H.N. Shivananda and Others vs H.N. Vijayamba and Others

N. Kumar, J—This appeal is by defendants No. 1, 4, 7, 8, 9 challenging the judgment and decree of the trial court which has partly decreed the suit of the plaintiff granting 1/10th share in item Nos. 1 to 4, 7 to 9 and 12.

For the purpose of convenience, the parties are referred to as they are referred to in the Original Suit.

The case of the plaintiff is that all the suit schedule properties belonged to H.M. Nagappa and his wife Smt. Subbamma. In Paragraph No. 3 of the plaint, they have set out genealogy. The said Nagappa and Subbamma had six sons and four daughters. On the day suit was filed, Mallesha and Nataraj, two sons had expired. Defendants 1 to 3 are the sons of Mallesha and defendants 5 to 6 are the sons of Nataraj. Out of the four daughters, H.N. Saroja had expired and defendants 11 to 14 are her children. Plaintiff is one such daughter. The other daughters are the 10th defendant and 15th defendant. The other sons are H.S. Shivananda - 4th defendant, H.N. VasanthaKumar-7th defendant, H.N. Shamaraju - 8th defendant and H.N. Basavaraju - 9th defendant.

The case of the plaintiff is that during the lifetime of H.M. Nagappa, he effected a nominal partition of all the joint family properties under a registered partition deed dated 27.03.1958 and he divided all the properties into 12 shares. He had given 10 shares to his children and one share to his wife Subbamma and he retained one share with him. The houses and rice mills were not divided at that time. All the children of H.M. Nagappa were minors at the time of partition. Therefore, mother Subbamma was appointed as minor guardian and possession of the properties were shown to be given to Subbamma. The said partition was a nominal one. It was effected only with an intention to save the properties from the Land Reforms Act. But the family members did not act upon the said partition deed dated 27.03.1958. In spite of effecting the partition on 27.03.1958 H.M. Nagappa and all his sons and other members of the family continued to reside jointly.

On 28.11.1995, only the sons of H.M. Nagappa have got effected a registered partition deed. In the said partition deed, it is shown that the partition was effected in the year 1991 and the memorandum of partition has been made on 28.11.1995.

It is the further case of the plaintiff that on 27.03.1958, items 10 and 11 were allotted to the share of the mother of the plaintiff, Subbamma and ''B'' schedule properties were allotted to the share of her father H.M. Nagapa. H.M. Nagappa and Subbamma had not alienated the properties allotted to them in the partition deed dated 27.03.1958. After the death of H.M. Nagappa, his sons have sold some of the properties in favour of the defendants 16 and 17. They have also sold some of the properties in favour of others and it has not come to the knowledge of the plaintiff.

In the alternative, it was pleaded in case, the court comes to the conclusion that the partition deed dated 27.03.1958 has been acted upon, the plaintiff is entitled to 1/10th share in ''B'' schedule properties allotted to the share of H.M. Nagappa and rice mills items 10 and 11 which were allotted to the share of Subbamma and also items 1 to 4, 7 to 9 and 12, the house sites which were not divided in the partition deed dated 27.03.1958. The plaintiff has demanded a partition of the suit schedule properties and to allot 1/10th share. The defendants did not entertain her request. Therefore plaintiff got issued a notice through her advocate and in spite of the same, her share is not given to her. Therefore she has instituted a suit for partition and deliver the possession of her 1/10th share in all the plaint schedule properties.

