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2025 Supreme(Online)(KAR) 2581
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
MR JUSTICE RAVI V HOSMANI, J
Y R Yashwanth S/o Y C Ramesh – Appellant
Versus
Chikkegowda S/o Late Kuntegowda – Respondent
REGULAR SECOND APPEAL NO. 1802 OF 2011 (PAR)
Advocate Appeared:
For the Appellant :SRI DILIP KUMAR, ADVOCATE (PH)
For the Respondent:SRI YASHWANTH NETHAJI N.T., ADVOCATE FOR SRI K.V. NARASIMHAN, ADVOCATE FOR R5 (PH);
A suit for partial partition of joint family property is not maintainable without including all joint family properties and obtaining leave of the Court.
Headnote:(A) Code of Civil Procedure, 1908 - Order 2 Rule 2 - Partition suit - Plaintiffs filed for partition of ancestral joint family property, claiming alienation by defendants was without consent - Trial Court decreed suit, but first appellate Court dismissed it, citing non-inclusion of all joint family properties - Court held that a suit for partial partition is not maintainable without including all joint family properties and obtaining leave of the Court. (Paras 10, 18, 20)
(B) Joint Family Property - The nature of joint family property and the rights of co-parceners were discussed, emphasizing that all joint family properties must be included in a partition suit to ensure equitable relief. (Paras 14, 19)
(C) Legal Necessity - The court examined the concept of legal necessity in the context of alienation by the karta of a joint family, noting that mere claims of non-legal necessity must be substantiated with evidence. (Paras 15, 16)
Facts of the case:
The plaintiffs, claiming to be members of a joint family, filed a suit for partition against the defendants, who had sold a portion of the joint family property without the consent of the minor plaintiffs. The trial Court decreed the suit, but the first appellate Court dismissed it on grounds of non-inclusion of all joint family properties.
Findings of Court:
The first appellate Court's dismissal was upheld, as the plaintiffs failed to include all joint family properties in their suit, rendering it not maintainable.
Issues: The main issues included whether the sale was for legal necessity and whether the suit for partial partition was maintainable without including all joint family properties.
Ratio Decidendi: The court ruled that a suit for partial partition must include all joint family properties and that the plaintiffs did not provide sufficient evidence to support their claims against the alienation.
Result: Appeal dismissed.
ORAL JUDGMENT
Challenging judgment and decree dated 28.01.2011 passed by III Addl. District Judge, Mysuru, in R.A.no.170/2010, this appeal is filed.
2. Brief facts as stated are, appellants were plaintiffs in a suit filed for partition and separate possession against defendants. It was stated, defendant no.1 was divided brother of Shive Gowda of Yelawala village. Defendant no.1 was husband of defendant no.2 and defendants no.3 and 4 were their sons; while plaintiffs no.4 and 5 were their married daughters. It was further stated, plaintiffs no.1 and 2 were children of defendant no.3 and plaintiff no.3 was his wife. It was stated, plaintiffs and defendants no.1 to 4 were members of joint family. Extent of 01 Acre 32 guntas out of total extent of 05 Acres 4 guntas in Sy.no.35/1 of Maidanahally village, Yelawala Hobli, Mysuru Taluk, (hereinafter referred to as 'suit property') was ancestral joint family property standing in name of defendant no.1, being eldest in family. Though, defendants no.1 to 4 were not exclusive owners of suit property, they sold 01 Acre 14 guntas ('A' schedule) to defendant no.5 under registered sale deed dated 01.09.2003, ignoring rights of plaintiffs no.1 and 2, who were then minors. Plaintiffs no.1, 2, 4 and 5 came to know of alienation only when defendants no.5 attempted to enter suit property. Immediately, they obtained copy of sale deed. As sale in favour of defendant no.5 was without their consent, it was not binding upon plaintiffs and it continued in joint possession. It was stated, when plaintiffs approached defendants no.1 to 4 along with elders to claim their share, same was denied on one or other pretext. Hence suit was filed.
3. Defendants no.1 to 4 though appeared, did not file written statement. Defendant no.5 only filed written statement denying plaint averments in toto. It was stated after purchase, khata was mutated in his name and he was in possession of suit property and sought for dismissal of suit.
4. Based on pleadings, trial Court framed following issues:
1. Whether the plaintiffs prove that the suit schedule properties are joint family properties of plaintiffs and defendants no.1 to 4 as pleaded?
2. Whether plaintiffs prove that sale of suit 'A' property dated 01.09.2003 in favour of defendant no.4 is not for legal necessity and not for benefit of Joint family of plaintiffs as pleaded?
3. Whether plaintiffs prove that all the member of Joint family has brought on record?
4. Whether plaintiff proves that all the properties of Joint family as brought on record?
5. Whether plaintiffs prove that they are entitled for the relief as claimed?
6. What Order or Decree?
5. In support of her case, plaintiff no.3 examined herself as PW.1 and got marked Exs.P1 to P8. In rebuttal, defendant no.5 examined himself as DW.1 and got marked Ex.D1.
6. On consideration, trial Court answered issues no.1 to 5 in affirmative and issue no.6 by decreeing suit. Aggrieved, defendant no.5 filed R.A.no.170/2010 on several grounds. Based on contentions, first appellate Court framed following points:
1. Whether the plaintiffs have proved that the sale of suit schedule property by defendants no.1 to 4 in favour of defendant no5 was not for the benefit of the joint family?
2. Whether the plaintiffs' suit for partial partition without including other properties owned by 1st defendant is maintainable in law?
3. Whether the plaintiffs are entitled for the decree claimed in the suit?
4. Whether the judgment and decree of the trial Court needs to be set aside or modified?
7. On consideration, first appellate Court answered points no.1 to 3 in negative and point no.4 by allowing appeal, setting aside trial Court decree and dismissing suit. Aggrieved, this appeal was by plaintiffs.
8. Sri Dilip Kumar, learned counsel for plaintiffs submitted, appeal was against divergent findings in suit for partition and separate possession. It was submitted relationship of parties was not disputed. Even nature of suit properties as joint family property w
