Karnataka High Court
Smt. K.P. Kamalam vs Smt. B.K. Chandrakantha on 11 June, 2024
Author: K. Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.376 OF 2019
BETWEEN:
1. SMT. K. P. KAMALAM
W/O LATE C. SREEDHARAN,
AGED ABOUT 69 YEARS
2. SMT. K. P. SREEKALA
W/O SRI. SETHUMADHAVAN,
D/O LATE C. SREEDHARAN,
AGED ABOUT 39 YEARS,
3. SMT. K. P. SHALINI
W/O SRI. SAJAN,
D/O LATE C. SREEDHARAN,
AGED ABOUT 35 YEARS,
4. SMT. K.P.SREEJA
W/O SRI. BABURAJ,
D/O LATE C. SREEDHARAN,
AGED ABOUT 35 YEARS,
ALL ARE R/AT CHERIYADTH HOUSE
(POST) IRIMBALASSERI, (VIA) NELLAYA,
PHALGHAT DISTRICT, KERALA.
REPRESENTED BY GPA HOLDER,
C. GOPALAN,
S/O LATE P.K.PANICKER,
AGED ABOUT 76 YEARS,
R/AT NO.153, 5TH CROSS,
2
1ST BLOCK, JAYANAGAR,
BENGALURU - 560 011.
... APPELLANTS
(BY SRI. K.N. PHANINDRA, SENIOR COUNSEL FOR
SMT. KRUTHIKA RAGHAVAN, ADVOCATE)
AND:
1. SMT. B.K. CHANDRAKANTHA
D/O SRI. B. N. KRISHNA REDDY,
W/O SRI. VENKATASWAMY REDDY,
AGED ABOUT 55 YEARS,
R/O NO.949, BELLANDUR VILLAGE,
AND BELLANDUR POST,
BANGALORE - 560 037.
2. SRI. B.N.KRISHNA REDDY
S/O LATE NAGA REDDY,
AGED ABOUT 79 YEARS,
3. SRI. B.K. VENUGOPALA REDDY
S/O B.N.KRISHNA REDDY,
AGED ABOUT 60 YEARS,
4. SRI.B.K.ANANDA REDDY
S/O B.N.KRISHNA REDDY,
AGED ABOUT 52 YEARS,
ALL ARE R/AT NO.349,
BELLANDUR VILLAGE AND POST,
BANGALORE - 37.
...RESPONDENTS
(BY SRI. A. CHANDRA CHUD, ADVOCATE FOR C/R1;
VIDE ORDER DATED 23/4/2024, R2 AND R3 ARE DEAD
AND THERE IS NO NEED TO BRING LRS ON RECORD;
R2 SERVED, BUT UNREPRESENTED)
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THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 AND UNDER ORDER XLI RULE 1 OF CPC., 1908
AGAINST THE JUDGMENT AND DECREE DATED: 07.11.2018
PASSED IN OS.NO.6408/2004 ON THE FILE OF THE XLIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 31.05.2024 THIS DAY,
THE COURT PRONOUNCSED THE FOLLOWING:
RESERVED FOR ORDERS ON: 31.05.2024
PRONOUNCED ON : 11.06.2024
JUDGMENT
This appeal is filed by the appellants under Section 96 of the Code of Civil Procedure, 1908 (for short 'CPC') for setting aside the judgment and decree passed by the LXIII Additional City Civil and Sessions Judge at Bengaluru in O.S.No.6408/2004 dated 7.11.2018 for having decreed the suit of the plaintiff in part by granting 1/4th share to the plaintiff in the suit schedule property.
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2. Heard the arguments of Sri K. N. Phanindra, learned senior counsel appearing for the appellants and Sri A. Chandra Chud, learned counsel for respondent No.1.
3. The appellants are the legal heirs of the Defendant No.4, the respondent No.1 was the plaintiff and respondent Nos.2 to 4 are the defendant Nos.1 to 3 before the Trial Court.
4. The rank of the parties before the trial court are retained for the sake of convenience.
5. The case of the plaintiff is that the plaintiff filed the suit for partition and separate possession claiming the entire property measuring 24 guntas in Sy.No.75/4 situated at Bellandur village and Post, Varthur Hobli, Bangalore East Taluk (hereinafter referred to as 'suit schedule property') belong to defendant Nos.1 to 3 and it is alleged that one Naga Reddy (Nagappa) had two sons, namely Narayana Reddy and Krishna Reddy-defendant No.1 who is the father of the plaintiff as well as the father of defendant Nos.2 and 5
3. After the demise of the said Naga Reddy, his two sons partitioned the properties by panchayath parikath dated 14.3.1984, whereby the following lands were fallen to the share of the defendant No.1:
(a) Sy.No.58/3, measuring 13 guntas
(b) Sy.No.59/3, measuring 04 guntas.