After service of summons, defendants have entered appearance through their counsel. Defendants 1, 2, 4 to 9, 18 and 19 have filed a common written statement. They have denied all the allegations made in paragraph No. 4 of the plaint. They contend Subbamma had no properties at all. They admit that when the partition took place, all the children of H.M. Nagappa were minors and mother Subbamma was given possession of the partitioned properties on behalf of minors. The plaintiff and defendants except defendants 16 and 17 all others have acted upon the partition. When they attained their age of majority and immediately after their marriage the respective defendants have taken their respective shares allotted to them in the partition and they are in possession and enjoyment of the same. Smt. Subbamma was not the owner of any of the properties of the suit schedule land. The plaintiff has taken possession of her share mentioned in the registered partition deed dated 27.03.1958 and she was in possession and enjoyment of her share till 1991 and sold the same share under a registered sale deed dated 18.11.1991. After the registered partition deed dated 27.03.1958, the properties were transferred to the guardian of the shareholders. Hence the properties mentioned in the said partition deed and the schedule properties have lost the character of joint family and became their own properties. The allegation that after the death of Nagappa and Subbamma all the members continued in a joint family and partitioned the joint family properties only in the year 1995 under the registered partition deed dated 28.11.1995 and therefore, the partition deed dated 27.03.1958 has no force is false. The item No. 17 of the suit schedule properties fell to the share of defendant Nos. 1, 4, 5 and 7 as per the partition deed dated 27.03.1958. The said property was sold for the benefit of the Mutt in the year 1967 under a registered sale deed the 17th defendant is a bona fide purchaser. Defendant Nos. 8 and 9 retained only few acres of land. Hence, they again agreed to reunion of six brothers, agreed to sell their shares of land to the 17th defendant. Hence, the property pooled for share in the year 1995 were all their separate properties. It was made into joint properties but not the joint family properties. Reunion, repartition is allowed in Hindu Law. Such reunion does not constitute joint family as other members who are all parties to the earlier partition did not join in reunion.

Suit schedule ''B'' items fell to the share of Late. H.M. Nagappa and he has sold his shares of the properties to the 17th defendant during his lifetime in the year 1964 which is very well known to the plaintiff. Only with the mala fide intention to harass the defendants Nos. 1 to 9 the plaintiff brought this erroneous suit after lapse of several decades. Plaintiff has no locus standi to file the suit for partition again. The suit schedule item No. 10 and 11 were benami transactions of H.M. Nagappa. Immediately after the purchase in the name of his wife Subbamma, he got it transferred in his name later he himself alienated the property. The partition deed dated 28.04.1995 does not require any sanction from any other share holders of the earlier partition deed dated 27.03.1958 as it was only a reunion and re partition of joint family properties which acquired, constructed and developed after the partition of 27.03.1958 by their separate properties.

Hence the plaintiff has no manner of right to question the right of defendant Nos. 1 to 9. Plaintiff has no right to partition 1/10th share again. Plaintiff to harass the defendant Nos. 1 to 9 objected to open a bar attached to the hotel adjacent to the defendants'' house at Hullahalli, when she failed in her attempt, plaintiff''s son filed a suit for injunction against the defendants in O.S. No. 50/2002 before the Civil Judge at Nanjangud. Aggrieved by the same, at the instance of the plaintiff''s son, the suit is filed. The plaintiff''s sale deed dated 18.11.1993 merely discloses the plaintiff''s possession and enjoyment of her share. Hence the question of second time partition does not arise at all.

The other daughters of Late. H.M. Nagappa have also taken their shares under the registered partition deed dated 27.03.1958 which was acted upon. The rice mills and the house properties are the self acquired properties of the defendant Nos. 1 to 9 which are constructed decades back subsequent to partition dated 27.03.1958. H.M. Nagappa has not repaid all the loans on the rice mills retained by him as his share during his lifetime. Rice mills were sold by him for the loan. Other rice mills were of the self acquired properties of defendant Nos. 1 to 9. Defendants have started their rice mills after borrowing money. Though the land share of the defendant No. 7 bearing Sy. Nos. 107 and 104 has been sold by his mother to the 17th defendant by giving alternative property bearing Nos. 151 and 154 to him. Since then he is in possession and enjoyment of the same. Hence, item Nos. 10 and 11 become the 17th defendant''s own properties. All the properties mentioned in the suit schedule have already lost the characteristic of joint family property immediately after the execution of the registered partition deed dated 27.03.1958. The members have acted upon this partition deed by getting kathas changed to their names. Therefore, all the properties mentioned in the suit schedule properties belong to the respective sharers. Subsequently all the sharers have developed the respective properties by constructing houses, rice mills etc., by their own earnings subsequent to partition of 1958. Hence this court has no jurisdiction to entertain the suit for second partition or repartition of the property after lapse of several decades of the earlier partition. Therefore, they sought for dismissal of the suit.

