Smt Anjanamma N Vs N Manjunath - Citation 1233614 - Court Judgment

Judgment:

1. :- R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE19h DAY OF AUGUST, 2021 PRESENT THE HON’BLE Mrs. JUSTICE B.V. NAGARATHNA AND THE HON’BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL No.689 OF2015[PAR]. Connected with REGULAR FIRST APPEAL No.999 OF2015[PAR]. REGULAR FIRST APPEAL No.1000 OF2015[PAR]. IN R.F.A. No.689/2015: BETWEEN: SMT. ANJANAMMA .N W/O. MUNIYAPPA, AGED65YEARS, R/AT NO.690, “A” SECTOR, YALAHANKA NEW TOWN, BENGALURU – 560 064. ... APPELLANT (BY SRI B.V. MALLA REDDY, ADVOCATE) AND:

1. N. MANJUNATH S/O. LATE HANUMAIAH, AGED ABOUT56YEARS, R/AT NAGAMANGALA VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT – 562 110.

2. RAMAKKA W/O. BASAPPA, AGED ABOUT70YEARS, R/AT THARAHUNASE VILLAGE, JALA HOBLI, BANGALORE RURAL DISTRICT – 562 110.-.:

2. :- 3. PARVATHAMMA W/O. LATE HANUMAIAH, AGED ABOUT75YEARS, R/AT NAGAMANGALA VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT – 562 110.

4. JANAKAMANI W/O. V.S. ARAVINDAN AGED ABOUT43YEARS, R/AT NO.49/1, 2ND CROSS, NANJAPPA GARDEN, MANJUNATHA LAYOUT, R.T. NAGAR, BANGALORE – 560 032.

5. THE TAHSILDAR, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT – 562 110.

6. PRAMEELA W/O. N. MANJUNATH, AGED ABOUT49YEARS, R/AT NAGAMANGALA VILLAGE, HEGGANAHALLI POST, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT – 562 110.

7. N.M. ARUN S/O. N. MANJUNATH, AGED ABOUT29YEARS, R/AT NAGAMANGALA VILLAGE, HEGGANAHALLI POST, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT – 562 110.

8. M/S. NAM ESTATES PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT1956 HAVING ITS REGISTERED OFFICE AT1T FLOOR, EMBASSY POINT, NO.150, INFANTRY ROAD, BANGALORE. REPTD. BY ITS AUTHORIZED SIGNATORY MR. B.S. NARAYANAN S/O. LATE T. SUNDARARAJAN.-.:

3. :- (APPEAL MEMO AMENDED AS PER THE

ORDER

DATED2905/2017). ... RESPONDENTS (BY SMT SUMAN HEGDE, ADVOCATE FOR R-1, R-3, R-6 AND R-7; SRI SHIVANANDA METI, ADVOCATE FOR R-2; SRI K.G. RAGHAVAN, SENIOR COUNSEL FOR SRI CHANDRASHEKAR PATIL, ADVOCATE FOR R-4 AND R-8; SMT. SHOBHA PATIL AND MONICA PATIL, ADVOCATES FOR IMPLEADING R-9 TO R-12; NOTICE TO R-5 IS DISPENSED WITH) THIS RFA IS FILED UNDER SECTION96OF CPC., AGAINST THE

JUDGMENT

AND DECREE DATED1911.2014 PASSED IN O.S.NO.1575/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE & J.M.F.C., AT DEVANAHALLI, PARTLY DECREEING THE SUIT FOR PARTITION AND MESNE PROFIT. IN R.F.A. No.999/2015: BETWEEN: SRI N. MANJUNATH S/O. LATE HANUMAIAH, AGED ABOUT52YEARS, R/AT NAGAMANGALA VILLAGE, KUNDANA HOBLI, DAVANAHALLI TALUK, BANGALORE RURAL DISTRICT. ... APPELLANT (BY SMT. SUMAN HEGDE, ADVOCATE) AND:

1. SMT. ANJANAMMA .N W/O. MUNIYAPPA AGED ABOUT62YEARS, RESIDING AT NO.690, “A” SECTOR, YALAHANKA NEW TOWN, BANGALORE.

2. SMT. RAMAKKA W/O. BASAPPA, AGED ABOUT66YEARS, R/AT THARAHUNASE VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK.-.:

4. :- 3. SMT. PARVATHAMMA W/O. LATE HANUMAIAH, AGED ABOUT71YEARS, RESIDING AT NAGAMANGALA VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT.

4. SMT. JANAKAMANI W/O. V.S. ARAVINDAN, AGED ABOUT39YEARS, RESIDING AT NO.49/1, 2ND CROSS, NANJAPPA GARDEN, MANJUNATHA LAYOUT, R.T. NAGAR, BANGALORE – 560 032.

5. THE TAHSILDAR, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT.

6. SMT. PRAMEELA W/O. N. MANJUNATH, AGED ABOUT45YEARS, RESIDING AT NAGAMANGALA VILLAGE, HEGGANAHALLI POST, KUNDANA HOBLI, DEVANAHALLI TALUK.

7. SRI N.M. ARUN S/O. N. MANJUNATH, AGED ABOUT25YEARS, RESIDING AT NAGAMANGALA VILLAGE, HEGGANAHALLI POST, KUNDANA HOBLI, DEVANAHALLI TALUK. ... RESPONDENTS (BY SRI B.V. MALLA REDDY, ADVOCATE FOR R-1; SRI SHIVANANDA METI, ADVOCATE FOR R-2; R-3 – PARVATHAMMA SERVED, BUT UNREPRESENTED; SRI CHANDRASHEKAR PATIL, ADVOCATE FOR GPA HOLDER OF R-4; SMT. VANI H., ADDL. GOVERNMENT ADVOCATE FOR R-5; R-6 – SERVED, BUT UNREPRESENTED; NOTICE TO R-7 IS DISPENSED WITH) THIS RFA IS FILED UNDER

ORDER

XLI RULE1 READ WITH SECTION96OF CPC., AGAINST THE

JUDGMENT

AND DECREE DATED1911.2014 PASSED IN O.S.NO.1575/2006 ON -:

5. :- THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI, PARTLY DECREEING THE SUIT FOR PARTITION. IN R.F.A. No.1000/2015: BETWEEN:

1. SMT. PRAMEELA W/O. N. MANJUNATH, AGED ABOUT45YEARS, RESIDING AT NAGAMANGALA VILLAGE, HEGGANAHALLI POST, KUNDANA HOBLI, DAVANAHALLI TALUK, BANGALORE RURAL DISTRICT.

2. SRI. N.M. ARUN S/O. N. MANJUNATH, AGED ABOUT25YEARS, R/AT NAGAMANGALA VILLAGE, HEGGANAHALLI POST, KUNDANA HOBLI, DAVANAHALLI TALUK, BANGALORE RURAL DISTRICT. ... APPELLANTS (BY SMT. SUMAN HEGDE, ADVOCATE) AND:

1. SMT. ANJANAMMA .N W/O. MUNIYAPPA, AGED ABOUT62YEARS, RESIDING AT NO.690, “A” SECTOR, YALAHANKA NEW TOWN, BANGALORE – 560 512.

2. SRI. N. MANJUNATH S/O. LATE HANUMAIAH, AGED ABOUT52YEARS, RESIDING AT NAGAMANGALA VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT – 570 021.

3. SMT. RAMAKKA W/O. BASAPPA, AGED ABOUT66YEARS, -:

6. :- RESIDING AT THARAHUNASE VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK – 570 022.

4. SMT. PARVATHAMMA W/O. LATE HANUMAIAH, AGED ABOUT71YEARS, RESIDING AT NAGAMANGALA VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT – 570 021.

5. SMT. JANAKAMANI W/O. V.S. ARAVINDAN, AGED ABOUT39YEARS, RESIDING AT NO.49/1, 2ND CROSS, NANJAPPA GARDEN, MANJUNATHA LAYOUT, R.T. NAGAR, BANGALORE – 560 032.

6. THE TAHSILDAR, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT – 570 021. ... RESPONDENTS (BY SRI. SHIVANANDA METI, ADVOCATE FOR R-3; SRI. B.V. MALLA REDDY, ADVOCATE FOR R-1; R-2 – N. MANJUNATH SERVED, BUT UNREPRESENTED; SRI. CHANDRASHEKAR PATIL, ADVOCATE FOR GENERAL POWER OF ATTORNEY HOLDER OF R-5; SMT. VANI H., ADDL. GOVERNMENT ADVOCATE FOR R-6) THIS RFA IS FILED UNDER

ORDER

XLI RULE1 READ WITH SECTION96OF CPC., AGAINST THE

JUDGMENT

AND DECREE DATED1911.2014 PASSED IN O.S.NO.1575/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI, PARTLY DECREEING THE SUIT FOR PARTITION. THESE APPEALS BEING HEARD AND RESERVED ON2307/2021 AND COMING ON FOR PRONOUNCEMENT OF

JUDGMENT

THIS DAY, NAGARATHNA J., PRONOUNCED THE FOLLOWING: -:

7. :-

JUDGMENT

These appeals arise out of the judgment and decree passed in Original Suit No.1575 of 2006 by the Senior Civil Judge and JMFC, Devanahalli, dated 19.11.2014. The said suit was filed by the plaintiff for partition and separate possession as well as for mesne profits.

2. Being aggrieved by the judgment and decree passed in the suit R.F.A.No.689 of 2015 has been filed by the plaintiff—Anjanamma N., while R.F.A.No.999 of 2015 has been is filed by defendant No.1—N.Manjunath and R.F.A.No.1000 of 2015 has been filed by Smt.Prameela and N.M.Arun—defendant Nos.6 and 7 in the suit.

3. For the sake of convenience, the parties shall be referred to in terms of their status before the trial court and where additional respondents have been added before this Court by their status in these appeals.

4. The plaintiff filed the suit seeking partition and separate possession as well as for mesne profits in respect of the suit schedule properties, being twenty-three items (23 items) of immovable properties described in detail in the schedule appended to the plaint, seeking 5/16th share -:

8. :- in the said properties; for declaring that the sale deed dated 28.09.2005 executed by defendant No.1, his wife and children in favour of defendant No.4 in respect of suit schedule Item No.12 as null and void and not binding on the share of the plaintiff and for mesne profits.

5. According to the plaintiff-Anjanamma N., she and defendant Nos.1 and 2 are the children of late Hanumaiah and his second wife Narayanamma. Defendant No.3 is the third wife of late Hanumaiah.

6. For an easy understanding of the relationship between the parties, the genealogical tree as provided in paragraph No.2 of the plaint is depicted as under with the relevant details: MUNISHAMANNA (Died in 1935) Wife - Sonnamma (Died) Annayappa (Son) Hanumaiah (Son) (Died on 22.08.1983) (Died on 09.04.1988) Wife Kempamma (predeceased her husband) No Issues Ramakka Narayanamma Parvathamma 1st wife (Died) 2nd wife (Died) 3rd wife – D3 No Issues No Issues Ramakka Anjanamma N.Manjunath (Defendant No.2) (Plaintiff) (Defendant No.1) -:

9. :- (a) As per the genealogical tree, it is noted that the plaintiff and defendant Nos.1 and 2 are the children of Hanumaiah through his second wife Narayanamma (since deceased) and his two other wives had no issues. According to the plaintiff, the suit schedule properties are joint family properties of the Hindu Undivided Family (HUF) comprising of the paternal grand-father of the plaintiff- Munishamanna and his wife-Sonnamma, who died intestate leaving behind his wife and sons-Annayappa and Hanumaiah who have also died. (b) Annayappa and his wife-Kempamma also died intestate without any issues. Hanumaiah was the only surviving son of Munishamanna, and the plaintiff and defendant Nos.1 and 2 succeeded to the estate of the deceased Hanumaiah. It is averred that Hanumaiah’s first wife-Ramakka had died without any issues and Parvathamma—the third wife (defendant No.3) also has no issues. That the mother of plaintiff and defendant Nos.1 and 2, Narayanamma—the second wife of Hanumaiah, has also died.-.:

10. :- (c) Hanumaiah died on 09.04.1988 opening the succession under the provisions of the Hindu Succession Act, 1956 (hereinafter referred to as ‘the Act’ for brevity) as the parties are governed by Mitakshara law. According to the plaintiff, on the death of Hanumaiah, the plaintiff, defendant Nos.1 and 2 succeeded to the estate, namely the coparcenary properties along with the deceased Hanumaiah in equal share i.e., 1/4th each. Out of 1/4th share of Hanumaiah, the children of Hanumaiah as well as his widow—defendant No.3/Parvathamma were entitled to equal shares. Consequently, the share of each of the plaintiff, defendant Nos.1 and 2 is 5/16th share and the share of the widow of Hanumaiah-defendant No.3, namely Parvathamma, is 1/16th share. (d) According to the plaintiff, defendant No.1 was in the management of the schedule properties, belonging to the joint family of the plaintiff and defendant Nos.1 to 3. Defendant No.1 always assured the plaintiff and defendant Nos.2 and 3 that he would share the income generated out of the schedule properties and also share the schedule properties. However, the plaintiff came to know that on 28.09.2005, defendant No.1 along with his wife and -:

11. :- children had executed a sale deed in favour of defendant No.4 in respect of Item No.12 of the plaint schedule being Sy.No.46/1A admeasuring 12 acres 11 guntas situated at Nagamangala Village, Kundana Hobli, Devanahalli Taluk, Bengaluru District for a valuable consideration of Rs.2,45,50,000/-. The said sale transaction is not binding on the plaintiff, and defendant No.4 has not derived any exclusive right, title or interest in respect of the said property. According to the plaintiff, the sale transaction is for a higher amount i.e., Rs.6,50,00,000/-, but for the purpose of evading payment of stamp duty and registration fees, it has been shown as Rs.2,45,50,000/-. (e) That the land bearing Sy.No.59/7, measuring 22 guntas, which is Item No.20 in the schedule, is also ancestral and joint family property. According to the plaintiff, on the very day of execution of sale deed in respect of suit schedule Item No.12 property, defendant No.1 purchased the property bearing Sy.No.10 measuring 11 acres 24 guntas, at Maralenahalli Village, Hanabe Mandal Panchayat, Kasaba Hobli, Doddaballapur Taluk, Bengaluru Rural District, which is more fully described in Item No.20 of the schedule, under sale deed dated -:

12. :- 28.09.2005, in the name of 1st defendant’s wife— Smt.Prameela (Ex.P-24). That Smt.Prameela does not have independent income, profession/avocation nor does she have any funds of her own. It is only by investing the joint family funds derived out of the sale joint family properties i.e., suit schedule Item No.12 property, that suit schedule Item No.21 was purchased by defendant No.1 in the name of his wife Smt.Prameela by investing Rs.11,60,000/-. (f) It is further averred that defendant No.1 had purchased property bearing Sy.No.13 measuring 12 acres 34 guntas (suit schedule Item No.22) and property bearing Sy.No.14 measuring 6 acres (suit schedule Item No.23). Both the properties are situated at Maralenahalli Village, Hanabe Mandal Panchayat, Kasaba Hobli, Doddaballapur Taluk, Bengaluru Rural District, more fully described as Item Nos.22 and 23 respectively in the schedule, under sale deed dated 05.09.2005 in the name of 1st defendant’s elder son—N.M.Arun and the sale deed was registered on 26.10.2005 (Ex.P-70). N.M.Arun is a college going student who has no independent income or profession/avocation or individual funds of his own. That, defendant No.1 has -:

13. :- invested the joint family funds derived from the joint family properties, i.e., suit schedule Item Nos.1 to 20 properties and purchased the suit schedule Item Nos.22 and 23 properties in the name of his elder son—N.M.Arun by investing Rs.18,85,000/- for both properties. The plaintiff has stated that she has a share in all the suit schedule Items. Therefore, the plaintiff has a share in suit schedule Item Nos.22 and 23 also. (g) According to the plaintiff, defendant No.1 had no intention to share the income generated out of the suit schedule properties or to give any share to the plaintiff in the suit schedule properties. The plaintiff coming to know about the misdeeds of defendant No.1, demanded partition and separate possession, but the defendants have colluded with each other in order to deprive the plaintiff a legitimate share in the suit schedule properties. Ultimately, on 08.11.2005, defendant No.1 along with other defendants challenged the plaintiff to approach the Court for redressal of her grievance. Having no other alternative, the plaintiff approached the trial court for seeking relief, as defendants were not ready to effect partition and give the share to her in the schedule properties.-.:

14. :- (h) According to the plaintiff, the cause of action for filing the suit arose on 28.09.2005 and on 08.11.2005, when the plaintiff came to know that the defendants are negotiating sale of the suit schedule properties with an intention to deprive the plaintiff of her legitimate share in the sale. Hence, the suit.

7. In response to the suit summons and Court notices, all the defendants except defendant No.2 appeared through their counsel. Defendant No.1 filed written statement and additional written statement; defendant No.3 adopted the written statement and additional written statement of defendant No.1. Defendant No.4 through her GPA holder V.S.Aravindan—her husband, filed written statement and additional written statement; defendant Nos.6 and 7 filed separate written statements. Defendant No.2 was placed ex parté. Defendant No.5 did not file any written statement.

8. During the pendency of the suit, the plaintiff amended the plaint and paragraph Nos.7A to D were added to the plaint.-.:

15. :- 9. Defendant No.1 filed his written statement denying the allegations made in the plaint and the contention that the plaintiff is entitled to partition and separate possession of 5/16th share in the suit schedule properties along with mesne profits. (a) It was contended that the suit was not properly valued and the plaintiff had not paid proper and correct court fees, in terms of Section 35(2) of the Karnataka Court-Fees and Suits Valuation Act, 1958. That the suit was bad for misjoinder of parties and non-joinder of necessary parties. That the Tahasildar, Devanahalli Taluk was an unnecessary party. (b) It was further averred that the suit schedule properties are not joint family properties. The properties were jointly vested with Annayappa and Hanumaiah. Annayappa died and his wife Kempamma had predeceased him. Hanumaiah—brother of Annayappa—had succeeded to the suit properties. (c) Hanumaiah and defendant No.1 were coparceners of Hindu Joint Family. Hanumaiah died in the year 1988. After the demise of Hanumaiah, defendant -:

16. :- No.1 inherited the suit properties exclusively, as he was the sole surviving coparcener of the family. That defendant No.1 thereby became the absolute owner of the suit schedule properties. (d) That defendant No.2—Ramakka and plaintiff are the elder sisters of defendant No.1. Defendant No.2 got married in the year 1954 and she is well-settled in her matrimonial home. Anjanamma—the plaintiff was married in the year 1967 and she is also well-settled. The suit schedule properties are exclusively in possession of defendant No.1 ever since the date of marriage of his elder sisters. The plaintiff does not have any possession over the suit schedule properties. That, from the day of her marriage, the plaintiff lost her rights over the suit schedule properties and she is not entitled to any share therein. That plaintiff’s marriage was celebrated by gifting gold ornaments. After the marriage of Ramakka and Anjanamma—elder sisters of defendant No.1, they were given financial assistance by defendant No.1 for the purpose of purchasing sites at Yalahanka, Hebbala, Madivala and HBR Layout. Plaintiff is getting rents worth over Rs.1,00,000/- per month. Plaintiff’s husband is well -:

17. :- settled in life. On fictitious grounds, the plaintiff has approached the Court seeking partition and separate possession, which has caused hardship and injustice to defendant No.1. (e) That defendant No.1 sold suit schedule Item No.12 for legal necessity of himself and his family. That there were loans discharged by defendant No.1 to various banks and loans borrowed from close friends and relatives. It was admitted that defendant No.1 had sold suit schedule Item No.12 property for a sum of Rs.2,45,50,000/-. Hence, defendant No.1 sought for dismissal of the suit with cost.

10. In his additional written statement, it was denied that on the death of Hanumaiah, the plaintiff, defendant Nos.1 and 2 were coparceners, and succeeded to his estate to an extent of 1/4th share each, which was the share sought by the plaintiff.

11. Defendant No.6 filed her independent written statement. She is the wife of defendant No.1. While denying the allegations made in the plaint, she reiterated the pleadings and averments of defendant No.1 made in -:

18. :- his written statement. However, she stated that she is a bona fide purchaser of suit schedule Item No.21 property. She has purchased the said suit schedule Item out of her own money and out of the financial assistance from her parents. That the plaintiff is not entitled to any share in the suit schedule Item No.21, which exclusively belongs to defendant No.6. The suit is hence devoid of any merit and she sought for dismissal of the suit.

