The court ruled that a plaintiff is entitled to a notional partition of ancestral properties and that temporary injunctions are necessary to prevent alienation during litigation.

ORAL JUDGMENT

Heard learned counsel for appellant and also learned counsel appearing for respondent.

2. This appeal is filed against the rejection of I.A. filed under Order 39 Rule 1 and 2 of C.P.C, wherein plaintiff has sought for relief restraining the defendant from alienating the suit schedule properties pending disposal of the suit.

3. It is the case of the plaintiff that suit schedule properties are ancestral and joint family properties and there was a partition between the father and their uncle and the properties are allotted as per the registered deed dated 05.08.2006. In the said partition, suit schedule properties are allotted to the defendant herein, as the share and their father. Further, house properties are acquired by way of succession and all the revenue records are transferred in the name of defendant. The plaintiff contention is that being the younger sister of defendant is in joint possession and enjoyment of the suit schedule properties, which are joint family ancestral properties. The plaintiff has requested to effect the partition and the same was postponed by defendant for one or the other pretext and ultimately, he refused the request and hence, without any alternative the relief for partition and also inter-alia sought for relief for temporary injunction restraining the defendant from alienating the suit schedule properties.

4. The defendant appeared and filed written statement and took the specific contention that she is sister of defendant and daughter of Late Doddamuddappa. However, contend that mother of plaintiff and defendant is also alive and the said fact has been suppressed. The suit is bad for non-joinder of necessary party and also admitted that partition deed dated 05.08.2006. It is contended that suit is barred by limitation, since she has abandoned her right ever since the time of marriage and also contend that defendant also spent money by raising loan. It is also contended that the said Doddamuddappa died and his brother Chikkamuddappa also died and he was not having any issues and his share is also allotted in favour of defendant and also property devolved on the Class-I heirs of Doddamuddappa as per Section 6 of the Hindu Succession Act , 1956. However, it is contended that on the demise of the said Doddamuddappa, plaintiff, defendant and their mother got their share in the property at the rate of 1/3rd of 1/5th each and also contend that it is a self-acquired property of defendant.

5. The trial Court having considered the grounds urged in the application as well as in the written statement, also taken note of the contention of the parties in paragraph No.12 and comes to the conclusion that there was a partition between the defendant and his uncles and properties are ancestral and joint family properties and also taken note that the said partition deed executed on 06.08.2006. It is also an observation that in view of defence taken by the defendant, she is entitled for any share that would be in the notional partition i.e., 1/30th share of her father Doddamuddappa. Though having given all these aspects, but the trial Court rejected I.A and hence, present appeal is filed.

6. Learned counsel appearing for appellant would contend that when there is a partition between the 1st defendant and his uncles, also when there is no dispute between the relationship between the parties and nature of the properties and also when there is fair admission on the part of the defendant in the written statement itself that she is entitled for 1/3rd share out of 1/5th share of their