The third defendant has filed a separate written statement. He denied that the partition dt. 27-03-1958 is only a nominal one. The allottees of shares in the partition got portions of the property and are enjoying the property separately. Just because they remained in the custody of their mother during their minority and were looking after the properties together, does not take away the effect of a partition deed. The khata of the properties were changed soon after the partition. Each of the sharers got the khata changed to his or her name. In the course of joint residence and with common efforts, the six sons of H.N. Nagappa acquired some properties, though there was no joint family in existence. Thus the properties were in the common ownership of the sons of Nagappa in the capacity of common owners and not co-owners. Thus the properties are not the joint properties of the family and plaintiff cannot claim any share in the properties. It is true that the sons of Nagappa divided the properties acquired by them through a registered partition deed dt. 28-11-1995. The allegation that they have shown these properties as joint Hindu properties are false. Even if there is a narration like that, it will not have any legal effect. There was no joint Hindu family existing on the date of the deed. Since the earlier date of partition dt. 27-03-1958 has come into effect and since the plaintiff being one of the allottees under the deed has sold her property to Smt. Mangala on 18-11-1991, wherein she has clearly mentioned that the property is her absolute property, got through the registered partition deed dt. 27-03-1958, now she cannot say that the partition dt. 27-03-1958 has not come into force or acted upon. Defendants 10, 15 and the plaintiff have already sold properties that fell to their shares in the partition dt. 27-03-1958 to Smt. Mangala, wife of Sri. H.N. Basavaraju through a registered sale deed and have thereby accepted the partition deed dt. 28-03-1988 and the documents clearly show that the partition is acted upon. Smt. Mangala is a necessary party to the suit and the suit is bad for non-joinder of necessary party. Sri. Malleshaiah and his brothers have acquired certain properties by putting efforts and they have acquired properties out of their own earnings and efforts and these properties are acquired after their sisters went to their husbands houses and after disruption of the joint family status and after the partition dt. 27-03-1958. Thus the properties are the joint properties of Malleshaiah and brothers and not the joint family properties of them and their sisters. In fact, the plaintiff is married in the year 1965 and till then no properties were acquired by the brothers.

The 7th defendant has filed a suit against the husband of the plaintiff in the Court of the Civil Judge (Jr. Dn.) and being aggrieved by the same, and as a matter of retaliation, the plaintiff is made to file this suit by her. It is true that some of the properties are sold by the sons of Nagappa to defendants 16 and 17 and the plaintiff was well aware of the same since she is residing in the same village. The suit filed is barred by limitation. The plaintiff cannot challenge the sales to which she is not a party.

The 16th defendant has filed a separate written statement. He contends, 4th item of the schedule is allotted to the share of the fourth defendant - H.S. Shivananda. On 27-04-2001, he and his son H.S. Shivashankar, jointly have sold the said properties to him. On the date of the sale, they have delivered possession to him. From 27-04-2001, the 16th defendant is in possession of the said property. He is a bona fide purchaser for valuable consideration. He reiterates all the averments made in the written statement of the third defendant. In the event of the suit being decreed, he prays that the property which he has purchased from the 4th defendant and were allotted to the share of fourth defendant be allotted to him so that the interest of 16th defendant is duly protected.

Seventeenth defendant also has filed a separate written statement. He adopts the written statement filed by the contesting defendants. His specific case is, suit item No. 17(a) to (j) i.e. ''C'' schedule property originally belonged to H.M. Nagappa and the said properties were divided between H.M. Nagappa and his sons. In the said partition, H.N. Malleshaiah, the father of defendants 1 to 3 had got the property bearing item No. 17(a), (b) and (c) and later on sold the same to this defendant through a registered sale deed dt. 13-07-1967. H.N. Shivananda, the fourth defendant got the property bearing item No. 17(e) and (f) and sold the same to this defendant through a registered sale deed dt. 13-07-1967. H.N. Nataraju, the father of defendant Nos. 5 and 6 got the property bearing item No. 17(g) and (h) and sold the same to this defendant through a registered sale deed dt. 13-07-1967. H.N. Vasanthkumar, the defendant No. 7 got the property bearing item No. 17(i) and (j) to his share and later on sold the same to this defendant through a registered sale deed dt. 13-07-1967. H.M. Nagappa himself sold the property bearing item No. 17(d) to this defendant through a registered sale deed dt. 13-07-1967. Since the date of purchase, this defendant is in possession of the same as absolute owner. This defendant is a bona fide purchaser and the plaintiff was having knowledge of the same as an absolute owner. Hence, she is not entitled for any share in item No. 17(a) to (j) of the suit schedule properties. In the alternative they have pleaded, in case if the Hon''ble Court comes to the conclusion that the suit schedule properties bearing item No. 17 is a joint family property and the plaintiff is entitled for share, then the Hon''ble Court may kindly be pleased to allot item No. 17(a) to (j) to the above said persons i.e. sons of Nagappa to safeguard the interest of defendant No. 17 who is the bona fide purchaser of the properties.