12. Defendant No.7 is the son of defendant Nos.1 and 6. His written statement is also on the same lines as that of defendant No.1. However, he also reiterated that defendant No.6 purchased the suit schedule Item Nos.23- 23 out of his own funds and out of the financial assistance from his parents. Hence, the plaintiff had no right to any share in the said property.

13. Defendant No.4 represented by her General Power of Attorney holder (being her husband) filed separate written statement. Defendant No.4 in his written statement stated that the suit filed by the plaintiff is not maintainable in law and therefore, is liable to be dismissed. That the plaintiff had not approached the Court -:

19. :- with clean hands as she had suppressed material facts. That the plaintiff had no right to maintain the suit.

14. Defendant No.4 stated that Annayappa—the son of Munishamanna was the absolute owner of land bearing Sy.No.46/1A measuring 12 acres 11 guntas (Item No.12 of the suit schedule property) situated at Nagamangala Village, Kundana Hobli, Devanahalli Taluk. Annayappa and his wife Smt.Kempamma died leaving behind his brother Hanumaiah as the sole legal heir. Hanumaiah had two wives, namely Narayanamma and Parvathamma (defendant No.3). Hanumaiah and his wife Narayanamma are no more. That defendant No.1 and his family members, as per the genealogical tree furnished by him, have succeeded to the land bearing Sy.No.46/1A. That the revenue records pertaining to the land bearing Sy.No.46/1A (suit schedule Item No.12), have been transferred in the name of defendant No.1 by way of inheritance as per IHR No.34/88-89 (Ex.P-2). That defendant No.1 and his family members and also defendant No.3 being the second wife of Hanumaiah, on account of legal necessities, have jointly sold suit schedule Item No.12 land in favour of defendant No.4 under a -:

20. :- registered sale deed dated 28.09.2005 for a valuable consideration. That subsequently, defendant No.4 approached the revenue authorities to change the Khata in her name. After inquiry and on following the procedure as contemplated in law, the mutation entries in the name of defendant No.4 as per M.R. No.14/2005-06 (Ex.P-65) were changed and defendant No.4 has been paying the taxes, etc. in respect of the said land.

15. That defendant No.4 is only concerned with Item No.12 of the suit schedule properties and not concerned about any other properties. She is a bona fide purchaser of the land bearing Sy.No.46/1A measuring 12 acre 11 guntas (suit schedule Item No.12) under a registered sale deed and she is in possession of the same and has raised huge loan towards the purchase and development of the same. That the plaintiff in collusion with defendant Nos.1 to 3, in order to harass defendant No.4 has filed the suit seeking imaginary reliefs. Defendant No.4 has denied that the properties are joint family properties of Hindu Undivided Family of the paternal grand-father of the plaintiff—Munishamanna. All other -:

21. :- allegations made in the plaint are denied by defendant No.4. It was prayed for dismissal of the suit.

16. In the additional written statement filed by defendant No.4, it was averred that the plaintiff is not in possession of Item No.12 of the suit schedule properties or any portion thereof and defendant No.4 has developed the said land by investing huge amounts and knowing fully well of the same, in order to harass defendant No.4, who was the bona fide purchaser in respect of the land, filed the suit against defendants for imaginary relief. That the suit ought to have been valued under Section 35(2) of the Karnataka Court-Fees and Suits Valuation Act, 1958 and therefore, defendant No.4 represented by his General Power of Attorney holder, sought for rejection of the plaint.

17. On the basis of the aforesaid pleadings, the trial court framed as many as nine issues and two additional issues as under: “I S S U E S1 Whether the plaintiff proves that, both the plaintiff and defendants are the Hindu Joint Family Members and suit -:

22. :- schedule properties are the joint family properties?.

2) Whether the plaintiff proves that, she is entitled to 1/8th share in the suit schedule properties?.

3) Whether the plaintiff proves that, an enquiry is necessary in respect of income of the suit schedule properties as per Order XX Rule 12 of C.P.C.?.

4) Whether the first defendant proves that, he inherited the suit schedule properties exclusively as he is the sole surviving coparcener of the family?.

5) Whether the defendant No.1 proves that, he has sold suit schedule Item No.12 to the defendant No.4 for legal necessity of himself and his family?.

6) Whether the defendant No.1 proves that, the suit is bad for mis-joinder of unnecessary party and non-joinder of necessary party?.

7) Whether the defendant No.1 proves that, suit is not properly valued and court fee paid is insufficient?. -:

23. :-

8) Whether the plaintiff proves that, she is entitled to the relief as sought for?.

9) What order or decree?. ADDITIONAL ISSUES1 Whether the plaintiff proves that, she is entitled for 5/16th share in the suit schedule properties ?.

2) Whether, the defendants No.6 and 7 prove that, the mother of defendant No.7 is the bona fide purchaser of suit schedule Item No.21?.

18. The plaintiff let-in her evidence as PW-1. She produced 74 documents, which were marked as Exs.P-1 to 74. Defendant No.1 let in his evidence as DW-1. Anjanappa let-in his evidence as DW-2; Hanumantharayappa let-in his evidence as DW-3 and defendant No.4 let-in his evidence as DW-4 through her General Power of Attorney holder. Exs.D-1 to 73 were marked on behalf of the defendants.

19. On the basis of evidence on record, the trial court answered issue Nos.1 to 3 and 6 to 8 and additional issue No.1 partly in the affirmative; Issue No.4 and -:

24. :- additional issue No.2 in the negative; and issue No.5 was answered in the affirmative.

20. The plaintiff had filed a memo dated 27.01.2014 stating that in respect of the suit schedule Item No.13, she did not assail the alienations made to two persons in respect of portions of the said suit land. But, the memo was understood by the trial court as plaintiff had not claimed any right or share.

21. The trial court decreed the suit in part. The operative portion reads as under: “

ORDER

The plaintiff suit is decreed in part with costs. It is declared that the plaintiff, defendant No.2 and 3 are entitled to 1/8th share each in suit schedule Item Nos.1 to 11 and 14 to 23 properties by metes and bounds with reference to good and bad soil. It is declared that the defendant No.1 is entitled to 5/8th share in the suit schedule Item No.1 to 11 and 14 to 23 properties by metes and bounds with reference to good and bad soil. The suit in respect of suit schedule Item No.12 and 13 properties is dismissed. The suit against the defendant No.4 to 7 is dismissed.-.:

25. :- There shall be separate enquiry with regard to income of the suit schedule properties in the final decree as per Order 20 Rule 18 C.P.C. Costs of the suit shall be entitled out of income from the suit schedule properties. Draw up preliminary decree accordingly.

22. The trial court held as follows:- (i) The plaintiff did not get the benefit of Section 6 of the Act as amended in the year 2005 as Hanumaiah died in the year 1988. (ii) That the suit schedule Item No.12 sold by defendant No.1 was for family and legal necessity and he had acquired the suit schedule Item Nos.21 to 23 properties. Therefore, the sale deed executed by defendant No.1 was binding on the plaintiff also. (iii) Defendant No.4 has become the owner and was in possession of suit schedule Item No.12 property. (iv) That the suit schedule Item Nos.12 and 13 were not in possession of the plaintiff and it belonged to defendant No.4.-.:

26. :- (v) Insofar as suit schedule Item No.12 was concerned, the trial court also held that defendant No.1 had failed to prove that he had inherited the suit schedule properties exclusively as sole surviving coparcener on the death of Hanumaiah. On the other hand, he was a coparcener along with the plaintiff, defendant Nos.2 and 3. (vi) That the plaintiff was in joint possession and enjoyment of the suit properties, except suit schedule Item No.12 and the court fees paid was just and proper.

23. Being aggrieved by the said judgment and decree, the plaintiff, defendant No.1, defendant Nos.6 and 7 have filed their respective appeals.

24. We have heard learned counsel, Sri.B.V.Malla Reddy, for the appellant (plaintiff) in R.F.A.No.689/2015; learned counsel Smt.Suman Hegde, for respondent No.1, 3, 6 and 7 (defendant Nos.1, 3, 6 and 7); Sri.Shivananda Meti, learned counsel for respondent No.2 (defendant No.2); Sri.K.G.Raghavan, learned senior counsel for Sri.Chandrashekara Patil, learned counsel for GPA holder of respondent No.4 (defendant No.4) and respondent -:

27. :- No.8; notice to respondent No.5/Tahasildar, Devanahalli Taluk is dispensed with in R.F.A.No.689/2015; Smt.Shobha Patil and Smt.Monica Patil, learned counsel for impleading respondent Nos.9 to 12; and Smt.Vani H., learned Additional Government Advocate for respondent No.5/Tahasildar, Devanahalli Taluk in R.F.A.No.999/2015 and respondent No.6 in R.F.A.No.1000/2015; 25. We have perused the material on record as well as the original record. SUBMISSIONS:

26. The submissions of the learned counsel for the appellant/plaintiff are as under: (a) Learned counsel for the appellant/plaintiff submitted that the plaintiff is aggrieved by the allotment of shares made by the trial court inasmuch as the plaintiff is entitled to 5/16th share in the suit schedule properties, but the trial court has allotted only 1/8th share in only suit schedule Item Nos.1 to 11 and 14 to 23 landed properties and defendant No.1 has been allotted 5/8th share in the aforesaid suit schedule Items. Further, the suit was -:

28. :- erroneously dismissed in respect of suit schedule Item Nos.12 and 13 as also against defendant Nos.4 to 7. (b) It was urged that the suit schedule properties are joint family properties and the relationship between the parties is not in dispute. Munishamanna died intestate in the year 1935 and thereafter, his wife—Sonnamma also passed away leaving behind two sons, namely Annayappa and Hanumaiah. Annayappa predeceased Hanumaiah on 22.08.1983 and Annayappa’s wife—Kempamma had predeceased her husband. They did not have any issues. The other son of Munishamanna—Hanumaiah, died on 09.04.1988. He had three wives, viz., Ramakka, Narayanamma and Parvathamma. Ramakka died without any issues. Narayanamma—the second wife also died leaving behind three children, namely Ramakka (defendant No.2), Anjanamma (Plaintiff) and N.Manjunatha (defendant No.1). Their step-mother—Parvathamma, the third wife of Hanumaiah (defendant No.3), also has no children. When Annayappa died leaving no heirs, his share in the suit schedule properties was succeeded to by his only brother—Hanumaiah (father of the appellant/plaintiff) on the principle of survivorship as there were no female -:

29. :- heirs in Class-I of the schedule to the Act. When Hanumaiah died on 09.04.1988, he died intestate leaving behind his third wife and three children through his deceased second wife, which included female heirs in Class-I of the Schedule to the Act. The family continued to remain joint even after the death of Hanumaiah inasmuch as, there was no partition of the joint family properties. That the plaintiff sought for partition of the joint family properties from defendant No.1/her brother and when the same was refused, she filed the suit. The catalyst for filing of the suit was the alienation of suit schedule Item No.12 of the suit properties to defendant No.4 and immediately on coming to know of the said fact, she filed the suit. (c) It was contended that on the death of Hanumaiah, since there was no partition of the joint family properties the family continued to remain joint. In view of the amendment made to Section 6 of the Hindu Succession Act, 1956, (for short ‘the Act) and on the basis of the latest judgment of the Hon’ble Supreme Court in Vineeta Sharma vs. Rakesh Sharma, [AIR2020SC3717 (Vineeta Sharma), the daughters are entitled to a share -:

30. :- equal to that of the son of Hanumaiah i.e., N.Manjunatha (defendant No.1). Therefore, on the application of the principle of notional partition, Hanumaiah, his two daughters and son each get 1/4th share in the suit schedule properties. Since, Hanumaiah died intestate, his 1/4th share in the suit schedule properties would be succeeded to by his widow and his children equally as per Section 8 of the Act. Therefore, that would be divided into 1/16th share. Consequently, the share of the plaintiff would be 1/4th + 1/16th share= 5/16th share. But, the trial court has awarded only 1/8th share in suit schedule Item Nos.1 to 11 and 14 to 23 properties and has dismissed the suit in respect of suit schedule Item Nos.12 and 13, which is incorrect. Learned counsel for the appellant/plaintiff, therefore, submitted that the share in the suit schedule properties may be modified to 5/16th share insofar as the appellant/plaintiff is concerned. (d) Learned counsel for the appellant/plaintiff next contended that insofar as suit schedule Item No.13 is concerned, the same measures 01 acre 02 guntas of land and only 03 guntas of land has been sold by defendant No.1 to various persons and 39 guntas of land continues to -:

31. :- remain with the joint family. A Memo was filed on behalf of the appellant/plaintiff giving up her rights over 03 guntas of land which has been alienated. The trial court has misconstrued the said memo and has held that the plaintiff had given up her share in the entire extent of 39 guntas of remaining land in suit schedule Item No.13. Therefore, that portion of the judgment of the trial court calls for modification. (e) Insofar as suit schedule Item No.12 is concerned, the same comprises of land measuring 12 acres 11 guntas which was sold by defendant No.1 to defendant No.4 vide Ex.P-24 on 28.09.2005 for a valuable consideration of Rs.2,45,50,000/-. Out of the sale consideration received by defendant No.1, suit Item Nos.21 to 23 were purchased. That the said sale of suit schedule Item No.12 property was neither for legal necessity nor for benefit of the estate. The plaintiff has been deprived of her share in suit schedule Item No.12. The said sale is not binding on the plaintiff. Out of the sale consideration, suit Item Nos.21 to 23 were purchased in the name of the wife and son of defendant No.1. According to learned counsel for the appellant/plaintiff, the -:

32. :- contention of the defendants that the said sale was made for discharging certain bank loans is not well-founded as the said loans were discharged vide Exs.D-49 to 54 even prior to the sale which was in the year 2005. Therefore, the sale was not for discharging any loan and neither was it for legal necessity. Further, Item No.21 was purchased on 28.09.2005 i.e., on the very same day as the sale of suit schedule Item No.12 for a sale consideration of Rs.11,60,000/- as per Ex.P-66 and Item Nos.22 and 23 were purchased on 05.09.2005 as per Ex.P-70 for a total consideration of Rs.18,85,000/-. (f) It was contended that the said sale not being for legal necessity or for the benefit of the estate, is not binding on the plaintiff. Hence, the plaintiff is also entitled to a share in that property. It was further contended that there is no evidence let-in with regard to the discharge of loans after alienating suit schedule Item No.12 property. (g) It was argued that defendant No.4 had purchased the said property from defendant No.1. Defendant No.4 did not step into the witness box, but evidence was let-in on her behalf by her power of attorney -:

33. :- holder, who is her husband. Defendant No.4 has not discharged her burden with regard to the validity of the purchase of suit schedule Item No.12 by her. That any alienation made prior to 20.12.2004 is not hit by Section 6 of the Act, but in the instant case, Ex.P-24 was executed on 28.09.2005 and hence, not binding on the plaintiff. (h) It was contended that when the father of the plaintiff died on 09.04.1988, succession opened and the share of the plaintiff was tentatively crystalised, and as per the latest dictum of the Hon’ble Supreme Court in Vineeta Sharma, the share can always change on account of births and deaths in the joint family or due to the change in law as in the instant case. In this regard, learned counsel for the appellant/plaintiff drew our attention to paragraph Nos.55, 56 and 60 of the judgment in Vineeta Sharma. (i) Learned counsel for the appellant/plaintiff also placed reliance on the judgment in Ganduri Koteshwaramma and another vs. Chakiri Yanadi, [(2011) 9 SCC788, (G.Koteshwaramma) to contend that there can always be a modification of the trial court decree prior upto the drawing up of final decree. That, -:

34. :- severance in the status is complete only when the properties are divided by metes and bounds. Till then the parties remain as tenants-in-common. Hence, the judgment and decree of the trial court calls for modification in this appeal. (j) It was further submitted that the impugned judgment and decree was passed on 19.11.2014. But, during the pendency of the suit, suit schedule Item No.12 was converted from agricultural to non-agricultural land on 23.08.2012. Immediately, after the judgment and decree of the trial court i.e., on 20.12.2014, defendant No.4 (respondent No.4 in R.F.A.No.689/2015) sold suit schedule Item No.12 to respondent No.8. The same is hit by doctrine of lis pendens as per Section 52 of the Transfer of Property Act, 1882. Later, respondent No.8 formed a layout and has sold the sites to various persons. That as per the interim order granted by this Court, an extent of 36,300 square feet of land comprising of sites has been directed to be reserved. However, respondent No.8 has not reserved sites in suit schedule Item No.12. But, now they may reserve it in suit schedule Item No.12 to an extent of 55,601 square feet.-.:

35. :- (k) Placing reliance on various judgments of the Hon’ble Supreme Court and this Court, which shall be adverted to later, learned counsel for the appellant/plaintiff sought for modification of the judgment and decree by allowing the appeal.

27. As submitted by learned counsel Sri.Shivanand Meti, respondent No.2, who was defendant No.2 in the suit and sister of the plaintiff, has adopted the arguments of the appellant/plaintiff.

28. The submissions of learned counsel for respondent Nos.1, 3, 6, 7 and 8 are as follows:- (a) Smt.Suman Hegde, learned counsel appearing for respondent Nos.1, 3, 6 & 7 in plaintiff’s appeal and also appellants in the connected appeals, at the outset, submitted that there is no dispute with regard to the relationship between the parties. She further submitted that defendant No.2 and plaintiff were married in the year 1954 and 1967 respectively. They have been well- endowed in life inasmuch as all assistance had been rendered to them even after their marriage and they are -:

36. :- well off, receiving rents from their properties. The daughters, namely the plaintiff and defendant No.2, were given funds earned from the joint family properties for the purpose of purchasing sites and other landed properties and therefore, it was not right on the part of the plaintiff as well as defendant No.2 to seek partition and separate possession of the joint family properties of their father. (b) It was next contended that the suit filed by the appellant/plaintiff is hit by the law of limitation. That the father of the plaintiff/Hanumaiah and defendant Nos.1 and 2 died on 09.04.1988 but the suit was filed only in the year 2005. The properties are, no doubt, joint family properties of Munishamanna and his sons Annayappa and Hanumaiah. But, the suit is hit by limitation as per Section 3 read with Articles 110 and 113 of the Schedule to the Limitation Act, 1963 (‘Limitation Act’ for brevity). In this regard, it was contended that the appellant/plaintiff was excluded from the schedule properties by defendant No.1. That, as a result of the exclusion, there has been an ouster of the plaintiff from the suit schedule properties. The limitation period for filing the said suit was twelve years. But, the suit has been filed only in the year 2005. Hence, -:

37. :- the suit may be dismissed on the ground of limitation and the appeals filed by defendant No.1 and, his wife and son, namely R.F.A.No.999/2015 and R.F.A.No.1000/2015 may be allowed. In support of her submissions, learned counsel, placed reliance on certain judgments which shall be referred to later. In substance, it was contended that the suit filed by the appellant/plaintiff was time barred. Hence, the judgment and decree of the trial court may be set aside. (c) Sri.K.G.Raghavan, learned senior counsel appearing for respondent No.8—the purchaser of suit schedule Item No.12 property from defendant No.4, submitted that the said item was purchased on 20.12.2014 subsequent to the judgment and decree passed by the trial court on 19.11.2014. The appeal was filed by the plaintiff before this Court only thereafter i.e., on 30.04.2015. That on the day when suit schedule Item No.12 was purchased by respondent No.8, there was no suit pending. Hence, Section 52 of the Transfer of Property Act, 1882 and the doctrine of lis pendens do not apply in the instant case. Learned senior counsel submitted that suit schedule Item No.12/agricultural property was converted into sites and -:

38. :- sold. Thus, there can be no order passed as against respondent No.8 who had purchased suit schedule Item No.12 from respondent No.4 in the suit. (d) It was also contended that in the instant case, the period of limitation commenced from 09.04.1988, when Hanumaiah—the father of the plaintiff died, but the suit was filed in the year 2005. That the suit was time barred having regard to Article 110 of the Schedule to the Limitation Act as the plaintiff has been excluded from suit schedule Item No.12 property. It was also submitted that the suit was filed on 14.11.2005, subsequent to respondent No.4 (defendant No.4) purchasing the property from respondent No.1 (defendant No.1) on 28.09.2005. Also, as per Article 113 of the Schedule to the Limitation Act, which is an omni bus Article, the prescribed period of limitation is three years when the right to sue accrues. That in the instant case, the right to sue accrued in the year 1988 when Hanumaiah died, but the suit was filed in the year 2005. Hence, it is barred by the law of limitation. (e) Learned senior counsel vehemently contended that there can be no decree for separate possession -:

39. :- against respondent No.8, who is impleaded in this appeal on 29.05.2017. In support of his aforesaid submissions, he relied upon certain judgments, which shall be referred to later. Reliance was also placed on a judgment of this Court in John B. James and Others vs. Bangalore Development Authority, [ILR2000KAR4134 (John B. James). (f) Learned senior counsel submitted that defendant No.4 paid a valuable consideration to defendant No.1 at the time of execution of Ex.P-24 which is the sale deed dated 28.09.2005. Respondent No.8, being the purchaser of suit schedule Item No.12 from defendant No.4, can defend the suit. Respondent No.8 has also filed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (CPC) producing certain additional documents. It was submitted that the said application may be allowed.

