In a partition suit, joint ownership rights must be preserved, preventing any party from alienating the property until the dispute is resolved.

CAV JUDGMENT

(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)

Defendants No.6 and 7 in O.S. No. 116/2022 on the file of learned I Addl. Sr. Civil Judge, Ballari [for short, ‘the trial Court’] have filed this appeal challenging the orders passed on I.A. No. VI filed by the plaintiffs under Order 39 Rule 1 and 2 CPC praying to restrain the defendants from alienating the suit schedule properties pending disposal of the suit. The said application was allowed by the trial Court by the impugned order dated 15.10.2024. Being aggrieved by the same, defendants No.6 and 7 have preferred this appeal.

2. The parties are referred to as per their ranking before the trial Court.

3. To dispose of this appeal, facts of the case of both parties are as under:

Respondents No.1 and 2 herein are plaintiffs in O.S.No. 116/2022. It is the case of the plaintiffs that their paternal grandmother Smt. Hamsaveni purchased the suit property on 18.01.1945 for Rs.800/- and sale consideration was paid out of income of her husband D.Muralikrishna Naidu. The said Smt. Hamsaveni and Muralikrishna Naidu had four children by names, D.Balakrishna [dead], Smt. Kamala, Smt. Renuka and Smt.Vasanta Kumari. Plaintiffs are daughters of said D.Balakrishna and defendant No.1 is wife of said D.Balakrishna and a son D. Praveen Kumar. Defendants No.3 and 4 are daughters of Smt. Hamsaveni. Defendant No.5 was husband of another daughter of Smt. Hamsaveni by name Vasanta Kumari. The said Vasanta Kumari was stated to be missing since 1992. Defendants No.6 and 7 are the sons of said Vasanta Kumari. Smt. Hamsaveni and her husband are no more. The suit property is a joint family property of Smt. Hamsaveni and her husband. Therefore after their death all her children are entitled for a share. Plaintiffs and defendants No.1 and 2 together are entitled for 1/4^th share in the said property.It is further case of plaintiffs that after death of Smt.Hamsaveni and her husband, defendants No.5 to 7 managed to mutate revenue records in their names illegally behind the back of plaintiffs and defendants No.1 to 4. Defendants No.6 and 7 have borrowed huge amount from various persons and now they are trying to alienate the properties. The suit properties are the self acquired property of Smt. Hamsaveni and her husband. Therefore defendants No.6 and 7 alone cannot deal with the said property and misappropriate the amount of the said property. The plaintiffs demanded for effecting partition of the suit property, but defendants No.6 and 7 refused to effect partition and hence plaintiffs were constrained to file suit. With these reasons plaintiffs prayed to partition of the suit property and allotment of their share in the suit property.

4. The contention of the appellants and defendants No.6 and 7 are that suit property was the absolute property of Smt. Hamsaveni. She purchased the suit properties from funds given by her parents’ side. It was not the joint family properties of plaintiffs and defendants No.1 to 4. Plaintiffs and defendants No. 1, 3 and 4 issued notice during the year 2009 calling upon defendants No.5 to 7 for partition and separate possession of their share in the property and the said notice was replied by the defendants No.5 to 7 denying their right to claim partition in the said property and after lapse of 14 years they filed the suit. Therefore the suit is barred by time and not maintainable. It is their further contention that Smt. Hamsaveni not only purchased the suit properties but also she had purchased some more properties, viz., Sy. No. 270 measuring 23.73 acres; Sy. No. 3A, Sy. No. 3B, Sy. No. 4A, Sy. No. 4B and Sy. No. 5, each measuring 19.38 acres, 1.20 acres, 13.53 acres