On the aforesaid pleadings, the trial Court has framed the following issues:

1) Whether the plaintiff proves that the registered partition deed dt. 27-03-1958 is a nominal document and not acted upon as contended in para 4 of the plaint?

2) Whether the plaintiff proves that the children of H.M. Nagappa and Subbamma are in joint family and the suit properties are their joint family properties?

3) Whether the plaintiff proves that in case the court comes to the conclusion that the partition deed dt. 27-03-1958 has been acted upon, the plaintiff is entitled for her share in the ''B'' schedule properties and suit item-10 and 11 as contended in para 10 of the plaint?

4) Whether the defendants 1, 2, 4 to 9 prove that the ''B'' items of the suit properties have been sold by H.M. Nagappa himself during his life time in favour of the 17th defendant?

5) Whether the defendants 1, 2, 4 to 9 prove that suit item No. 10 and 11 did not belong to Subbamma and H.M. Nagappa himself has alienated them?

6) Whether the 16th defendant proves that he is a bona fide purchaser of suit item No. 4?

7) Whether the 17th defendant proves that in the partition, the father of defendants 1 to 3 got to his share item No. 17(a), (b) and (c), the 4th defendant got suit item No. 17(e) and (f), the father of defendants 5 and 6 got item No. 17(g) and (h), defendant No. 7 got item No. 17(i) and (j) to their shares and they have sold their above said properties to the 17th defendant?

8) Whether the 17th defendant proves that H.M. Nagappa himself sold item No. 17(d) to the 17th defendant?

9) Whether the 17th defendant proves that the 17th defendant is a bona fide purchaser and in case the court comes to the conclusion that such item No. 17 is joint family property, the property sold to the 17th defendant be allotted to the share of the vendors of the 17th defendant?

10) Whether the plaintiff is entitled to partition and separate possession as prayed for?

11) Whether the plaintiff is entitled to mesne profits?

12) To what order or decree?

Additional Issue:

Whether the plaintiff proves that late Sri. H.M. Nagappa is the owner of the suit schedule item Nos. 1, 2, 3, 4, 7, 8, 9 and 12 by virtue of registered partition deed dt. 27-03-1958?

The plaintiff in order to substantiate her claim, examined herself as P.W. 1 and she has produced 34 documents which were marked as Exs. P. 1 to P. 34. The defendants have examined one Smt. Mangala as D.W. 1 and 8th defendant - H.N. Shantharaju as D.W. 2 and they have produced one sale deed which was marked as Ex. D. 1.

