CHIKATHAYAMMA Vs. MAHADEVAMMA

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel appearing for the appellant.

(2.) The present appeal is filed against the concurrent finding of both the Courts. The main contention of the plaintiffs before the Trial Court that the suit schedule property belongs to the ancestral and joint family property and defendant Nos.2 to 4 colluding with each other, illegally alienated the suit schedule property on 16/3/2015 in favour of defendant No.1 since they have no absolute right to sell the suit schedule property. However, defendant No.1 took the contention that the very filing of the suit for the relief of partition is bad for non-joinder of necessary parties as well as other properties. The Trial Court having taken note of both oral and documentary evidence placed on record comes to the conclusion that the suit schedule property is the ancestral and joint family property and hence, defendant Nos.2 to 4 have no right to sell the property in favour of defendant No.1 and the plaintiffs are not a party to the said sale deed and hence, partly decreed the suit of the plaintiffs holding that the plaintiffs are entitled to 1/7th shares each in the suit schedule property and defendant No.1 is entitled to shares of her vendors. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred by defendant No.1 in R.A.No.24/2016 and the First Appellate Court having considered the grounds urged in the appeal memo, framed the Points for consideration and after reassessing both oral and documentary evidence placed on record comes to the conclusion that Trial Court has rightly decreed the suit of the plaintiffs and thereby confirmed the judgment of the Trial Court and dismissed the appeal filed by defendant No.1. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court.

(3.) The main contention of the counsel for the appellant that both the Courts have committed an error in holding that the appellant and respondents constituted the Hindu Joint family at the time of filing the suit and the very approach of both the Courts is erroneous. The counsel further would vehemently contend that the father of respondent Nos.2 to 8 died more than 25 years back according to PW1 evidence alone hence, the suit is not maintainable under the Hindu Succession Act and plaintiff No.2 got married 30 years back and settled in her husband house. Hence, she does not come under the joint family status. Hence, finding of both the Courts in this regard is perverse and capricious. Under such circumstances, the Trial Court ought not to have granted 1/7th share in favour of the plaintiffs and the First Appellate Court also committed an error in confirming the judgment and decree of the Trial Court. Hence, it requires interference of this Court.