Karnataka High Court
Smt Thayamma vs Sri Subramanya on 16 September, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16th DAY OF SEPTEMBER 2025
BEFORE
THE HON'BLE DR. JUSTICE K.MANMADHA RAO
R.S.A. NO.1730 OF 2018
BETWEEN:
SMT. THAYAMMA
SINCE DEAD BY HER LR
SRI. MUNISHAMAPPA,
S/O LATE THAYAMMA & NARAYANAPPA
AGED ABOUT 50 YEARS
RESIDING AT SRIRAMANAHALLI VILLAGE,
HARIKERE POST,
BANGALORE NORTH TALUK - 560 088.
...APPELLANT
(BY SRI.KISHAN G.S., ADVOCATE)
AND:
1 . SRI. SUBRAMANYA
AGED ABOUT 69 YEARS,
S/O LATE RAMAIAH,
BAGALUR VILLAGE,
JALA HOBLI,
BANGALORE NORTH TALUK - 562 149.
2 . SRI. GOPALAIAH
AGED ABOUT 60 YEARS,
S/O LATE RAMAIAH,
BAGALUR VILLAGE,
JALA HOBLI,
BANGALORE NORTH TALUK -562 149.
3 . SRI K. LOGANATHAN
AGED ABOUT 69 YEARS
S/O KYATHASWAMY PILLAIH
RESIDING AT FLAT NO.22013,
PRESTIGE SHANTINIKETAN,
ITPL ROAD,HOODI,
2
BANGALORE-560 048
...RESPONDENTS
(BY SMT. AMRUTHA N., ADVOCATE FOR
SRI MANJUNATHA H.A. ADVOCATE FOR R-1 AND R-2;
NOTICE TO R-3 IS H/S V/O DATED 04.01.2023)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO
CALL FOR THE ENTIRE RECORDS OF THE CASE R.A.NO.15010/2017 ON
THE FILE OF THE COURT OF THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DEVANAHALLI, AND BE PLEASED TO SET ASIDE THE
JUDGMENT AND DECREE DATED 05.04.2018 PASSED IN THE SAID
CASE AND BE PLEASED TO RESTORE THE JUDGMENT AND DECREE
DATED 04.01.2017 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC.,
DEVANAHALLI IN OS.NO.1072/2007 AND GRANT SUCH OTHER AND
FURTHER RELIEFS AS ARE JUST INCLUDING THE COSTS OF THIS
APPEAL.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.08.2025 AND COMING ON FOR PRONOUNCEMENT
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO
CAV JUDGMENT
The present Regular Second Appeal is filed against the judgment and decree dated 05.04.2018 in R.A.No.15010/2017, on the file of V Additional District and Sessions Judge, Devanahalli ('the lower appellate Court' for short) and with a prayer to restore the judgment and decree dated 04.01.2017, in 3 O.S.No.1072/2007, passed by the Senior Civil Judge and JMFC, Devanahalli ('the trial Court' for short).
2. The appellant herein is the plaintiff before the trial Court and respondent No.1 before the lower Appellate Court and respondent No.3 herein is the defendant No.3 before the trial Court and appellant before the lower appellate Court.
3. The respondents No.1 and 2 herein are the defendants No.1 and 2 before the trial Court and the respondents No.1 and 2 before the lower appellate Court.
4. For sake of reference the parties herein are referred to as arrayed before the trial Court.
5. The plaintiff had filed O.S.No.1072/2007 against the defendants seeking partition and separate possession in the suit schedule property.
6. The case of the plaintiff, in brief, is that Sri Ramaiah, father of the plaintiff and defendants No.1 and 2, constituted an undivided joint family with his children. After the death of Ramaiah, defendant No.1 assumed the role of Kartha of the family. The suit schedule property, bearing land in Sy.No.384 4 measuring 04 acres 39 guntas situated at Bagalur Village, Jala Hobli, Devanahalli Taluk, was the self-acquired property of Ramaiah, purchased under a registered Sale Deed dated 29.07.1963 from one A.Appaiahshamaiah. After his demise, the revenue records were mutated in the names of defendants No.1 and 2, and the plaintiff along with them continued to enjoy the said property as joint family property.
