T. RATHNA Vs. T.N. RATHNAMMA

JUDGEMENT

(1.) These two appeals have been filed by the 4th defendant challenging the order passed by the Sessions Judge/Fast Track Court Judge, Mandya in R.A. No. 234 of 2005 and R.A. No. 235 of 2005 respectively on 24-3-2005. Plaintiffs (respondents 1 to 3 in RSA No. 1070 of 2009) who are the wife and children of Puttaswamy S/o Channaiah and the plaintiff (1st respondent in RSA No. 1071 of 2009), daughter of late Channaiah, filed two suits for the relief of partition and separate possession of 1/16th and 1/4th share respectively and for settlement of accounts and other relief. The 1st defendant in both the suits is the wife of one Channaiah and they had three children - Savithramma, Sarojamma and Puttaswamy. Kempamma sold the suit property to the appellant on 10-6-1996 as she succeeded to her husband's - Channaiah estate who died on 13-12-1982. In respect of the property which was sold by Kempamma in favour of the appellants, two suits were filed - one by the daughter in law of Kempamma, i.e., Rathnamma on the death of her husband Puttaswamy s/o Kempamma in O.S. No. 251 of 1997 and another suit by Sarojamma d/o. Kempamma for partition and separate possession in O.S. No. 252 of 1997. Both the suits were decreed by the Civil Judge (Junior Division), Mandya. The subject-matter of the suits filed by the daughter-in-law and the daughter of Kempamma is the property which is said to be alienated in favour of this appellant wherein the Trial Court decreed 1/16th and 1/4th share respectively for the parties. Against the said judgment, in the appeals filed by the purchaser/4th defendant, the lower Appellate Court confirmed the orders of the Trial Court while dismissing the appeals. Hence, these two second appeals. Apart from that, the 4th defendant who is the appellant herein also maintained a suit for general partition in respect of other properties which was available to the legal heirs of Channaiah. That suit is pending consideration.

(2.) The grievance of the appellant in both these appeals is, the Trial Court as well as the lower Appellate Court failed to take note of the fact that the suits filed by the daughter-in-law and daughter of Kempamma ought not to have been maintained in the form filed without including all other joint family properties and the decreeing of the suit has affected the interest of the 4th defendant/appellant herein. Even in respect of the property which was sold by Kempamma, assuming that she has one share and her share has been sold in favour of the 4th defendant, her share could have been identified in all other properties available if she is not eligible to dispose of the property which was sold in favour of the 4th defendant. By effecting partition in the suits filed in favour of the legal heirs of Channaiah especially daughter-in-law and daughter by both the Courts below without taking into consideration the property which was sold by Kempamma in which Kempamma also had a interest, apart from the other properties which are left out and when the right of the 4th defendant has been affected in bringing the property for partition which was sold in his favour and to the extent she has to forego the share which was earmarked in favour of the daughter or daughter-in-law, then necessarily to work out the remedy, all other properties ought to have been mentioned or included in the suit for partition filed and non-inclusion of all the properties available to the joint family has led to failure of justice and has affected the interest of the alienee/appellant who has purchased the property during June 1996 from Kempamma.

(3.) The substantial question of law for consideration in this appeal is -whether the Courts below were justified in decreeing the suit of the plaintiffs therein without bringing on record all other joint family properties for the purpose of just partition.