Legal heirs of a deceased joint family member can claim shares in ancestral properties, irrespective of prior suits or alleged partitions, if such claims have not been adjudicated on merits.

ORAL JUDGMENT

Heard Sri.H.P.Leeladhar, learned counsel for the appellants, Smt.Saritha Kulkarni, learned counsel for the respondent No.1 and Smt.Archana Murthy P., learned counsel for respondent No.2.

2. Legal representatives of the deceased sole defendant are the appellants challenging the decreeing the suit of the plaintiff for declaration and partition in O.S.No.45/2017 which was confirmed by the First Appellate Court in RA No.98/2018.

3. Facts which are utmost necessary for disposal of the present appeal are as under:

3.1. A suit for declaration and partition came to be filed by the plaintiffs against the defendant – Oblappa by contending that plaintiffs are the sons of Rangappa. Said Rangappa is no more and plaintiff No.2 died issueless and unmarried. Father of the plaintiffs was the brother of the defendant and he was the elder male member in the joint family of the plaintiffs and defendant.

3.2. Suit properties were allotted to the defendant at a family partition. Hence the suit properties are the joint family properties and both plaintiffs and defendant cultivated the suit properties jointly.

3.3. After the death of the father of the plaintiffs, defendant and his sons threatened the plaintiffs to cultivate the land jointly. Therefore, the cause of action to file the suit for declaration and possession arose in the year 2016.

4. On receipt of the suit summons, defendant entered appearance through his Advocate and filed written statement denying the plaint averments in toto except admitting the relationship that the plaintiffs are the sons of his brother Rangappa.

5. It is also admitted by the defendant that the suit properties are the ancestral properties.

6. It is his specific case that there was a partition and as per Ex.D.1, properties have been allotted to him and therefore, the plaintiffs are not entitled for any share in respect of the suit properties.

7. It is also contended by the defendant that prior to filing of the present suit, a suit in O.S.No.39/2009 was filed by the plaintiffs which came to be dismissed for non prosecution. Therefore, right if any, to seek for partition has got extinguished with the dismissal of the suit in O.S.No.39/2009 and sought for dismissal of the suit.

8. Learned Trial Judge after raising necessary issues, recorded the evidence of the parties and decreed the suit of the plaintiffs inter alia holding in paragraph Nos.17 and 18 as under:

“17. The plaintiff has pleading and deposed that, certain properties are sold to third person. This fact is categorically denied by defendant in written statement. In the course of cross examination, the learned counsel for plaintiff confronted two sale deeds got marked at Ex.P.11 and 12. The defendant admitted his signature found on Ex. P.11 and 12. But he denied that, no properties are alienated to third person. Admittedly Ex.P.11 and 12 are registered document. The defendant admitted his signature found there on. Accordingly said signatures marked at Ex.P.11(a) and 12(a). The defendant has no right to denial of recitals of Ex.P.1 and 2. In cross examination DW.1 deposed that, one agreement of sale is cancelled due to plaintiffs’ are not ready to execute registered sale deed. By analyzing this evidence with recitals of Ex.P.11 and 12, it clearly shows that defendant and his sons and plaintiff have sold properties bearing No.59/1 measuring 20 guntas and another property land bearing Sy.No.59/1 measuring 20 guntas covered under Ex.P.11 and 12 in favour of Smt.O.Rangamma and Sri.Shekarappa. This evidence discloses that, joint family properties are sold by plaintiffs and defendant, his sons in favou