SADASHIVAPPA Vs. SHIAYOGAPPA

JUDGEMENT

(1.) A subtle point of some consequence has agitated by the petitioner's learned Advocate in this case. Briefly summarised, he points out that the petitioner who is the eldest member of the joint family was given a share in the year 1992 and a document to that effect was executed and registered. He states that very shortly thereafter, the remaining members filed the present suit asking for partition and it appears that since the division was virtually between the family members that they decided to file compromise terms and dispose of the matter so that their shares would have been carved out at this stage. The petitioner who is the eldest brother filed an application to the effect that he is a member of the joint family by virtue of the fact that he is one of the brothers, that he is consequently a necessary party to the proceedings and that therefore, he must be impleaded. The application under O.1, R. 10, C.P.C. went a little further in so far as the petitioner contended that the so-called document of partition was obtained through fraud and that therefore, it was not binding on him. His contention is that in the absence of that document, the whole of the property would have to be divided according to law between all the coparceners including the petitioner.

(2.) The application being I. A. III was resisted by the remaining members of the family who contended that the petitioner has not only opted for severance from the joint family but that the registered document is evidence of his having taken his share and that he is also living separately. It was pointed out that both on facts and in law therefore, the petitioner has ceased to be a member of the joint family, that his status as coparcener has come to an end and that therefore, he is not a necessary party to the present proceeding. It was also contended that in this background, the petitioner has no right to apply for being impleaded. The learned trial Judge after hearing the parties upheld the contention that the petitioner has separated from the joint family and that therefore, he is not entitled to participate in the litigation which was only for purposes of dividing the remaining joint family assests and consequently dismissed I.A. III. The present petition is directed against that order.

(3.) Petitioner's learned Advocate submitted that a distinction will have to be drawn in this case between a simple situation where a coparcener who has alienated himself from the H. U. F. and thereafter desires to once again participate in the process of partition and a situation wherein immediately after the said severance which the alienated member contends was obtained under circumstances that do not pass the test of fairness and consequently, that the Court would have to examine this contention in the course of the partition proceedings. Secondly he has raised an age old argument that if the petitioner is required to independently agitate the allegation of fraud, that he may be frustrated in his effort because the present proceeding will be disposed of on the basis of the compromise terms, the decree will be given effect to and thereafter, that it may be impossible to once again achieve a complete and fair division. This second submission proceeds on the assumption and the confidence of the petitioner that he will be able to establish the allegation of fraud. The fact is that the partition in question came to be registered and that document has certain evideritiary value and certain presumptions also flow from that document.