(c) Sy.No.74/4, measuring 1 acre 35 guntas.
(d) Sy.No.93/7, measuring 6½ guntas; all are situated at Bellandur Village.
6. It is further contended that at the time of marriage of the plaintiff, the defendant Nos.1 to 3 have assured that they would give share to the plaintiff when the properties would be partitioned. In spite of the same, the defendant Nos.1 to 3 sold almost all the above said properties and she retained only 24 guntas in Sy.No.75/4 which is suit schedule property out of the total extent of 1 acre 35 guntas. It is further alleged that the plaintiff is entitled for 1/4th share in all the above said survey numbers of the properties, but she has restricting her claim to the 6 schedule property about 24 guntas. At no part of time, there was any partition in the ancestral properties. The defendants have not paid the share of the plaintiff in the said sale proceeds. The plaintiff requested the defendants to deliver the actual share in the suit schedule property. Since 12.8.2004, the defendants were trying to dispose of the suit schedule property without the consent of the plaintiff. Hence, the plaintiff approached the Court.
7. After the issuance of summons, the defendant No.1 appeared through counsel and defendant Nos.2 and 3 were sons of the defendant No.3 also appeared. Defendant No.1 filed a case and defendant Nos.2 and 3 adopted the same. The defendant No.1 except admitting the relationship of the plaintiff and defendant Nos.1 to 3 but denied all the allegations made in the plaint and contended that the marriage of the plaintiff took place on 20.04.1979 prior to the commencement of the Hindu Succession (Karnataka Amendment) Act, on 28.07.1994. Therefore, the plaintiff was not a coparcener, hence the plaintiff is not entitled for 7 seeking any partition and further contended that though they have filed additional written statement, but the amendment was not carried out in respect of alienating the property to the defendant No.4. The defendant No.4 impleaded himself as defendant No.4 and subsequently, after filing the written statement, the defendant No.4 died and also were brought on record. It is contended by the defendant No.4 that after the division of the properties by defendant No.1 from his brother, the property fell into the share of defendant No.1 which is a coparcener property of defendant Nos.1 to 3 and defendant No.1 purchased the schedule property while registering the sale deed dated 2.12.2004 for a valuable consideration after making thorough inquiry and defendant Nos.1 to 3 are having marketable title over the same. Therefore, it is contended that the plaintiff not being the coparcener in the schedule property married in the year 1979 and no locus standi or cause of action arose to file a suit. Defendant No.4 purchased the property for the valuable consideration and prayed for framing the issue in respect of valuation of the 8 relief claimed by the plaintiff and prayed for dismissing the suit.
8. Based upon the above pleadings, the trial court framed the following issues:
"1. Whether the suit property is joint family property of herself and defendants?
2. Whether plaintiff proves that the defendants, have already sold the other properties, except suit property, which were fallen to the share of her father in partition between defendant No.1 and his brother?
3. Whether plaintiff is entitled to take the entire suit property as her share in the properties of her father?
4. Whether plaintiff is entitled for partition and separate possession of suit property as her share in the properties of her father?
5. Whether plaintiff is entitled for the reliefs sought for?
6. What order or decree?"
9. On behalf of the plaintiff, he himself examined as PW.1 and examined two more witnesses as per PWs.2 9 and 3 and on behalf of the defendants, defendant No.1 examined as DW.1 and the power of attorney of the original defendant No.4 as well as defendant Nos.4(a) to (d) is examined as D.W.2 and on behalf of the plaintiff, 15 documents were examined as per Exs.P.1 to P.15 and on behalf of the defendants, 7 documents were marked.
10. After hearing the arguments, the trial court answered issue Nos.1 and 2 in the positive and issue No.3 in the negative, issue No.4 in the positive and accordingly decreed the suit in part by granting 1/4th share in the schedule property wide impugned judgment dated 7.11.2018. Being aggrieved by the same, the LRs of defendant No.4 filed this appeal.
