Case Note & Summary
The appeal arises from a judgment and decree dated 2.4.2011 passed by the XVIII Additional City Civil Judge, Bangalore, in O.S.No.4071/2002, decreeing the suit for partition and mesne profits in favor of the plaintiff, Smt. Lakshmidevi, against defendants 1 to 3 (the appellant and her sons) and dismissing the suit against defendants 4 and 5. The appellant, Smt. M. Narayanamma, is the first defendant in the suit and the mother of the plaintiff. The plaintiff claimed that she is the daughter of the first defendant and that the suit property, comprising 14 acres and 9 guntas in Survey Nos. 26/2 and 26/3 of Basavanpura village, was granted to her grandmother, Lakshmamma, after the death of her grandfather, T.N. Mariswamy, in a police firing incident in 1947. The plaintiff sought a share in the property as a coparcener. The defendants contended that there was a prior partition in 1985 between the first defendant and her sons (defendants 2 and 3), and that the plaintiff had no right to claim partition. The trial court decreed the suit, holding that the plaintiff was entitled to a share. On appeal, the High Court of Karnataka examined the evidence and found that the defendants failed to prove the alleged prior partition. The court noted that no documentary evidence was produced, and the oral evidence was inconsistent. The court also held that the suit was not barred by limitation, as a daughter's right to claim partition is a continuing right. The court further held that the plaintiff was entitled to mesne profits from the date of the suit. The appeal was dismissed, and the judgment and decree of the trial court were confirmed.
Headnote
A) Hindu Law - Partition - Daughter's Right - Prior Partition - The plaintiff, daughter of the first defendant, sought partition of ancestral property granted to her grandmother. The defendants alleged a prior partition in 1985, but the court found that the plaintiff was not a party to it and that the alleged partition was not proved by cogent evidence. Held that the daughter's right to claim partition is not defeated by an unproven prior partition (Paras 5-10). B) Limitation - Partition Suit - Continuing Right - The suit for partition was filed in 2002, and the defendants contended it was barred by limitation. The court held that a daughter's right to claim partition is a continuing right and not barred by limitation as long as the property remains joint. Held that the suit is within time (Paras 11-12). C) Evidence - Burden of Proof - Prior Partition - The defendants failed to produce any documentary evidence of the alleged partition in 1985, and the oral evidence was inconsistent. The court held that the burden to prove prior partition lies on the party asserting it, and the defendants failed to discharge that burden (Paras 8-10).
Issue of Consideration
Whether the suit for partition filed by the plaintiff-daughter is maintainable despite an alleged prior partition between the defendants, and whether the suit is barred by limitation.
Final Decision
The High Court dismissed the appeal and confirmed the judgment and decree of the trial court dated 2.4.2011 in O.S.No.4071/2002, decreeing the suit for partition and mesne profits against defendants 1 to 3.
Law Points
- Partition
- Hindu Succession Act
- 1956
- Limitation Act
- 1963
- Section 96 CPC
- Mesne Profits
- Burden of Proof
- Prior Partition
- Daughter's Right
- Coparcenary Property