The trial Court on appreciation of the aforesaid oral and documentary evidence on record, held that the registered partition deed dt. 27-03-1958 is not a nominal one or sham as contended by the plaintiff. It is a valid document which is acted upon. All the persons who got share in the partition, have, on the basis of the said partition deed got the mutation entries made in their respective names. They have also dealt with these properties as absolute owners thereof and they have also alienated the properties which fell to their share in the partition. It also held, after the partition on 27-03-1958 no joint family exists and no joint family properties also exist. It also negatived the case of the plaintiff that item Nos. 10 and 11 are also joint family properties, as the said properties which originally belonged to her mother Subbamma has been given to Vasanthakumar-the 7th defendant under the gift deed. It also held, as all the ''B'' schedule properties were sold by her father in favour of the 7th defendant in the year 1967 itself, she is not entitled to any share in the said properties. The 16th defendant has proved that he has purchased a site bearing No. 4 from the 4th defendant and that he is a bona fide purchaser for valuable consideration. Further it held, the 17th defendant has purchased under registered sale deeds from Nagappa and his sons the properties mentioned in ''C'' schedule and therefore the plaintiff has no right over the said properties. Item No. 17(d) in the ''C'' schedule is sold by Nagappa in favour of the 17th defendant. The 17th defendant is a bona fide purchaser and therefore the plaintiff has no right to challenge the aforesaid sales. However it held, defendant No. 8 who is examined as D.W. 2 admits in page 10 of his cross examination that the properties where rice mill was situated bears assessment No. 1274 and the said property measures about 100 feet x 200 feet and the said property was converted for non-agricultural use at that time itself. All the brothers have constructed houses in the said 3 acres of land which has been converted for non-agricultural use. Item No. 4 has been sold by defendant No. 4 and his sons in favour of defendant No. 16 under a registered sale deed dt. 27-04-2001. In these circumstances, item No. 4 has to be allotted to the share of defendant No. 4 in order to facilitate to give up the said property in favour of the purchasers, since the purchasers have purchased the said property on the basis of the registered partition deed that was effected between the brothers on 28-11-1995 produced at Ex. P. 2. Item Nos. 1 to 4, 7 to 9 and 12 were not divided under Ex. P. 1 - partition deed in the year 1958. Rice mill was also given to H.M. Nagappa in the said partition deed. The said property measures roughly about 3 acres. It is converted for non-agricultural use. No registered sale deed has been executed in respect of the sites formed in the said land. The constructions put up on the said land would be allotted in the final decree proceedings in favour of the persons who have put up the same. The vacant sites would be allotted to the persons who have not put up constructions and therefore, it decreed the suit of the plaintiff only in respect of items 1 to 4, 7 to 9 and 12 of the suit schedule properties. In respect of all other properties, the suit of the plaintiff came to be dismissed.

Aggrieved by the judgment and decree, defendants 1, 4, 7, 8 and 9 have preferred this appeal.

The learned Counsel appearing for the appellants, assailing the impugned judgment and decree of the trial Court, contended that the plaintiff is not sure about her case. In one breath she contends, the partition dt. 27-03-1958 as per Ex. P. 1 is not acted upon, the joint family continues and all the schedule properties are the joint family properties. She has also challenged the partition dt. 28-11-1995 effected between the six brothers, in which she has no right. The plaintiff is a resident of the same village. Malleshaiah during his life time got these properties converted, put up constructions, developed the properties and considerable amount has been spent. Plaintiff has not moved her little finger either claiming any right or objecting to any development activity. After lapse of several decades, she is estopped from challenging any of these acts on the ground that she has not been consulted, it has been done behind her back and without notice to her. She is estopped from putting forth such pleas. The plaintiff after attaining majority and after marriage has sold the property which has fallen to her share in the partition dt. 27-03-1958, claiming the said property to be her absolute property and therefore her claim that the said partition dt. 27-03-1958 is not acted upon and joint family continues and the schedule properties are all joint family properties are all without any basis.

In the cross-examination, she has admitted, all the properties which fell to the share of her father Nagappa in the partition dt. 27-03-1958 has been sold by him to the 17th defendant and therefore, no property of her father is available for partition on the day she filed a suit for partition.

He further contended, Subbamma has executed a will dt. 05-12-1984 bequeathing her properties in favour of Malleshaiah. The defendants were not aware of the existence of the will. Only during the course of this appeal, they have come to know about the said will and therefore an application is filed for production of additional evidence and the said will is kept in safe custody. Licence dt. 27-11-1964, 18-06-1963 and 17-09-1970 issued in favour of Malleshaiah and the said will is taken on record. All the properties belonging to Subbamma have been bequeathed in favour of Malleshaiah and plaintiff has no right over the said properties. Therefore he submits, the trial Court without proper appreciation of the material on record has erroneously granted a partial decree for partition.