29. Submissions on behalf of the impleading applicants are as under: (a) Learned counsel for the impleading applicants submitted that I.A.No.2 of 2021 has been filed by four -:

40. :- impleading applicants, who are the purchasers of sites from defendant No.8 stating that they have paid a sum of Rs.1,00,00,000/- and odd for each site in Item No.12 of the suit schedule properties. The said sale deeds were executed on 31.08.2018 i.e., during the pendency of these appeals. That defendant No.4 purchased suit schedule Item No.12 from defendant No.1 just prior to filing of the suit. That subsequent to passing of the impugned judgment and decree, respondent No.8 herein purchased suit schedule Item No.12 from defendant No.4. Thereafter, this appeal was filed by the plaintiff on 30.04.2015. There was no interim order passed in this appeal till 30.05.2018. That, suit schedule Item No.12 is only a portion of the project undertaken by defendant No.8. On 18.01.2021, an interim order for maintaining status quo in all suit schedule properties (23 items) has been passed by this Court. Therefore, the impleading applications have been filed by the purchasers of the sites to protect their interests in Item No.12 of the suit properties. Hence, learned counsel for the impleading applicants, Smt.Shobha Patil, contended that the impleading applications may be allowed.-.:

41. :- (b) On the merits of the matter, she submitted that the relationship between the parties is admitted. That as per Ex.D-46, the partition which took place between the two sons of Munishamanna is admitted, which is evidenced by Ex.D-47. That defendant No.1 sold suit schedule Item No.12 to defendant No.4 vide Ex.P-24. That actually, the said property originally belonged to Annayappa. He died intestate in the year 1983 without any heir. As a result, Hanumaiah—his brother succeeded to the separate property of Annayappa. Later, Hanumaiah died intestate. On his death, the said property was inherited by his heirs. But, as per Ex.P-2, 1st defendant’s name appeared in the RTC since the year 1988, along with the name of his step- mother/Parvathamma. They succeeded to the said property. Consequently, the plaintiff was ousted from the said suit Item. Hence, Article 110 or 113 of the Schedule to the Limitation Act would apply in the instant case. Even otherwise, in Ex.D-56/Genealogy, the daughters were left out from the joint family properties. Defendant No.1 and his step-mother sold suit schedule Item No.12 to defendant No.4. Thereafter, suit schedule Item Nos.21 to 23 were purchased. Therefore, the trial court has rightly -:

42. :- dismissed the suit insofar as suit schedule Item No.12 is concerned. That the said suit is a collusive suit between plaintiff and her family members, namely, defendant Nos.1 to 3, and 6 and 7. (c) Alternatively, learned counsel for the impleading applicants submitted that in the event this Court is to grant a share to the plaintiff and defendant No.2 in suit schedule Item No.12 also, then, an equitable partition may be made at the time of final decree and the sites purchased by these impleading applicants may be saved. (d) It was further submitted that Ex.D-56 is the genealogy of the family prepared by the Village Accountant wherein, the daughters’ names do not find a place. The same is fraudulent and a suppression. That only 1st defendant’s name is found in the RTCs, especially Ex.D-59. Defendant No.4 is a bona fide purchaser of suit schedule Item No.12. Defendant No.8 knew about the disposal of the suit and therefore, purchased the said Item from defendant No.4. That the purchasers have stepped into the shoes of defendant No.4. That the sites purchased by -:

43. :- the impleading applicants are part of suit schedule Item No.12. Hence, this Court may order for an equitable partition saving the sites purchased by the impleading applicants in the event the plaintiff is to succeed vis-à-vis Item No.12.

30. Learned Additional Government Advocate appearing for the respondent-Tahasildar, submitted that the Tahasildar, Devanahalli Taluk, Bangalore Rural District, was arrayed as defendant No.5 in the suit, however, no relief is claimed as against the Tahasildar. Hence, the suit may be dismissed as against the Tahasildar.

31. Reply arguments of learned counsel for the appellant/plaintiff are as follows: (a) By way of reply, learned counsel for the appellant/plaintiff reiterated that the plaintiff is entitled to 5/16th share in the suit properties including suit schedule Item Nos.12 and 13. That the suit could not have been dismissed as against said items and as against defendant Nos.4 to 7. It was also contended that the plaintiff is entitled to a share in suit schedule Item Nos.21 to 23 also, even though the said items have been purchased in the -:

44. :- names of defendant Nos.6 and 7 as they were purchased out of the proceeds of sale of suit schedule Item No.12. (b) It was next contended that respondent No.8 herein purchased suit schedule Item No.12 from defendant No.4 (respondent No.4 herein) on 20.12.2014 within one month from the date of decree. That the limitation period for filing an appeal is ninety days. Initially, Regular Appeal No.15011 of 2015 was presented, but thereafter this appeal was filed before this Court owing to pecuniary jurisdiction. Therefore, respondent No.8 has purchased a lis, as the said entity does not have a clear title and is not a bona fide purchaser vis-à-vis suit schedule Item No.12. The explanation to Section 52 of the Transfer of Property Act applies in the instant case. Since, respondent No.8 is not a bona fide purchaser, any person claiming under respondent No.8 does not get a better title. May be in the final decree proceedings, respondent No.8 and others claiming through respondent No.8 could seek a claim in the portion of suit schedule Item No.12 vis-à-vis defendant Nos.1 and 3 only and not beyond that extent.-.:

45. :- (c) It was further contended that the plea taken regarding limitation in filing the suit is only a bogey and a red herring as there is no pleading nor any evidence let-in on that aspect of the matter. Consequently, the trial court rightly did not frame any issue regarding ouster of the plaintiff from the suit schedule properties, which are admittedly joint family property. That for the first time, such a plea under Articles 110 and 113 of the Schedule to the Limitation Act has been raised in this appeal. That a plea regarding limitation in filing a suit is a mixed question of fact and law. The said plea must find a place in the written statement clearly and in the absence of such plea being raised therein, the same cannot be raised for the first time in this appeal. (d) It was further submitted that there is no limitation period prescribed in seeking partition and separate possession of joint family property, on the death of a coparcener. That on the death of the father or coparcener, the joint family continues to remain joint and in constructive possession of the members of the joint family. That the family continues to remain as a joint family as long as and until any member of the family seeks -:

46. :- severance of the status by seeking partition and separate possession. There is no plea in the plaint that the plaintiff had been excluded or ousted from the joint family properties. Therefore, it was unnecessary for the plaintiff to have paid court fee under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958. When there is no plea of exclusion or ouster in the plaint or the written statement, it cannot be raised for the first time as a pure question of law in this appeal. Said plea is not a pure question of law, but one of fact. Hence, the said contention cannot be permitted to be raised in this appeal. (e) It was next submitted that respondent No.8 has no better title than what defendant No.4 had in suit schedule Item No.12. Respondent No.8 cannot claim to be in settled possession, nor does the judgment in the case of John B. James cited by the learned senior counsel apply in the instant case. The plaintiff filed the suit for partition and separate possession in respect of all suit schedule properties including suit schedule Item No.12. There is no need for the plaintiff to file a fresh suit in respect of suit schedule Item No.12. The trial court dismissed the suit -:

47. :- vis-à-vis suit Item Nos.12 and 13 on an erroneous premise. The trial court has contradicted itself in its reasoning with regard to the alienation of suit schedule Item No.12 as being for legal necessity and the discharge of loans for the family by defendant No.1. That suit schedule Item No.12 was sold vis-à-vis Ex.P-24 for a huge consideration of Rs.2,45,00,000/- and out of the sale consideration, suit schedule Item Nos.21 to 23 properties were purchased in the name of the wife and son of defendant No.1. They did not have any independent source of income to buy the said properties. Therefore, the suit schedule Item Nos.21 to 23 also ought to be treated as joint family properties. It was submitted that defendant No.4 as well as defendant No.8 are not bona fide purchasers. (f) In response to the submissions of learned counsel for the impleading applicants, it was contended that there is no collusion between the plaintiff and defendant No.1 in filing the suit. Hence, they cannot claim any equitable rights in suit schedule Item No.12 property.-.:

48. :- (g) Learned counsel for the appellant/plaintiff relied on certain other decisions to seek modification of the judgment and decree of the trial court, which we have perused. Points for consideration:

32. Having heard the learned counsel for the respective parties, the following points would arise for our consideration: “1. Having regard to Articles 110 and 113 of the Schedule to the Limitation Act, whether the suit filed by the appellant/plaintiff seeking partition and separate possession of the suit schedule properties is maintainable?.

2. (i) Whether the alienation of suit schedule Item No.12 by defendant Nos.1 and 3 in favour of defendant No.4 is valid in the eye of law and binding on the plaintiff?. (ii) Whether the alienation of suit schedule Item No.12 by defendant No.4 in favour of respondent No.8 in R.F.A.No.689 of 2015 is valid in the eye of law and binding on the plaintiff?. -:

49. :- (iii) Whether the alienation of sites in suit schedule Item No.12 by respondent No.8 to the impleading applicants during the pendency of the appeal in R.F.A.No.689 of 2015 is binding on the plaintiff?. (iv) Whether the appellant/plaintiff is entitled to any share in suit schedule Item No.12?.

3. Whether the plaintiff is entitled to any share in suit schedule Item No.13 property?.

4. Whether suit schedule Item Nos.21 and 22 to 23 are joint family properties or separate properties of defendant Nos.6 and 7 respectively?.

5. Whether the appellant/plaintiff is entitled to any share in the suit schedule properties and if so, in which properties and to what share?.

6. Whether the applications filed by the impleading applicants would call for consideration in these appeals and whether they are to be allowed?.

7. What order?.” -:

50. :- The aforesaid points shall be considered in seriatim.

33. Prior to that, it is necessary to state the undisputed facts of the case: (a) The relationship between the parties is not in dispute. To recapitulate, Munishamanna and his wife Sonnamma died leaving behind their two sons, Annayappa and Hanumaiah. Annayappa and his wife Kempamma died without leaving behind any issues. Hanumaiah died on 09.04.1988, leaving behind his third wife Parvathamma who has no issues and three children from his second wife/Narayanamma—who is deceased and the first wife of Hanumaiah-Ramakka also died without any issues. The plaintiff is the daughter of Hanumaiah while defendant Nos.1 and 2 are her brother and sister. (b) There are twenty-three items of immoveable properties which are the suit schedule properties. (c) Munishamanna died prior to the enforcement of the Act in the year 1935, leaving behind his sons Annayappa—who died issueless on 22.08.1983 (his wife Kempamma having predeceased him). Hanumaiah and Annayappa succeeded to the joint family properties left -:

51. :- behind by Munishamanna in equal shares. On the death of Annayappa on 22.08.1983, there being no female heir or other collateral, Hanumaiah succeeded to the said share of Annayappa also on the principle of survivorship. Thus, all the joint family properties were succeeded to by Hanumaiah. Hanumaiah died on 09.04.1988 intestate. On his death, his widow and children succeeded to the joint family properties as per Section 6 of the Act. (d) There has been no partition of the said properties until the suit was filed by the plaintiff, seeking partition and separate possession in the joint family properties, which also includes suit Item Nos.21 to 23. (e) It is not in dispute that the suit was filed by the plaintiff, on coming to know about the sale of suit schedule Item No.12 property by defendant No.1 and defendant No.3 to defendant No.4, seeking 5/16th share in the suit schedule properties, by declaring that the said sale dated 28.09.2005 was not binding on her. The trial court has granted 1/8th share to the plaintiff in suit schedule Item Nos.1 to 11 and 14 to 23 properties and dismissed -:

52. :- the suit in respect of Item Nos.12 and 13 as against defendant Nos.4 to 7.

34. In a nutshell, the appeal filed by the appellant/plaintiff is in a narrow compass, inasmuch as the appellant/plaintiff has sought for modification of the share of the plaintiff as she had sought 5/16th share in all the suit schedule properties including suit Item Nos.12 and 13 as well as Item Nos.21 to 23.

35. As opposed to the appeal filed by the plaintiff, the appeals filed by defendant No.1, as well as defendant Nos.6 and 7 are for the purpose of challenging the entire judgment and decree of the trial court by contending that the suit filed by the plaintiff was barred by limitation and also that the plaintiff is not entitled to any share in suit Item Nos.12 and 21 to 23. Reasoning/findings of the trial Court:

36. Before proceeding to consider the contentious issues, it would be useful to cull-out from the reasoning of the learned trial Judge, the following findings: -:

53. :- (i) The trial Court has concluded that the suit schedule properties were originally held by Munishamanna and his two sons Annayappa and Hanumaiah. After the death of Munishamanna, his two sons succeeded to the suit properties. (ii) That Annayappa and his wife died issueless, their estate was succeeded to by Annayyappa’s brother Hanumaiah, who is the father of the plaintiff and defendant Nos.1 and 2. That Hanumaiah and defendant No.1 constituted a coparcenary. Plaintiff and her sister were married in the year 1967 and 1954 respectively. (iii) That plaintiff and her sister defendant Nos.2 were born prior to 1956 and hence, they would not get the right by birth as coparceners equal to that of son vide Pushpalatha N.V. vs. V.Padma and Others [ILR2010KAR1484 (DB) (This judgment has since been set aside by the Hon’ble Supreme Court). Thus, Hanumaiah and defendant No.1 were only two coparceners, who constituted the joint family in respect of suit schedule Item Nos.1 to 20 properties. That initially Hanumaiah was managing his properties during his life time and after his -:

54. :- death, defendant No.1 was managing the joint family properties. (iv) That Hanumaiah died on 09.04.1988 and on his death, succession opened in respect of his share in the joint family properties. The plaintiff and defendant Nos.1 to 3 are class-I heirs, who succeeded to his estate in respect of his undivided share. Therefore, plaintiff and defendant Nos.1 to 3 became co-owners in respect of suit schedule Item Nos.1 to 20 properties. In the absence of any partition, only plaintiff and defendant Nos.1 to 3 are the legal heirs and succeeded to the undivided share of Hanumaiah as class-I heirs. (v) That defendant No.1 apart from his undivided right, also succeeded to his father’s share along with plaintiff and defendant Nos.2 and 3. There is no pleading or proof that the plaintiff has been ousted from the joint family nor is there any pleading and proof regarding adverse possession against the plaintiff and defendant Nos.2 and 3. (vi) That defendant No.1 has been managing joint family properties and cultivating suit schedule Item Nos.1 -:

55. :- to 20 properties. He is a Trustee on behalf of other co- sharers and therefore, the suit schedule Item Nos.1 to 20 are not exclusive properties of defendant No.1. As such, plaintiff and defendant Nos.1 to 3 are deemed to be in joint possession of suit schedule properties. (vii) That suit schedule Item No.12 measuring 12 acres 11 guntas was sold by defendant No.1 and his wife and children for family legal necessity through registered sale deed dated 28.09.2005 (Ex.P24 for Rs.2,45,50,000/-). (viii) That according to defendant No.4, defendant No.1 sold suit schedule Item No.12 for the benefit of his family and to discharge loans. (ix) That Exs.D-49 to 54 disclose, the loans were cleared by defendant No.1 obtained in respect of suit schedule properties before the sale of suit schedule Item No.12 on 28.09.2005 in favour of defendant No.4. (x) That there is no specific plea in the plaint that defendant No.1 had sold suit schedule Item No.12 in favour of defendant No.4 de hors any legal necessity.-.:

56. :- (xi) That out of the sale consideration, defendant No.1 purchased suit schedule Item No.21 in the name of his wife-defendant No.6 and suit schedule Item Nos.22 and 23 in the name of his son defendant No.7. (xii) That defendant No.1 being the Manager, sold suit schedule Item No.12 and out of the sale consideration, in all probability purchased suit schedule Item No.21 in the name of his wife-defendant No.6. Therefore, suit schedule Item No.21 is also joint family property and plaintiff has a legitimate share over it. Suit schedule Item Nos.22 and 23 were purchased on 05.09.2005 in the name of defendant No.7 for a sum of Rs.18,00,000/-. Defendant No.7 was aged about 18 years as on that day and he was a student and had no independent source of income. Therefore, suit schedule Item Nos.22 and 23 were purchased in the name of defendant No.7 out of the sale consideration received by defendant No.1 from sale of suit schedule Item No.12. Thus, the suit schedule Item Nos.22 and 23 are also joint family properties. Therefore, sale deed executed by defendant No.1 in respect of suit schedule Item No.12 was for legal necessities, his family had acquired suit schedule Item Nos.21 to 23. Hence, sale deed executed by -:

57. :- defendant No.1 as per Exs.P24 on 28.09.2005 is binding on the plaintiff. (xiii) In respect of suit schedule Item No.13, memo dated 27.01.2014 was filed, stating that plaintiff did not claim any share over the said suit schedule Item. Therefore, she cannot seek any relief or share in respect of suit schedule Item No.13. The said item has been sold in favour of Muniraju and Puttaswamy respectively. Hence, the plaintiff and defendant Nos.1 to 3 are not in possession of the said items. (xiv) Thus, only suit schedule Item Nos.1 to 11, 14 to 23 are the joint family properties and in joint possession and enjoyment. The suit schedule Item Nos.12 and 13 are not in the joint possession. Suit schedule Item Nos.21 to 23 have been purchased out of joint family nucleus i.e. out of sale consideration in respect of suit schedule Item No.12 property. Defendant Nos.6 and 7 have not established their exclusive right over the suit properties, as they have not let in any evidence. (xv) That defendant No.1 has failed to prove that he inherited the suit schedule properties exclusively as sole -:

58. :- surviving coparcener after the death of his father Hanumaiah. On the other hand, he inherited along with the plaintiff and defendant Nos.2 and 3 as a co-owner. The plaintiff has a share in suit schedule Item Nos.1 to 11 and 14 to 23, which are joint family properties. Plaintiff is also entitled to income from the said properties as per enquiry to be done during the final decree proceedings in accordance with her share. (xvi) Defendant No.5 being the Tahasildar, was not a proper party to the suit. Hence, there is mis-joinder of defendant No.5. (xvii) Since the plaintiff is in joint possession and enjoyment of the suit properties, the valuation of the suit under Section 35(2) of the Karnataka Court Fee and Suit Valuation Act, 1957 is correct and the payment of court fee in respect of the suit schedule Items is just and proper. (xviii) The plaintiff initially claimed 1/8th share in the suit schedule Item, subsequently, she claimed 5/16th share. Since the plaintiff was born prior to 1956, she is entitled to only 1/8th share in the suit properties and defendant No.1 is entitled to 5/8th share in the suit -:

59. :- properties. Defendant Nos.2 and 3 are also entitled to 1/8th share in the suit properties. This is on the basis of notional partition between Hanumaiah- father of the plaintiff and defendant No.1- his son as per Section 6 prior to its amendment. Bird’s Eye View of the Evidence Lead:

37. We have perused the oral and documentary evidence on record. The same are listed as under: Documentary Evidence: (a) Seventy-four documents were produced and marked on behalf of the appellant/plaintiff in the suit, as Exhibits P-1 to P-74, apart from examining herself as PW.1. They are: (cid:1) Ex.P.1 is the Genealogical Tree of the family of deceased Munishamanna; (cid:1) Ex.P.2 is the certified copy of I.H.R. No.38/88-89, dated 05.04.1989; (cid:1) Exs.P.3 to 23 are the R.T.C. Extracts; (cid:1) Ex.P.24 is the certified copy of sale deed dated 28.09.2005 in respect of suit schedule Item No.12 i.e., land in Sy.No.46/1A, measuring 12 Acres 11 guntas situated at Nagamangala village, Kundana Hobli, Devanahalli Taluk, Bengaluru District, sold by N.Manjunath (Defendant No.1) and 5 others -:

