion of house property described in item No. 3. The movable properties described in item No.4 do not exist. On 9.2.1971 the second defendant, on his behalf as also on behalf of his minor son sold away the house property with vacant space bearing khaneshumari No. 84 to Poorrna Singh for consideration. On 6.12.1982, the said Poorrna Singh sold the property in favour of Muniyamma @ Kamalamma and she in turn sold the very same property to Sakkubai, the fifth defendant and wife of the fourth defendant on 8.5.1986. The fifth defendant purchased this property from her stridana and, therefore, it is her absolute property. The defendants further pleaded that the original plaintiff Rukkubai deserted her husband Balaji Singh after giving birth to a female child. She left the husband’s house willfully about 40 years ago and, therefore, she had been excluded and ousted from the joint family. For this reason, she was not entitled to claim partition.

4. In the trial court, ten issues were raised in the beginning; thereafter, some additional issues were also framed on different dates. The main issues relate to the existence of joint family properties to be proved by the plaintiff; and the defendants’ requiring to prove that first item of the suit property was the self acquisition of the propositus Hanuman Singh; the defendant 4 establishing the gift in his favour, and defendant 5 establishing the subsequent sales of property bearing khaneshumari No. 84. One additional issue related to limitation also.

5. The trial court after appreciating the evidence, both oral and documentary, held that the first item of the suit property was the self acquisition of the propositus Hanuman Singh since it had been granted to him by the Government and that PW1, the daughter of the plaintiff, failed to prove that this property became part of joint family. PW1 admitted in the cross-examination that the first item of the suit property was the self acquisition of Hanuman Singh. The trial court also upheld the specific defence that the plaintiff had been ousted from the joint family and thereby she lost right to claim partition and that the suit was also time barred. In this regard, the clear finding of the trial court is that since the plaintiff claimed declaration and partition, the suit should have been filed within three years after her ouster from the joint family property in the year 1971. The learned judge held that Article 58 of the Limitation Act was applicable. He also further held that even if Article 110 of the Limitation Act could be h