A suit for partition cannot be maintained if it fails to distinguish between partible and impartible estates, particularly when earlier partition deeds remain unchallenged and claims are barred by limitation.

ORAL ORDER

The petitioner - defendant No. 5 is in civil revision, challenging the order dated 23.08.2022, passed by Senior Civil Judge and JMFC, Sakleshpur in O.S No. 10/2017, whereby the Trial Court below has dismissed the application for rejection of plaint in a suit instituted by the respondent-plaintiff for partition and consequential relief of separate possession of ¼ share of suit properties. Additionally, the plaintiff has sought a declaration that any alienation made by defendants No.1 and 2 of such joint family and coparcenary properties forming part of the suit schedule property, is not binding on the respondent- plaintiff.

2. A perusal of records indicates that the respondent- plaintiff and defendants No.1 - to 3 are the children of Late Shri B Shantappa and Smt Lalithamma; defendants No. 4 and 5 are the wives of defendants No.1 and 2, respectively. Furthermore, the suit schedule properties mentioned as Schedules ‘a’, ‘b’ and ‘c’ properties are acquisitions of the deceased B Shantappa, however, schedule ‘d’ properties were acquired subsequent to the demise of the latter, in the names of the members of the joint family, but out of the joint family nucleus.

2.1. Furthermore, it is the contention of respondent - plaintiff that defendants No.1 and 2 were in control and managed the suit schedule properties, in the absence of the plaintiff, who had been residing abroad and later in Mysuru; however, the defendants No.1 and 2 have made undisclosed acquisition of properties from the joint family nucleus, in their names and in favour of their wives. It is the specific contention of the plaintiff that the defendants have not had any separate and independent source of income, apart from the joint family income.

2.2. The plaintiff further contends that the defendants had made certain borrowings, against the alleged undivided interest of the plaintiff in the suit properties, but had not effected till date, a partition dividing equal portions of the purportedly partible estate amongst the sharers thereto. Hence, the subject suit of the respondent-plaintiff.

2.3. The petitioner-defendant No.5, in response, filed an application for rejection of plaint inter alia, contending that the plaint averments reveal an admission of an already effected registered partition, which was executed way back in the year 1970 and was followed by mutation of revenue records in favour of plaintiff and defendants, as regards the properties fallen to respective shares under the said partition. Subsequently, the petitioner further contends, two other partition deeds were executed and registered on 05.05.2000 and 22.09.2015. Thereafter, the parties have been in exclusive and separate possession of properties ever since.

2.4. Therefore the subject suit, as such, is barred by the law of limitation by 41 years, and that the subject suit was deliberately undervalued, as the court fees payable were to have been calculated as prescribed under subsection (1) of Section 35 of the Karnataka Court Fees Act , 1958, and not as under sub-section (2) thereof.

3. It is further relevant to observe that the plaintiff has filed an application under Order 6, Rule 17 of CPC , 1908 seeking to amend the plaint so as to include a challenge to the validity of partition deed dated 22.09.2015, gift deed dated 16.01.2015 - executed by the late mother of the plaintiff in favour of the unarrayed son of the defendant No. 1, and the gift deed dated 20.10.2009 - executed by the plaintiff in favour of the defendant No. 2, in lieu of a will supposedly executed by the defendant No. 2 in favour of the the plaintiff, which was subsequently alleged to have been deceitfully cancelled.

3.1. Furthermore, the plaintiff has sought to include schedule properties ‘d’, ‘e’ and ‘f’, as is disclosed by a memo of documents dated, 12.09.2024 filed by the r