60. :- (including two minors) in favour of A.Janakamani (Defendant No.4); (cid:1) Exs.P.25 to 64 are the encumbrance certificates; (cid:1) Ex.P.65 is the certified copy of Mutation Register extract; (cid:1) Ex.P.66 is the certified copy of sale deed dated 28.09.2005, in respect of land in Sy.No.10, measuring 11 acres 24 guntas, situated at Maralenahalli village, Hanabe panchayat, Kasaba Hobli, Doddaballapur Taluk, Bengaluru Rural District, sold by Smt.Sumana Bhojraj (represented by GPA holder Mr.Viraj B.Suvarna) in favour of Smt.Prameela (Defendant No.3); (cid:1) Ex.P.67 is the certified copy of Mutation Register extract; (cid:1) Exs.P.68 and 69 are the R.T.C. Extracts; (cid:1) Ex.P.70 is the certified copy of sale deed dated 05.09.2005, in respect of land in Sy.No.13, measuring 12 acres 34 guntas and Sy.No.14, measuring 6 acres, both situated at Maralenahalli village, Hanabe Panchayat, Kasaba Hobli, Doddaballapur Taluk, Bengaluru Rural District, sold by Smt.Sumana Bhojraj (represented by GPA holder Mr.Viraj B.Suvarna) in favour of Sri.N.M.Arun; (cid:1) Exs.P.71 and 72 are the certified copy of Mutation Register extracts; (cid:1) Exs.P.73 and 74 are the R.T.C. extracts; -:

61. :- (b) On behalf of the defendants, besides examining defendant No.1—N.Manjunath as DW-1, three more witnesses were examined as DWs-2 to 3 and got marked 73 documents as Exs.D-1 to 73. The documents exhibited on behalf of the defendants are as under: (cid:1) Exs.D.1 to 28 are the RTC Extracts; (cid:1) Exs.D.29 to 39 are the Index of Land copies; (cid:1) Exs.D-40 to 48 are the R.R. copies; (cid:1) Ex.D.49 is the Letter dated 17.08.2002 issued by the State Bank of Mysore, Sadarahalli Branch to the Regional Transport Officer, Yeshwantapur, informing about cancellation of Hypothecation over vehicle No.KA-04/N-5765 by T.N.Manjunath; (cid:1) Exs.D.50 and 51 are the notices of termination of Agreement of Hypothecation, State Bank of Mysore, Sadarahalli Branch, Devanahalli Taluk, Bangalore District, both dated 17.08.2002; (cid:1) Exs.D.52 and 53 are the Receipts issued by Cauvery Kalpatharu Grameena Bank, Aradeshahalli Branch, Bengaluru, dated 30.06.2008 and 09.09.1996; (cid:1) Ex.D.54 is the Account extract issued by PLD Bank, Devanahalli; (cid:1) Ex.D.55 is the G.P.A. dated 16.06.2003, by Smt.Janakamani appointing her husband Sri.V.S.Aravindan as her power of attorney, to do the acts mentioned therein. (cid:1) Ex.D.56 is the Genealogical Tree of the family of N.Manjunath (defendant No.1); -:

62. :- (cid:1) Ex.D.57 is the Original sale deed dated 28.09.2005 in respect of land in Sy.No.46/1A, measuring 12 Acres 11 Guntas, both situated at Nagamangala village, Kundana Hobli, Devanahalli Taluk, Bengaluru District, sold by Sri.N.Manjunath and five others, in favour of Smt.A.Janakamani; (cid:1) Exs.D.58 to 69 are R.T.C. Extracts; (cid:1) Ex.D.70 & 71 are the Encumbrance certificates; (cid:1) Ex.D.72 is the Mutation Register extracts; (cid:1) Ex.D.73 is the Endorsement dated 16.09.2005 issued by the Tahasildar, Devanahalli Taluk, Devanahalli. Oral Evidence:

38. The oral evidence on record has been perused by us and the salient aspects of the said evidence are encapsulated as under: PW-1: Smt.Anjanamma. (a) The plaintiff has examined herself as PW-1. She has filed an affidavit in lieu of examination-in-chief, reiterating the averments made in the plaint. (b) In her cross-examination, PW-1 has stated that Munishamanna was her grand-father and he died in the year 1935. Her grand-mother was Sonnamma who died in the year 1964-65. Her grand-father -:

63. :- Munishamanna had two sons, by name, Annayappa and Hanumaiah. That she is married to Pillayakkamma’s son. Her paternal uncle—Annayappa and his wife Kempamma have died. Her father Hanumaiah had three wives and among them, Ramakka and Narayanamma are no more. She has denied the suggestion that she has not sought for share in the suit schedule properties during her father’s life-time. That after the death of her father, defendant No.1 has been getting the lands cultivated. That she had not demanded the partition from defendant No.1/Manjunath after the demise of her father, but she filed the suit seeking the partition and separate possession on the sale of suit schedule Item No.12, which was the immediate cause of action for filing the suit. PW-1 has admitted that that the suit schedule properties are the joint family properties. (c) According to PW-1, suit schedule Item No.12 was sold by defendant No.1 and his step-mother/defendant No.3 in favour of defendant No.4/Janakamani. She has stated that after coming to know of the said sale, she convened a Panchayati in October-2005. That she -:

64. :- came to know about Ex.P-2 after the alienation of suit schedule Item No.12. Although she did not raise any objection with regard to the change of Khata in the name of Manjunath/defendant No.1 vis-à-vis suit Item Nos. 1 to 20, she had sought for her share. In fact, she had no knowledge abut Ex.P-2 and also in respect of sale of suit schedule Item No.12 as per Ex.P-24 as also Ex.P-66 or Ex.P-70. That she has not questioned the change of revenue entries as per Exs.P-67 and 72. She has denied the suggestion that she has no right in suit Item Nos.1 to 20, which are joint family properties. She has also denied that suit Item Nos.1 to 23 are self-acquired properties of the wife and son of defendant No.1. (d) She has denied the suggestion that she has no right in the suit schedule properties and owing to ill-will, she has filed a false case. In her further cross- examination, she has stated that Pillayakkamma was the daughter of Munishamanna, but she is no more and that plaintiff is married to her son. Since Pillayakkamma is no more, her name is not shown in the genealogical tree. That after the death of her -:

65. :- aunt-Kempamma in the year 1976, the suit schedule properties were mutated in the name of her brother- defendant No.1, as per Ex.P-2 which fact she came to know in the year 2006. She has stated that she has no knowledge as to on what basis Khata of the suit Items were changed in the name of defendant No.1. That she has submitted an application to the Tahasildar challenging the change of Khata in the name of defendant No.1/Manjunath. That since she is entitled to a share in the suit schedule properties and without intimating her, certain properties were sold, the suit had been filed. (e) PW-1 has further denied that defendant No.1 had raised loans by mortgaging certain properties to different banks, as there was no such situation for mortgaging the suit schedule properties. She has also denied the suggestion that defendant No.1 was in debts till he sold the properties to defendant No.4. She has stated that she does not know about defendant No.1 having also sold 1 gunta of land in Sy.No.5/4 to N.Muniraju S/o. Chinnappayya and 2 guntas of land to Puttaswaher S/o. Maliyappa. That -:

66. :- Muniraju and Puttaswamy are not arrayed as parties in the present suit. She has denied knowledge about any improvement being made by defendant No.4 on suit schedule Item No.12. DW-1: Sri. N.Manjunath. (f) Defendant No.1/N.Manjunath has deposed as DW-1. He has also filed his affidavit in lieu of examination-in- chief. (g) In his cross-examination, he has stated that earlier, he and his father used to supervise or manage the suit schedule properties and after the demise of his father—Hanumaiah, he has been managing them. He has admitted that the suit schedule properties jointly belong to his father and paternal uncle; and his paternal uncle and aunt had no issues and all the suit schedule properties were succeeded to by his father (Hanumaiah). He has given the details of the various crops grown on the land, such as Neelagiri (Eucalyptus) trees, grapevine, Mulberry plants, coconut trees, Raagi and corn. He has denied the suggestion that suit schedule Item Nos.21 to 23 were -:

67. :- purchased in the name of his wife and son out of the income from the suit schedule properties. He has also admitted the fact that his son was aged 22 years and was a student. He has also admitted that he has an Innova car and a jeep, but does not have a tractor- trailer. But, he has a motor-cycle. (h) In his further cross-examination, DW-1 has admitted that suit Item No.21 is in the name of his wife Prameela and the sale deed in respect of suit Item Nos.22 and 23 are in the name of his son Arun. DW-1 also admitted that suit schedule Item No.12 was sold to Janakamani at the rate of Rs.12,00,000/- per acre on 28.09.2005. That the terms of sale were agreed to on a single day and the transaction occurred on the same day in the year 2005. That he executed Ex.P- 24/sale deed dated 28.09.2005, after knowing and reading the contents of the same. DW-1 has further admitted that he had fully repaid the loan borrowed from PLD Bank in the year 1995-96 as per Ex.D-54 and another loan was repaid on 31.05.1995, as per Ex.D-53 dated 09.09.1996. That in the year 2008, under the ‘Loan Waiver Scheme’, he repaid a sum of -:

68. :- Rs.37,500/- as per Ex.D-52 and a sum of Rs.75,404/- was waived. That he repaid vehicle loan as per Exs.D- 49 to D-51. DW-1 has categorically admitted that he had fully repaid all the loans obtained prior to the year 2005. He also admitted that he had no document to show that he has given any share to his sisters. That he was of nine years of age at the time of his sisters’ marriage. DW-2: Sri.Anjanappa. (i) DW-2/Anjanappa has also filed his affidavit in lieu of examination-in-chief. (j) In his cross-examination, he has stated that defendant No.1/DW-1 is the son of his “paternal-uncle”, which he calls so by force of habit even though there is no blood-relationship between them. That, since childhood, he has been working in the house of defendant No.1. He has denied that he has deposed falsely in order to support defendant No.1 against the plaintiff. He is not aware of the sale deed executed on 28.09.2005, nor about the loans borrowed by defendant No.1 from PLD Bank and Canara Bank. He -:

69. :- has admitted that plaintiff and defendant Nos.1 and 3 and defendant Nos.6 and 7 are in joint possession of the suit schedule properties. DW-3: Hanumantharayappa. (k) DW-3/Hanumantharayappa has also filed affidavit in lieu of examination-in-chief. (l) In his cross-examination, he has stated that he is a resident of Nagamangala and he is not related to defendant No.1. That he owns land in Sy.Nos.28 and 30 of Singarhalli. That he knows defendant No.1 for the last forty years and prior to that, he knew the plaintiff. DW-3 has admitted that the suit schedule properties are the ancestral properties of the plaintiff/Anjanamma and defendant No.1/Manjuanth. But, he does not know what are the properties purchased by defendant No.1/Manjuanth. He has denied the other suggestions made to him. DW-4: V.S.Aravindan. (m) DW-4/V.S.Aravindan is the husband and GPA holder of defendant No.4—the purchaser of suit schedule Item -:

70. :- No.12. He has also filed his affidavit in lieu of examination-in-chief. (n) In his cross-examination, he has admitted that suit schedule Item No.12 was purchased in the name of his wife. That his wife had obtained legal opinion prior to purchase of the said property and the full consideration amount has been paid and the property has been registered in the name of his wife. That prior to the purchase of the said property, he had asked for genealogical tree of the family and the same has been produced before the Court. But, after filing of the suit, he came to know that Ex.D-56/Genelogical tree is incorrect. He has stated that he did not inquire in the village about the truthfulness of Ex.D- 56/Genealogical tree. He had not given any public notice in the newspaper prior to purchasing the suit schedule Item No.12. That only after service of summons to him, he came to know about that the plaintiff too has a share in suit schedule Item No.12. (o) That there were Neelagiri trees on suit schedule Item No.12 when the same was purchased. He obtained -:

71. :- conversion of the land. But, he is not aware whether there was any interim stay of alienation of suit schedule Item to anybody. He stated that he has not sold any sites to anybody after the formation of layout in suit schedule Item No.12. He does not remember the price determined for that Item in the agreement to sell. That he has paid more than Rs.2 crore for purchasing suit schedule Item No.12, but does not remember the exact amount. He has denied the suggestion that he has paid Rs.6 crore to defendant No.1 and his family members to purchase suit schedule Item No.12 property. He has also denied the suggestion that the entire sale consideration has not been paid to defendant No.1 by his wife/defendant No.4. DW-4 has also admitted that in the sale deed executed in favour of his wife, the sale consideration is shown as Rs.2,45,50,000/-. The same is also mentioned in the agreement of sale. He has denied the suggestion that the sale was for more than Rs.6 crore and intentionally the price was mentioned less in the sale deed. According to DW-4, it was orally conveyed to him that there was a family necessity to -:

72. :- sell the property. That he has no knowledge about the other suit schedule properties and the income that they were getting from the same. He has categorically stated that he did not inquire from defendant No.1 about the family necessity that they had in order to sell the suit schedule Item No.12. He has stated that even at the time of his evidence there were Neelagiri trees on suit schedule Item No.12 and they were not cut and sold. He does not know whether the plaintiff too had a share in suit schedule Item No.12 and that whether it is ancestral property of the plaintiff. That he purchased suit schedule Item No.12 property through an agent by name Appanna. He did not inquire Appanna if plaintiff had any sisters, however, Appanna had stated that plaintiff had no sisters. He had stated that the plaintiff had no share in the suit schedule Item No.12.

39. The following admissions/inferences are noted from the aforesaid depositions: (i) That the suit schedule Item Nos.1 to 20 are ancestral joint family properties; -:

73. :- (ii) That on the demise of Munishamanna and Annayappa and their wives, Hanumaiah—the father of the plaintiff succeeded to the said properties; (iii) There were no other female heirs (Class-I heirs) to Annayappa when his brother Hanumaiah succeeded to the properties. Therefore, the principle of survivorship applied in the said case. (iv) The suit was filed soon after the alienation of the suit schedule Item No.12. That till then there was no partition of the ancestral joint family properties; (v) That the loans raised by defendant No.1 were all cleared prior to the alienation of suit schedule Item No.12; (vi) That defendant No.4 did not inquire in the village about the truthfulness about Ex.D- 56/genealogical tree. She did not give any public notice in the newspaper prior to purchasing the suit schedule Item No.12. She also did not inquire from defendant No.1 about the family necessity that he had in order to sell the suit schedule Item No.12. She did not know -:

74. :- about that plaintiff too had a share in suit schedule Item No.12 and whether it was ancestral property of the plaintiff also. She also did not inquire from Appanna—the agent, whether the plaintiff had any sisters and whether the plaintiff had any share in suit schedule Item No.12; (vii)There is no evidence on record to show any independent source of income of defendant Nos.6 and 7 in whose name suit schedule Item Nos.21 to 23 were purchased. POINT NO.1 – REG. MAINTAINABILITY OF THE SUIT: “(1) Having regard to Articles 110 and 113 of the Schedule to the Limitation Act, whether the suit filed by the appellant/plaintiff seeking partition and separate possession of the suit schedule properties is maintainable?.

40. It is not in dispute that Hanumaiah—the father of the plaintiff and defendant Nos.1 and 2, and husband of defendant No.3—died on 09.04.1988. It is also not in dispute that he died leaving behind the suit schedule properties being Item Nos.1 to 20. The suit was filed by the plaintiff on 14.11.2005. The contention of defendant -:

75. :- Nos.1, 3 and 4 and defendant Nos.6 and 7 (defendant No.1, and defendant Nos.6 & 7 being the appellants in the connected appeals) and respondent No.8 in R.F.A.No.689/2015 is that the suit filed by the plaintiff was barred by limitation.

41. In this regard, reliance was placed on Articles 110 and 113 of the Schedule to the Limitation Act. Articles 110 and 113 of the Schedule to the Limitation Act, 1963 read as under: “THE SCHEDULE (PERIODS OF LIMITATION) [See sections 2(j) and 3]. FIRST DIVISION—SUITS Time from which Period of Description of suit period begins to Limitation run PART IX.—SUITS RELATING TO MISCELLANEOUS MATTERS Article 110 By a person excluded from When the exclusion Twelve a joint family property to becomes known to years enforce a right to share the plaintiff. therein. PART X.—SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD Article 113 Any suit for which no When the right to period of limitation is Three years sue accrues. provided elsewhere in this Schedule.-.:

76. :- A reading of Article 110 of the Schedule to the Limitation Act would indicate that when a suit is to be filed by a person excluded from a joint family property to enforce a right to share therein, the period of limitation is twelve years and the time from which the period begins to run is, when the exclusion becomes known to the plaintiff. The following ingredients are necessary for the said Article to apply: (i) the suit must be by a person who claims a right to a share in the joint family property on the ground that he is a member of the family to which the property belongs; (ii) that there must be in existence property which the plaintiff proves to be joint property; (iii) that the claimant must have been excluded from participation in the enjoyment of such property.

42. Before proceeding further, it is necessary to observe that a Joint Hindu family consists of members descended lineally from a common male ancestor, together -:

77. :- with their mothers, wives or widows and daughters bound together by the fundamental principle of sapindaship or family relationship which is the essence and distinguishing feature of the institution. An undivided family which is the normal condition of Hindu society is ordinarily joint not only in estate but in food and worship, and, therefore, not only the concerns of the joint family, but whatever relates to their commensality and their religious duties and observances are regulated by the members or by the manager to whom they have expressly or by implication delegated the task of regulation. The joint family status being the result of birth, possession of joint property is only an adjunct of the joint family and is not necessary for its constitution.

43. Coparcenary is a narrower body than a joint family and consists of only those persons who have taken by birth an interest in the property of the holder for the time being and who can enforce a partition whenever they like. There is a community of interest and unity of possession between all the members of a coparcenary, and upon the death of any one of them, the others succeed to that in which, during the deceased’s lifetime, they had a -:

78. :- common interest and common possession. No individual member, while the family remains undivided, can predicate of the joint and undivided property that a particular member has a certain definite share, either in the corpus or in the income. Till a partition takes place his/her interest remains a fluctuating interest enlarged by deaths and diminished by births in the family. In every coparcenary, the son, grandson or great-grandson as well as now a daughter obtain an interest by birth in the coparcenary property so as to be able to control and restrain improper dealings with the property by another coparcener. A coparcener is entitled to have joint possession and enjoyment of coparcenary property. He/she enjoys certain powers of alienation and can enforce a partition of his/her share in the common property. This coparcenership is a creature of law and cannot be created by act of parties except that a member may be introduced into the coparcenary by adoption.

44. Coparcenary property means and includes (1) ancestral property; (2) acquisitions made by the coparceners with the help of ancestral property; (3) joint acquisitions of the coparceners even without such help, -:

79. :- provided there was no proof of intention on their part that the property should not be treated as joint family property; and (4) separate property of the coparceners thrown into the common stock. [Source: Hindu Law – Principles & Precedents – By N.R.Raghavachariar, 8TH Edition – 1987]..

