A partition suit challenging prior alienation of joint family property fails when family members are shown to have consented to the transaction, failed to challenge it during the transferor's lifetime, and the alienation is substantiated as a measure to meet family necessities or discharge debts.

CAV JUDGMENT

(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

The Regular First Appeal and the Regular First Appeal

Cross Objection are filed challenging the judgment and

decree passed by the trial Court in dismissing the suit in

respect of the properties which have been sold in favour of

defendant No. 12 by the plaintiffs No.1 and 2 and the

defendants No.1 to 5 so also defendants No. 7 to 11 on the

file of the learned Senior Civil Judge & JMFC, Raibag in O.S.

No. 56/2011 vide judgment dated 11.02.2016.

2. The factual matrix of the case of the plaintiffs as well

as the defendants who have filed this appeal and the cross

objection is as follows:

In the plaint as well as in the written statement filed

by them they contended that the suit properties belong to

the joint family and plaintiffs claim 1/3 share in the said

properties. Plaintiffs No.1 and 2 are the husband and wife.

It is contended that sale deed was executed without their

knowledge and behind their back, without any legal

necessity. Hence sale deeds are not binding on the shares

of the plaintiffs. It is contended that deceased Sidagouda

Patil said to have executed two sale deeds dated

14.05.2003 in respect of R.S. No. 4/1 and also in respect of

4/4A totally measuring 1 acre 35 guntas and 3 acres 24

guntas respectively in favour of defendant No. 12. On the

same day, defendant No. 8 said to have executed a sale

deed in respect of R.S. No. 4/4 measuring 3 acres 24

guntas in favour of defendant No. 12 so also on the very

same day defendant No. 7 said to have executed another

sale deed in respect of R.S. No. 4/2D measuring 16 guntas

and R.S. No. 4/4B measuring 3.23 acres in favour of

defendant No. 12. It is contended that the said properties

are part and parcel of the suit property bearing R.S. No. 4.

3. It is alleged in the plaint that the defendant No. 12

has got created these sale deeds with an intention to grab

suit properties. It is also contended that defendant No. 12

is not a bonafide purchaser. There is no partition by metes

and bounds in the suit properties. The plaintiffs are also in

joint possession and enjoyment of the suit properties.

Defendant No. 12 on the basis of these sale deeds causing

disturbance to the plaintiffs with their possession. It is also

contended by the defendants that when they filed their

individual written statements, defendant No.1 contends that

the case of the plaintiff is true and he also claims 1/3rd

share so also defendants No.2 to 5 filed their written

statement admitting the plaint averments. They also claim

for 1/3 share so also defendants No. 6, 9 to 12 have also

admitted the plaint averments and prayed 1/3 share in the

suit properties. Hence it is clear that based on the pleadings

of the plaintiffs as well as other defendants except

defendant No. 12 all of them are sailing in the same boat

contending that sale deeds are created by defendant No.12.

4. The defendant No. 12 who has filed the written

statement has denied the plaint averments and contended

that he had purchased the properties by paying the sale

consideration and from the date of sale he is in possession

of the same and the said land was divided and he has

purchased portion of the properties in R.S. No. 4 from the

defendant No.1 as well as defendants No. 7 and 8 on the

same day, i.e. on 14.05.2003. Those properties are sold for

the family necessities. The said properties have been fallen

to the share of the deceased Sidagouda Patil in the family

properties. It is also contended that first plaintiff was

personally present at the time of execution of the sale

deeds by