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Judgment
B.V. Nagarathna, J.—1. The defendant in O.S. No. 100/2005 has filed this second appeal, challenging judgment and decree passed in R.A. No. 32/2009 by the First Additional District and Sessions Judge, Dharwad, sitting at Hubli, confirming the judgment and decree dated 22.02.2008, passed in O.S. No. 100/2005 by the Court of Principal Civil Judge (Sr. Dn.) at Hubli.
For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.
Respondent plaintiffs filed O.S. No. 100/2005 seeking partition and separate possession of their suit schedule properties. According to them, Dyamappa was the original propositus. He had two sons namely, Kallappa, Defendant No. 1 and Basavanneppa, since deceased, represented by Yellappa defendant No. 2. Kallappa had three sons and three daughters, namely, Shivappa, Shekappa, Ningappa, Nagavva, Manjula and Dyamavva. Shivappa''s wife is Gowrawa. Their children Basappa, Sangamesh, Laxmi and Ravichandra are plaintiffs. Shivappa''s second wife is Neelawa. Their children are Arun, Parwati and Ashwini. Shivappa, Shekappa and Ningawa were defendants No. 3, 4 and 5 respectively.
It is the case of plaintiffs that suit schedule lands are ancestral joint family properties. That the defendant No. 3 was addicted to vices and was attempting to sell suit properties for raising loans. Plaintiffs'' demanded partition from defendant No. 3. Defendant No. 3 is the son of defendant No. 1. Defendant No. 1 declined to grant partition. Plaintiffs'' mother Gowrawa had, in fact, obtained an order of maintenance against their father, defendant No. 3. Defendant No. 1 had filed a suit against defendant No. 3 in O.S. No. 372/1998 before the Civil Judge (Jr.Dn.), Hubli, seeking declaration of title and consequential perpetual injunction with regard to suit properties. The same was dismissed on 22.10.2002 and also the suit filed by their mother, Gowravva along with defendant No. 1 against defendant No. 3 in O.S. No. 95/2004 before the learned Civil Judge (Jr.Dn.), Hubli, for permanent injunction was dismissed on 19.02.2005. Defendant No. 1 denied the claim of plaintiffs and did not grant any partition. Therefore, plaintiffs filed suit seeking partition and separate possession of their share in the suit schedule properties, which according to them are joint family properties.
On service of suit summons and notices from the trial Court, defendant No. 1 appeared and filed his written statement denying the claim of plaintiffs. While admitting the relationship between the parties, he contended that he was the absolute owner of suit properties and nobody else had any right, title and interest over it. Defendants No. 3 to 6 did not appear in the proceeding and they were placed ex parte. As no steps were taken against defendant No. 1, the trial Court dismissed suit against him.
On the basis of rival pleadings, the trial Court framed the following points for its consideration :
In support of their case, plaintiffs examined one witness and produced two documents, which were marked as Ex. P-1 and Ex. P-2. Defendants examined one witness as D.W.1. They did not produce any documents. On the basis of said evidence, trial Court answered issues No. 1 and 2 and issue No. 5 as partly in the affirmative. Issues No. 3 and 4 as in the negative and decreed the suit of plaintiffs by judgment and decree dated 22.02.2008.
Being aggrieved by the judgment and decree of trial Court, defendant No. 1 preferred R.A. No. 32/2009 before the first appellate court, which, on hearing learned counsel for the parties, framed the following points for its consideration :
"1. Whether the impugned judgment is sustainable in law and also on facts?
What order?"
It answered point No. 1 in the affirmative and dismissed the appeal.
Being aggrieved by the judgment of courts below, defendant No. 1 preferred this second appeal. At this stage, it is relevant to note that defendant No. 1 died on 12.09.2014, during the pendency of this second appeal. Initially only one of the legal heirs of defendant No. 1, namely, Nagawa was brought on record, as the legal representative of appellant. Subsequently, three of his sons and two other daughters of appellant have been brought on record. Except Nagawa, other heirs of appellant are respondents in the suit. Thus, what emerges is, some of the respondents in this appeal have now become the legal representatives of the deceased sole appellant.
