An alienation of ancestral joint family property made by a father or other coparceners prior to the commencement of the Hindu Succession (Amendment) Act, 2005, is protected under the proviso to Section 6(4), and such property cannot be included in a subsequent partition claim by a daughter.

ORAL JUDGMENT

The plaintiff in O.S.No.1/2016 on the file of the Senior Civil Judge, Magadi (henceforth referred to as 'Trial Court') has filed this appeal challenging the judgment and decree dated 07.03.2023, by which the suit for partition was decreed in part in so far as item Nos.1, 3 to 6 and dismissed in so far as item No.2 is concerned.

2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellant was the plaintiff, while the respondents were the defendants before the Trial Court.

3. (i) The plaintiff is the daughter of defendant No.1 and Mr. Govindaiah. Defendant Nos.2 to 4 are the brothers of the plaintiff, while defendant No.5 is the beneficiary under a gift deed dated 30.03.2011 executed by her husband Mr. Doddaiah, who had purchased the suit item No.2 from the plaintiff's father and defendant Nos.3 and 4 in terms of a sale deed dated 19.12.2003. The plaintiff claimed that the suit properties are ancestral and joint family properties. She claimed that her father died on 19.05.2014 leaving behind him his wife (defendant No.1) and four children, who succeeded to the suit properties. She claimed that after the death of her father, she and the defendant Nos.1 to 4 continued to be in joint possession of the suit properties and that there was no partition of the suit properties. She claimed that she had equal share in the suit properties and that after the death of her father, defendant Nos.1 to 4 were managing the suit properties. Thereafter, she came to know that the defendant Nos.1 to 4 were mismanaging the suit properties and were misusing the suit schedule joint family income for their illegal activities. She claimed that defendant Nos.1 to 4 abused her and claimed that she has no right to question the management of the suit properties. The plaintiff therefore, demanded her share in the suit property on 01.05.2015, which was refused by the defendant Nos.1 to 4.

(ii) The plaintiff claimed that she is a spinster and residing in Bengaluru and taking advantage of her absence, defendant Nos.1 to 4 were attempting to alienate the suit properties. She alleged that she came to know that the suit item No.2 was sold to one Mr. Doddaiah by her father as well as defendant Nos.3 and 4 on 19.12.2003. Thereafter, the said Mr. Doddaiah gifted suit item No.2 to his wife (defendant No.5) in terms of a gift deed dated 30.03.2011. The plaintiff therefore, claimed that the said sale deed and gift deed do not bind her. Consequently, she sought for a partition and separate possession of her 1/4th share in the suit schedule properties and to declare that the sale deed dated 19.12.2003 executed by her father and defendant Nos.3 and 4 in favour of Mr. Doddaiah and the gift deed dated 30.03.2011 executed by Mr. Doddaiah in favour of defendant No.5, as not binding on her.

4. The suit was contested by the defendant No.5, who admitted that the suit item No.2 was conveyed to her husband Mr. Doddaiah and that he executed a gift deed dated 30.03.2011. She claimed that the plaintiff was aware of these transactions and therefore, she is not entitled to any share in suit item No.2. She also claimed that the revenue records of suit item No.2 were transferred to her name and that she had raised mango garden in the said suit property. With these and similar other contentions, she contended that the plaintiff is not entitled for a share in the suit item No.2.

5. Based on these contentions, the Trial Court framed the following issues:-

(i) Whether the plaintiff prove that she a