7. The grievance of the plaintiff is that defendant No.1, without his consent, sold the suit property in favour of defendant No.3, which was neither for legal necessity nor for the benefit of the undivided Hindu joint family. The plaintiff asserts that his demand for partition of the suit schedule property was refused, and that the Sale Deed executed in favour of the 3rd defendant is not binding on his 1/3rd share, thereby necessitating the present suit.
8. Per contra, defendant No.3 filed written statement by denying the plaint averments while admitting that the schedule property was acquired by late Ramaiah from A. Appaiahshamaiah and subsequently stood in the names of defendants No.1 and 2. However, it is contended that the property is not joint family 5 property and that defendant No.3 is a bonafide purchaser in possession under a valid Sale Deed. It is alleged that defendants No.1 and 2, motivated by rising land prices, attempted to extort additional sums from defendant No.3, and upon failure, colluded with the plaintiff to institute this frivolous suit. It is further contended that defendant No.1 had already paid Rs.1,00,000/- to the plaintiff on 13.05.2005 and defendant No.2 had paid another Rs.1,00,000/- on 19.05.2005 in connection with the said sale transaction, in the presence of one B.R. Krishnamurthy, a stamp vendor.
9. Further, it is averment of defendant No.3 that he was put in possession on the date of sale, his name was duly entered in the revenue records, and thereafter he formed a private layout comprising of 126 sites, measuring 30' x 40', of which 118½ sites have been sold to bonafide purchasers, with roads also formed in the schedule property. The defendant contends that the suit is without cause of action, suffers from insufficient court fee and incorrect property description, and denies entitlement of the plaintiff to mesne profits, thereby seeking dismissal of the suit with costs.
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10. Based on the pleadings, the trial Court has framed following issues for consideration:-
(i) Whether the plaintiff proves that, herself and defendants No.1 & 2 constitute undivided joint Hindu family and the suit schedule property is their joint family property?
(ii) Whether the plaintiff further proves that, the alienation made by the defendant No.1 in favour of the defendant No.3 in respect of the suit schedule property is not for the legal necessity and benefit of the family?
(iii) Whether the defendant No.3 proves that, he is the bonafide purchaser of the suit schedule property?
(iv) Whether the defendant No.3 further proves that, the plaintiff has received in all Rs.2 Lakhs from the defendant No.1 in connection with the sale transaction as contended in para No.3 of his written statement?
(v) Whether the defendant No.3 further proves that, he has formed a private layout comprising 126 sites and already sold 118 sites in favour of third parties and delivered possession of the same as contended in para No.4 of his written statement?
(vi) Whether the suit is bad for non-joinder of necessary parties?
(vii) Whether the valuation made and payment of court fee is correct and sufficient?
(viii) Whether the plaintiff is entitled to the reliefs sought for?
(ix) What order or decree?
11. In order to substantiate her claim, the plaintiff examined herself as PW-1. During the pendency of the suit, the plaintiff was reported to be dead. Her son is brought on record as 7 legal representative of deceased plaintiff and he has been examined as PW-2 and got marked the documents as Exs.P1 to Ex.P14. On the other hand, the defendant No.3, to put forth his defence, got himself examined as DW1 and witness is examined as DW-2 and got the documents marked as per Ex.D1 to D9.
12. The trial Court based on the pleadings, oral and documentary evidence, held Issues No.1 to 3 were taken up together. The trial court found that the plaintiff, being the daughter of deceased Ramaiah, along with defendants No.1 and 2, constituted members of the joint family, and the suit schedule property was joint family property. Though the sale deed dated 23.02.2005 (Ex.P12) was executed by defendants No.1 and 2 in favour of defendant No.3, the latter failed to establish that such alienation was for legal necessity or benefit of the family. The plaintiff's evidence, supported by documentary records Ex.P1 to Ex.P14, proved her status as a coparcener. Defendant No.3, though examined as DW.1, admitted he had not verified the genealogy and produced no credible material to show legal necessity. The testimony of the DW.2, was found irrelevant, being unsupported by pleadings. Consequently, the trial Court held that the sale deed was not binding on the plaintiff and that defendant 8 No.3 was not a bona fide purchaser. Accordingly, Issues Nos.1 and 3 were answered in the affirmative and Issue No.2 in the negative.
