(Prayer: Second Appeal is filed under Section 100 C.P.C, praying to set aside the decree and judgement dated 03.11.2022 made in A.S.No.18 of 2019 on the file of the learned Additional District Judge, Hosur, reversing the judgment and decree dated 28.01.2019 made in O.S. No. 238 of 2008 on the file of the learned Principal Sub Judge, Hosur.)

1. The above second appeal arises out of the judgment and decree dated 03.11.2022 made in A.S.No.18 of 2019 on the file of the learned Additional District Judge, Hosur, reversing the judgment and decree dated 28.01.2019 made in O.S. No. 238 of 2008 on the file of the learned Principal Sub Judge, Hosur.

2. The case of the plaintiff in nutshell is as follows:

The 1st defendant is the mother of the plaintiff and defendants 2 to 5 are the sisters and brother of the plaintiff. The suit properties originally belong to one Bayya Reddy ancestrally, and patta also stood in the name of Bayya Reddy. The said Bayya Reddy died leaving behind his wife Ramakka and three sons namely, Rama Reddy, Narayana Reddy and Seetharama Reddy as his legal heirs to succeed the family's ancestral property including the suit properties. After the death of Bayya Reddy, his wife Ramakka and sons divided their family ancestral properties under a registered partition deed dated 18.06.1986. In the said partition deed, the suit properties were allotted to the share of Rama Reddy as 'A' schedule. From the date of partition, the plaintiff and the defendants 1 to 5 along with Rama Reddy were in possession and enjoyment of the suit properties and in the revenue records, patta numbers 485 and 674 was recorded in the name of Rama Reddy. All the suit properties are ancestral properties and the plaintiff is entitled to 7/36 share, the defendants 2 to 5 are each are also entitled to 7/36 share and the 1st defendant is entitled to 1/36 share i.e., the defendants 1 to 5 are entitled to common 29/36 shares and the plaintiff is entitled to 7/36 shares in all the suit properties. There was no partition between the defendants 1 to 5. After the demise of Rama Reddy on 16.02.2008, the plaintiff and defendants as his legal are entitled to succeed the suit properties. Even during the lifetime of Rama Reddy, the plaintiff was residing at Attibele Village and used to visit the suit properties every week, contribute to the expenses for cultivation and take mahasools from the properties every year. The defendants 1 to 5 along with Rama Reddy attempted to dispose the suit properties without the plaintiff's consent and knowledge and also tried to change the revenue records in the name of the 2nd defendant. They also tried to sell the trees standing in the suit properties. Inspite of several demands made by the plaintiff, the defendants refused to divide the suit properties.

3. During pendency of the suit, the 6th defendant, Chennaveera Reddy tried to sell the suit property to third parties, claiming that his grandfather had executed a gift deed in his favour on 14.11.2007 in respect of the land in S.No.242/1 measuring 3.05 acres, shown as 9th item in the suit schedule. The said Rama Reddy had no right to execute the settlement deed in favour of the 6th defendant as the same is an ancestral property of the family. Hence, the plaintiff prays for the following reliefs:

                   a) to pass a preliminary decree directing the defendants to divide the suit properties into 36 shares by metes and bounds and allot 7 such divided share to the plaintiff and direct the defendants to deliver possession of the same to the plaintiff within the time allowed by this Honourable Court;

                   b) failing which, the plaintiff to be given liberty to apply to the Honourable court for passing of the final decree and get the properties divided by means of a court Commissioner, and take delivery of their share through the process of the Honourable Court;

                   c) to grant cost of the suit against the defendants;

                   d) to grant such other reliefs as the Honourable court may deem fit necessary and render justice.

