final special leave petition

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103 IN THE SUPREME COURT OF INDIA [Order XVI Rule 4(1)(e)] (CIVIL APPELLATE JURISDICTION) SPECIAL LEAVE PETITION (UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA) SPECIAL LEAVE PETITION(CIVIL) Nos. OF 2012 WITH PRAYER FOR INTERIM RELIEF (Arising from the Impugned Judgment and Final Common Order dated 16-12-2011 passed in Regular First Appeal No.271 of 1998 and in Regular First Appeal No.275 of 1998 by the Hon’ble Division Bench of High Court of Karnataka at Bangalore) (1) SLP (C) No. of 2012 arising out of Judgment in Regular First Appeal No.271 of 1998 dated 16-12-2011:- IN THE MATTER OF:- POSITION OF THE PARTIES IN THE IN THIS HIGH COURT HON'BLE COURT Sri B.Rudraiah Since Dead by his LRs 1. K.V.Chandrashekhara S/o R.Veeranna Hindu, Major

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192IN THE SUPREME COURT OF INDIA[Order XVI Rule 4(1)(e)](CIVIL APPELLATE JURISDICTION)SPECIAL LEAVE PETITION(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)SPECIAL LEAVE PETITION(CIVIL) Nos. OF 2012WITHPRAYER FOR INTERIM RELIEF(Arising from the Impugned Judgment and Final Common Order dated 16-12-2011 passed in Regular First Appeal No.271 of 1998 and in Regular First Appeal No.275 of 1998 by the Honble Division Bench of High Court of Karnataka at Bangalore)(1) SLP (C) No. of 2012 arising out of Judgment in Regular First Appeal No.271 of 1998 dated 16-12-2011:-IN THE MATTER OF:- POSITION OF THE PARTIESIN THE IN THISHIGH COURT HON'BLE COURTSri B.RudraiahSince Dead by his LRs

1. K.V.ChandrashekharaS/o R.VeerannaHindu, Major Respondent No.6 Petitioner No.1

2. Smt.K.V.PremakumariD/o R.VeerannaHindu, Major Respondent No.7 Petitioner No.2

3. Smt.K.V.YashodammaD/o R.VeerannaHindu, Major Respondent No.8 Petitioner No.3

4. Smt.K.V.RadhammaD/o R.VeerannaHindu, Major Respondent No.9 Petitioner No.4

Petitioners No.1 to 4 are residing at Kamakshipalya,Hamlet of Saneguruvanahalli, Yeshwanthapura Hobli,Bangalore North Taluk,Bangalore District

-VERSUS-

S.K.LakshminarasappaSince deceased by his L.Rs.,

1. Smt.NagarathanammaW/o late S.K.LakshminarasappaHindu, Major Contesting Appellant No.1 Respondent No.1

2. Smt.Shamala Devi D/o late S.K. Lakshminarasappa Contesting Appellant No.2 Respondent No.2

3. Sri MohanS/o late S.K.LakshminarasappaHindu, Major Contesting Appellant No.3 Respondent No.3

4. Sri S.L.VijayakumarS/o late S.K.LakshminarasappaHindu, Major Contesting Appellant No.4 Respondent No.4

5. Smt.S.L.UmadeviD/o late S.K.LakshminarasappaHindu, Major Contesting Appellant No.5 Respondent No.5

6. Sri S.L.HarshaS/o late S.K.LakshminarasappaHindu, Major Contesting Appellant No.6 Respondent No.6

7. Smt.S.L.LathaD/o late S.K.LakshminarasappaHindu, Major Contesting Appellant No.7 Respondent No.7

8. Sri S.L.KishoreS/o late S.K.LakshminarasappaHindu, Major Contesting Appellant No.8 Respondent No.8

Respondents No. 1 to 8 are residing at No.8412th Main Road, Shivanagar (Shivanahalli) RajajinagarBangalore 560 010

9. Sri R.BhadrappaS/o late B.RudraiahHindu, Major, ProformaRespondent No.2 Respondent No.9

10. R.VeerannaS/o Late B.RudraiahHindu, MajorProforma Respondent No.3 Respondent No.10

11. Sri R.PuttaswamyS/o late B.RudraiahHindu, MajorProforma Respondent No.4 Respondent No.11

12. Sri Yogeesh.BS/o late R.BhadrappaHindu, MajorProforma Respondent No.5 Respondent No.12

13. Smt.KamalammaW/o R.VeerannaHindu, MajorProforma Respondent No.6 Respondent No.13

Respondents No.9 to 13are residents of Kamakshipalya,Hamlet of SaneguruvanahalliYeshwanthapura HobliBangalore -560 07914. Smt.KittammaW/o late Narasimha MurthyHindu, Major,Previously Residing at No.286, VI CrossSrirampuramBangalore-560 021 Proforma Respondent No.11 Respondent No.14