13. Further, on Issue No.4, the defence that the plaintiff had received Rs.2,00,000/- in connection with the sale transaction was specifically considered. The trial Court noted that no suggestion was made to PW-2 regarding such payment, and DW-1 admitted that his knowledge was only through a deed writer, who was not examined. DW-2's version that defendants No.1 and 2 had paid Rs.1,00,000/- each to the plaintiff was disbelieved since it was not pleaded in the written statement. Thus, the plea of consideration was found to be false and unsubstantiated, and issue No.4 was answered in the negative.
14. Further trial Court with respect to issues No.5 and 6 concerning partial partition and non-joinder were taken together. Defendant No.3 relied upon Kenchegowda v. Siddegowda @ Motegowda, reported in 1994 (4) SCC 294, to contend that the suit was not maintainable without inclusion of other joint family properties. However, the trial Court found that the defendant failed to prove the existence of other available properties for 9 partition or to produce details of purchasers of the alleged 126 sites said to have been formed. Ex.D9, the Encumbrance Certificate, did not disclose Sy.No.384, and most transactions therein occurred after the institution of the suit. Consequently, the plea of non-joinder and partial partition was rejected. Issues No.5 and 6 were answered in the negative.
15. On Issue No.7, defendant No.3 relied on B.S. Malleshappa v. Koratagere B. Shivalingappa, reported in AIR 2001 Kar 384, to contend that the plaintiff was not in possession and the court fee paid was insufficient. The trial Court held, however, that the plaintiff, being a coparcener, was in joint possession and valuation under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act with payment of Rs.200/- was sufficient. Consequently, the objection was rejected, and Issue No.7 was answered in the affirmative. On Issue No.8, the Court held that the plaintiff established her entitlement to 1/3rd share in the suit schedule property, and thus answered the issue in the affirmative.
16. Assailing the said Judgement and decree of the trial Court, the plaintiff has preferred an appeal in R.A.No.15010/2017. 10 The lower appellate Court has framed following issues for consideration:-
(i) Whether the suit is bad for non-inclusion of other joint family properties?
(ii) Whether suit is improperly valued and court fee paid is improper?
(iii) Whether impugned judgment and decree passed by the trial court requires interference?
(ii) What order?
17. The lower appellate Court after considering the facts and circumstances of the case held as under:-
On points No.1 and 3, the lower appellate court held that the trial court erred in applying Section 8 of the Hindu Succession Act without determining the character of the property in the hands of late Ramaiah. Though the plaint stated that the suit schedule property was the self-acquired property of Ramaiah, the plaintiff herself admitted that she and her brothers formed a Hindu Undivided Family, with defendant No.1 as the kartha.
18. The lower appellate court found that Ex.P4 showed defendant Nos.1 and 2 as owners of Sy.No.108/1 and Ramaiah as owner of Sy.No.384, but Ex.D2, which remained unrebutted, disclosed that the family also owned Sy.Nos.108/1, 108/24, 203, 11 254/2, 256/1 and 384. PW-2, the legal heir of the plaintiff, admitted in his deposition that Ramaiah owned other properties and that defendants No.1 and 2 were in possession of them.
19. This, coupled with the evidence of Ex.D2, established that the family had other properties which were not included in the suit. Relying on the settled principle that a suit for partial partition is not maintainable, the appellate court placed reliance on Eligibeth v. Mariyamma, by order dated 23.01.2013 passed in RSA No.466/2009; G.M. Mahendra v. G.M. Mohan, reported in 2011 (4) KCCR 2461 (DB); Smt. T. Rathna v. Smt. T.N. Rathnamma & Others, reported in 2012 (5) KCCR 4082; and Sri Tukaram v. Sri Sambaji & Others, reported in ILR 1998 KAR 681, and held that the trial court's judgment and decree was unsustainable.