Per contra, the learned Counsel appearing for the plaintiffs submitted, that in the partition deed dt. 27-03-1958, Nagappa divided the properties into 12 parts. After giving 10 parts to his 10 children, one part was retained by him and one part was allotted to his wife. Schedule ''B'' to the plaint is the property which was allotted to the share of Nagappa. Excluding the property which Nagappa sold in favour of 17th defendant, in the remaining properties, the plaintiff is entitled to a share with the other children of Nagappa. In the very partition deed, there is a specific recital that though Nagappa is effecting partition of all the joint family properties, he is not effecting partition in respect of houses which are to be partitioned subsequently, and therefore he submits, the trial Court now has granted decree only in respect of the properties of Nagappa and the properties which are not partitioned in the earlier partition. Therefore he submits, no case for interference of the order is made out.

He further submits, the will sought to be produced now in this appeal is of the year 1984. The suit was filed in the year 2002. Matter is hotly contested. The said will did not surface in the trial Court. It has surfaced for the first time in this appeal, after a lapse of 31 long years. Moreover, it is not a registered will. The said will is said to have been made by Smt. Subbamma, bequeathing her exclusive property in favour of Malleshaiah. In this suit, the plaintiff is seeking partition and separate possession of the property belonging to her father. Though a claim was made claiming the property of the mother, when the trial Court has negatived the said claim, she has not preferred any appeal. Therefore, the said additional evidence sought to be produced, is of no assistance in deciding this appeal on merits and therefore he submits, no case for allowing the application for additional evidence is made out.

In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are as under:

1) Whether the decree passed by the trial Court granting 1/10th share in item Nos. 1 to 4, 7 to 9 and 12 is legal and valid or it calls for interference?

2) Whether application filed for production of additional evidence is to be allowed?

Point No. 1:

From the material on record, what emerges is, Nagappa and Subbamma had six sons and four daughters. All of them constituted a joint Hindu family. On 27-03-1958, all his 10 children were minors. However, Nagappa executed a registered partition deed on 27-03-1958 as per Ex. P. 1, dividing all joint family properties into 12 portions, allotted 10 portions in favour of his children and retained one portion to himself and gave one portion to his wife, Smt. Subbamma. As all his children were minors on that day, his wife was appointed as guardian and possession of the properties belonging to his minor children was given to his wife. Material on record shows, after attaining majority, each of the children got the khata of the properties transferred into their names on the basis of the partition deed dt. 27-03-1958. Some of them alienated the properties. In fact, the plaintiff who was allotted 3 acres 7 guntas in Sy. No. 67, sold the said property in favour of Smt. Mangala under a registered sale deed dt. 18-11-1991. The recitals in the sale deed makes it clear, plaintiff was owning the said property as her absolute property, having acquired title under the partition deed dt. 27-03-1958. Similarly, Nagappa and her sons have executed several sale deeds and got it duly registered, conveying the properties which are mentioned in ''C'' schedule in favour of the 17th defendant. 4th defendant has sold item No. 4 in favour of 16th defendant under a registered sale deed. All these undisputed facts clearly demonstrate that the partition deed dt. 27-03-1958 and the partition effected on that date is not a nominal one, is not sham, it was real and acted upon. Therefore the trial Court rightly held that the said partition is genuine and after the said partition, there is no joint family in existence and there is no joint family property in existence.

The defendants, except 3rd defendant, have taken up strange pleas of reunion, repartition, ownership, etc. which are of no relevance. The facts on record show, even after partition, the sons continued to live together, acquired several properties in their own name, also tried to redistribute their properties which have come to their share in the partition dt. 27-03-1958 and in this regard they have effected partition as per Ex. P. 2 dt. 28-11-1995. Plaintiff is not a party to the said partition. Plaintiff has no right in the properties belonging to her brothers. Therefore, though an attempt is made to challenge the said partition, rightly the trial Court has held, the said challenge is without any basis and has negatived the claim of the plaintiff. Similarly, the evidence on record shows, Nagappa sold one of the items of the properties which fell to his share in the partition in favour of the 17th defendant under a registered sale deed. Therefore, that property is not available for partition on the date of the suit. The plaintiff has no manner of right, title or interest over the same.