I have heard learned counsel for appellants and learned counsel for respondents. During the course of submission, it has been brought to my notice that defendant No. 1 during the pendency of the appeal before the First Appellate Court sold 17 acres of suit land to respondent No. 9 herein. In fact, suit schedule property consisted of 25 acres : Under a partition between Kallappa and Yallappa, 8 acres were allotted to Yallappa. The remaining 17 acres remained with Kallappa, defendant No. 1. He had sold the entire extent of 17 acres to respondent No. 9 under a registered sale deed dated 23.01.2010. In fact, some of the plaintiffs in this suit assailed the sale in O.S. No. 3/2012 before the trial Court. The trial Court has upheld the sale by its judgment and decree dated 11.03.2014. Being aggrieved by that judgment and decree plaintiffs herein have preferred R.A. No. 41/2014, the same is pending consideration before First Appellate Court. Thus, at this stage, what emerges after the demise of Kallappa is that, his own grand children, who are the plaintiffs in suit have now stepped into the shoes of their father Shivappa, who died during the pendency of suit before the trial Court and ultimately into the shoes of Kallappa the appellant herein as his heirs.
Thus, as already noted respondent plaintiffs have become the legal heirs of appellant. Thus, Kallappa''s share in the suit schedule properties has devolved on his three sons and three daughters, who are his legal heirs. Respondents plaintiffs are none other than the sons and daughters of one of the legal heirs of Kallappa, Shivappa. He died during the pendency of the suit on 18.11.2008. Therefore, as far as the partition and separate possession of suit schedule properties between Kallappa and his grandchildren are concerned, the issue pales into insignificance on account of the death of Kallappa. Admittedly, suit schedule properties are joint family properties. It is noted that on the demise of Kallappa on 12.09.2014, he left behind three sons and three daughters. The amendment to Section 6 of the Hindu Succession Act, 1956, is with effect from 09.09.2005. In accordance with the latest decision of Hon''ble Supreme Court in the case of Prakash and Others v. Phulavathi and Others, reported in , 2015 (4) KCCR 3265 (SC), the sons and daughters of Kallappa are entitled to an equal share along with deceased father Kallappa i.e., 1/7th share each. Kallappa''s 1/7th share would have to be re-divided amongst his sons and daughters.
But, at this stage, it is relevant to note the other development in the case, namely, sale made by Kallappa during the pendency of appeal before Fist Appellate Court on 23.01.2010. Kallappa has, in fact, sold the entire extent of 17 acres. Thus, as of now, the suit lands are in the hands of respondent No. 9, who is stated to have purchased the property. It is in that context that the plaintiffs herein assailed the sale of suit land to respondent No. 9 herein in O.S. No. 3/2012. But, they were unsuccessful in the suit, and therefore, they have preferred R.A. No. 41/2014. It is only in the event that the respondent plaintiffs herein and the other sharers succeeded in R.A. No. 41/2014 or in any further proceeding thereto, that the suit properties would be available to them for partition and separate possession by metes and bounds. Till then, decree granted by the Courts below to the appellants and the other respondents cannot be executed.
That apart, both the Courts below have held that the suit schedule property was indeed joint family property and that the plaintiffs and other sharers were entitled to a share in the said property. Appellant Kallappa, since deceased was also entitled to 1/7th share in the suit property. At this stage, it could be noted that even if the plaintiffs in this suit succeed in establishing that the alienation was invalid as against their share, as far as 1/7th share of Kallappa is concerned, he could alienate it during his life time. To that extent, the alienation would be valid, unless there is any supervening circumstance, which would invalidate the entire sale on legal grounds. Therefore, in view of the aforesaid developments in this proceeding, the judgments of First Appellate Court confirming the judgment and decree of First Appellate Court would not call for any interference in this appeal as no substantial question of law would arise in this appeal.
However, while dismissing this appeal, liberty is given to the legal representatives of Kallappa to agitate their rights vis-�-vis their right, title and interest in the suit property in RA. No. 41/2014. In case all of them are not impleaded in the appeal, they are permitted to be impleaded in that Regular Appeal. It is only when the alienation in favour of respondent No. 9 is held to be invalid, to the extent of the shares of plaintiffs and the others, legal heirs of Kallappa, would they be entitled to share in the said property. In that event, possibly the alienation made by Kallappa to the extent of his right, title and interest in the suit property may be upheld, unless there is any other supervening reason to invalidate the sale deed in its entirety. Therefore, with the aforesaid observations and liberty reserved to the parties, the appeal is dismissed.
Parties to bear their respective costs.