This present Regular Second Appeal is filed under

Section-100 of C.P.C., challenging the judgment and decree

passed in Regular Appeal No.51/2007, dated 11.09.2008, by

the Civil Judge (Sr.Dn.) and JMFC, Krishnarajapet, (hereinafter

referred to as ‘First Appellate Court’ for brevity), which

reversed the judgment and decree passed in O.S.No.232/2005,

dated 24.11.2007 by the Civil Judge (Jr.Dn.) and J.M.F.C.,

Krishnarajapet (hereinafter referred to as ‘Trial Court’ for

brevity). Therefore, this appeal is against the divergent opinion

formed by both the courts below.

The ranking of the parties are referred to as before

the Trial Court for convenience and easy reference.

Brief facts of the case are that first defendant is

father of plaintiff and second defendant. The third defendant is

the wife of second defendant. The plaintiffs and defendant

Nos.1 and 2 are the members of Hindu Joint Family. The first

defendant is the manager of the said joint family. The plaintiff

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further contends that the joint family consisting of himself and

defendants No.1 and 2 owned and possessed agricultural

properties at Jakkanahalli village, Bookanakere Hobali, K.R. Pet

Taluk. The first defendant has no independent income except

the one derived out of joint family properties. The first

defendant, being the manager of the family purchased the suit

schedule property in his name for the benefit of the joint

family. As such, the suit schedule property is the joint family

property and all the members are having equal rights over the

same and they are in joint possession. Further, the first

defendant has no independent right to alienate the suit

schedule property in any manner. The suit schedule property is

more fertile land and having high marketable value than that of

the other landed properties belonged to the joint family. The

plaintiff further contends that himself and defendant Nos.1 and

2 got divided their other properties under a registered partition

deed dated 12.09.2005 and they are in separate possession of

their respective shares.

4. The plaintiff and defendant No.2 are the sons of

defendant No.1. Defendant No.3 is the wife of defendant

No.2. It is stated that all are constituting joint family and

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the suit schedule property is joint family property. The

plaintiff has filed the suit for partition of his 1/3^rd share in

the suit schedule property. It is also contended in the

plaint that defendant No.1 had executed the gift deed in

favour of defendant No.3 who is the daughter-in-law of

him being the wife of defendant No.2 depriving the rights

of the plaintiff. Therefore, the plaintiff has filed the suit for

partition.

5.

The defendants have filed the written

statement admitting the relationship between the parties

in the suit.

6.

It is the contention taken in the written

statement that there was already partition in the family by

registered partition deed dated 12.09.2005. Further it is

contended that the plaintiff estopped not only by silence,

but also by acquiescence. Hence, the suit is liable to be

dismissed. It is further contended that the suit schedule

property is self acquired property of defendant No.1.

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Therefore, with the above said contentions prays to

dismiss the appeal.

7.

The trial Court has decreed the suit by

granting 1/3^rd share to the plaintiff in the suit schedule

property. Being aggrieved by the decree in the suit,

defendant Nos.1 to 3 preferred R.A.No.51/2007 before the

First Appellate Court. The First Appellate Court has allowed

the appeal and set aside the judgment and degree passed

by the trial Court. Being aggrieved by that, the plaintiff

preferred the present second appeal.

8.

This Court while admitting the appeal on

02.12.2008 has framed the following substantial questions

of law:

1. Whether the transaction of gift gone through by

the Kartha of family in which none of the

coparceners has participated in or attested the

said deed of gift, can given raise to Estoppel in

terms of Sec.