45. The law on Article 110 of the Schedule to the Limitation Act could be culled out as under: (a) Article 110 of the Schedule to the Limitation Act does not apply to a suit where the plaintiff is a stranger, e.g., a purchaser of a share in the joint family property and not a member of the joint family. It also does not apply to a suit for possession of immovable property by a right of inheritance. This Article contemplates a suit by a member of the family against other members thereof to be restored to joint enjoyment. Article 110 is applicable only when the joint family property is partitioned. This Article pre-supposes the existence of a joint family and joint family property and can be invoked only when the suit is brought to enforce a right to a share therein by a person excluded from such -:

80. :- property. Also, the said Article applies where the suit is filed “to enforce the right” and “not to establish a right” vide Krishnajee Annajee vs. Annajee Dhondajee [AIR1930Bom. 61]. (Krishnajee Annajee). (b) The word “exclusion” implies a previous inclusion, i.e., there must be a previous participation in the enjoyment of the joint property. It is not sufficient to show that one member did not participate in the enjoyment of the property for twelve years or more; for mere non-participation is not “exclusion” within the meaning of this article. For exclusion to operate as a bar there must be an entire exclusion. In other words, it is necessary that the plaintiff knowing of his exclusion did not sue for twelve years, i.e., limitation begins to run only after he came to know of the exclusion. Exclusion must be distinct and known to that member, in fact, an adverse title inconsistent with the common management and enjoyment on behalf of the family must be set up and proved by the defendant. Mere mutation of names is not sufficient to prove ouster or exclusion, vide Kishenlal vs. Satya Prakash [AIR1952All 105]..-.:

81. :- (c) The exclusion that is contemplated under the article is a conscious and deliberate act amounting to denial of the right of a particular member concerned to a share in the property analogous to ouster and it must also have been brought home to him. Thus, there must be a positive act or conduct by which the exclusion from joint family property becomes known to the plaintiff. Article 110 applies only if the suit is filed after twelve years from the date of exclusion. Only because the plaintiff was residing in her matrimonial home, it cannot be held that she was excluded from the joint possession of suit land. In such circumstances, the suit is not barred under Article 110 of the Limitation Act, 1963 vide Durgavva vs. Annapoornavva [AIR2017Kar 38]. (Durgavva). (d) To bar the plaintiff under Article 110, three questions will have to be considered, namely, (i) whether the claimant to a share was excluded from the joint family property; (ii) if so excluded, when the exclusion, took place; and (iii) when the exclusion, if any, became known to the claimant. As to the meaning of the expression exclusion, it may be observed that, there can be no -:

82. :- exclusion without the denial of the coparcener’s right to the share and such a denial may be expressed or implied. When partition is demanded and refused, or if the coparcener is expelled from the joint family, that would be clear exclusion. Once the party establishes his claim to a share in the joint family properties by showing that the family was joint and that he/she was a coparcener entitled to a share in its properties the onus is on the opposite party to establish exclusion to the coparcener’s knowledge for over twelve years prior to the suit for partition, vide Marudanayagam Pillai vs. Sola Pillai [AIR1965Mad 200]. (Marudanayagam Pillai). (e) Where there is no specific demand for partition of share in the property and no refusal or denial by defendant, the period of limitation does not start. Mere non-assertion of right in the property will not amount to exclusion, vide Kishore N alias H Shah vs. Prakash N Shah [2001(2) Bom.LR1(9) (Bom)]. (Kishore N alias H Shah); Vasanti P Shetty vs. Nagaveni J Shetty [(1996)1 LJ970(Bom)]. (Vasanti P Shetty).-.:

83. :- (f) The general rule is that possession of one member of a joint family is the possession on behalf of all. Thus, exclusion is a question of fact, which must be proved and decided upon the question in each case. Thus, it is for the plaintiff to show that the property is a joint family property and that he/she is a member thereof and that the defendant to plead that the suit is time barred as the plaintiff was excluded from the joint estate for more than twelve years and that the exclusion was known to the plaintiff. Also, where a suit for partition is filed claiming a share in the property of the father, the limitation of twelve years would start from the date of the denial of the share by heirs of the father in the property and not from the date of death of the father. Thus, where the suit properties are joint family properties and there is no evidence showing that the plaintiff was excluded completely in claiming their share in suit properties, then the period of limitation would run only from the time when the plaintiff came to know exclusion vide Veerayya M. Koppad vs. Geetha [2008 AIHC1407(Kant)]. (Veerayya M. Koppad).-.:

84. :- 46. Article 113 is an omnibus Article, which shows that where there is no period of limitation provided elsewhere in the schedule to the Act, the period of limitation to file a suit is three years from the date when the right to sue accrues. In fact, Article 113 being a residuary article, would apply to cases which could not have been covered by any other provision in the Limitation Act. It prescribes a period of three years when the right to sue accrues. The words, “right to sue” ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted, vide State of Punjab vs. Gurdeo Singh, [AIR1991SC2219 (Gurdev Singh).

47. A right to sue for partition is a continuing right, hence, there is no bar of limitation vide Naroti Dass vs. Phul Kaur, [AIR2007P&H157 (Naroti Dass).-.:

85. :- 48. Also, the limitation for filing a suit for partition would be on the basis of exclusion arising for filing such a suit for partition vide Becharji Bapuji Thakur vs. Arjanji Saluji Thakor through Heirs, [AIR2013Guj. 37]. (Becharji Bapuji Thakur). {Source: Limitation Act, By B.B.Mitra, 23rd Edition} 49. At this stage, certain relevant judgments could be referred to: (a) In A. Rama Krishna and others vs. Akula Venkatamma and others, [(2017) 7 ALT17, (A.Rama Krishna), a Division Bench of the High Court of Judicature at Hyderabad speaking through Hon’ble V.Ramasubramanian J., (now a Judge of the Hon’ble Apex Court) considered the question, whether, the suit for partition and separate possession was barred by time under Article 110 of the Schedule to the Limitation Act in the said case. It was observed that for the applicability of Article 110 of the Schedule to the Limitation Act, two conditions are to be satisfied, namely (a) that a person seeking to enforce a right to a share in the property should have been excluded and (b) that such exclusion should have become known to the plaintiff. Under Article 110, the -:

86. :- period of limitation for making a claim to a share in the joint family property is twelve years, and the date of commencement of the period of limitation is the date on which the exclusion becomes known to the plaintiff. In other words, a person setting up a plea of limitation should plead as well as prove (1) exclusion and (2) knowledge of such exclusion. It was further observed that ouster was not even pleaded in so many words by the defendants therein. The defendants therein pleaded exclusion, without any reference to the date from which the plaintiffs were excluded. Instead of pleading ouster, the defendants therein actually set up the defence of abandonment and waiver. Irrespective of the nomenclature used by the defendants, all these aspects require concrete proof, as they have the ability to extinguish valuable rights. (b) In Chenniappan vs. Valliammal and others, [(2020) 5 MLJ537 (Chenniappan), a learned Single Judge of the Madras High Court observed that the essential ingredients of ouster are (i) Declaration of hostile animus; (ii) Long and uninterrupted possession of the person pleading ouster; (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner.-.:

87. :- Placing reliance on Palania Pillai vs. Ibrahim Rowther [I.L.R. [(1943) Mad. 15 (F.B.)]. (Palania Pillai), it was observed that in the case of an ouster of a co-owner, the position is essentially different. That it must be brought to the knowledge of the co-owner concerned, that his rights are invaded in open assertion of a hostile title. As amongst co-owners, there is unity of possession. Possession of one co-owner is presumed to be on behalf of all the co-owners. To constitute ouster, there must be something more than mere exclusive possession and a receipt of income. There must be, for an ouster, a hostile, open denial and repudiation of the rights of other co-owners and this denial or repudiation must be brought home to the co- owners. It was further observed that to establish ouster, possession must be visibly hostile, notoriously and ostensibly exclusive and adverse to impute knowledge of the hostile possession to the co-tenants sought to be ousted. (c) Reference could also made to Vidya Devi vs. Prem Prakash [(1995) 4 SCC496, (Vidya Devi), wherein it was observed that the expression ouster does not mean actual driving out of the co-sharer from the -:

88. :- property. It will not be complete unless it is coupled with all other ingredients required to constitute adverse possession. With reference to Article 110, it was observed that a reading of the said Article would show that the commencement of period of limitation is when the exclusion becomes known to the suing coparcener/the plaintiff. Therefore, when the defendant seeks protection under Article 110 of Limitation Act, he has to establish that the suing co-sharer was excluded from the enjoyment of the properties to his knowledge. It is settled law that possession of one co-sharer is on behalf of the other co- sharers. If the co-sharer in possession raises the plea of ouster or the bar under Article 110 of the Limitation Act, it is incumbent on such co-sharer to prove that the exclusion was to the knowledge of the other co-sharers. In the said case, it was held that there was no evidence to show that defendant No.1 therein was in possession of the properties to the exclusion of the sisters even if any improvements were made in the said properties, which did not amount to ouster. (d) Reliance could also be placed on a judgment of the Hon’ble Supreme Court in Karbalai Begum vs. Mohd.-.:

89. :- Sayeed [AIR1981SC77, (Karbalai Begum) wherein it was pointed out that mere non-participation by a co- sharer in the rents and profits of a property does not amount to ouster. It was held in the aforesaid case that the defendants therein could not prove the exclusion and could not either plead or prove knowledge of exclusion, and hence, the suit was not barred by limitation in terms of Article 110 of the Schedule to the Limitation Act. (e) S.K. Lakshminarasappa, since deceased by his L.Rs. vs. Sri. B. Rudraiah and Others [ILR2012KAR4129: “A) A suit for partition dismissed for default under Order 9 Rule 8 of CPC does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right, which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues. Cause of action is continuous in partition cases, which subsists so long as the property is held jointly. In other words, the joint owner can file a suit for partition, until partition is actually effected, irrespective of the fact whether earlier suits for such partition were dismissed for default or withdrawn or an earlier decree for partition was not acted upon.” -:

90. :- (f) The Supreme Court, in the case of Jai Singh vs. Gurmej Singh, [(2009) 15 SCC747, has set out the rights and liabilities of co-sharers: “The principles relating to the inter se rights and liabilities of co-sharers are as follows: (i) A co-owner has an interest in the whole property and also in every parcel of it. (ii) Possession of joint property by one co-owner is in the eye of law, possession of all even if all but one is actually out of possession. (iii) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (iv) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title he denies, that of the other. (v) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.-.:

91. :- (vi) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co- owners. (vii) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to anybody to disturb the arrangement without the consent of others except by filing a suit for partition.

50. It is noted from the documentary evidence that on the demise of Hanumaiah on 09.04.1988, Ex.P-2/IHR No.34/88-89 dated 05.04.1989, which is a certified copy of the order, was made. As per the said order, the name of Manjunath/defendant No.1 was entered in respect of the suit schedule Item Nos.1 to 10 as per Exs.P-3 to 12; in respect of Item No.11—Exs.P-21 and 22; Item No.12— Ex.P-13; Item Nos.14 to 19—Ex.P-15 to 20 respectively and Item No.20—Ex.P-69. All these documents show the name of defendant No.1 in the RTC extracts which is as the Karta of the family on the demise of Hanumaiah—the father and not in his individual capacity. The entry of defendant No.1 in the revenue records is in the nature of a trustee of the joint ancestral family properties of the family -:

92. :- and not in his individual capacity. The entry in the revenue records in the name of defendant No.1 only does not imply exclusion or ouster of the plaintiff from the joint family properties.

51. In the instant case, it is observed that there was no categorical pleading with regard to the plaintiff being excluded from the suit schedule properties neither was there any plea regarding ouster. Thus, there is no evidence to that effect by the contesting defendants. The same is also recorded by the learned trial Judge. In fact, the said contention has been raised in the appeals filed by defendant No.1 and defendant Nos.6 and 7 and respondent No.8, so as to seek dismissal of the suit filed by the plaintiff. In the instant case, on the demise of the father of the plaintiff and defendant Nos.1 and 2 and husband of defendant No.3—Hanumaiah, the family continued to remain joint as, it is nobody’s case that there was a partition that ever took place amongst the heirs of Hanumaiah, who died on 09.04.1988. The trial court has also noted that the aforesaid parties succeeded to the joint family properties on the demise of Hanumaiah. There has been no pleading or proof that the plaintiff had been -:

93. :- ousted from the joint family nor any pleading or proof regarding adverse possession against the plaintiff before the trial court.

52. Defendant No.1 was managing the joint family properties as a trustee on behalf of the other co-sharers, which included the plaintiff, defendant Nos.1 to 3. In the absence of any pleading or proof regarding exclusion of the plaintiff from the joint family properties or ouster, the defendants cannot succeed on the said plea so as to seek dismissal of the suit on the basis of Article 110 of the Schedule to the Limitation Act.

53. In fact, the evidence of the respective parties has been referred to above and the admissions and inference have been noted. The plaintiff has categorically stated that she was not aware of defendant No.1 including only his name in the revenue record vis-à-vis the suit schedule properties. Secondly, even though the name of defendant No.1 may have been incorporated in the revenue entries on the demise of her father, that was only for the purpose of convenience as Karta of the family and not in order to exclude the plaintiff from the suit schedule -:

94. :- properties. Moreover, no notice was issued to plaintiff and defendant No.2 before incorporating only the name of defendant No.1 by the Tahasildar-defendant No.5. Thus, plaintiff was kept in the dark when the name of only defendant No.1 was incorporated in the revenue records. She had no knowledge about the aforesaid facts and continued to believe that the family continued to remain joint. Further, the ingredients under Article 110 of the Schedule to the Limitation Act are conspicuous by their absence in the instant case.

54. In view of the facts and evidence on record and the discussion made above, we hold that the appellant/plaintiff has not been excluded or ousted from the suit schedule properties. Hence, the suit filed for partition and separate possession is not hit by Article 110 of the Schedule to the Limitation Act.

55. It is reiterated that the catalyst for filing of the suit was the alienation of Item No.12 of the suit schedule properties on 28.09.2005. On coming to know of the said fact, the plaintiff filed the suit seeking her share in the suit schedule properties by filing the suit soon thereafter.-.:

95. :- Thus, even Article 113 of the Schedule to the Limitation Act does not apply. Point No.1 is answered against defendant Nos.1, 3, 4, 6 & 7 and respondent No.8 herein. POINT NO.2(i): “(i) Whether the alienation of suit schedule Item No.12 by defendant Nos.1 and 3 in favour of defendant No.4 is valid in the eye of law and binding on the plaintiff?.

56. It is the case of the appellant/plaintiff that suit schedule Item No.12 was sold by defendant Nos.1 and 3 in favour of defendant No.4 as per Ex.P-24/sale deed which was executed on 28.09.2005. On coming to know of the said alienation, the suit was filed when there was a refusal to the demand made by the plaintiff to partition the suit properties. Plaintiff has contended that the said alienation does not bind her as the same was made without her knowledge and consent and in the absence of any legal necessity or there being any benefit to the estate. It is the case of the appellant plaintiff that suit schedule Item No.12 was sold for a valuable consideration of Rs.2,45,50,000/- -:

96. :- as per Ex.P-24, dated 28.09.2005. That the said alienation does not bind her and she has been deprived of her share in the said suit schedule Item. The trial Court has dismissed the suit as against defendant Nos.1, 3 and 4 vis- à-vis suit schedule Item No.12.

57. The defence of defendant Nos.1, 3 and 4 is that on account of there being outstanding loans and debts which defendant No.1 had to discharge, suit schedule Item No.12 was sold to defendant No.4 and hence, the alienation was on account of legal necessity. That the trial Court has rightly dismissed the suit as against them vis-à- vis suit schedule Item No.12.

58. According to the plaintiff, suit schedule Item No.12 is also joint family property which fact has also been admitted by defendant No.1 in not only the pleadings but also the cross-examination. In fact, it is on that basis, that the plea regarding legal necessity to alienate the said joint family property has been raised by defendant No.1.

59. However, in the application filed for production of additional documents, respondent No.8 herein/the alienee from defendant No.4 has filed a certified copy of -:

97. :- Form No.1 dated 04.10.1945 indicating the order of grant in A.O. No.2/1945-46 made by the State Government in favour of Annayappa. It was contended that the said grant was made in favour of Annayappa and that it is his self- acquired property. On his demise, the said property was succeeded to by defendant No.1-Manjunath as his name was entered in the revenue records. Hence, it is the separate property of Manjunath and therefore, he could alienate it to defendant No.4.

60. The said contention cannot be accepted for the simple reason that even if it has to be assumed that the State Government had made a grant of the said Item No.12 to Annayappa and it was his separate property, on his demise, he having no Class-I heir, the said property was succeeded to by his only brother-Hanumaiah, as a Class-II heir. Hanumaiah also succeeded to the other joint family properties of Annayappa on the principle of survivorship as there was no Class-I female heir left behind Annayappa. Thus, Hanumaiah—the father of the plaintiff and defendant Nos.1 and 2 succeeded to all the properties of Annayappa and whether the joint family properties or his separate properties. Hanumaiah enjoyed -:

98. :- all these properties which he succeeded to on the demise of his brother along with his own joint family properties. Thus, Hanumaiah even though may have succeeded to suit schedule Item No.12 as a Class-II heir under Section 11 of the Act, the family treated the said property as a joint family property, inasmuch as, the pleadings and evidence of defendant No.1 is in that line. Therefore, the entry of the name of only defendant No.1 in the revenue records pertaining to suit Schedule Item No.12 does not imply that he succeeded to the said item straight away on the demise of his paternal uncle Annayappa. Admittedly, Annayappa died without making any testament or will and therefore, intestate. Hence, his only brother Hanumaiah succeeded to his estate and all such properties along with joint family properties were enjoyed together by Hanumaiah as well as the other family members of the joint family. Hence, suit schedule Item No.12 is held to be an Item of joint family, as Hanumaiah and the members of the family had treated the said item as the joint family property thrown into a common stock of the other joint family properties.

61. Before considering the pleadings and evidence in this regard, with regard to there being legal necessity to -:

99. :- alienate Item No.12, it would be useful to state concisely the principles concerning alienation of a joint family property by a coparcener or Karta. [Source: Hindu Law, By Sir Dinshaw Fardunji Mulla, 24TH Edition, LexisNexis Publication].. a) The right of a manager or Karta of a joint Hindu family to alienate the joint family property is as defined by the Judicial Committee of the Privy Council in Hanooman Persaud vs. Musamat Babooee, [(1856) 6 MIA393. b) The manager of a joint Hindu family has the power to alienate for value, the joint family property, to bind the interest of both the adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate. A property alienated for legal necessity would not be available for partition. c) Where alienation is made by a manager without legal necessity, but with the consent of all other coparceners, they being all adults, the alienation is valid in its entirety. If it is made without the consent of all, it would, in Bombay and in Madras, bind the shares of the -:

100. :- consenting members only. An alienation by the manager of the joint family made without legal necessity is not void, but voidable at the option of the other coparceners. They may affirm it or they may repudiate it. d) As to what constitutes legal necessity, it has been held in various decisions that, inter alia, payment of Government revenue and all dues, which are payable out of the joint family property. Therefore, when the property is sold in order to fulfill the revenue obligations to the State or to discharge the debts of the family, it is a legal necessity. However, the same has to be established by concrete evidence on record. e) As far as alienation by the manager for the benefit of the estate is concerned, in Bal Mukand vs. Kamla Wati, [AIR1964SC1385, it was held by the Hon’ble Supreme Court that for a transaction to be regarded as for the benefit of the family, it need not be of a defensive character. In each case, the Court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into. Where adult -:

101. :- members are in existence, the decision is not to be of the manager of the family alone, but of all the adult members of the family, including the manager. f) The first authoritative exposition of the explanation “for the benefit of the estate” is to be found in Palaniappa Chetty v. Devasikamony Pandara, [AIR1917PC33. Therein it was observed that the manager of a joint family is not entitled to sell joint family land solely for the purpose of purchasing other land, or for the purpose of investing the sale price so as to bring an income larger than that derived from the land itself. Whether a transaction is beneficial to the estate, must depend on the facts and circumstances of the particular case. A transaction to be binding on the family must be one, which not only confers a benefit upon the estate, but is necessary for its good management. g) Thus, whenever the manager of a joint Hindu family sells joint family property, the purchaser is bound to inquire into the necessity for the sale, and the burden lies on the purchaser to prove either that there was a legal necessity in fact, or that he made proper and bona fide -:

102. :- enquiry as to the existing of such necessity and did all that was reasonable to satisfy himself as to the existence of such necessity. h) According to Mitakshara law, as applied in Bombay, Madras, Madhya Pradesh, and in some other States, a coparcener may alienate his undivided interest in the entire joint family property, or his undivided interest in a specific property forming part of the joint family properties. However, he has no right to alienate, as his interest, any specific property belonging to the coparcenary, for no coparcener can, before partition, claim any such property as his own. If he does alienate, the alienation is valid to the extent only of his own interest in the alienated property. A purchaser of the undivided interest of a coparcener in a specific property belonging to the joint family is not entitled to a partition of that property alone, for his vendor himself could not have claimed it, unless the other coparceners consented to it. He can only enforce his rights by a suit for a general partition.-.:

103. :- i) An undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless there is a partition by metes and bounds. Where the purchaser purchased an undivided share in the suit property he could not own and claim for more than the share of the vendor in the property nor could he claim possession in respect of the entire property. The purchaser cannot claim relief on the ground of equity, as he himself is responsible for his act in purchasing undivided share in a part of the suit property without the knowledge and consent of the co-sharer. j) The alienee of a specific property or of the undivided interest of a coparcener in such property has on a general partition, an equitable right to have that property, or his alienor's share in that property, as the case may be, assigned to him, if it could be done without injustice to the other coparceners. However, there may be equities between the coparceners or liabilities attaching to the alienor's share, which may render it inequitable or impracticable to do so. In such a case, the alienee is entitled to recover from his alienor, property of an -:

104. :- equivalent value out of the properties allotted to the alienor for his share in substitution of the property alienated. In making adjustments, the court will take the value of the properties at the time of the division and not at the time of the sale. k) The share to which an alienee is entitled to on partition is the share which the alienor was entitled at the date of alienation, and not at the date when the alienee seeks to reduce his interest into possession. However, this principle applies only to the fraction representing the share of the alienor. As to the actual items of the property in which the purchaser is entitled to a share, it has been held that the family property as existing on the date of the suit, is to be taken. l) Where a member of a joint family governed by Mitakshara law as administered in Bombay and Madras states, sells or mortgages more than his own interest in the joint family property, the alienation not being one for legal necessity or for payment by a father of an antecedent debt, the other members or persons to whom their interests in the property have passed, are entitled to have -:

105. :- the alienation set aside to the extent of their own interest therein. The alienation cannot be set aside in its entirety, for according to the law as prevailing in Bombay and Madras, a coparcener can alienate his own interest in the joint property. If any coparcener has consented to the alienation, the alienation will bind his interest also. m) Where an alienation is not for legal necessity or for payment of an antecedent debt, and it is set aside at the instance of the other coparceners as regards their shares, there is no equity entitling the alienee to a refund of a proportionate part of the purchase money in respect of those shares.

