JUDGMENT

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.

2. The ranking of the parties are referred to as before the Trial Court for convenience and easy reference.

3. 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 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 the suit schedule property is joint family property. The plaintiff has filed the suit for partition of his 1/3rd 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.

Therefore, with the above said contentions prays to dismiss the appeal.

7. The trial Court has decreed the suit by granting 1/3rd 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.115 of Evidence Act?

2. In the absence of