Rights under ancestral property are contingent upon succession laws and the timing of birth concerning the Hindu Succession Act, 1956.

C.A.V. JUDGMENT

(PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)

This appeal is by the unsuccessful plaintiffs who have questioned the judgment and decree rendered in O.S.101/2015 wherein the plaintiffs' suit seeking the relief of partition in respect of item No.1 of suit schedule properties is dismissed in the light of the law laid down by the Apex Court in the case of Uttam .vs. Saubhag Singh and others, [AIR 2016 SC 1169]

2. For the sake of convenience the parties are referred to as per their rank before the trial Court.

3. The family tree is as under:

4. The brief facts of the case are as under:

Plaintiff No.2 is the son born from the wedlock of Defendant No.1 and Plaintiff No.1. The present suit is instituted by the wife and son, i.e., Plaintiffs No.1 and 2, challenging the alienation effected by Defendant No.1 (Shivalingappa) in respect of Schedule Item No.1 property - agricultural land bearing Survey No.502 measuring 16 acres and 38 guntas. The plaintiffs specifically contend that the property was originally purchased in the year 1943 by Pavadeppa, the propositus of the joint family. It is further asserted that upon Pavadeppa’s demise, the property devolved upon his only son Dyamanna, who in turn died leaving behind his widow Savanthrevva (Defendant No.2) and son Shivalingappa (Defendant No.1). On this basis, the plaintiffs claim that the suit schedule properties are ancestral joint family properties in which Plaintiff no. 2 has a right by birth and plaintiff no. 1 as wife has equal share as per Bombay school.

5. The plaintiffs further allege that Defendant No.3, though belonging to the same community, is a literate, politically influential person and a press reporter. It is alleged that Defendant No.3, by exploiting the illiteracy and innocence of Defendant No.1, obtained a sale deed in respect of Item No.1 of the suit schedule property for a meager sum of Rs.3 lakhs per acre, while the actual market value of the land was over Rs.20 lakhs per acre. Asserting that the sale transaction was vitiated by fraud and undue influence, the plaintiffs seek partition and separate possession of their share and further pray for a declaration that the sale deed executed in favour of Defendant No.3 is null and void and not binding on them.

6. Defendants No.1 and 2 did not contest the suit and were placed ex parte.

7. Defendant No.3, the purchaser, filed a detailed written statement denying the averments in the plaint. It is contended that although the sale deed was executed by Defendants No.1 and 2, Plaintiff No.1, the wife of Defendant No.1, actively participated in the transaction. It is further asserted that the sale consideration was deposited in the joint account of Plaintiff No.1 and Defendant No.1 in Karnataka Bank. Defendant No.3 also raised the plea of limitation, contending that the suit is barred under Article 58 of the Limitation Act, as the sale deed dated 06.07.2011 was not challenged within three years.

8. Defendant No.3 also questioned the plaintiffs’ locus standi to challenge the alienation. Referring to the plaintiffs’ own pleading that the property was purchased by Pavadeppa in 1943, it is contended that upon the death of Pavadeppa, the property devolved upon Dyamanna, and after his death, upon his widow (Defendant No.2) and son (Defendant No.1). It is therefore argued that the said property became the absolute property of Defendant No.1, and the alienation was made in exercise of his full ownership rights. Consequently, no permission from any Court was necessary for the said sale.

9. Based on rival pleadings, the Trial Court framed appropriate issues. The plaintiffs examined themselves as PWs 1 and 2 and marked documents as Exhibits P1 to P8. Defendant No.3 examined himself as DW1 and another witness as DW2 and marked Exhibits D1 to D8.

10. Upon appreciation of the evidence on record, the Trial Court answered Issues No.1 and 2 partly in the affirmative, holding that Plaintiffs and Defendants No.1 and 2 constituted a Hin