20. As against this, the respondent relied on Radhakrishnadas v. Kaluram, reported in AIR 1967 SC 574; Smt. Rani v. Smt. Santa Bala Debnath, reported in AIR 1971 SC 1028; T.K. Srinivasamurthy v. T. Seetharamaiah, reported in AIR 1990 KAR 149; Danamma @ Suman Surpur v. Amar, Crl. Appeal Nos.188-189/201; and A.E.G. Carapiet 12 v. A.Y. Derederian, reported in AIR 1961 Cal 359, to contend that a daughter is entitled to a share in joint family property and that alienations without consent are not binding. The lower appellate Court, however, distinguished these precedents on facts, observing that while the legal principles enunciated therein were unquestionable, the present case was distinguishable as the plaintiff had suppressed the existence of other family properties, rendering the suit a barred claim for partial partition.
21. Consequently, it was held that the trial court overlooked admitted documents and failed to consider the equitable rights of the purchaser. Accordingly, the lower appellate Court allowed the appeal under Section 96 CPC, set aside the judgment and decree dated 04.01.2017 passed in O.S.No.1072/2007, and dismissed the suit with costs.
22. In view of the aforesaid facts the learned counsel for the appellant has raised the following substantial questions of law for consideration of this Court:
(i) Is the lower appellate court right in disregarding the settled position of law that when the plaintiff alleges the suit property is joint family property, plaintiff must be deemed to be in possession attracting section 35(2) the KCF & SV Act?
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(ii) Has the lower Appellate court not erred in not adhering to the principle that court fees is to be calculated on the assertions made in the plaint and not in the written statement?
(iii) Is the lower appellate court right in holding that the suit is improperly valued and court fee paid is insufficient disregarding the mode of determination of market value as mandated in Section 7 of the KCF & SV Act?
(iv) When admittedly the suit property is the self acquired property of late Ramaiah, is the lower appellate court right in holding that Section 8 of the Hindu Succession Act is not applicable but Section 6 of the Hindu Succession Act is applicable?
(v) Is the lower appellate court right in holding that suit for partial partition is not maintainable when none of the respondents have given evidence to show the availability of other joint family properties and that the same have been deliberately left out?
vi) If a persons name is not mentioned in the RTCs of a joint family, does that mean that he/she is not having legitimate share in the joint family?
vii) Is the lower appellate court right in holding that the legitimate owners and holders of the suit schedule property parted the property in favour of 3rd respondent when admittedly Thayamma, the daughter of late Ramaiah has not joined the execution of the sale deed in favour of 3rd respondent?
viii) Is the lower appellate court right in completely disregarding the clear evidence before the court that the 3rd respondent is not a bonafide purchaser?
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ix) Is the lower appellate court right in saying that the plaint is totally silent on how Ramaiah acquired property, when it is clearly averred in plaint that the suit schedule property is the self acquired property of Ramaiah which is also admitted by the 3rd respondent in his written statement?
x) Whether the Lower Appellate Court was justified in reversing the well considered judgment and decree passed by the Trial Court?
23. On hearing the submissions of the appellant's counsel, this Court admitted the appeal and framed the following substantial question of law:
"When admittedly, the suit property was a self acquired property of the father of the plaintiff and the defendants and the parties being Class-I heirs were entitled to their share under the Hindu Succession Act, 1956, whether the First Appellate Court is justified in reversing the judgment and decree passed by the trial Court merely on the premise of plaintiff not being in joint possession of the property and on the premise that the plaintiff has not properly valued the suit and paid the Court fee thereon?15
24. The learned counsel appearing for the appellant would contend that the finding that the suit was not properly valued is unsustainable, as the plaint clearly pleaded joint possession in joint family property, thereby attracting Section 35(2) of the KCF & SV Act, which has been consistently upheld in the case of Shabeer Ahmed v. Iqbal Ahmed and others reported in ILR 1965 Mys 918. The settled principle that court fee is to be calculated on assertions in the plaint and not on denials in the written statement was ignored, and the lower appellate Court failed to apply the dictum in the case of T.K.Srinivasamurthy and others v. T. Seetharamaiah and others reported in AIR 1990 Kar 149 (DB) that possession of one co-owner is possession of all.