15. Sri T.Gangadhara Murthy Proforma Respondent No.12 Respondent No.15

16. Sri T.Ramachandra Proforma Respondent No.13 Respondent No.16

17. Sri T.Ananda Proforma Respondent No.14 Respondent No.17

18. Sri T.Manju Proforma Respondent No.15 Respondent No.18

Respondents No. 15 to 18are MajorsSons of M.ThimmaiahResiding at ShivanahalliWest of Chord Road Main Road, RajajinagarBangalore 560 010

19. Smt.GowrammaW/o MunivenkatappaHindu, Major, Residing at Laggere VillageBangalore. Proforma Respondent No.16 Respondent No.19

20. Smt.H.RathnammaD/o HanumanthappaW/o A.N.Murthy,Hindu, Major,Near Shanthala School,Shivanahalli, BangaloreBangalore (also at GidduAmia Building,Near Bus-stand, Malur and at Aruna Brick & Tiles, Malur) Proforma Respondent No.17 Respondent No.20

21. Sri B.H.VenkataramaiahS/o late HanumanthappaHindu, Major, residing atDoor No.45, Kamala Nehru Extension, Yeshwanthapura,Bangalore Proforma Respondent No.18 Respondent No.21

22. Sri DoddaiahS/o NanjundaiahHindu, MajorNo.307, 4th Main, 8th Cross 6th Phase, Ist Stage, West of Chord Road Bangalore 560 044 Proforma Respondent No.19 Respondent No.22

23. Sri MunihanumaiahS/o late HonappaHindu, MajorNo.18, 4th Main Road, 9th Cross, 6th Phase,West of Chord Road, Bangalore 560 044 Proforma Respondent No.20 Respondent No.23

24. Sri Lingaiah Proforma Respondent No.21 Respondent No.24

Respondents No.22,23and 24 are Hindus,Majors, residing at West of Chord Road,Bangalore

25. Sri Jagannatha ShettyS/o Narayana ShettyHindu, MajorNo.1572, II Cross, Nagappa Block (Srirampuram)Bangalore 560 021 Proforma Respondent No.22 Respondent No.2526. Sri RamakrishnaS/o LingappaiahHindu, MajorNo.306, 4th Main,8th Cross, 6th Phase,West of Chord Road,Bangalore 560 044 Proforma Respondent No.23 Respondent No.26

27. Sri KrishnamurthyS/o LingappaiahHindu, Major No.306,4th Main, 8th Cross,6th Phase, West of Chord RoadBangalore 560 044 Proforma Respondent No.24 Respondent No.27

28. Smt.SharadammaW/o K.NarayanaShetty Proforma Respondent No.25 Respondent No.28

29. Sri Sathyanarayanna ShettyS/o K.NarayanaShetty Proforma Respondent No.26 Respondent No.29

30. Sri VenugopalShettyS/o K.NarayanaShetty Proforma Respondent No.27 Respondent No.30

Respondents No.28 to 30are Hindus, Major,residing at No.1572,2nd Cross, Nagappa Block,Bangalore 560 021

31. Sri S.N.Prahlada RaoDead by LRs

32. Smt.P.MitravindaW/o late S.N.Prahlada RaoAged about 65 years Proforma Respondent No.28(a) Respondent No.31(a)

33. Smt.SudhaW/o late S.N.Prahlada RaoAged about 60 years Proforma Respondent No.28(b) Respondent No.31(b)

34. Smt.SumitraD/o late S.N.Prahlada RaoAged about 40 years Proforma Respondent No.28(c) Respondent No.31(c)

35. Smt.VasantiD/o late S.N.Prahlada RaoAged about 35 years Proforma Respondent No.28(d) Respondent No.31(d)

36. Smt.VijayalakshmiD/o late S.N.Prahlada RaoAged about 34 years Proforma Respondent No.28(e) Respondent No.31(e)

37. Smt.BharathiD/o late S.N.Prahlada RaoAged about 33 years Proforma Respondent No.28(f) Respondent No.31(f)

38. Sri MadweshS/o late S.N.Prahlada RaoAged about 30 years Proforma Respondent No.28(g) Respondent No.31(g)

39. Sri VadirajaS/o late S.N.Prahlada Rao Proforma Respondent No.28(h) Respondent No.31(h)

40. Smt.SavithriD/o late S.N.Prahlada RaoAged about 29 years Proforma Respondent No.29(i) Respondent No.31(i)

Respondents No.31 to 31(i)are residing at No.84,12th Main Road,Shivanagara, RajajinagarBangalore 560 010.