Now the question is, out of the properties which fell to the share of Nagappa, has he left behind any property and if so what are those properties. Whether as stated in the partition deed dt. 27-03-1958, house properties were not divided and whether they are available for partition on the day the suit was filed.

Strangely the defendants have filed a joint statement and have raised several pleas and also contended that there is no property of Nagappa available for partition as on the date of the suit. For reasons best known to them, they have not entered the witness box, except the 8th defendant - H.N. Shantharaju. The plaintiff after marriage is living with her husband, though in the same village. She is not expected to give the full particulars of survey numbers, extent of land, whether developments are carried on. An attempt is made to take advantage of few admissions obtained in the cross examination to the effect that, Nagappa had sold all the properties which fell to his share in the partition and if it is so, she is not entitled to the share. In the cross examination, she has stated in answer to a suggestion that Nagappa, Subbamma and their sons have sold all the properties which fell to their share in the partition, in favour of the 17th defendant in the year 1967, she has answered as true. She also has stated that, in these properties which is sold, it is true that she has no right. Relying on this admission, it is argued that the plaintiff''s suit for partition is not maintainable. If we look at the cross examination of hers as contained in para 11 in its entirety, she has admitted the partition of 1958 and she has categorically stated, her brothers have been given share in Melagahalli village and she has clarified by saying that the share is given only in the wet land and the house was not partitioned. Properties of Melagahalli means, only wet lands. If really all the properties which fell to the share of Nagappa in the partition is sold by him to the 17th defendant, certainly the plaintiff has no right in those properties. Whether a property is sold or not and if it is sold, what is the extent of land and the survey numbers cannot be made out by answers given in cross examination. If a property is sold under a registered document, it is only by looking into the document, one can say what are the properties sold to 17th defendant. The 17th defendant has categorically stated that the properties which he has purchased from Nagappa and his children are set out in the ''C'' schedule. They are as under:

In the written statement, the 17th defendant has categorically stated, the property which he has purchased from Nagappa is at 17(d), that is Sy. No. 108 measuring 4 acres 35 guntas. We have the partition deed Ex. P. 1 before us. That is not the only property which is allotted to the share of Nagappa. Therefore, notwithstanding the so called admission in the cross examination by the plaintiff that all the properties which fell to the share of Nagappa was sold to 17th defendant, the written statement of the 17th defendant and the schedule ''C'' read together, make it clear, what Nagappa sold to 17th defendant is only agricultural land in Sy. No. 108 measuring 4 acres 35 guntas and he has not sold the other properties which have fallen to his share in the partition deed.

In this context, the evidence of 8th defendant - one of the sons of Nagappa assumes importance. In the cross examination he has stated as under:

"In the year 1958 when partition was effected, there was only one house and one site. The total extent was 3 acres. As on the day the said land was converted for non-agricultural purposes. The said land was retained by the father for the purpose of establishment of a mill and for non-agricultural purpose. Nagappa had not executed any document giving the said 3 acres of land, house and rice mill. However, khatas of these properties were changed during his life time. In the said 3 acres of converted land, all the brothers have constructed houses and also they are running a mill. They have constructed the houses and mill from the income from agriculture. In 1985 Nagappa removed the mill and started a new mill by name Malleshwar Rice Mill. He has denied the suggestion after his sons attained majority, their mother handed over possession of the properties. He is emphatic that though there was a partition in 1958, mother was looking after the lands and father was looking after the mill. Till 1995, they were all having common mess and till 1995, they were not enjoying the properties separately. In 1995, excluding the property which was sold to the 17th defendant, they effected the partition, including the 3 acres of land. Five to six years prior to 1995, the brothers effected a partition, but there was no document. As per Ex. P. 2, Sy. No. 151 and 154 which were given to the share of their mother was allotted to the share of H.N. Vasantha Kumar - the 7th defendant. However, no document was executed in this regard. He has categorically stated that 3 acres of converted land bears khata No. 1274. It is in that land, house and the mill are constructed."