25. The appellant submits that the suit schedule property admittedly belonged to the joint family of late Ramaiah and that denial of partition rights cannot be equated to denial. of title, as held in 1972 MLJ SN 36. Even assuming valuation under Section 35(1) of the KCF & SV Act, court fee payable would only be Rs.117/- on the plaintiff's 1/3rd share, calculated on deemed market value under Section 7(2)(a) the said Act. The lower 16 appellate Court erred in treating respondents 1 and 2 as legitimate holders of the suit property and in recognising the sale to the respondent No.3, who by his own admission is not a bonafide purchaser. Excessive reliance was placed on RTC entries and Ex-D9 encumbrance certificates, which neither prove exclusion of the appellant from joint possession nor establish a valid layout, since the land remains agricultural and no conversion or approved plan exists.
26. It is further urged that the appellate court gravely erred in applying Section 6 of the Hindu Succession Act, 1956, ignoring that the suit schedule property was pleaded and admitted as the self-acquired property of late Ramaiah. Upon his demise, succession devolved on the appellant and respondents No.1 & 2 under Section 8 of the Hindu Succession Act, 1956. The contrary finding that the property was acquired from joint family income is unsupported, as no such plea was raised nor suggestion made in cross-examination. The reliance on Ex-D2 to hold the suit bad for partial partition is equally untenable, since the document itself bear the endorsement "in dilapidated condition" and could not have been the basis to dismiss the appellant's legitimate claim.
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27. Lastly, the appellant submits that the suit was filed only in respect of the schedule property as details of other properties of Late Ramaiah could not be traced despite efforts, owing to non-cooperation of respondents No.1 & 2. It is settled law that partition can be sought for omitted properties even at the final decree or appellate stage, and amendment can be allowed to include additional properties to avoid multiplicity of proceedings. The application for amendment is bona fide, not intentional delay, and no prejudice will be caused to respondents if allowed, whereas dismissal would cause irreparable loss to the appellant. The lower appellate court, in rejecting the same, has defeated the substantive rights of the appellant on mere technicalities. Hence, the present RSA.
28. Heard learned counsel appearing on either sides on the substantial question of law framed by this Court. Perused the materials placed on record.
29. At the outset, it has to be noticed that this being a second appeal, it is only substantial question of law which gives rise for this Court to clutch the jurisdiction and answer the said 18 question of law as otherwise, this Court would lack jurisdiction to entertain second appeal.
