The plaintiff must prove the existence of a joint family nucleus to establish claims over joint family properties; mere relation does not imply entitlement.

ORAL JUDGMENT

This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 19.08.2016 passed in R.A.No.45/2014 by the learned Principal Senior Civil Judge, Mandya, confirming the judgment and preliminary decree dated 03.04.2014 passed in O.S.No.6/2008 by the Additional Civil Judge and JMFC, Mandya.

2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the defendants and the respondent was the plaintiff.

3. Brief facts leading rise to the filing of this appeal are as follows:

The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that defendant No.1 is the father of the plantiff and defendants No.2 to 3 and the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants No.1 to 3. It is contended that a family arrangement was made between the plaintiff's father, Defendant No.1 and his siblings, Bommegowda and Puttaswamy. Later on the plaintiff's father was given the suit properties towards his share and thereby the plaintiff and defendant Nos.1 to 3 became the joint family members. The suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants No.1 to 3. Defendant No.1 is the Karta of the family and had acquired some properties from the joint family funds. Since the plaintiff and defendants No.1 to 3 are in joint possession, they are entitled to an equal share. It is contended that there is no partition effected between the plaintiff and defendants No.1 to 3. The plaintiff demanded partition and separate possession. Defendants No.1 to 3 did not effect partition. Hence, a cause of action arose for the plaintiff to file suit for partition and separate possession. Accordingly, prays to decree the suit.

4. The defendants No.1 to 3 filed a written statement admitting the relationship with the plaintiff and denied the averments of the plaint. It is stated that defendant No.1 was suffering from ill-health including heart disease and paralytic stroke, and even during the said condition plaintiff has not at all look after defendant No.1 and the plaintiff has never shown any kind of concern towards defendant No.1 and his wife. Defendants No.3 has supported defendant No.1 financially and spent huge amount towards medical expenses of Defendant No.1. Hence, defendant No.1 executed a settlement deed on 14.03.2006 in favour of defendant No.3, regarding the lands bearing Sy.No.408/P1 measuring 0.37 guntas, Sy.No.409/A measuring 2.13 guntas and Sy.No.410 measuring 3.18 guntas. In pursuance of the said settlement deed, she became the absolute owner and in possession of the said suit schedule properties.

5. On the strength of the settlement deed, the khata was transferred in her name. Further, he also executed a registered gift deed dated 16.02.2006 in favour of defendant No.3 and in pursuance of the said gift deed defendant No.3 was in possession and is the owner of the suit property bearing khata No.D3/500/1855 situated at 6^th Cross, Subhashnagar, Mandya. The said property was the exclusive property of defendant No.1(a) i.e., Savithramma. She got the absolute right over item No.4 of the suit properties. The plaintiff had borrowed loans from the private banks, Jayaramegowda and others. The loan was discharged by defendant No.3 by issuing a cheque and other modes. Hence, it is contended that the suit in its present form is not maintainable, and the suit is bad for non-joinder of the necessary parties. Hence, prays to dismiss the suit against defendants No.1 to 3.

6. Defendant No.4 filed a written statement denying the ave