A suit for partial partition is not maintainable without inclusion of all joint family properties, necessitating remand for proper determination.

ORAL JUDGMENT

This appeal is preferred by the defendant Nos.4 and 5, assailing the judgment and decree dated 26.11.2013 passed in O.S. No.4654/1996 on the file of XXII Additional City Civil and Sessions Judge, Bengaluru, decreeing the suit of the plaintiff.

2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.

3. The plaint averments are that the plaintiffs, defendant No.2 and one Siddalingamma are the children of Munivenkatappa and Narasamma (defendant No.1). It is the case of the plaintiffs that the suit schedule properties are the joint family properties of the plaintiffs and defendant Nos.1 to 3 and as such, sought for share in the suit schedule properties. Hence, the plaintiffs have filed O.S.No.4654/1996 seeking relief of partition and separate possession in respect of the suit schedule properties.

4. Defendant Nos.1 and 2 entered appearance and filed written statements. During the pendency of the suit, defendant No.1 died. Defendant Nos. 4 and 5, who claims to be the purchasers of the 'A' Schedule property, filed a detailed written statement. Defendant No.3, was served, remained absent and was accordingly placed ex-parte.

5. Defendant Nos. 1 and 2, have taken a specific plea that the 'A' Schedule property was sold in favour of defendant Nos.4 and 5 with the consent of the plaintiffs, to discharge the debts raised by late Munivenkatappa and therefore, sought for dismissal of the suit with regard to the 'A' Schedule property.

6. It is also the case of defendant Nos.1 and 2 that the defendant No.2 acquired the 'B' Schedule property from the Government and constructed a house and accordingly, denied the claim made by the plaintiffs. Defendant Nos. 4 and 5 entered appearance and filed detailed written statement and contented that, the defendant Nos.4 and 5 are bona fide purchasers of the 'A' Schedule property and these properties have been sold in favour of defendant Nos.4 and 5 with the consent of other coparceners of the joint family and accordingly, they sought for dismissal of the suit.

7. The Trial Court based on the pleadings on record, formulated the issues and the evidence was recorded. The Trial Court by its judgment and decree dated 01.08.2005, decreed the suit of the plaintiffs. Being aggrieved by the same the defendant Nos.4 and 5 have preferred RFA No.1436/2005 before this Court and the Division Bench of this Court vide judgment and decree dated 11.01.2012, allowed the appeal, consequently set aside the judgment and decree dated 01.08.2005 and remanded the matter to the Trial Court for fresh consideration. After remand made by this Court, the Trial Court has formulated the following issues and additional issues, which reads as under:

“1. Whether the plaintiffs prove that suit schedule 'A' and 'B' properties are the self acquired properties of late Munivenkatappa?

2. Whether defendant Nos.1 and 2 prove that late Munivenkatappa borrowed a loan from different persons and banks to the tune of Rs.2,00,000/-?

3. Further defendant Nos.1 and 2 prove that for the purpose of discharging loan borrowed by late Munivenktappa, 'A' schedule property has been sold out to defendant Nos.4 and 5?

4. Whether defendant No.2 proves that 'B' schedule house is his self acquired property?

5. Whether defendant Nos. 4 and 5 prove that they are the bona fide purchasers of 'A' schedule property for valuable consideration without notice?

6. Whether plaintiffs 1 and 2 prove that they are entitled to 1/5^th share in the suit schedule properties?

7.What Decre