30. As could be seen from the record that the property is left by a male ancestor by name Ramaiah who is none other than father of plaintiff and defendants No.1 and 2. Now, the question is how Ramaiah acquired this property. It is observed that this point is totally silent in the plaint. On contrary, the plaintiff herself made it clear that herself and two brothers of Hindu Undivided Joint Family. In plaint Para No.3, it is stated that the suit schedule property is self-acquired property of late Ramaiah and the same was purchased individually out of his own income. Accordingly, the suit schedule property was purchased by deceased Ramaiah on 29.07.1963. But the record of rights as per Ex.P4 where it is shown that defendants No.1 and 2 are owners of Survey No.108/1 and late Ramaiah was owner of the suit schedule property Survey No.384 and whereas Ex.D2 is also shown that defendants No.1 and 2 are owners of Survey No.108/1, 108/2A, 203, 25452, 256/1 and 384. This Survey No.384 is none other than the suit schedule property. In the witness box, P.W.2 has clearly admitted that his grand-father late Ramaiah owner other properties also. Further, he clearly 19 deposed that such other properties and in possession and enjoyment of the defendants No.1 and 2. It shows that after the death of Ramaiah, those other family properties were succeeded by the male members like, defendants No.1 and 2, it reveals Ex.D2. Further, it is proved fact that besides suit schedule property, plaintiff's family owned other properties also. However, they have not been included in the present suit. In this regard, the position of law very clear that the partial partition is totally unacceptable. In view of the same, the first appellate Court also went on the following rulings:
• Sri Tukaram v. Sri Sambhaji and Ors. reported in ILR 1998 KAR 681;
19. It has been contended by the Learned Counsel for the appellants that the finding of the I Appellate Court to the effect that the suit by one of the co-parceners for partition with respect to one of the items of the Joint Hindu Family property is maintainable in the special circumstances is not proper. During the course of the order, the Appellate Court has observed that Section 261 of Mulla Hindu Law 15th Edn. at pages 351 and 352 makes it clear that non-alienating co-parceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for a general partition. In the present case on hand all the non-alienating co-parceners have not 20 filed the suit. The mere fact that the other non-
alienating co-parceners viz., defendants-7 to 9 did not join the plaintiff in filing the suit is not material. The right of non-alienating co-parcener in Bombay area does not depend upon the whims and fancies of remaining non-alienating co-parceners who for reasons best known to them, may not join the plaintiff in filing suit. Patna and Andhra Pradesh High Courts held that one of the several non-alienating co- parceners cannot sue the purchaser for his own share of the alienated property. It has been observed by the I Appellate Court the law applicable in Bombay area does not prohibit the suit by one of the several non- alienating co-parceners. The I Appellate Court considered the ruling in (1983) 1 SCC 18 : AIR 1983 SC 12412, wherein it has been held that a purchaser can be impleaded even when decree for partition of agricultural lands is pending before the Collector for effecting partition. But it is not the case in the present it. In ILR 1989 Kar 189513 it is held that a partition suit should comprise of all the available properties, as far as possible. That decision has been distinguished by the I Appellate Court as that was not a case of non-alienating co-parcener filing a suit for partition of alienated property. The view that has been taken by the I Appellate Court cannot be stated to be a correct one in the circumstances of the case. It is to be seen that the plaintiff, defendant-1 and defendants-7 to 15 are the members of Joint Hindu Family. There is no partition by metes and bounds of the family properties. The present suit is filed in respect of the suit land only. There are other lands in other villages and also other house properties which have not been 21 included in the suit which are admittedly the joint family properties. It has been observed in Mulla's Hindu Law - 13th Edn. regarding the rights of purchaser of co-parcener's interest. It has been stated that the non-alienating co-parceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for general partition. It is to be noted that in AIR 1984 AP 846 it has been held that normally a suit instituted for partition should be one for partition of the entire joint family properties and all the interested co-sharers should be impleaded. The suit of partition of specified items can only be an exception. In the present case on hand, the 1st defendant has alienated the suit land in favour of defendants-2 to 6. The 1st defendant 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 for the alieness while allotting the share 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 hotch-pot, 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 22 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- alienation co-parcener with respect to the only property which has been alienated. This is not a suit for general partition. The contention of the alienees is to the effect that if the 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 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. 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.
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• G.M.Mahendra v. G.M.Mohan and Another
reported in (2011) 4 KCCR 2461 (DB)
40. xxxx
The contention of the alienees is to the effect that if the 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 dist defendant would have been worked out in order to give equitable relief to the alienates also as they have purchased 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 imp leaded 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. 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."
