Karnataka High Court: non-alienating sharer need not seek formal declaration against sale in partition suit
The question: Whether the appeal of defendant No. 3 survived after his earlier appeal on the same decree was dismissed
The plaintiff's appeal in RFA No. 1530/2020 was allowed and the appeals of defendants Nos. 2 and 3 were dismissed. The plaintiff and defendant No. 1 hold equal shares in suit items 1 and 2. A sharer in a partition suit cannot be non-suited merely because she did not seek a formal declaration that a sale by a family member is not binding on her. The plaintiff sued in 2004 for partition and separate possession of her share in two properties and for mesne profits. Her great grandfather had settled them on her father by a registered deed dated 28.06.1939. The father died intestate in April 1980, leaving the plaintiff and her brother (defendant No. 1). The brother sold item No. 1 to defendant No. 2 in 1998 and, with his children, item No. 2 to defendant No. 3 in 2001, without the plaintiff's consent. The trial Court decreed the suit in part on 30.05.2020. It gave the plaintiff a half share in item No. 2, following an earlier decree against defendant No. 3 that had become final when his appeal, RFA No. 1063/2010, was dismissed. It treated item No. 1 as ancestral and gave the plaintiff a one-fourth share in item No. 1. Three appeals followed: RFA No. 723/2021 by defendant No. 2, RFA No. 1530/2020 by the plaintiff and RFA No. 203/2021 by defendant No. 3, heard together.