11. The learned senior counsel appearing for the appellant has vehemently contended that the judgment and decree passed by the trial court granting 1/4th share in the scheduled property is not correct and contended that the P.W.1 admitted in the cross examination as well as in the plaint that there were several properties fallen to the share 10 of her father and most of the properties were sold by the defendant Nos.1 to 3 to third parties as well as the defendant No.4, but, she has not included those properties in the suit. It is admitted that it is a partial partition suit which is not permissible under the law, therefore, it is contended that when the other properties are not included, the plaintiff very much knows that defendant Nos.1 to 3 i.e., father and brothers have sold various properties belongs to defendant No.1, which is an ancestral property but not included and not sought any share in those properties. Such being the case, it is a clear case of partial partition which is not permissible on that ground that the judgment of the trial court is not sustainable.
12. The learned senior counsel further contended that P.W.1- plaintiff married in the year 1979 much prior to the amendment Act, Karnataka Act in the year 1994 and she cannot be considered as a coparcener for the purpose of ancestral property. She married and went back. Some of the properties were sold by the defendant No.1 and performed 11 the marriage of the plaintiff, therefore, she do not have any right to claim the share in the suit schedule property and further contended that the plaintiff also not entitled for any share since the amendment to the Section 6 of Hindu succession Act enforced from 20.12.2004. There is a cut off date in the proviso to Section 6A where if any sale executed or partitioned or decreed which was executed prior to 20.12.2004, the same cannot be challenged. Therefore, on this ground she is not entitled for any share over the property.
13. Learned Senior Counsel also contended that there is no reference in the pleading that defendant Nos.1 to 3 have assured at the time of her marriage in the year 1979, the defendant's have given share in the suit schedule property or in Sy.No.95/4. But earlier, the very same properties were sold to the defendant No.4 which were also not challenged. As the Sy.No.95/4 was measuring more than a acre, such being the case, the trial court committed error in granting share and hence the judgment and decree 12 passed by the trial court is liable to be set aside. In support of his case, learned Senior Counsel has relied upon the judgment of Hon'ble Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma and Others reported in (2020) 9 SCC 1 and the judgment of this court in the case of K.R. Ravishankar and another vs. Vijayamma and others in RFA No.345/2019 dated 26.10.2023 and the judgment of Division Bench of this Court in the case of Ammajamma vs. Nagaraju and others in RFA No.1183/2017 dated 21.11.2017.
14. Per contra, learned counsel for the respondent supported the judgment of the trial court and contended that in the pleading of the plaintiff, it is clearly stated that though there were various properties, but the plaintiff restricted her claim only to the extent of 24 guntas which was assured by the defendants at the time of her marriage to give the share in the property, but they refused to give when defendants Nos.1 to 3 tried to alienate the property. Hence the plaintiff filed the suit prior to the amendment 13 though the plaintiff claimed entire 24 guntas of the suit schedule property, but the suit was decreed only for 1/4th share and the plaintiff is not challenged the judgment as she has satisfied with the granting of one-fourth share in the suit-sheddled property.
15. The Learned Counsel for the respondent also contended that the suit by the plaintiff cannot be considered as partial partition and the defendant admitted in the cross- examination that the sale was effected only after filing the suit and receipt of the notice from the court. The father of the plaintiff and defendant No.1 assured to give 24 guntas of land to her at the time of marriage, but they refused to give. Therefore, she has constrained to file suit and also contended that the father of the plaintiff also given GPA in favour of her husband and subsequently, based upon the GPA, her husband sold the site to her son and consent given by the defendant No.1 as per Ex.P.9. On the said property, they have constructed the house. The plaintiff's husband paid Rs.20,000/- to the defendant No.1 for purchasing the 14 site. Ex.P.9 is marked with the consent in the cross examination of DW.1. The exhibit C.1 and C.2 are the suit summons received by the defendants on the suit filed by the plaintiff. The trial court observed the demeanour of the DW.1 who was not properly answering the questions and the cross examination. Therefore, there is no perverse finding by the Tribunal court for interfering in the appeal. Hence, prayed for dismissing the appeal.
16. As a reply, the learned senior counsel for the appellant has contended that there is no pleading in the written statement that even though there is no pleading in the partial partition in the written statement, but his question of law can be raised in the appeal. Therefore, when the sale was effected prior to the cut off date, the same is not questionable under the eye of law and defendant Nos.1 to 3 are the coparceners to the property and therefore, they are having right to sale the property to defendant number 4. Also contended that the plaintiff was not produced any document to show that defendant Nos.1 to 3 assured to give 15 share in the suit schedule property and hence, prayed for allowing the appeal.
