Smt. Padmavathi, Since Dead By L.Rs, Chandrashekar and Late Shivakumar, Sumadevi and Late Shivakumar, Lakshmipathi and Late Shivakumar and Krishnakumar and Late Shivakumar L.Rs. 1(c) and 1(d) are and Smt. Lakshmi Devi vs Smt. Akkayamma and Sri. Anjanappa

Manjunath, J.—The appellants are challenging the legality and correctness of the judgment and decree passed by the Civil Judge (Sr.Dn.), Bangalore Rural District in O S No. 1030/96 dated 19.3.2005 wherein the suit filed by them claiming partition and separate possession of their one-third share has been dismissed. The facts leading to this case are as herein under:

(i) The appellants are the daughters of one Milliappa and Akkayyamma who was the first defendant in the suit. Milliappa was the son of one Doddanagappa. Doddanagappa had three sons by name Chikka Siddappa @ Kutumaiah, Chil Venkatappa and Milliappa. The plaintiffs'' father died in 1965 leaving behind him the plaintiffs and his widow the first defendant. On the date of his death, Milliappa was living in a joint family along with his brothers.

(ii) After the death of Milliappa, the first defendant being the widow of Milliappa and mother of the plaintiffs executed a registered release deed on 12.8.1966 in favour of other two brothers of her husband, Milliappa by receiving 17 items of immovable property towards share of the plaintiffs and the first defendant, which are the suit schedule properties.

(iii) It is the case of the plaintiffs that the first plaintiffs marriage was celebrated on 7.3.1971 and second plaintiffs marriage on 17.5.1972 and after marriage they are residing with their respective spouse. The second defendant who is the son of late Sri Kutumaiah and the cousin of the plaintiffs has obtained a registered sale deed in his favour from the first defendant on 18.11.1982 as if the first defendant sold all the suit: schedule properties for a sum of Rs. 5.000/- behind the back of the plaintiffs. According to the plaintiffs, they came to know of such transaction only in the year 1996. In the circumstances, they filed a suit for partition and separate possession.

The second defendant contested the suit admitting the relationship between the plaintiffs and the defendants. He also admitted the release deed dated 12.8.1966 and allotment of the plaint schedule properties to the first defendant and her children. He admits that in the year 1982, the first defendant has sold the property to the second defendant as a Manager of the family and that he has been in possession of the property for over a period of 16 years and therefore the suit is not maintainable and liable to be dismissed.

Based on the above pleadings, the following issues were framed by the court below:

(1) Whether the plaintiffs prove that themselves and the 1st defendant are equally entitled for share in the suit schedule properties?

(2) Whether the valuation of the suit is correct and court fee paid is sufficient?

(3) Whether the plaintiffs are entitled for partition of the suit schedule properties by metes and bounds and separate share?

(4) Whether the plaintiffs are entitled for past mesne profits?

(5) Whether the plaintiffs are entitled for cancellation of the sale deed dated 18.11.1932 executed by the 1st defendant?

(6) Whether the plaintiffs are entitled for future mesne profits?

(7) What order?

In order to prove their respective contentions, the second plaintiff was examined as PW-1. She relied upon Ex. P5 to P9. The second defendant was examined as DW-1 and he also relied upon evidence of one Sonnappa who was examined as DW-2 and relied upon Ex.D 1 registered release deed of 1966.

The trial court after appreciating the evidence let in by the parties held issue Nos. 1 to 6 in the negative and dismissed the suit. The legality and correctness of dismissal of the suit is called in question in this appeal.

The main contention of the appellants'' counsel before us is that the trial court has committed serious error in not considering the fact that when the plaint schedule properties were given to the share of the plaintiffs and their mother, the first defendant, when the plaintiffs and first defendant are having equal one-third share in all the plaint schedule properties, the first defendant had no right to execute the registered sale deed on 18.11.1982 in respect of the plaintiffs'' share, because the first defendant had no right to alienate shares of the plaintiffs and that the first defendant being lady cannot be considered as Kartha of the family, and that the trial court has also committed an error in dismissing the suit as barred by limitation when the plaintiffs have categorically stated that they were not aware of the sale deed executed by the first defendant in favour of the second defendant. In the circumstances, he requests the court to allow the appeal.

Though the respondent No. 2 is served, he is unrepresented. In the circumstances, we had to dispose of the appeal after hearing the appellants'' counsel only.

After hearing the counsel for the appellants, we have to consider the following points in this appeal:

(1) Whether the trial court has committed an error in dismissing the suit on the ground that the first defendant has sold the properties as Manager of the family?

(2) Whether the suit is barred by limitation?

The facts arc not in dispute to the following extent:

The plaintiffs and defendant No. 1 are the legal heirs of one Miiliappa and that under registered release deed of the year 1966 when the suit schedule properties were given to the plaintiffs and defendant being the share of Miiliappa. In the circumstances, the plaintiffs and first defendant have become the absolute owners of the plaint schedule properties.

It is not in dispute that the first defendant hat, sold the property to the second defendant who is none other than the son of brother of the plaintiffs'' father under registered sale deed dated 18.11.1982 for a sum of Rs. 5,000/-. The question is whether the first defendant being the mother of the plaintiffs can alienate the property of the plaintiffs'' share without there being an authority to do so. The contention of the second defendant before the trial court was that as Manager of the family, the first defendant has sold the property. Under the Hindu law women cannot be Kartha of the family. Even otherwise after the death of Milliappa and in view of the release deed the plaintiffs 1 & 2 and first defendant have become the owners to an extent of one-third share. In such circumstances, the first defendant can alienate her one-third share but she cannot bind the plaintiffs by executing the sale deed in respect of shares of the plaintiffs. The trial court has failed to examine this legal position.

The trial Court has also not given reasons to dismiss the suit on the ground of limitation, without, there being sufficient reasons. The trial court has also not discussed how the plaintiffs'' suit is barred by limitation. When the plaintiffs are not parties to the sale deed and if the transaction between the defendant Nos. 1 & 2 was net known to them, the plaintiffs can bring the suit from the date of knowledge of such transaction and cause of action arises for the plaintiffs from the date of their knowledge. Since these aspects are not considered, we have to set aside the judgment and decree of the trial court holding that the first defendant had no right to alienate the property in respect of the plaintiffs'' share and that the finding of the trial court that the suit is barred by limitation is not based on proper appreciation of evidence. In the circumstances, both the points arc answered in favour of the appellants. In the result, the appeal is allowed. The judgment and decree of the Principal Civil Judge (Sr.Dn.) Bangalore Rural District in O S No. 1030/96 dated 19.3.2005 is set aside. The matter is remanded to the trial court for fresh consideration to find out the shares of the plaintiffs and to give its finding on the question of limitation afresh in accordance with law. The trial court is directed to dispose of the suit within a period of six months from the date of receipt of the records. The Registry is directed to return the records forthwith.