4. On the other hand, the contention of the defendants 2 & 6 is that the plaintiff is not entitled for the relief claimed in the suit. The said Rama Reddy got the suit properties through a partition deed executed in the year 1986 between himself and his brothers. An oral partition was effected between Rama Reddy, the plaintiff and the defendants 1 to 5 about 18 years ago. The share of the 4th defendant was allotted to her by executing a registered Will in her favour. The defendants 1 to 3 and 5 are separately enjoying their shares. The said Rama Reddy was allotted a land in S.No.242/1 measuring 3.05 acres at Thally Kothanur, and he was in possession and enjoyment of the same until he executed a gift deed on 14.11.2007 in favour of the 6th defendant, who is the minor son of the 2nd defendant. Patta was also issued in the name of the 6th defendant as Patta No.1032 for the said property. The properties allotted to the defendants 1 to 4 were included in the Will dated 07.02.2008 executed by the plaintiff's father Rama Reddy. After his demise, the defendants and plaintiffs are in separate possession and enjoyment of their respective allotted shares. The plaintiff is permanently residing at Attibele Village, Anekal Taluk, Bangalore District and also had purchased properties at Attibele from the income derived from the property allotted to him. Since the plaintiff disturbed the peaceful possession and enjoyment over the property gifted to the 6th defendant, a suit was filed against the plaintiff and the same is pending. Hence, prayed for dismissal of the suit.

5. Based on the materials placed on record, the trial Court dismissed the suit filed by the plaintiff against which, the appeal suit in A.S.No.18 of 2019 was preferred by the plaintiff. The First Appellate Court allowed the appeal and decreed the suit in favour of the plaintiff. Aggrieved by this, the 6th defendant has preferred the present second appeal.

6. At the time of admitting the second appeal the following substantial questions of law were formulated:

                   “1.Whether the gift deed in favour of the appellant, being the grandson of Rama Reddy, declared as null and void by the first appellate Court, is valid?

                   2.Whether the suit properties which admittedly fell to the share of Rama Reddy by way of registered partition deed on 18.08.1986, retain its ancestral nature in the hands of Rama Reddy?

                   3.Whether the said Rama Reddy was restricted from dealing with properties which admittedly fell to his share by way of registered partition deed on 18.09.1986?

                   4) Whether the 1st respondent/plaintiff is not estopped by his own admission of oral partition in his cross examination?

                   (5) Whether the 1st respondent / plaintiff is not etopped by his own act in being a party to the Will executed by Rama Reddy in favour of 4th defendant, as witness?

                   (6) Whether the 1st appellate Court was correct in holding that the said Rama Reddy was only a Kartha without right to alienate the properties absolutely, despite acquiring the properties by way of partition?

                   (7) Whether the properties which have been partitioned and acted upon by parties can be questioned after a period of 10 years and not barred by limitation?”

7. The learned counsel for the appellant/6th defendant would submit that it is the settled legal position that the nature of property in the hands of a coparcener after partition, loses the quality of joint family property and that it is his self acquired property. Hence, Rama Reddy had absolute right to deal with the properties which fell to his share in the partition and that the settlement deed executed by Rama Reddy in favour of 6th defendant in respect of the said property is valid. The plaintiff himself admitted with respect to land in S.No.1091/1 being allotted to his share by Rama Reddy, which would prove the factum of oral partition. The fact that there was no mutation of revenue records does not take away or belittle the oral partition acted upon. The plaintiff himself admitted during his cross examination about the due execution of Ex.B.1, Will, through which some properties have been allotted to the 4th defendant. While so, the 1st appellate Court erred in deciding that there was no oral partition and that the suit properties are joint family properties and the same could be partitioned. He would further submit that since the plaintiff admitted and acted upon the oral partition that took place 18 years ago, he is not entitled to seek for partition. Further, the plaintiff failed to include the land in S.No.1091/1 allotted to him in the said oral partition in the suit. Hence, the suit is bad for partial partition. He would also contend that the suit is filed after the lapse of 18 years from the date of oral partition, is not maintainable. Moreover, the suit properties were in exclusive enjoyment of the 6th defendant for a period more than 12 years and the same is admitted by the plaintiff. The suit is filed beyond 12 years and Article 110 of the Limitation Act operates. Hence, the suit is barred by limitation. To support his contention, he has relied upon the judgment reported in 2025 (4) LW 38 in which it is held as follow:

                   “In a partition suit, the general rule is possession by one co-owner is presumed to be the possession of all co-owners, unless ouster or exclusion is proved For reckoning limitation, on 09.09.2005 the date on which her right of succession blossomed, is to be taken as the starting of limitation to claim share It is also necessary for her to prove the joint possession-In the absence of proof for joint possession, the limitation for filing suit for partition commences from the date when the amended provision of section 6 came into force.

                   plaintiff was never in joint possession after her marriage which was solemnised about 50 years ago Right to claim partition by daughters in the coparcenary property accrued only from 09.09.2005 suit for partition laid on 18.03.2019 (i.e) 14 years after the exclusion.