17. Having heard the arguments and perusal of the records, the point that arises for my consideration are:
1) Whether the plaintiff proves that she is a coparcener and entitled for 1/4th share in the suit schedule property?
2) Whether the suits have partially partitioned is maintainable under the law?
3) Whether the plaintiff is not entitled for any
share and not questionable the same
effected prior to the cut off date i.e., 20.12.2004 as per the proviso to Section 6 of the Hindu Succession Act?"
4) Whether the judgment and decree passed by the trial Court call for any interference?
18. On perusal of the records, the plaintiff herself examined as PW.1 and she also examined two more witnesses PWs.2 and 3, her husband and son. On behalf of the defendants, defendant No.1 himself got examined as D.W.1 and the power of attorney of the original defendant 16 No.4 as well as defendant Nos.4(a) to (d) is examined as D.W.2 and on behalf of plaintiff, 15 documents were marked as per Exs.P1 to 15 and Exs.D1 to D7 marked on behalf of the defendants. On perusal of the records, it is not in dispute that one Naga Reddy was the propositor in the family of the plaintiff and defendant Nos.1 to 3. The said Naga Reddy is having two sons, one Narayana Reddy and Krishna Reddy/defendant No.1. There were various ancestral properties belongs to Narayana Reddy and after the death of Narayana Reddy, defendant No.1 and his brother Narayana Reddy partitioned the properties on 14.03.1984 as per the panchayath parikath which is not in dispute. During the said partition, the defendant No.1 got four items of property that is 13 guntas in Sy.No.58/3, 4 guntas in Sy.No.59/3, 6½ guntas in Sy.No.93/7, 1 acre 35 guntas in Sy.No.75/4 and admittedly the plaintiff is a daughter of defendant No.1 and sister of defendant Nos.2 and 3 and her marriage was held on 20.04.1979 prior to the commencement of Section 6A of Hindu Succession Act. It is also an admitted fact that defendant Nos.1 to 3 have sold 17 the entire property in Sy.No.58/3, 59/3 and Sy.No.93/7 to various persons. It is also an admitted fact that in Sy.No.75/4, there were 3 sale deeds affected by the defendants and first 2 sale deeds in favour of defendant No.4 and finally 24 guntas of land retained by the defendant Nos.1 to 3 which was sold on 2-12-2012. Though the suit was filed just 3 to 4 months prior to the sale deed and after filing of the suit, but the sale deed was affected on 2-12- 2004 and as per the proviso to Section 6 of Hindu Succession Act, if any sale deed or partition affected prior to the cut off date i.e., 20.12.2004, the same cannot be quashed. As per the judgment of the Division Bench of this court in the case of in Ammajamma case stated supra, the defendant No.3, the Division Bench has held at paragraph Nos.7 and 8 of the judgment as under:
"7. It is the admitted fact that suit schedule properties are joint family properties. It is also an admitted fact that the father of the plaintiff - defendant No.1 along with his sons defendants 2 & 3 sold the suit schedule properties in favour of appellant/defendant No.4 on 22.09.2004. Section 6 of the Act which confers the 18 status of coparcener and coparcenary rights in favour of a daughter of a coparcener and which came into force by virtue of Act 39 of 2005 with effect from 09.09.2005 enacts as under:
"6. Devolution of interest in coparcenary property.-(1) On and from the commencement of the Hindu Succession (Amendment) Act, 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 in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary 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 19 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 her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, 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, 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 coparcenary 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 20
(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.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize 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, 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 21 obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004."
8. As rightly contended by learned counsel for appellant proviso to Section 6(1) clearly states that nothing contained in sub-section (1) shall affect or invalidate any disposition or alienation of the property that had taken place before 20th day of December, 2004. In the instant case, the sale had taken place on 22.09.2004 well prior to the cut off date provided in the proviso. Therefore, based on the pleadings and the evidence of the plaintiff herself, the property which had been sold prior to 20.12.2004 could not have been the subject matter of any claim by the plaintiff by way of partition. The properties were not available to the family as on the cut off date because it had been disposed of by way of sale by that time. Therefore, question of maintaining the suit seeking partition did not arise. Alienation made prior to 20.12.2004 is saved. Hence, in our view, the Trial Court has rightly taken into consideration the provisions contained under Section 6(1) of the Act, particularly the proviso enacted therein." 22
19. In view of the judgment of Hon'ble Division Bench and the same was followed from the judgment of Hon'ble Supreme Court in the case of Prakash and Others vs. Phulavati and Others reported in (2016) 2 SCC 36 and has categorically held the same affected prior to the cut off date i.e., 20.12.2004. The same cannot be questioned by the daughter where the Hindu Succession Act have amended with effect from 20.12.2004.
