Pre-amendment alienations under Hindu Succession (Amendment) Act, 2005 are binding and lawful if conducted for family necessity, regardless of current contestations.

ORAL JUDGMENT

1. This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 21.11.2012 passed in RA No. 112 of 2010 by the learned Fast Track Court, KGF.

2. For convenience the parties are referred to, based on their rankings before the Trial Court. The appellant was Defendant No 7, Respondent No. 1 was the Plaintiff, Respondents No. 2 to 6 were the Defendants No. 2 to 6.

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

4. The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that one Police Narayanappa was the propositus of the family. The said Police Narayanappa had only one son by name N.Venkataswamy. Defendant No.1 is the wife of Venkataswamy and Defendant Nos.2 to 6 are the children of said Venkataswamy. It is contended that item Nos.2 to 4 of the suit properties are the ancestral properties of the plaintiffs and the defendants. Late Venkataswamy had purchased item No.1 during his life time. It is contended that Venkataswamy died on 11.10.1983 leaving behind the plaintiff and the defendants as his legal heirs. It is contended that after the death of their father, defendant No.1 managed the family affairs. Defendant No.1 alienated the suit item No.1 property in favour of Defendant No.7 and the same is not binding on the plaintiff. The plaintiff demanded for partition and separate possession. However, the defendants did not give any heed to the request made by the plaintiff. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

5. Despite service of the summons, defendant No.6 remained absent and was placed ex-parte.

6. Defendant Nos.1 to 5 filed a common written statement denying the plaint averments except admitting the relationship between the parties to the suit. It is contended that the plaintiff is not in good terms with the family members and keeps on filing suits together to harass these defendants. It is contended that the suit item No.1 property was sold by defendant No.1 for the legal necessity of the family. It is contended that defendant No.1 had executed the partition deed dated 01.07.2004 wherein B-schedule properties fell to the share of the plaintiff. The plaintiff has filed a frivolous suit. Hence, on these grounds, prays to dismiss the suit.

7. Defendant No. 7 filed a written statement contending that the plaintiff, along with defendant Nos.1 to 5, offered to sell suit item No.1 property and accordingly, he purchased it for valuable consideration. He invested a huge amount for its improvement and he is the bonafide purchaser of the suit property. Hence, on these grounds, prayed to dismiss the suit insofar as suit item No.1 is concerned.

8. The Trial Court, based on the pleadings of the parties, framed the following issues:

1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of himself and defendants 1 to 5 and that they are in joint possession and enjoyment of the same.?

2. Whether the plaintiff is entitled to partition and separate possession of his 1/6th share in the suit schedule properties.?

3. Whether he further proves that the sale deed dated 4/2/2002 executed by the 1st defendant in favour of the 7th defendant is null and void and not binding on him.?

4. Whether the plaintiff proves that the 1st defendant is attempting to alienate item 3 and 4 of the suit schedule properties?

5. Whether defendants 1 to 5 prove that there was already a partition in the joint family on 1/7/2004 and the suit 'B' schedule property was give