                   Relief to declare the partition deed dated 02.03.2016 i.e also hit by limitation, in view of Article 58 -cause of action for the suit arose on 02.03.2016, when the brother of the plaintiff colluded with his son and daughter to create the partition deedsuit to declare the said partition deed null and void, should have been filed on or before 01.02.2019 Judgement and decree passed set aside.”

8. His further contention is that, though, a suit for partition is a continuing cause of action, the properties were already partitioned 18 years ago and was even acted upon by the parties, the plaintiff's suit for partition is barred by limitation. To support his contention, he has relied upon the judgment of High Court of Delhi, in C.R.P.No.42/2022 and C.M.P.No.15366 of 2022.

9. The learned counsel further submits that since the plaintiff failed to include all the properties in the suit for partition, the suit is bad for partial partition. To support his contention, he has relied upon the judgment reported in 2025 (4) LW 537, as mentioned supra.

10. On the other hand, the learned counsel for the 6th respondent/plaintiff would submit that the suit properties are ancestral properties and the plaintiff's father Rama Reddy was not entitled to execute any gift deed or Will in favour of either the plaintiff or to some third parties and in fact, the Will was not proved by the defendants in the manner known to law. There was no oral partition between the plaintiff and defendants. He would submit that no such gift is permitted under Hindu Law in so far as immovable ancestral property is concerned. A Hindu father or any other managing member has power to make a gift within reasonable limits of ancestral immovable property only for pious purposes. In the present case, the gift by the grandfather to his grandson out of affection can by any stretch of reasoning be called a 'pious purpose'. To support his contention, he has relied upon the judgment reported in 1966 SCC Online SC 155.

11. He would further contend that, it is trite law that Karta / Manager of a joint family property may alienate joint family property only in three situations namely, (i) legal necessity, (ii) for the benefit of the estate, and (iii) with the consent of all the coparceners of the family. In the instant case, the alienation of the joint family property by Rama Reddy was not with the consent of all the coparceners. It is settled law that where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained. Therefore, the alienation, of the joint family property in favour of the defendants is voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation. To support his contention, he has relied upon the judgment reported in (2022) 18 SCC 483.

12. The First Appellate Court upon appreciating the evidence on record in proper perspective, rightly allowed the appeal and decreed the suit in favour of the plaintiff which warrants any interference by this Court.

13. Heard on both sides, records perused.

14. According to the plaintiff, the suit property and other properties initially belonged to Bayya Reddy ancestrally and upon his demise, his legal heirs have partitioned among themselves by way of registered partition deed dated 18.06.1986, in which the suit properties fell to the share of Rama Reddy. It is the specific contention of the plaintiff that, the property retains the character of ancestral property even after the said partition and that the plaintiff becomes a coparcener by birth and he is entitled for partition in the suit properties. Where as, the defendants would contend that when Rama Reddy received the property through partition, it becomes his separate property and that the ancestral nature of the property is lost.

15. Now, it has to be analysed whether the properties in the hands of Rama Reddy assumes the character of ancestral property or self-acquired property. The concept of 'ancestral property' is that, the property is inherited by a Hindu from his father, father's father or father's father's father. Therefore, the property should be four generations old. It should not have been divided by the users in the joint family as once division of the property takes place, the sharer or portion which each coparcener gets after the division becomes his or her self-acquired property.

16. In order to decide whether the properties at the hands of Rama Reddy were the self-acquired properties of his father Bayya Reddy are ancestral properties, the pleadings available do not lend any assistance to come to any irrefutable conclusion. There is nothing on record to show how the suit properties were acquired by late Bayya Reddy.