• T. Rathna W/o Gurulingaiah v. T.N. Rathnamma and others reported in (2012) 5 KCCR 4082;
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It is needless to say when the alienation of one of the property in favour of the appellant herein was challenged by the plaintiffs in the two suits filed as mentioned above, contending that they are also entitled for a share in that property, necessarily the plaintiffs therein ought to have included the other properties available to the joint family. The suits filed by the daughter and daughter in law of late Channaiah in this form without including the other properties, ought not to have been maintained. • Eligabeth v. Smt.Mariyamma and others by order dated 23.01.2013 passed in RSA No.466/2009;
18. ....... The fact that a suit for partition would not be maintainable when filed seeking partition of alienated item only particularly when the joint family owned number of properties and non inclusion of all other properties belonging to the family in the plaint would be fatal. In that view of the matter, it has to be held that a suit for partial partition was not maintainable when admittedly joint family possessed other properties and plaintiff being conscious of this fact did not include those properties in the suit and as such the very frame of the suit itself was not maintainable.
• Kenchegowda v. Siddegowda @ Motegowda, reported in 1994 (4) SCC 294,
15. Equally incorrect is the assumption made by the High Court that the court of first appeal had not accepted the case of partition. On the contrary, what the appellate court has found is as follows: 25
"With regard to the partition alleged by the defendants even though the plaintiff's own witness PW 1 has admitted that there was a partition amongst the plaintiff's mother Ningamma, himself and the 1st defendant in the two suits. There is no satisfactory evidence to prove that in that partition the suit property was allotted to the share of the 1st defendant in the two suits jointly."
16. Therefore, what has been held is that the property had not been allotted in favour of the first defendant in the partition. That is very different from holding that the case of partition had not been accepted by the first appellate court. This being so, a decree for partition could not have been passed on a mere application for amendment. In fact, as rightly urged by the learned counsel for the appellant that the causes of action are different and the reliefs are also different. To hold that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be granted is incorrect. Even otherwise, a suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other co-sharers was not warranted in law. Thus, we find no difficulty in allowing these appeals which are accordingly allowed. The judgment and decree of the trial court as affirmed by the first appellate court are restored. However, there shall be no order as to costs.
31. In view of the above discussions, it is crystal clear that the schedule property is not a self-acquired property and it is Hindu Undivided Joint Family property and the same is acquired 26 out of income derived from the family members and also acquired such other family properties also and after the death of late Ramaiah, all family properties were succeeded by the family members like defendants No.1 and 2 and the same is also deposed by P.W.2 in his evidence also and also it is proved fact that besides schedule property, plaintiff's family was holding other properties and that is not included in the present suit. However, the trial Court failed to serve the above settled legal position and decreed the suit in favour of the plaintiff as per Section 8 of Hindu Succession Act instead of considering the applicability of the Section 6 of the Hindu Succession Act. It is no doubt that coparceners or joint family members by consent can bring partial partition of joint family properties. However, when a suit is for partition of joint family property, question would be whether only certain properties alone can be brought for partition or in other words, whether certain properties admittedly belonging to the joint family can be excluded in a suit for partition.
32. In view of the above stated legal position, this Court would clearly consider the fact that a suit for partition is not maintainable when filed seeking partition of alienated item only, 27 particularly when the joint family owned number of properties and non-inclusion of all other properties belonging to the family in a plaint would be fatal. In that view, the matter to be held that a suit for partial partition was not maintainable when admittedly, joint family possessed other properties and plaintiff being conscious of this fact, did not conclude those properties in the suit and as such, the very frame of the suit itself was not maintainable.
33. In view of the above discussion, I am of the considered view that the substantial question of law raised by the Court also not considerable.
34. For the aforesaid reasons, the following order is passed:
i) Appeal is hereby dismissed at the stage of admission, by rejecting the contentions raised in appeal memorandum and there being no substantial question of law involved.
ii) Judgment and Decree dated 05.04.2018 passed by the V Additional District and Sessions Judge, Devanahalli in R.A.No.15010/2017, is 28 dismissed and the Judgment and Decree dated 04.01.2017, in O.S.No.1072/2007, passed by the Senior Civil Judge and JMFC, Devanahalli, is hereby affirmed.
Pending I.As, if any, shall be consigned to file.
Sd/-
(DR. K.MANMADHA RAO) JUDGE bnv Ct-VS