62. The relevant extracts from the following judicial precedent are as under: (a) Arshnoor Singh vs. Harpal Kaur and Ors. [AIR2019SC3098: “It is settled law that the power of a Karta to sell coparcenary property is subject to certain restrictions viz. the sale should be for legal necessity or for the benefit of the estate. The onus for establishing the existence of legal necessity is on the alienee.” -:

106. :- (b) Smt. Rani and another vs. Smt. Santa Bala Debnath and others [AIR1971SC1028: “10. ……….. Legal necessity does not mean actual compulsion : it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity.

11. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The, weight to be attached to the recitals varies according to the circumstances.” (c) Ganapati Santaram Bhosale vs. Ramachandra Subbarao Kulkarni [ILR19852) KAR1115(DB)].: “19. ……….. It is now well settled that in a suit for partition by Hindu coparcener it is not -:

107. :- necessary for him to seek the setting aside of the sale. It is sufficient if he asks for his share in the joint family properties and he be put in possession thereof and for a declaration that he is not bound by any alienations or interest of others created in such properties which fall to his share.” (d) B. Ranga Rao (died) and others vs. G. Venkata Krishna Rao and others, [AIR1996ANDHRA PRADESH5:

29. On citing certain judgments, it was observed that they laid down the following principles: (1) The Kartha of Hindu joint family has got the power to alienate the joint family property only for legal necessity or for the benefit of the family. (2) Where the joint family property is sold for legal necessity or for the benefit of the family, the degree of prudence which is required for the Kartha of the joint family, who is not the sole owner of the property is greater than that of the owner, and like a trustee. (3) When the sale is only for legal necessity, the burden on the alienee is to show that the sale itself was justified by legal necessity and he is under no obligation to enquire into application -:

108. :- of sale amount in detail by the Kartha as alienee has no control over him. (4) Where the sale of joint family property is for the benefit of the family, the alienee has to take reasonable care to find out whether the sale, in fact, was for the benefit of the family on the date of transaction, which includes to find out that the sale was for the purchase of other property or better investment; that the sale consideration was actually utilised for the purpose of purchasing in other lands for the benefit of the family.

30. The alienee, in this case, therefore, had to establish one of the following two things - (i) the transaction was in fact justified by legal necessity or for the benefit of the estate, or (ii) they had made reasonable and bona fide enquiries as to the existence of the necessity and satisfied themselves that the manager was acting for the benefit of the estate.

63. Bearing in mind the aforesaid principles, the oral and documentary evidence are considered as under:

64. Exs.P-13 and 65 are the documents showing the name of defendant No.1 in respect of Sy.No.46/1A measuring 12 acre 11 guntas and the sale of the said property as per Ex.P-24 in favour of defendant No.4.-.:

109. :- Subsequently, mutation was effected in the name of defendant No.4 as per Ex.P-65 by mutation order dated 21.11.2005. The mere fact that the name of defendant No.1 found a place in Ex.P-13 vide IHR-34/88-89 does not mean that only defendant No.1 had the right, title and interest in respect of the said item. As already mentioned, his name was entered in the revenue records in respect of Item No.12 as he was the only male member of the family and it was in the nature of him being a Karta or a trustee. Pursuant to Ex.P-24 dated 28.09.2005, mutation was effected in the name of defendant No.4 when the alienation was made by defendant No.1 in favour of defendant No.4. The said sale not being for the purpose of legal necessity or for the benefit of the estate, does not bind the plaintiff, or defendant No.2. The said sale is binding only defendant Nos.1 and 3 who sold Item No.12 to defendant No.4.

65. We have considered the oral and documentary evidence regarding alienation of Item No.12 of the suit schedule property. The said suit item was alienated as per Ex.P-24 which is the certified copy of the sale deed dated 28.09.2005. Suit Item No.12 measures 12 acres 11 -:

110. :- guntas in Sy.No.46/1A situated at Nagamangala Village, Kundana Hobli, Devanahalli Taluk, Bengaluru Rural District. The said suit schedule Item was sold by defendant No.1 and five others including two minors in favour of defendant No.4. The plaintiff is not a party to the said alienation. Therefore, she has sought a declaration that the said alienation is not binding on her and in fact, it is the said alienation which was the catalyst for filing of the suit by the plaintiff.

66. The plaintiff who deposed as PW-1 has denied that defendant No.1 had any loans, nor had mortgaged any properties so as to sell suit schedule Item No.12 to defendant No.4. As against this evidence, defendant No.1 who deposed as DW-1 has also admitted that he had fully repaid the loan borrowed from PLD Bank in the year 1995- 96 as per Ex.D-54 and another loan was repaid on 31.05.1995 as per Ex.D-53 dated 09.09.1996. That in the year 2008, under the ‘loan waiver scheme’, he repaid a sum of Rs.37,500/- as per Ex.P-52 and a sum of Rs.75,404/- was waived. That he had repaid vehicle loan as per Exs.D-49 to Ex.D-51. DW-1 has categorically -:

111. :- admitted that he had fully repaid all the loans obtained, prior to the year 2005.

67. Further, DW-4 / GPA holder of defendant No.4— the purchaser of suit schedule Item No.12, has categorically admitted that after filing of the suit, he came to know that Ex.D-56/Genelogical tree is incorrect. He did not inquire in the village about the truthfulness of Ex.D- 56/Genealogical tree. He had not given any public notice in the newspaper prior to purchasing suit schedule Item No.12. That only after service of summons to him in the suit, he came to know that the plaintiff too had a share in said suit schedule Item. He also admitted that his wife paid a sum of Rs.2,45,50,000/- for purchasing suit schedule Item No.12. According to DW-4, it was orally conveyed to him that there was a family necessity to sell the property. That he had no knowledge about the other suit schedule properties and the income that they were getting from the same. He has categorically admitted that he did not inquire from defendant No.1 about the family necessity that they had in order to sell suit schedule Item No.12. He has also admitted that he did not know whether the plaintiff too had a share in suit schedule Item No.12 -:

112. :- and that whether it is the ancestral property of the plaintiff. He also did not inquire from Appanna—the agent if plaintiff had any sisters.

68. On a consideration of the aforesaid evidence, it is held that defendant No.4 has not discharged the burden cast on her to prove that the sale of suit schedule Item No.12 by defendant Nos.1 and 3 in her favour was for legal necessity. There is no evidence on record to show that there were dues in the form of revenue dues or any debts which the family had to repay. All the debts had been repaid long prior to the alienation of the suit schedule Item No.12. There is also no material on record to prove that there were dues of such a magnitude that suit schedule Item No.12 had to be sold for a huge consideration of Rs.2,45,50,000/-. For what purpose the said suit item was sold and how the said sale consideration has been dealt with is also not on record. The only material which is on record is that on the same day, Ex.P-24 is executed in favour of defendant No.4. Ex.P-66 is executed in favour of defendant No.6 and subsequently Ex.P-70 was executed in favour of defendant No.7 under which suit schedule Item Nos.21 to 23 were purchased in their individual names.-.:

113. :- Hence, it is reiterated that there being no legal necessity to sell the suit schedule item, the sale is not binding on the plaintiff.

69. In view of the aforesaid discussion, point No.2(i) is answered by holding that there was no legal necessity to sell suit schedule Item No.12 to defendant No.4.

70. It was contended by respondent No.8 that from the sale proceeds, suit schedule Item Nos.21 to 23 were purchased in the names of defendant Nos.6 and 7 that too, for a consideration of Rs.11,50,000/- and Rs.18,00,000/- respectively, which was not beneficial for the estate. We do not accept the said submission. Hence, Point No.2(i) is answered by holding that the alienation of suit schedule Item No.12 by defendant Nos.1 and 3 in favour of defendant No.4 may be valid in the eye of law but not binding on the plaintiff. However, as regards defendant Nos.1 and 3 who also have a share in the said property, the same is binding on them and Ex.P-24 is binding on them. In the circumstances, the equities between the parties as regards the share of plaintiff and defendant No.2 -:

114. :- in the said suit schedule Item would have to be worked out in the final decree proceedings.

71. R.F.A.No.689 of 2015 was filed by the plaintiff assailing that portion of the judgment and decree declining to grant partition and separate possession inter alia in suit schedule Item No.12. On 29.05.2017, respondent No.8- M/s.NAM Estate Private Limited was impleaded in the said appeal. On 25.04.2018, an interim arrangement was made till 30.05.2018 restraining respondent No.8 from creating any third party rights in suit schedule Item No.12 to an extent of 25,000 square feet of sital area formed therein. The said interim arrangement was continued from time to time. Thereafter, on 03.10.2018, on hearing learned counsel for respondent No.8, a direction was issued to identify the property with site numbers to measure upto 50,000 square feet in the layout formed so that the remaining property could be dealt with by respondent No.8 and in the meanwhile, the interim order granted earlier was ordered to be continued. On 04.12.2018, a direction was issued to furnish the details of sites/undeveloped or developed, in all measuring 50,000 square feet, to keep it unencumbered till disposal of the -:

115. :- appeal. Thereafter, another interim order was passed on 10.01.2019, a direction was issued to respondent No.8 to reserve 36,300 square feet of land in developed area and to keep it unencumbered without creating third party rights, till the disposal of the appeal. However, on 18.03.2019, it was brought to the notice of this Court that by order dated 10.01.2019, an extent of 36,300 square feet has been reserved unencumbered in a developed area, but suit schedule Item No.12 is not a developed area. Hence, the earlier order dated 10.01.2019 has been recalled. Subsequently, order dated 18.03.2019 was also recalled by another order dated 29.01.2020. Thereafter, on the decision of the Hon’ble Supreme Court in Vineeta Sharma, by order dated 18.01.2021, the parties were directed to maintain status quo relating to the suit property in question (Item No.12) till the next date of hearing. The said order was continued from time to time and thereafter, until further orders. Hence, presently, the interim order of status quo vis-à-vis suit schedule Item No.12 is still in operation. In the circumstances, we are of the view that the said interim order shall continue to operate until the suit properties are divided by metes and -:

116. :- bounds in accordance with the share of the plaintiff and other parties to the suit who are entitled to a share in the suit properties. It is further observed that since the alienation of suit schedule Item No.12 by defendant No.1 to defendant No.4 and thereafter, to respondent No.8 and in turn to the impleading applicants is not held to be binding on the plaintiff, while dividing the suit schedule properties by metes and bounds, the share of defendant Nos.1 and 3 in the said suit item shall be taken note of so that the equities between the parties are adjusted. In the circumstances, the impleading applicants are permitted to be impleaded in the final decree proceedings. Re. Point No.2(ii): “(ii) Whether the alienation of item No.12 by defendant No.4 in favour of respondent No.8 in R.F.A.No.689 of 2015 is valid in the eye of law and bind on the plaintiff ?.

72. Suit item No.12 was sold by defendant Nos.1 and 3 in favour of defendant No.4 on 28.09.2005 vide Ex.P-24 prior to the filing of the suit. Subsequent to the judgment and decree dated 19.11.2014, defendant No.4 sold the said property in favour of respondent No.8 in -:

117. :- R.F.A.No.689/2015 on 20.12.2014. In fact, during the pendency of the suit, defendant No.4 converted the said land comprised in suit schedule Item No.12 from agricultural to non-agricultural purpose. Respondent No.8 purchased the said suit schedule Item in a month’s time from the date of judgment and decree of the trial Court. According to the appellant/plaintiff, the judgment and decree dated 20.12.2014 was assailed in R.A.No.15011/2015 before the District Court, but thereafter R.F.A.No.689/2015 was filed before this Court on account of pecuniary jurisdiction. The limitation period for filing a regular first appeal before this Court is ninety days.

73. According to the appellant/plaintiff, sale made by defendant No.4 to respondent No.8 herein is hit by Section 52 of the Transfer of Property Act. Moreover, defendant No.4 could not have a better title than what she had to respondent No.8.

74. On the other hand, learned senior counsel appearing for respondent No.8 submitted that Section 52 of the Transfer of Property Act, 1882 does not apply in the -:

118. :- instant case as respondent No.8 was not a party to the suit. Secondly, the suit was dismissed as against item No.12 vis-à-vis defendant Nos.1, 3 and 4. Defendant No.4 subsequent to the dismissal of the suit sold item No.12 to defendant No.8, who is in possession of suit schedule Item No.12. Hence, the trial Court rightly dismissed the suit vis-a-vis suit schedule Item No.12. That defendant No.8 has developed the said property, made sites thereon and has sold the same to various persons including the impleading applicants herein. Hence, that portion of the judgment and decree with regard to dismissal of the suit vis-à-vis suit schedule Item No.12 may not be interfered with in this appeal, as the sale made by defendant No.4 in favour of defendant No.8 is valid in the eye of law.

75. Before proceeding further, it would be useful to refer to the law concerning Section 52 of the Transfer of Property Act, 1882. At the outset, it is necessary to extract Section 52 of the Act, which reads as under: “52. Transfer of property pending suit relating thereto.- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central -:

119. :- Government of any suit or proceeding which is not collusive and in which any right of immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. Explanation.- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed off by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.” (underlining by us) 76. The relevant judicial dicta on Section 52 may be considered, which are as follows: (a) In Amit Kumar Shaw & another vs. Farida Khatoon & another [(2005) 11 SCC403, the Hon’ble -:

120. :- Supreme Court expressed as under, with regard to the principle enunciated in Section 52 of the Act: “15. Section 52 of the Transfer of Property Act is an expression of the principle “pending a litigation nothing new should be introduced”. It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present:

1. There must be a suit or proceeding pending in a court of competent jurisdiction.

2. The suit or proceeding must not be collusive.

3. The litigation must be one in which right to immovable property is directly and specifically in question.

4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.

5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.” -:

121. :- Further, the transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. (b) In Nagubai Ammal & others vs. B.Shama Rao & others, [AIR1956SC593, the Hon’ble Supreme Court held that the effect of Section 52 is not to wipe out a sale pendente lite altogether, but to subordinate it to the rights based on the decree in the suit. However, as between the parties to the transaction it is perfectly valid and operates to vest the title of transferor in the transferee. The words “so as to affect the rights of any other party thereto under any decree or order which may be made therein” make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto.-.:

122. :- In the aforesaid case, the Hon’ble Supreme Court also alluded to the distinction between a collusive proceeding and a fraudulent one. It stated that collusion in judicial proceeding is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. When a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the Court in his favour and against his opponent by practicing fraud on the court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest.-.:

123. :- (c) In Vinod Seth vs. Devender Bajaj [(2010)8 SCC1, it was held that Section 52 does not render transfers affected during the pendency of the suit void but only render such transfers subservient to the rights as may be eventually determined by the court. Therefore, transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit. (d) In A. Nawab John & others vs. V.N. Subramaniyam [(2012) 7 SCC738, it was categorically held by the Hon’ble Supreme Court that the mere pendency of the suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that, the alienation will in no manner affect the rights of the other party under any decree, which may be passed in the suit, unless the property was alienated with the permission of the court. (e) In a recent decision of the Hon’ble Supreme Court, in Thomson Press (India) Ltd. vs. Nanak -:

124. :- Builders and Investors P. Ltd. & others [AIR2013SC2389, it was held that when there was a sale of immovable property in the teeth of an agreement to sell, the same is immune from specific performance of an earlier contract of sale only if the transferee has acquired the title for a valuable consideration, in good faith and without notice of the original contract. That is evident from Section 19(b) of the Specific Relief Act, 1963. (f) The principles of Section 52 have been considered by a Full Bench of this court, in the case of Khaja Bi vs. Mohammad Hussain [AIR1964Mysore 269].. There is a web of facts as there were multiple legal proceedings in respect of the property involved in the said case, but it can be simplified by stating that a suit had been filed seeking specific performance of an agreement dated 12.04.1936. During the pendency of the said suit, there was an alienation effected by the owner of the suit schedule property in favour of a third party. The question was whether the said alienation was not affected by lis pendens and whether the vendee could not get rid of the decree for specific performance. The Full Bench opined that the sale in favour of the vendee was affected by lis -:

125. :- pendens and therefore, he could not get rid of the decree for specific performance of the agreement and accordingly, allowed the second appeal. In that case, the Full Bench distinguished a decision of the Hon’ble Supreme Court in Bishan Singh vs. Khazan Singh, [AIR1958SC838, wherein it was been held that the doctrine of lis pendens applies only to a transfer ‘pendente lite’, but it cannot affect a pre-existing right. If the sale is a transfer in recognition of a pre-existing and subsisting right, it would not be affected by the doctrine as the said transfer did not create a new right ‘pendente lite’, but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right ‘pendente lite’. (g) In Mohammed Ali Abdul Chanimomin vs. Bisahemi Kom Abdulla Saheb Momin & another [AIR1973Mysore 131]., a Division bench of this court held that the object of Section 52 is to subordinate all derivative interests or all interests derived from parties to a suit by way of transfer pendete lite to the rights declared by the decree in the suit and to declare that they shall not -:

126. :- be capable of being enforced against the rights acquired by the decree-holder. A transferee in such circumstances therefore takes the consequences of the decree which the party who made the transfer to him would take as the party to the suit. The principle of lis pendens embodied in Section 52 being a principle of public policy, no question of good faith or bona fides arises. Such being the position, the transferee from one of the parties to the suit cannot assert or claim any title or interest adverse to any of the rights and interests acquired by another party under the decree in suit. The principle of lis pendens prevents anything done by the transferee from operating adversely to the interest declared by the decree. (h) In Krishna Pillai Narayana Pillai vs. Neelakanta Pillai Velayudhan Pillai, [AIR1957Trav- Co.293]., it has been held that during the pendency of the suit on a simple mortgage, the mortgagor cannot execute a lease of the mortgaged property, because if the lease is upheld the amount payable at the time of the redemption would substantially increase by the lease. If the mortgagor cannot lease the mortgaged property during the pendency of the suit to the prejudice of the mortgagee’s -:

127. :- right he cannot accept any premium which has the effect of increasing the burden on the property. (i) In Ramanagouda Siddanagouda & others vs. Basavantraya Madivalappa, Mulimani & others, [AIR2002Karnataka 96]., this court observed that one of the important ingredients for application of principle of lis pendens is that the suit should be non-collusive in character. That, even when a suit is honestly instituted but during trial or later, if parties, enter into a compromise collusively and obtained a decree, which affects the transfer of immoveable property, then the doctrine of lis pendens has no application which is evident on the principle of equity. In this context, reliance could be placed on the decision of Travancore and Cochin High Court in Gnanapakiam vs. Nadar Ponian Nadar, [AIR1955Trivancore-Cochin 3]. and the decision of the Bombay High Court in the case Natha Dhojujholap vs. Ramchand Balchand, [AIR1946Bom 462]. and Patna High Court in Juthan Tiwari vs. Prashanth Singh, [AIR1934Pat 370]. and Oudh High Court in Satyanarayana Singh vs. Badari Prasad Singh, [AIR1928Oudh 146].. In the aforesaid case, this court held that, though -:

128. :- initially there was no collusion, the compromise entered into subsequently was collusive in nature and therefore, Section 52 of the Act was not applicable.