17. Be that as it may be, the contention of the defendants is that Rama Reddy son of Bayya Reddy got the suit properties by virtue of a partition deed dated 18.06.1986 and thereafter, there was a oral partition in the family 18 years ago in which the plaintiff and the defendants divided the properties and the respective sharers are in possession and enjoyment of the properties allotted to them. At the outset, it is to be noted that the plaintiff himself admitted the factum of oral partition and the relevant portion of his cross examination is extracted hereunder:

                  

                  

18. The plaintiff has clearly admitted that the oral partition was effected during the lifetime of Rama Reddy and that the plaintiff and the defendants 1 to 5 are in separate possession and enjoyment of their properties. Therefore, he is estopped from his own admission of oral partition. The plaintiff further admits in his cross examination that during the marriage of the 4th defendant, his father Rama Reddy executed a registered Will in respect of item Nos.1, 4, 10 & 11 of the suit properties in which the plaintiff and the 2nd defendant signed as attestors. Even assuming that the said Rama Reddy is not entitled to execute a Will in respect of joint family properties, since there was a oral partition already effected prior to the execution of the Will and the properties allotted to the plaintiff and other defendants were also included in the said Will, the plaintiff being one of the attestors to the Will cannot questioned the same with an intend to reopen the partition already effected 18 years ago. The revenue records marked on the side of the defendants would establish the fact that after the said oral partition, the plaintiff and the defendants are enjoying the properties separately. The plaintiff further admitted that his father Rama Reddy was also allotted properties in the partition. The said property was settled by Rama Reddy in favour of his grandson under registered gift deed dated 14.11.2007. Since the said property was allotted to Rama Reddy by virtue of oral partition, it becomes his separate property. Hence, the plaintiff cannot question the validity of the said gift deed. Moreover, the revenue records stands in the name of 6th defendant, which shows that, the gift deed has been accepted and acted upon. Therefore, the oral and documentary evidence produced on the on the side of the defendants and by the categorical admission made by the plaintiff, it is made clear that there was a oral partition in which the suit properties were divided among the plaintiff, defendants 1 to 5 along with Rama Reddy and the said Rama Reddy executed a settlement deed in favour of the 6th defendant in respect of the share allotted to him. As rightly pointed out by the learned trial Judge, since the oral partition has been already effected 18 years ago in respect of the suit properties and separate properties have been allotted to plaintiff and defendants 1 to 5 and that they are in separate possession and enjoyment of their respective shares, the plaintiff is not entitled to reopen the partition which was already effected. It is not the case of the plaintiff that the oral partition already effected is unequal or disadvantageous to him. A partition can be reopened only when there is fraud, mistake, concealment of property, or the emergence of new coparceners, who were not included, aiming to correct injustices, ensure fair distribution, or account for previously unknown heirs or assets, though generally, a completed partition is considered final unless these specific grounds are proven. None of these grounds are raised by the plaintiff. In fact, the plaintiff has suppressed the oral partition already effected and filed the suit. Moreover, the properties are in exclusive enjoyment of the defendants after the said oral partition which said to have been taken place 18 years ago. The plaintiff's own admission clearly proves that he is in possession and enjoyment of the property allotted to him exclusively. If aggrieved by the oral partition, the plaintiff ought to have filed the partition suit within the period of limitation prescribed under Article 110 of the Limitation Act. Admittedly, the plaintiff is residing outside which shows that he was never in joint possession of the suit properties. There is nothing on record to show that he was jointly cultivating the suit properties along with the defendants. It is no doubt that a suit for partition is a continuing cause of action, but in the present case as per the admitted facts by the plaintiff that the properties stood partitioned 18 years ago and was even acted upon by the parties, the suit is barred by limitation.

19. Moreover, the plaintiff himself admitted that he had not included some properties which was allotted to him. No convincing explanation was given by the plaintiff for not including the above properties in the suit. The explanation given by the plaintiff that though the above properties are in his possession and enjoyment and since the patta stands in the name of third party, the same is not included in the suit, cannot be accepted. Hence, the suit is bad for partial partition.

20. Therefore, it is established on the side of the defendants that there was an oral partition between Rama Reddy and his legal heirs during his lifetime and all the sharers have acted upon the oral partition and have been paying land taxes and mutated revenue records as established through Exs.B2 to B5 and Exs.B8 to B14. The plaintiff cannot unsettle the oral partition after a delay of 18 years and the plaintiff cannot seek for partial partition.

21. The First Appellate Court without considering the above facts and circumstances of the case, erroneously reversed the well reasoned judgment of the trial Court.

22. In the result,

                   (i) this Second Appeal stands allowed.

                   (ii) the Judgment and decree dated 03.11.2022 made in A.S. 18 of 2019, on the file of the learned Additional District Judge, Hosur is set aside and the judgment and decree dated 28.01.2019 made in O.S. No. 238 of 2008 on the file of the learned Principal Sub Judge, Hosur is upheld. No costs.