The court affirmed the plaintiff's entitlement to a share in ancestral properties while recognizing the rights of a bonafide purchaser, emphasizing the need for equitable adjustments in final decree proceedings.

ORAL JUDGMENT

Challenging judgment and decree dated 04.07.2015 passed by V Addl. District and Sessions Judge, Mysuru, in RA no.428/2012 and judgment and decree dated 05.09.2012 passed by IV Addl. Senior Civil Judge, Mysuru, in OS.no.272/2009, this appeal is filed.

2. Brief facts as stated are, appellant was defendant no.6 in OS no.272/2009 filed by respondent no.1 (plaintiff) for partition and separate possession. In plaint, she stated suit properties were ancestral joint family properties of her father (defendant no.1). It was stated defendant no.1 had two wives. Plaintiff and Renuka were born to Smt.Akkamma (1^st wife), among whom only plaintiff was alive. Defendant no.2 - Smt.Shivamma (2^nd wife), who had two sons and one daughter namely, defendants no.3 to 5. It was further stated, defendants had joined together and sold item no.3 of suit properties to defendant no.6 under registered Sale Deed dated 27.06.2005. Though, plaintiff had share in suit properties and demanded her share, defendants no.1 to 5, postponed it on some pretext. Hence, suit was filed.

3. On receipt of suit summons, defendants no.1 to 4 filed written statement opposing suit on various contentions, such as, denying relationship with plaintiff as well as Smt.Akkamma, non-inclusion of all joint family properties, mis- joinder and non-joinder of parties, erroneous boundaries of suit property and suit being filed without cause of action, etc. It was alternatively contended that they had borrowed loan of Rs.2 Lakhs from defendant no.6 on interest. As security for repayment, sale deed was executed in respect of item no.3 of suit property, wherein defendant no.6 had agreed to cancel said sale deed on repayment.

4. Defendant no.6 filed separate written statement denying knowledge about relationship of plaintiff with other defendants due to non-disclosure by defendants at time of sale of item no.3 of suit property to him. He claimed to be bonafide purchaser in possession and that his name was mutated in revenue records. It was specifically stated that defendant no.6 would have no objection for grant of share to plaintiff in suit properties other than item no.3. Defendant no.7, who was also purchaser, took similar contentions and sought dismissal of suit.

5. Based on pleadings, trial Court framed following issues:

1. Whether the plaintiff proves that suit schedule properties are the joint family ancestral properties of the plaintiff and defendant?

2. Whether the plaintiff proves that late Akkamma is the legally wedded wife of 1^st defendant?

3. Whether the defendants 1 to 4 prove that this suit is bad for non-joinder and mis-joinder of necessary parties?

4. Whether the sixth defendant proves that he is bonafide purchaser of the item no.3 of suit schedule property?

5. Whether the plaintiff is entitled lawful share in the suit schedule properties ?

6. What order or decree?

Additional Issue

1. Whether the 7^th defendant proves that he is the bonafide purchaser of the suit schedule properties from defendant nos.3 and 4 from valuable consideration to discharge their legal necessity?

6. During trial, plaintiff examined herself and two others as PWs.1 to 3 and got marked Exhibits P.1 to P.18. On other side, defendants no.6 and 4 were examined as DWs.1 and 2 and got marked Exhibits D.1 to D.4.

7. On consideration, it answered issues no.1, 2 and 5 in affirmative, issues no.3, 4 and additional issue no.1 in negative and issue no.6 by decreeing suit, holding plaintiff entitled for 1/5^th share in suit schedule properties by metes and bounds.

8. Aggrieved thereby, defendant no.6 filed R.A.no.428/2012 on various grounds. Based on same, following points were framed:

1. Whether the appellant proves that I.A.no.II filed U/O41 Rule 27 of CPC., is deserves to be allowed at this stage?

2. Whether the appellant proves that the trial Court erred in allotting share of the plaintiff in suit item no.3 as 1/5th share by metes and bounds and to draw preliminary decree without considering the appellant is the bona