77. While answering point No.2(i), it has been held that the alienation of suit schedule Item No.12 in favour of defendant No.4 by defendant Nos.1 and 3 is not valid in the eye of law insofar as the plaintiff is concerned. Therefore, any subsequent alienation of the said property cannot acquire a stamp of validity although the said alienation may be subsequent to the judgment and decree of the trial Court dismissing the suit vis-à-vis the said property. A reading of Section 52 of the Transfer of Property Act, 1882 in light the explanation thereto and the judicial precedent referred to above, it is clear that despite the dismissal of the suit by the trial Court by judgment and decree dated 19.11.2014 did not pave the way for a further alienation of the said property. The doctrine of lis pendens would apply right from the presentation of the suit to the satisfaction of the final decree to be made in the suit. Hence, the alienation made by defendant No.4 in favour of respondent No.8 in R.F.A.No.689 of 2015 is hit by Section 52 of the aforesaid Act. As a result, the -:

129. :- findings given in these appeals vis-à-vis point No.2(i) above will apply to the alienation made by in favour of respondent No.8 herein also. This is because respondent No.8 being an alienee from respondent No.4 cannot acquire a better title then what was acquired by defendant No.4 in the suit. Hence, point No.2(ii) is accordingly answered. Re. Point No.2(iii): “(iii) Whether the alienation of sites in suit schedule Item No.12 by respondent No.8 to the impleading applicants is binding on the plaintiff ?.” In view of the above answers to point No.2(i) and 2(ii), we hold that the alienation of sites in suit schedule Item No.12 by respondent No.8 to the impleading applicants during the pendency of these appeals is also not binding on the plaintiff. Re. Point No.2(iv): “(iv) Whether the appellant/plaintiff is entitled to any share in suit schedule Item No.12 ?.

78. In view of the answers given to point Nos.2(i) and 2(ii), it is held that appellant/plaintiff is entitled to a -:

130. :- share in suit schedule Item No.12. Accordingly, point No.2 is answered. RE. POINT No.3 : “(3) Whether the plaintiff is entitled to any share in suit Item No.13 property?.

79. Ex.P-14 is the RTC extract to show that in Sy.No.5/4 totally measuring 01 acre 02 guntas and an extent of 01 gunta was sold in the name of Sri.C.N.Muniraju and Sri.Chinnappayyachari and an extent of 39 guntas remained with the joint family.

80. Learned counsel for the plaintiff drew our attention to the Memo dated 27.01.2014 filed before the trial court restricting plaintiff’s claim to the alienated portion in Sy.No.5/4 and giving up her right, title and interest insofar as the alienated portion is concerned. He submitted that the trial court has not appreciated the memo in its true perspective. Hence, the trial court was not right in dismissing the suit as against entire suit schedule Item No.13.

81. The memo filed on 27.01.2014 reads as under: -:

131. :- “MEMO The undersigned Advocate for plaintiff in the above case on the instruction of the plaintiff humbly submits that she does not claim any rights or Share over the portions of the land in Sy.No.5/4 (the Portions of Suit Schedule Item No.13 totally measuring 3 Guntas) which have been sold in favour of one C.N.Muniraju measuring 1 Guntas and Puttaswamy measuring 2 Guntas of land in Sy.No.5/4 respectively as reflected in the RTC (Ex.p-14). Hence, the same may be taken on record, in the interest of justice and equity. Devanahalli, Sd/- Date:

27. 01/2014 Advocate for plaintiff

82. On a reading of the same, it is evident that out of an extent of 01 acre 02 guntas in Sy.No.5/4 (42 guntas), the appellant/plaintiff did not claim any right or share over the portions of the land which had been sold in favour of Sri.C.N.Muniraju (measuring 01 guntas) and Sri.Puttaswamy (measuring 02 guntas). Only to the extent of the alienated portions, the appellant/plaintiff did not claim a share. Hence, the said alienees were also not made parties to the suit. The said memo has been misconstrued by the trial Court to hold that the plaintiff -:

132. :- had given up her rights in favour of the entire extent of Sy.No.5/4, which is incorrect. Therefore, it is held that the appellant/plaintiff has a right in Sy.No.5/4 (Item No.13) in the extent of non-alienated portions. It is clarified that only 03 guntas out of 01 acre 02 guntas has been sold and in respect of the alienated portions only, the appellant/plaintiff has given up her rights. Hence, point No.3 is accordingly answered in favour of appellant/plaintiff. POINT No.4 : “(4) Whether the Suit Schedule Item Nos.21 to 23 are joint family properties or separate properties of defendant Nos.6 and 7 respectively?.

83. It is noted that Item No.21 was purchased on 26.10.2005 and thereafter mutation was effected in favour of defendant No.6—Prameela wife of Manjuanth/defendant No.1 vide Ex.P-67. Similarly, Item No.22 was purchased vide sale deed dated 26.10.2005 registered in the name of N.M.Arun son of Manjunath/defendant No.1 and arrayed as defendant No.7. Ex.P-71 is the certified copy of the mutation register extract as per mutation order dated 15.02.2006.-.:

133. :- 84. Similarly, Item No.23 in Sy.No.14 measuring six acres was purchased vide sale deed dated 26.10.2005 executed in favour of defendant No.7 and Ex.P-72 is the mutation register extract by order dated 15.05.2006.

85. Exs.P-73 and 74 are also RTC extracts with regard to Sy.No.13 and 14 measuring 12 acres 34 guntas and 12 acres 35 guntas respectively in respect of Item Nos.22 and 23 respectively purchased in the name of Sri.N.M.Arun/defendant No.7.

86. It is also noted that Exs.D-58 to 63 show the name of defendant No.1 in respect of suit schedule Item No.12, which is pursuant to IHR No.34/88-89 in respect of which it has been held that the said item, as also other joint family properties, the name of defendant No.1 was entered on the demise of his father, namely Hanumaiah.

87. It is the case of the appellant/plaintiff that the suit schedule Item Nos.21 to 23 were purchased in the names of defendant Nos.6 and 7—who are the wife and son respectively of defendant No.1—out of the proceeds of the sale of suit schedule Item No.12 on 28.09.2005 as per Ex.P-24. That a sum of Rs.2,45,50,000/- was received -:

134. :- under the sale deed - Ex.P-24. On the very same day, suit Item No.21 was purchased for a sale consideration of Rs.11,60,000/- as per Ex.P-66 and suit schedule Item Nos.22 and 23 were purchased on 05.09.2005 as per Ex.P- 70 for a total consideration of Rs.18,85,000/-.

88. It was contended by learned counsel for the appellant/plaintiff that defendant Nos.6 and 7 have no income. That defendant No.6 is a homemaker and does not have any independent source of income of her own and defendant No.7 was a student at the relevant point of time not having any source of income. It was contended that the consideration for purchasing the aforesaid items of properties was from the amount received on sale of suit schedule Item No.12. Since, suit schedule Item Nos.21 to 23 were purchased from the proceeds of the sale of suit Schedule Item No.12 which is an ancestral joint family property, the suit schedule Item Nos.21 to 23 are also ancestral joint family properties. Alternatively, it can also be inferred that the said suit schedule items were purchased from out of the income from other ancestral properties. Hence, the said items are also joint family properties. There is no contra evidence let-in by defendant -:

135. :- Nos.1, 6 and 7 in this regard. Except denying the case of the plaintiff, there is no evidence let-in to prove that defendant Nos.6 and 7 had any independent source of income out of which they had purchased suit schedule Item Nos.21 to 23 in order to prove that it was their self- acquired property.

89. In the circumstances, it is held that suit schedule Item Nos.21 to 23 are also joint family properties and the plaintiff has a share in the suit schedule properties also. Accordingly, Point No.4 is answered. POINT No.5 : “(5) Whether the appellant/plaintiff is entitled to any share in the suit schedule properties and if so, in which properties and to what share?.

90. The appeal filed by the appellant/plaintiff is, inter alia, with regard to the share that she is entitled to in the suit schedule properties. The trial court granted her 1/8th share in suit schedule Item Nos.1 to 11 and 14 to 23 properties. The same is assailed in this appeal.

91. Learned counsel for the appellant/plaintiff contended that having regard to the latest dictum of the -:

136. :- Hon’ble Supreme Court in the case of Vineeta Sharma, the plaintiff, who is the daughter, must be treated as a coparcener and is entitled to the same share that a son is entitled to in the Mitakshara coparcenary properties. Learned counsel for the appellant/plaintiff submitted that the right of a female heir in Mitakashara coparcenary properties has now been crystalised in view of the amendment made to Section 6 of the Act enforced from 09.09.2005 and the recent judgment of the Hon’ble Supreme Court in Vineeta Sharma.

92. However, learned counsel for the respondents reiterated their contention with regard to maintainability of the suit and contended that the appellant/plaintiff as well as defendant No.2/plaintiff’s sister are not entitled to any share in the suit schedule properties.

93. Prior to answering the said contentious issue, it would be useful to state in a nutshell the right of a female heir in Mitakshara coparcener property by considering the same in a historical perspective. It would be useful to recall the salient features of evolution of law of partition and succession under the Mitakshara School of Law.-.:

137. :- (a) Prior to the codification of the rules regarding succession, under the classical Hindu Law, a Hindu family is ordinarily joint not only in estate but also in food and worship. Coparcenary property was an incidence of joint family estate as distinguished from absolute or separate property of an individual coparcener. Coparcenary property devolved on the principle of survivorship as per the rules governing devolution of property by survivorship. The right of a male Hindu in coparcenary property was by birth. (b) Under the Hindu Law of Inheritance (Amendment) Act, 1929 certain female members of the joint family were included in the order of succession by way of intestate succession. Subsequently, under the Hindu Women’s Rights to Property Act, 1937, significant changes were effected in law concerning partition. In the princely State of Mysore, the Hindu Women’s Rights to Property Act, 1933 was enacted. The said Act conferred on the widow, the widow of a predeceased son and the widow of a predeceased son of a predeceased son, a right of inheritance to the deceased’s property even when the -:

138. :- deceased left a male issue and such persons were even allowed to claim partition, though they would take only a limited estate in the property of the deceased. (c) The rule of devolution of property by survivorship was further narrowed by the enforcement of the Act. Under Section 6 of the said Act, as it stood prior to 2005 amendment, if a male Hindu died after the commencement of the Act having an interest in a Mitakshara coparcenary property, his interest in the property was to devolve by survivorship upon the surviving members of the coparcenary. But if the deceased left behind surviving a female relative specified in Class-I of the Schedule I to the Act, or a male relative specified in that Class who claimed through such female relative, the interest of the deceased in the Mitakshara coparcenary property would devolve by testamentary or intestate succession under the Act and not by survivorship. Thus, the rule of survivorship would not come into play (i) when the deceased left behind him surviving a female relative specified in Class-I, or a male relative specified in Class-I, who claimed through such female relative in Class-I, or (ii) when the deceased had made a testamentary disposition -:

139. :- of his undivided share in the coparcenary property. Under Section 30 of the said Act, a coparcenary could make a testamentary disposition of his undivided interest in joint family property. A share of the deceased coparcenary in Hindu Mitakshara coparcenary property was deemed to be the share in the property. That would be allotted to him if a partition of that property had taken place immediately before his death. Thus, a notional partition of coparcenary property before the death of a coparcener was contemplated under the section and the property would devolve on the heirs by way of succession and not by survivorship. While applying the principles of notional partition in a given case, one had to take into consideration the status of a person, who had separated himself from the coparcenary before the death of the deceased or the claim of any heir of such a person as explained in Explanation 2. (d) The Hindu Succession (Karnataka Amendment) Act, 1990 amended Section 6 of the Act with effect from 28.07.1994 which was prior to the amendment made by the Parliament with effect from 09.09.2005. However, with the coming into force of the Central Amendment, the -:

140. :- Karnataka Amendment would pale into insignificance as the Central Amendment would prevail over the amendment made to Section 6 by the State Legislature and in view of the recent dictum of the Hon’ble Supreme Court in the case of Vineeta Sharma to the extent it is repugnant to the Parliamentary amendment vide Article 254 of the Constitution of India. (e) Section 6 of the Act has now been amended by virtue of the Hindu Succession (Amendment) Act, 2005 under which, a daughter of a male Hindu governed by Mitakshara Law, leaving behind coparcenary property is considered to be a coparcener for the purpose of succession to his interest in the Mitakshara coparcenary property. In fact, the Section goes further to state that the daughter of a coparcener shall, by birth, become a coparcener in her own right in the same manner as the son; have the same rights in the coparcenary property as she would have had if she had been a son; and be subject to the same liabilities and disabilities in respect of the said coparcenary property as that of a son. A daughter, as a coparcener, can also dispose of her right, title and interest in the coparcenary property by way of a testamentary -:

141. :- disposition. For immediate reference, Section 6 of the Act is extracted as under:- “6. Devolution of interest in coparcenary property.―(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005(39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,― (a) by birth become a coparcener in her own right the same manner as the son; (b) have the same rights in the coparcenery property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by herewith the incidents of -:

142. :- coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,― (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre- deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.-.:

143. :- Explanation.―For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.(4) After the commencement of the Hindu Succession (Amendment) Act, 2005(39 of 2005), no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great- grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005(39 of 2005), nothing contained in this sub-section shall affect― (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the -:

144. :- same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005(39 of 2005)had not been enacted. Explanation.― For the purposes of clause (a), the expression “son”, “grandson” or “great- grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005(39 of 2005). (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December,2004. Explanation.― For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.

94. On an analysis of the amended Section 6 of the Act, two aspects become clear: firstly, on and from the commencement of Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005), i.e., with effect from 09.09.2005, in a joint family governed by Mitakshara law, a daughter of a coparcener by birth becomes a coparcener in her own -:

145. :- right in the same manner as the son. She has the same rights in the coparcenary property as she would have had if she had been a son and is subject to the same liabilities and disabilities to the coparcenary property as that of a son. Any reference to Hindu coparcener shall be deemed to include a reference to the daughter of a coparcener. This, in our view is the declaration of law. Though this declaration of law is made on 09.09.2005 by the Parliament, nevertheless it is retroactive by its operation. However, there is an exception to the same, in the sense that, the said declaration that, a daughter by birth becomes a coparcener in her own right in the same manner as that of a son, would not invalidate any disposition or alienation, partition or testamentary disposition which had taken place prior to 20.12.2004. This proviso is in the form of a saving clause so that no partition or disposition which had taken place prior to 20.12.2004 can be reopened. Hence, all partitions and alienations or testamentary dispositions of property prior to 20.12.2004 are saved. Excluding the saving clause, the right of a daughter only as a coparcener (not any other female members of a Joint Hindu Family) -:

146. :- governed by Mitakshara law would have rights on par with the son. This would mean that all other female relations, such as sister-in-law, mother or widow do not become coparceners under the said section. This vital aspect of the declaration of law made under Section 6(1) of the Act vis-à-vis daughters only must be borne in mind.

95. Secondly, having made the said declaration, sub-section (2) of Section 6 of the Act states that any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in the Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. This means that only a daughter is entitled to rights as a coparcener by birth just as a son has all the incidents of coparcenary ownership but she is empowered to dispose of her coparcenary right by testamentary disposition. This right is also on par with the right of a coparcener who is a son, but the same must be harmoniously read with Section 14 of the Act, which states that property of a female Hindu to be her absolute -:

147. :- property. Thus, the declaration of the right of a daughter as a coparcener is under Section 6(1) of the Act. But, Section 6(2) of the Act, Section 6(3) deals with Mitakshara succession.

96. Hence, it is necessary to bear in mind that while Sections 6(1) and (2) of the Act define or create a right in a daughter as a coparcener and define her rights, Section 6(3) of the Act deals with right of succession by a daughter when a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005. The following is the resultant position pursuant to the aforesaid amendment: (i) Where a (male) Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu Family governed by the Mitakshara law shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship. (ii) The coparcenary property shall be deemed to have been divided as if a partition -:

148. :- has taken place which is a notional partition. This is as per the explanation to sub-section (3) of Section 6 of the Act, which states that the notional partition has to be considered as having taken place immediately before the death of the coparcener, irrespective of whether he was entitled to claim partition or not. It may be noted that the right to claim partition was restricted if a coparcener’s father remained joint with his father and his brothers under the Bombay School. That restriction has been removed under Section 6 of the Act. (iii) Hence, by a deeming fiction, the share of the Hindu having interest in the property of the Joint Hindu Family and governed by Mitaksahara law is determined when he dies and when succession opens. (iv) While determining his share on the mechanism of a notional partition, the amendment, inter alia, states that the daughter is allotted the same share as is -:

149. :- allotted to a son. This would mean the daughter of a deceased coparcener is entitled to a share equal to that of a son. (v) This would imply that having declared a daughter of a coparcener to become a coparcener by birth in her own right as per Section 6(2) of the Act, in Section 6(3), when a male Hindu dies and while determining the interest of the deceased in the property of the Hindu joint family governed by Mitakshara law on the basis of the notional partition, the share that is allotted to a daughter shall be equal to that of a share allotted to a son. (vi) Therefore, sub-section (3) to Section 6 equates a daughter to that of a son in the matter of succession. (vii) While declaring the rights of a daughter in a coparcenary property, sub- section (5) of Section 6 states that nothing contained in the said Section shall apply to a partition, which has been effected before -:

150. :- 20.12.2004. The explanation thereto defines partition to mean any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court. (viii) Hence, while creating or declaring a right of a daughter in coparcenary property, as a coparcener by birth, in a Joint Hindu Family governed by Mitakshara law, the Parliament has been anxious to save all partitions that have taken place prior to 20.12.2004. The following observations from Hindu Law, By Sir Dinshaw Fardunju Mulla, 23rd Edition, [Pages 372 onwards till 426]., could be relied upon: a) It would be apposite to mention that the general principles of inheritance would now have to be read in conjunction with the present amendments, which, to a large extent, abrogate the principles of inheritance and pious obligation for debts of ancestors.-.:

151. :- b) By virtue of the new provision, a daughter of a coparcener in a joint Hindu family governed by the Mitakshara law now becomes a coparcener in her own right and thus enjoys rights equal to those hitherto enjoyed by a son of a coparcener. The implications of this fundamental change are wide. Since a daughter now stands on an equal footing with a son of a coparcener, she is now invested with all the rights, including the right to seek partition of the coparcenary property. c) The seminal aspect which needs consideration, as a result of the amendment, is therefore the genesis of a Hindu Coparcenary. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and now daughters of a coparcener become coparceners by virtue of birth and thus, are a part of the coparcenary. Devolution of coparcenary property is the later -:

152. :- stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation and is well recognised. One of the incidents of a coparcenary is the right of a coparcener to seek severance of status or partition.

97. Reference to the decision of the Supreme Court, in the case of State Bank of India vs. Ghamandi Ram, [AIR1969SC1330, will prove useful. That decision was merely clarifying and elaborating the incidents of coparcenaryship as always inhered in a Hindu Mitakshara coparcenary. The right to partition has not been abrogated. That right is inherent and can be availed of by any coparcener, now even by a daughter, who is declared to be a coparcener on the amendment to Section 6 of the Act.