From the aforesaid evidence it is clear, the father retained 3 acres of land which was converted for non-agricultural use and the khata No. was 1274. On the date of partition, there was only one house and a vacant site. Subsequently, all the sons have put up construction in the said land out of their own earnings. But the said land is not yet partitioned. The said property is mentioned in the plaint schedule at page Nos. 1 to 4 and 7 to 9 and 12. The description of the schedule shows, houses are constructed in the said land. All these properties bear a common khata No. 1274. It is not the case of the plaintiff that those constructions are made by her father. On the contrary, evidence on record shows, the six sons have put up construction out of their own earnings and they are living with their families. Apart from this other sites have been formed. Under these circumstances, the trial Court taking into consideration these admissions, looking into the schedule to the plaint, the written statement of the 17th defendant and the evidence of P.W. 2 has rightly come to the conclusion that the plaintiff is entitled to a share only in those properties which are not partitioned yet. However, it has made very clear, all the improvements have been made in this property by the brothers and the plaintiff has no right. At the time of effecting partition these aspects have to be taken into consideration and a just and equitable partition has to be made.

The defendants in their written statement have not stated that these properties, in respect of which now a decree is passed, either they are not in existence or all of them have been sold by Nagappa in favour of 17th defendant or any other person. They have taken altogether a different stand, namely though a partition was effected in the year 1958 and the joint family status is disrupted and no joint family property was in existence, still all the brothers continued to live together, acquired properties of their own and they were enjoying the properties as joint owners and in the year 1995 they reduced into writing a partition which they effected in the year 1995 partitioning all the properties. In fact, an attempt is made to plead re-partition and their grievance was, as the plaintiff was married and living with her husband, notwithstanding a reunion, she is not a member of the joint family.

The third defendant supported the case so far as reunion is concerned. Partition was effected, there was a disruption of the joint family and joint family property, no joint family property is in existence. Still, brothers maintained good relations, acquired properties, they were joint owners and not co-owners.

In the light of the aforesaid stand, an attempt was made at the time of argument, that all the properties of Nagappa were sold is admitted by the plaintiff in her cross examination and therefore the properties in respect of which now a partition is effected, is not in existence and available for partition at all is difficult to accept. The 17th defendant who is said to have purchased the property has not put forth any claim. That is not the property which has fallen to the share of their brothers. In the said property all the brothers have put up construction and living with their family members and running their business. Therefore these properties exist on the date of the suit. These properties are not partitioned and all the children have a share in the said property. Therefore, we do not find any justification to interfere with the said finding recorded by the trial Court.

Point No. 2

In so far as the application for production of additional documents is concerned, that is a will executed by Subbamma. The plaintiff is not claiming any share in the property belonging to Subbamma. In fact, item No. 10 and 11 of the schedule property was allotted to the share of Subbamma in the year 1958. She appears to have given the property by way of gift to 7th defendant. Accepting the case of the 7th defendant, the Court has rejected the claim of the plaintiff. Plaintiff has not challenged the said finding. In respect of other properties, if they are properties of Subbamma, plaintiff has not claimed any share. Therefore, that will is of no consequence or relevance in deciding this appeal on merits. As such, this application for production of additional documents is only misconceived and therefore it is hereby rejected.

It is submitted that the plaintiff has committed forgery and therefore an application is filed for referring the relevant records for forensic expert to find out whether it is a forgery or not. The said application is of no assistance in deciding this appeal. If really the plaintiff has committed an offence of forgery, the appellant is at liberty to work out the remedy in the manner known to law. The dismissal of the appeal will not come in their way. It is not necessary to consider the said application. Accordingly, the said application is rejected reserving liberty.

One of the daughters of Nagappa is no more as she died during the pendency of the proceedings. No steps are taken to bring her L.Rs. on record. In our view, as we are not interfering with the judgment of the trial Court, in the final decree proceedings to be initiated, her L.Rs. could be brought on record and her share to be allotted to her, can be allotted to her L.Rs.

It was submitted that the suit for partition is barred by time. Though the suit is filed contending that the partition is of the year 1958, the same was not acted upon till 1995. All these contentions are negatived by the trial Court. Thus suit has been decreed in respect of properties which are not divided. If these properties are not divided, a suit for partition is maintainable and no limitation is prescribed under law for such suit. Therefore, the contention that the suit is barred by time is not sustainable. Accordingly, appeal is dismissed.

All other applications are ordered to be filed.

Parties to bear their own costs.