20. That apart, there is no pleading in the plaint that the father of the plaintiff i.e., defendant No.1 and her brothers assured to give share in the suit schedule property and there is no pleading in the plaint that any documents affected by the defendant Nos.1 to 3 for assuring to give share in the suit schedule property but she has stated only in the evidence that the father assured to give share in the suit schedule property.
21. That apart, it is admitted by PW.1 in the cross examination that her father sold one of the property in the year 1979 for the purpose of performing marriage of the 23 plaintiff. It is also admitted by her that the defendants i.e., her father and brothers have sold the other three items of property which was received by her father in the partition that is land in Sy.Nos.58/3, 59/3 and 93/7 and also admitted that the defendant also sold a portion of property in same Sy.No.75/4 to the very same defendant No.4 twice and those sale deeds were not challenged and the plaintiff also not claiming any share in those four items of property which are already sold by the defendants to third parties as well as defendant No.4.
22. The very admission of the plaintiff in the evidence as well as in the pleading clearly reveals that the suit filed by the plaintiff is only partial partition which is not maintainable as contended by the learned Senior counsel for the appellant. This court in the case of K.R. Ravishankar stated supra by relying upon the judgment of the Hon'ble Supreme Court that partial partition is not maintainable. The Hon'ble Division Bench of this court in the case of G.M. Mahendra vs. G.M. Mohan reported in 24 Manu/KA/1562/2010 has held at paragraph Nos.15 and 16 as under:
15. In this regard, learned counsel for appellant relied upon the judgment of the Division bench of this Court reported in MANU/KA/1562/2010 in the case of G.M. Mahendra Vs G.M. Mohan, in a similar situation, the Division Bench has held at paragraph 18 as under:-
"18. When he contends that he has become the absolute owner of 50% of the joint family property, and if he has filed a suit for partition he has to file a suit for partition in respect of all the properties wherever they are situated. For the reasons best known to the plaintiff in O.S. No. 2/83, he did no include the present suit property. Similarly he also did not include other joint family properties. Similarly, he also did not crave leave the Court to institute a suit in respect of the property not included in the said suit to treat the said suit as a suit for partial partition only. There is no proper explanation by the plaintiff in this regard. When he has omitted to include plaint schedule property as the cause of action in the present suit was also there as on the date of institution of the suit in view of the 25 law laid down by is Court in Sri Tukaram v. Sri Sambhaji, ILR 1998 KAR 681 which is as hereunder:xxxxxxxxxxxxxxxxxxxxxxxxxx partition The inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotchpot, the suit for partition of the share of the members of the joint family in one property which amounts to partial partition is not maintainable. This contention in the circumstances of the case, has force and the same has to be upheld.xxxxxxxxxxxxxxxxxxxxxxxx The finding given by the Trial Court with respect to the sixth issue has to be maintained and the finding given by the I Appellate Court that the suit is maintainable without including all the joint family properties cannot be held to be proper in the circumstances of the case. Hence, the finding of the I Appellate Court holding that the suit of the plaintiff for partial partition is maintainable should be set aside and the finding of the Trial Court with respect to the sixth issue that the suit is bad for non-joinder of necessary properties to be included in the suit has to be upheld."26
Taking into consideration this citation, the Court has to hold that the suit filed by the plaintiff was not maintainable as the suit for partial partition cannot be maintained without seeking leave of the Court as contemplated under the provisions of Order 2, Rule 2 of CPC. Therefore, we are of the view that suit of the plaintiff was also not maintainable on this ground."