98. Reference could also be made to the decision of the Supreme Court in Ganduri Koteshwanamma vs. Chakiri Yanadi, [(2011) 9 SCC788, referred to by learned counsel for the appellant/plaintiff, which held that the rights of daughters in coparcenary property as per the -:

153. :- amended Section 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on passing of a final decree. Where such a situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

99. The first three words of the aforesaid section came to be considered and interpreted in the aforesaid case. It has been observed that the words “on and from” mean “immediately and after” – the commencement of the Act. It is observed in other words, as soon as the amending Act came into force the daughter of the coparcener becomes, by birth, a coparcener in her own right in the same manner as the son. In that case the change in law by way of amendment to Section 6 of the Act came into effect during the pendency of the Appeals. It was held that the changed law applied to pending Appeals and consequently, the said Appeal. Hence the daughter in that case was held to be the coparcener. It was observed that there was nothing in the Act which showed that only those born on and after the -:

154. :- commencement of the Act would become coparceners. Hence, it was held that even a daughter who was born prior to the amendment Act became a coparcener immediately on and after the Amendment Act. 100.It is thus submitted that the basic tenets of coparcenaryship have changed only to the extent of inclusion of daughter of a coparcener as coparceners themselves. The rights of coparceners under the Shastric or classical Hindu Law, to seek severance of status, still remain intact, but with the inclusion of daughters as coparceners, with rights equal to those of sons, as is mentioned in Section 6(1)(a) & (b), it would have to be construed as the right to seek partition as per Hindu Law. Thus, when Hindu Law recognises the right of sons to seek partition as explained, the rights conferred upon daughters would be in pari materia with the right of sons. 101.Section 6 of the Act has been a subject matter of several decisions across the country including High Courts and Hon’ble Supreme Court. The latest opinion by the Hon’ble Supreme Court on the subject is in the case of Vineeta Sharma. The said opinion -:

155. :- was rendered on a reference to a Larger Bench. The answer to the reference at paragraph Nos. 137 to 139 reads as under: “137. Resultantly, we answer the reference as under:

137. 1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. 137.2. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004. 137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005. 137.4. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class−I as specified in the Schedule to the Act of 1956 or male relative of such female. The -:

156. :- provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. 137.5. In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected out-rightly.

138. We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months.-.:

157. :- 139. In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju. The opinion expressed in Danamma v. Amar is partly overruled to the extent it is contrary to this decision. Let the matters be placed before appropriate Bench for decision on merits.

102.In support of the aforesaid conclusions, the Hon’ble Supreme Court with reference to the entitlement of the daughter’s share has opined as under: “In ref: Effect of enlargement of daughter’s rights 70. Under the proviso to section 6 before the amendment made in the year 2005 in case a coparcener died leaving behind female relative of Class I heir or a male descendant claiming through such Class I female heir, the daughter was one of them. Section 6, as substituted, presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of the daughters. The rights of other relatives remain unaffected as prevailed in the proviso to section 6 as it stood before amendment.

71. As per the Mitakshara law, no coparcener has any fixed share. It keeps on fluctuating by birth or by death. It is the said -:

158. :- principle of administration of Mitakshara coparcenary carried forward in statutory provisions of section 6. Even if a coparcener had left behind female heir of Class I or a male claiming through such female Class I heir, there is no disruption of coparcenary by statutory fiction of partition. Fiction is only for ascertaining the share of a deceased coparcener, which would be allotted to him as and when actual partition takes place. The deemed fiction of partition is for that limited purpose. The classic Shastric Hindu law excluded the daughter from being coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution.

72. There can be a sole surviving coparcener in a given case the property held by him is treated individual property till a son is born. In case there is a widow or daughter also, it would be treated as joint family property. If the son is adopted, he will become a coparcener. An adoption by a widow of a deceased coparcener related to the date of her husband's death, subject to saving the alienations made in the intermittent period. In re: Acquisition of Rights in coparcenary Property 73. It is by birth that interest in the property is acquired. Devolution on the death of -:

159. :- a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise.” x x x “In re: Partition and effect of statutory fiction:

85. The right to claim partition is a significant basic feature of the coparcenary, and a coparcener is one who can claim partition. The daughter has now become entitled to claim partition of coparcenary w.e.f. 9.9.2005, which is a vital change brought about by the statute. A coparcener enjoys the right to seek severance of status. Under section 6(1) and 6(2), the rights of a daughter are pari passu with a son. In the eventuality of a partition, apart from sons and daughters, the wife of the coparcener is also entitled to an equal share. The right of the wife of a coparcener to claim her right in property is in no way taken away. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties -:

160. :- and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits.

98. It was held that if after passing of preliminary decree in a partition suit but before -:

161. :- passing of final decree, there has been enlargement or diminution of the shares of the parties or their rights have been altered by statutory amendment, the Court is duty-bound to decide the matter and pass final decree keeping in view of the changed scenario.

103.In S.Sai Reddy vs. Narayana Reddy [(1991) 3 SCC647, (S.Sai Reddy), the suit for partition was filed and a preliminary decree, determining the shares, was passed. The final decree was yet to be passed. The question that fell for consideration in that case was whether the preliminary decree had the effect of depriving respondent Nos.2 to 5 therein of the benefits of the amendment. It was observed that when a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family, the final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the -:

162. :- final decree the shares themselves are liable to be varied on account of the intervening events. In the said case, there was no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 therein had the effect of varying shares of the parties like a supervening legislative development. It was observed that since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, it was observed that the concept of partition that the legislature has in mind cannot be equated with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. 104.The question, whether, a notional partition is to have the effect not merely of bringing about devolution of succession of the interest of deceased coparcener in a Mitakshara family, but goes further and results in a -:

163. :- partition among all the members who would be entitled to a share in the coparcenary property when a regular partition takes place, that is to say, results in determining and vesting in them their aliquot shares, and brings about severance of status among the surviving coparceners was subject to divergent views. 105.In Gurupad vs. Hirabai [AIR1978SC1239, the Supreme Court has held that under the Bombay School the widow's share must be ascertained by adding the share to which she is entitled at a notional partition during her husband's lifetime and the share which she would get in her husband's interest upon his death. It was observed: “8. Before considering the implications of Explanation 1, it is necessary to remember that what Section 6 deals with is devolution of the interest which a male Hindu has in a Mitakshara coparcenary property at the time of his death. Since Explanation 1 is intended to be explanatory of the provisions contained in the section, what the Explanation provides has to be correlated to the subject-matter which the section itself deals with. In the instant case the plaintiff’s suit, based as it is on the provisions of Section 6, is essentially a claim to obtain a share -:

164. :- in the interest which her husband had at the time of his death in the coparcenary property. Two things become necessary to determine for the purpose of giving relief to the plaintiff: One, her share in her husband’s share and two, her husband’s own share in the coparcenary property. The proviso to Section 6 contains the formula for fixing the share of the claimant while Explanation 1 contains a formula for deducing the share of the deceased. The plaintiff’s share, by the application of the proviso, has to be determined according to the terms of the testamentary instrument, if any, made by the deceased and since there is none in the instant case, by the application of the rules of intestate succession contained in Sections 8, 9 and 10 of the Hindu Succession Act. ……..

9. The next step, equally important though not equally easy to work out, is to find out the share which the deceased had in the coparcenary property because after all, the plaintiff has a 1/6th interest in that share. Explanation 1 which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a Hindu mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. …….. x x x -:

165. :- 13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant’s share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener “shall be deemed to be” the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of -:

166. :- the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one’s imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.” The aforesaid decision of the Hon’ble Supreme Court does not say that the fiction and notional partition must bring about total disruption of the joint family or that the coparcenary ceases to exist even if the deceased was survived by two coparceners. Thus, a notional partition -:

167. :- does not result in total disruption of the joint family. Nor would it result in the cessation of coparcenary. 106.Further, in State of Maharashtra vs. Narayan Rao, [AIR1985SC716, the Supreme Court carefully considered the above decision in Gurupad's case supra and observed as under: “We have carefully considered the above decision and we feel that this case has to be treated as an authority for the position that when a female member who inherits an interest in the joint family property under Section 6 of the Act files a suit for partition expressing her willingness to go out of the family she would be entitled to get both the interest she has inherited and the share which have been notion-ally allotted to her, as stated in Explanation I to Section 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under section 6 -:

168. :- of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. ……..” Though the Hon’ble Supreme Court has opined that the right of a female heir gets fixed on the date of death of a male member under Section 6 of the Act, yet in Vineeta Sharma the concept of retroactive effect of Section 6 of the Act as amended with effect from 09.09.2005. 107.Applying the aforesaid principles to the facts and circumstances of the present case, the following findings emerge: (a) That the suit schedule properties, namely suit schedule Item Nos.1 to 20 are joint family properties and suit schedule Item Nos.21 to 23 are also joint family properties. This is because Munishamanna died sometime during 1935 leaving behind his two sons Annayappa and Hanumaiah. On the death of Munishamanna, the family continued to remain joint as there was no partition between Annyappa and Hanumaiah. Annayappa’s wife— -:

169. :- Kempamma predeceased her husband. Annayappa and Kempamma did not have any issues. Therefore, when Annayappa died without leaving behind any female heir on 22.08.1983, his right, title and interest in Mitakshara copercenery properties was succeeded to by his only brother Hanumaiah on the principle of survivorship. This is because the proviso to Section 6(1) of the Act as it stood in the year 1983 did not apply on the death of Annayappa as he died without leaving behind any female heir. Therefore, the principle of notional partition did not apply and the entire joint family properties were succeeded to by the plaintiff’s father-Hanumaiah on the principle of survivorship. (b) When Hanumaiah died on 09.04.1988, the family continued to remain joint, as, on his death, there was no partition between the members of the joint family. It is only when the plaintiff demanded for partition and filed the suit for partition that the severance of the status has taken place. However, the death of Hanumaiah is the basis for the plaintiff to seek partition in the joint family properties. In fact, if she had sought or partition prior to the amendment made to Section 6 of the Act (with effect -:

170. :- from 09.09.2005), her share in Mitakshara coparcenary would have been less. However, between the death of Hanumaiah (09.04.1988) and filing of the suit for partition on 14.11.2005, there has been an amendment made to Section 6 of the Act. As a result of the amendment, the daughter is also made a coparcener like a son. Hence, her share in the suit schedule properties is equivalent to that of a son. (c) When the suit for partition has been filed by the plaintiff, being a daughter, the amendment made to Section 6 of the Act has to be applied as the said amendment has a retro-active operation, inasmuch as it applied to all pending proceedings even if a preliminary decree has already been passed by a court of law vide Vineeta Sharma. (d) In the circumstances, by applying the proviso to Section 6 of the Act as amended on 09.09.2005, on the application of principle of notional partition, as per the said provision and bearing in mind the declaration in Section 6(1) and (2) of the Act that a daughter is also a coparcener, the notional partition would have to be made -:

171. :- in respect of the suit schedule properties. In such an event, the share of the deceased father—Hanumaiah and his three children, namely the plaintiff, her sister— defendant No.2 and her brother—defendant No.1, would have to be made and they would each get 1/4th share each. Since, their father—Hanumaiah died intestate, his 1/4th share would have to be divided between his widow and three children, in which case i.e., 1/16th share each. The share of the plaintiff would this be 1/4 + 1/16 = 5/16th share in the suit schedule properties. That would be the share of even defendant Nos.1 and 2 also. Defendant No.3 would get 1/16th share. (e) Hence, the plaintiff is entitled to 5/16th share in the suit schedule properties. Therefore, the trial court was not right in awarding only 1/8th share in the suit schedule Item Nos.1 to 11 and 14 to 23 properties and dismissing the suit vis-à-vis suit schedule Item Nos.12 and 23. Point No.5 is accordingly answered. POINT NO.6: “(6) Whether the applications filed by the impleading applicants would call for -:

172. :- consideration in these appeals and whether they have to be allowed?.

108.It is noted that respondent No.8 has been impleaded in this appeal by the appellant/plaintiff subsequent to the judgment and decree in the suit which was on 19.11.2014. This was because defendant No.4 sold suit schedule Item No.12 in favour of respondent No.8-M/s.NAM Estates Private Limited. The Certified copy of the sale deed dated 20.12.2014 has also been produced by respondent No.8 in R.F.A.No.689/2015. 109.As the said property is held to be the joint family property, the plaintiff would have 5/16th share in that property also. Of course, while allotting the shares in the suit schedule properties by metes and bounds, the equities have to be adjusted between the parties, having regard to the nature and value of the suit schedule properties also the fact that the alienation of suit schedule Item No.12 by defendant Nos.1 and 3 would bind them to the extent of their share in the said properties. Therefore, the impleading applicants who have sought to be impleaded in this appeal may be impleaded in the final decree proceedings so that equities could be worked out -:

173. :- while dividing the suit schedule Item No.12 between the plaintiff and the other parties so as to ensure that the share of defendant Nos.1 and 3 alienated in favour of defendant No.4 (and the extent of share of defendant Nos.1 and 3 in the other suit schedule Item) remain in tact inasmuch as the share of defendant Nos.1 and 3 in the said suit item is saved in the hands of defendant No.4 and the subsequent purchasers. 110.In this context, it would be apposite to refer to the judgment of the Hon’ble Supreme Court in Khemchand Shankar Choudhari and vs. Vishnu Hari Patil, [(1983) 1 SCC18, relied upon by learned counsel for impleading applicants wherein it has been observed that, “6. Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the -:

174. :- proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under section 54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court ?. He need not do so. He may proceed to allot the share of the deceased party to his -:

175. :- heirs. Similarly he may, when there is no dispute, allot the shares of a deceased party in favour of his legatees. In the case of insolvency of a party, the official receiver may be allotted the share of the insolvent. In the case of transferees pendente lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of section 54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the -:

176. :- other hand, it would be in conformity with the intention of the Legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out 'in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares'. 111.In the said case, the orders of the High Court and the State Government and the Commissioner holding that the subsequent purchasers have no locus standi to ask for an equitable partition, was set aside and a direction was issued to make a fresh partition on an equitable basis in accordance with the decree and the undisputed rights of the appellant therein and so as to ensure that the alienees may continue to remain in possession of that portion of the properties which had been alienated to them and which was held to be valid in the eye of law. 112.In view of the conclusions arrived at by us on the respective points for consideration, the application filed for additional evidence under Order XLI Rule 27 of CPC by respondent No.8 herein stands disposed, by reserving liberty to respondent No.8 to seek impleadment in the final decree proceedings.-.:

177. :- 113.This is having regard to the fact that respondent No.8, being an alienee of defendant No.4 (respondent No.4 in R.F.A.No.689/2015) who in turn was an alienees from defendant Nos.1 and 3 herein, the sale made by defendant Nos.1 and 3 on 28.09.2005 in respect of Item No.12 of the suit schedule properties has been held to be not binding on the plaintiff. Hence, the plaintiff has a share in the said suit Item. If that is so, the equities vis-à-vis the division of suit schedule Item No.12 would have to be worked out in the final decree proceedings so as to ensure that the share of defendant Nos.1 and 3 in the said suit item remains in tact only to that extent. For the purpose, it is necessary for respondent No.8 herein to implead itself in the final decree proceedings. 114.One other aspect of the matter that is to be borne in mind is irrespective of whether suit schedule Item No.12 is inter alia joint family properties or the separate properties of Annayappa and on his demise in the year 1983, the same was succeeded to by his brother. If the suit item is considered to be joint family property, then the same would be continued to remain as joint family -:

178. :- property in the hands of Hanumaiah and after his demise, his legal heirs would be entitled to a share in the said item on the principle of notional partition. 115.On the other hand, if the suit schedule item is held to be separate property of Annayappa, on the premise that the same was the land granted exclusively in his name vide A.O. No.2/1945-46, then on the demise of Annayappa and on his wife pre-deceasing him, the same would have been succeeded to by his brother—Hanumaiah as his separate property under Section 8 of the Act. This is because, Annayappa had not made any Will or gift or any other conveyance in respect of any party. Merely because the name of defendant No.1 was entered in the revenue records in respect of Item No.12 does not confer any title on him exclusively to the detriment of the other legal heirs. Defendant No.1 as well as his siblings and step-mother would have succeeded to the suit schedule Item No.12 on the basis of inheritance from Hanumaiah and not directly from Annayappa, as Annayappa had not gifted the said property in partition nor had he bequeathed it in favour of defendant No.1 or to any party. Therefore, -:

179. :- defendant No.1 cannot claim exclusive ownership of suit schedule Item No.12. 116.In case, defendant No.8 is able to prove that suit schedule Item No.12 was granted by the State Government in favour of Annayappa and the same was his separate or exclusive property, then on his demise, on succession, his brother—Hanumaiah inherited and on the demise of Hanumaiah, his legal heirs have an equal share to an extent of 1/4th share each including the plaintiff. 117.On the other hand, if the suit schedule properties construed to be joint family properties, then the plaintiff and defendant Nos.1 and 2 each have 5/16th share therein and defendant No.3 would have 1/16th share in the said property. Since, Item No.12 was purchased by respondent No.8 herein subsequent to the judgment and decree passed in the suit, liberty is reserved to respondent No.8 as well as proposed impleading respondents to implead themselves in the final decree proceedings for the purpose of seeking partition insofar as Item No.12 is concerned only to the extent of share of defendant No.1 and 3 in the said property depending upon the nature of -:

180. :- the property to be established by them in the final decree proceedings. 118.It is needless to reiterate that in the event the said item is held to be the separate property of Annayaapa which was succeeded to by Hanumaiah under Section 8 of the Act, then the plaintiff and other legal heirs of Hanumaiah will have 1/4th share in the property. But, if it is held to be joint family property then the plaintiff has 5/16th share in the suit property. Depending upon the findings to be given on that aspect in the final decree proceedings, the equities between the parties shall be adjusted vis-à-vis the said item of property in the final decree proceedings where the properties are to be divided by metes and bounds. In view of the aforesaid discussion, the application filed for additional evidence is accordingly disposed. CONCLUSIONS:

119. In view of the aforesaid discussion, the following conclusions are arrived at: -:

181. :- (1) That the suit filed by the plaintiff was maintainable in law as it was not hit by Article 110 or Article 113 of the Schedule to the Limitation Act. (2) That the alienation of suit schedule Item No.12 by defendant No.1 in favour of defendant No.4 is not binding insofar as the share of the plaintiff is concerned and hence, the plaintiff has a share in the said property also. However, the alienation of suit schedule Item No.12 in favour of defendant No.4 is binding on defendant Nos.1 and 3. Hence, to that extent, the equities would have to be adjusted at the time of final decree proceedings. (3) In view of the memo filed by the plaintiff before the trial court in the suit, the plaintiff is entitled to a share in the suit schedule items that remained subsequent to the alienation of totally 03 guntas only in respect of respective alienees vis-à-vis which the plaintiff has not questioned the said -:

182. :- alienations. Hence, the plaintiff is entitled to a share in the remaining said suit schedule item also. (4) Suit schedule Item Nos.21 to 23 were purchased out of the income from ancestral/joint family properties and plaintiff has a share in the said properties. (5) That the suit schedule properties, namely suit schedule Item Nos.1 to 20 and Item Nos.21 to 23 are all joint family properties. (6) The plaintiff has 5/16th share in the said properties on the application of amendment of Section 6 of the Act and in view of the recent judgment of the Hon’ble Supreme Court in the case of Vineeta Sharma. (7) That, as far as the right, title and interest of the impleading applicants are concerned, in view of the sale of suit schedule Item No.12 by defendant No.1 with the consent of defendant No.3 to defendant No.4, the sale deed is binding on the said parties as they -:

183. :- have right, title and interest to an extent of 5/16th share and 1/16th share in the suit schedule properties respectively. But, the said sale is not binding on the plaintiff and hence, the equities would have to be worked out at the time of final decree proceedings. (8) In view of the aforesaid conclusions, the impleading applicants who are subsequent purchasers from respondent No.8 herein during the pendency of these appeals (who was a purchaser from defendant No.4 being herself a purchaser), the same is hit by the principle of lis pendens, are therefore entitled to only the share in the joint family properties vis-à-vis defendant Nos.1 and 3. Hence, their rights would have to be worked out in the Final Decree Proceedings. (9) Defendant Nos.6 and 7 have not proved that they had any independent income out of which they could have purchased suit schedule Item Nos.21 to 23. Hence, the said items being held -:

184. :- to be joint family properties, plaintiff is also entitled to a share in the said properties. 120.In the result, the appeal filed by the appellant/plaintiff in R.F.A.No.689 of 2015 is ALLOWED. It is held that the plaintiff is entitled to 5/16th share in the suit schedule properties, including Item Nos.12, 13, 21 to 23. The suit is decreed against all the defendants in the aforesaid terms as also now respondent No.8. 121.The appeal filed by defendant No.1 in R.F.A.No.999 of 2015 and the appeal filed by defendant Nos.6 and 7 in R.F.A.No.1000 of 2015 are dismissed. 122.Parties to bear their respective costs. Sd/- JUDGE Sd/- JUDGE RK/- S* / AP/-

Court	Karnataka High Court
Decided On	Aug-19-2021
Case Number	RFA 689/2015
Judge	B.V.NAGARATHNA AND HANCHATE SANJEEVKUMAR
Appellant	Smt. Anjanamma .n
Respondent	N Manjunath

Smt. Anjanamma .n Vs. N Manjunath - Court Judgment