R.S. ANJAYYA GUPTA Vs. THIPPAIAH SETTY

JUDGEMENT

(1.) The present appeal takes exception to the judgment and decree of the High Court of Karnataka at Bangalore dated 7 th September, 2004, in RFA No.456 of 2002, whereby the High Court upheld the findings of the Trial Court, that the suit properties described in Schedules A and B to the plaint were not self­acquired by the appellant (defendant No.1) but, instead, belonged to the Joint Hindu Family of which he was a member and, therefore plaintiff and defendant Nos.1 and 2 were equally entitled to 5/12th share in all the suit properties and defendant No.3 (a) (b) and (c) each were entitled to 1/24 th share in all the suit properties and thus the same could be partitioned and distributed amongst the members of the said joint family. The High Court, however, granted liberty to the appellant to approach the Trial Court for an enquiry into the question whether the sale of agricultural lands belonging to joint family would bind the appellant (defendant No.1) and to pass another preliminary decree, if necessary. The appellant has also assailed the judgment of the High Court rejecting his review petition being R.P. No.567 of 2002 dated 27th September, 2006.

(2.) The parties to this appeal are the children of the original defendant No.3­patriarch of the family, Hanumanthaiah Setty. The appellant is the eldest son, while respondent No.1 and respondent No.2 are his younger brothers. Respondent Nos. 3 to 5 are the daughters of Hanumanthaiah Setty and thereby sisters to the appellant and respondent Nos. 1 and 2. Respondent Nos. 3 to 5 came on record as the legal representatives of Hanumanthaiah Setty after he passed away during the course of the proceedings before the Trial Court.

(3.) This appeal has its origins in a suit for partition of certain properties, being O.S. 1300 of 1982, filed by respondent No.1 (original plaintiff) against the appellant (original defendant No.1), respondent No.2 (original defendant No.2) and the original defendant No.3 Hanumanthaiah Setty before the Court of the XXXI Additional City Civil Judge at Bangalore. Respondent No.1, claiming to be a member of a Joint Hindu Family comprising the other parties to the suit, alleged that the scheduled suit properties belonged to the said Joint Hindu Family since they had been purchased by the original defendant No.3 father with money from joint family funds. The crux of respondent No.1 's plea was that the suit properties mentioned in Schedules A and B to the plaint had been purchased ostensibly in the name of the appellant since he was the senior­most member of the family (after defendant No.3) and also the eldest son, however, in actuality, the said properties belonged to the joint family. Respondent No.1 also asserted that suit properties were in the joint possession of the appellant, respondent No.2 and the original defendant No.3 and that the appellant was attempting to illegally dispose of the same and obstruct partition thereof, thus necessitating the suit. Accordingly, respondent No. 1 sought a 1/4th share in the suit properties and mesne profits in that regard.