16. In another judgment of Co-ordinate bench of this Court in the case of Vishwaraj and Ors. Vs. B.M.Byrappa and Ors. reported in MANU KA/342/2013 has taken similar view and cited another judgment of the Co-ordinate Bench of this court in the case of Sri Tukaram Vs. Sri. Sambhaji & Ors. reported in MANU/KA/0498/1998 and held at paragraph No.19 as under:-
"In the present case on hand, the 1st defendant has alienated the suit land in favour of defendants-2 to 6. The 1st defendants is the member of the Joint Hindu Family. As already stated that the family has got other several lands and house properties which are the joint family properties. It has been contended by the Learned Counsel or the alieness while allotting the share 27 to defendant-1 in the family properties equitable rights of purchasers on partition has to be considered and those rights can be considered only when all the joint family properties are included in the suit for partition. Otherwise, it would be difficult to apply principles of equitable partition. The inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotchpots, the suit for partition of the shares of the members of the joint family in one property which amounts to partial partition is not maintainable. This contention in the circumstances of the case, has force and the same has to be upheld. The reason being, the present suit has been filed by one of the non-alienating co-parceners of the joint family property. The suit has been filed by the non-alienating co-parceners with respect to the only property which has been alienated. This is not a suit for general share of the plaintiff to be worked out if all the joint family properties had been included in the schedule then, at a partition, the share of the 1st defendant would have been worked out in order to give equitable relief to the alienees also as they have purchased 28 the property by the 1st defendant. In that view of the matter, the present suit filed by the plaintiff without including all the joint family properties and which prejudices the rights of the alienees who have also been impleaded as parties to the suit, in the circumstances of the case, has to be held that the suit filed by the plaintiff for partial partition without including all the joint family properties is bad in law."
23. Learned counsel for the respondent has contended that there is no pleading in the written statement made by defendant No.4 regarding maintainability of the suit, but the learned senior counsel for the appellant submitted, that this is not on fact, but it is question of law. Therefore, it need not be pleaded in the pleadings of the defendant. Admittedly, the partial partition is not maintainable which is a law. Therefore, it need not be pleaded by any of the parties either defendant or plaintiff. On the other hand, the very case of the plaintiff clearly reveals that it is only a partial partition and not partition for entire property which was already sold by defendant No.3 to 29 various persons including defendant No.4. Therefore, the partial partition suit is not maintainable.
24. As regards to the contention of the plaintiff, she has married in the year 1979. At that time, her father assured to give portion of the property, but it is admitted that there is no such pleading in the plaint that the defendant Nos.1 to 3 assured to give properties in Sy.No.75/4 and she has not agitated while selling the property by the defendants. That apart, already one property was alienated by defendant No.1, formed a layout and a GPA was also executed in favour of the husband of the plaintiff and subsequently he has executed the sale deed in favour of the son of the plaintiff which was confirmed by defendant No.1 as per Ex.P9 which is confirmed as affidavit. If at all, the claim of the plaintiff is genuine, she could have filed a suit for claiming 1/4th share in the entire property, but she has not done so. It is stated that defendant Nos.1 to 3 assured that they would give some portion of the scheduled property at the time of her marriage. It is 30 pertinent to note that her marriage was held in the year 1979 and the partition between the defendant No.1 and his brother was held on 14.3.1984. When the partition itself subsequent to the marriage of the plaintiff, the question of giving any assurance by defendant No.1 does not arise. On the other hand, defendant No.1 supported the case of the defendant No.4 and the alienation made by him prior to 20.12.2004. As per the cut off date amendment to the proviso 6(1) of the Hindu succession Act, If any alienation partition affected, decree obtained, executed prior to 20.12.2004, the same cannot be reopened.
25. The Hon'ble Supreme Court in the case of Vineeta Sharma stated supra has categorically held that after considering the various judgments, if any alienation made prior to the cut off dated i.e., 20.12.2004, the plaintiff being the daughter cannot be considered as a coparcener where the sale deed of defendant No.4 was affected on 02.12.2004 itself. Therefore, in view of the above judgments, the plaintiff is not entitled for any share in the 31 scheduled property much less plaintiff claimed the entire property of 24 guntas in the suit.
26. When the plaintiff is not a coparcener and the amendment was brought only after 20.12.2004 and when the sale deed affected prior to that the plaintiff is not entitled to claim any share and cannot be challenged the same executed by defendant Nos.1 to 3 in favour of defendant No.4. Therefore, I am of the view that trial court committed error in granting 1/4th share by allowing the suit in part which calls for any interference by this court. Therefore, I hold, the appeal deserves to be allowed.
27. Accordingly, I pass the following ORDER
(i) The appeal is allowed.
(ii) The judgment and decree passed by the trial court in O.S.No.6408/2004 dated 07.11.2018 is hereby set aside.
(iii) The suit of the plaintiff is hereby dismissed. 32
(iv) No order as to the cost.
(v) Draw decree accordingly.
Sd/-
JUDGE
GBB
CT:SK