(2) In Special Leave Petition (Civil) No.of 2012 Arising out of judgement in Regular First Appeal No.275 of 1998 dated 16-12-2011:-

IN THE MATTER OF:- POSITION OF THE PARTIESIN THE IN THISHIGH COURT HON'BLE COURTSri B.RudraiahSince Dead by his LRs

1. K.V.ChandrashekharaS/o R.VeerannaHindu, Major Respondent No.5 Petitioner No.1

2. Smt.K.V.PremakumariD/o R.VeerannaHindu, Major Respondent No.6 Petitioner No.2

3. Smt.K.V.YashodammaD/o R.VeerannaHindu, Major Respondent No.7 Petitioner No.3

4. Smt.K.V.RadhammaD/o R.VeerannaHindu, Major Respondent No.8 Petitioner No.4Petitioners No.1 to 4 are residing atKamakshipalya, Hamlet of Saneguruvanahalli,Yeshwanthapura Hobli,Bangalore North Taluk,Bangalore District

-VERSUS-

Sri S.N.Prahlada RaoS/o Late Narasaiah Since Dead by his L.RsAppellant

1. Smt.P.MitravindaW/o late S.N.Prahlada RaoAged about 65 yearContesting Appellant No.1(a) Respondent No.1(a)

2. Smt.SudhaW/o late S.N.Prahlada RaoAged about 60 yearsContesting Appellant No.1(b) Respondent No.1(b)3. Smt.SumithraD/o late S.N.Prahlada RaoAged about 40 yearsContesting Appellant No.1(c) Respondent No.1(c)

4. Smt.VasanthiD/o late S.N.Prahlada RaoAged about 35 yearsContesting Appellant No.1(d) Respondent No.1(d)

5. Smt.VijayalakshmiD/o late S.N.Prahlada RaoAged about 34 yearsContesting Appellant No.1(e) Respondent No.1(e)

6. Smt BharathiD/o late S.N.Prahlada RaoAged about 33 yearsContesting Appellant No.1(f) Respondent No.1(f)

7. Sri MadweshS/o late S.N.Prahlada RaoAged about 30 yearsContesting Appellant No.1(g) Respondent No.1(g)

8. Sri VadirajaS/o late S.N.Prahlada RaoAged about 28 yearsContesting Appellant No.1(h) Respondent No.1(h)

9. Smt.SavithriD/o late S.N.Prahlada RaoAged about 29 yearsContesting Appellant No.1(i) Respondent No.1(i)

Respondents No.1(a) to 1(i)are residing at No.84,12th Main Raod,Shivanagar, Rajajinagar,Bangalore 560 010

10. Sri R.Bhadrappa S/o Late B.RudraiahHindu, MajorProformaRespondent No.1Respondent No.2

11. Sri R.VeerannaS/o B.RudraiahHindu, MajorProformaRespondent No.2Respondent No.3

12. Sri R.PuttaswamyS/o late B.RudraiahHindu, MajorProformaRespondent No.3Respondent No.4

13 Sri B.YogeeshaS/o late R.BhadrappaHindu, MajorProformaRespondent No.4Resplendent No.5Respondents No. 2 to 5are all residing at Kamakshipalya, Hamlet of Saneguruvanahalli,Bangalore North Taluk,Bangalore District

14. Smt.KamalammaW/o R.VeerannaHindu, MajorResiding at Kamakshipalya,Hamlet of Saneguruvanahalli,Bangalore North Taluk,Bangalore DistrictProformaRespondent No.9Respondent No.6

15. Smt.Kittamma W/o late Narasimha MurthyNo.286, VI Cross SrirampuramBangalore 5600 021ProformaRespondent No.10Respondent No.7

16. Sri T.Gangadhara MurthyMajorProformaRespondent No.11Respondent No.8

17. Sri T.RamchandraMajorProformaRespondent No.12Respondent No.9

18. Sri T.AnandaMajorProformaRespondent No.13Respondent No.10

19. Sri T.ManjuMajorProformaRespondent No.14Respondent No.11Respondents Nos.8 to 11are majors, Sons of Thimmaiah,residing at Shivanahalli,West of Chord Road, RajajinagarBangalore 560 010

20. Smt.GowrammaW/o MunivenkatappaLeggare VillageBangaloreProformaRespondent No.15Respondent No.12

21. Smt.H.RathnammaD/o HanumanthappaW/o A.N.Murthy,Residing at 12th Main Road,Near Shanthala School,Shivanahalli, Bangalore (also at Giddu Amia Building,Near Bus-stand,Malur and at Aruna Brick& Tiles, Malur,Behind Police Station)ProformaRespondent No.16Respondent No.13

22. Sri B.H.VenkataramaiahS/o late HanumanthappaHindu, Major, residingat Door No.45,Kamala Nehru Extension,Yeshwanthapura, BangaloreProformaRespondent No.17Respondent No.14

23. Sri DoddaiahS/o NanjundaiahHindu, MajorNo.307, 4th Main,8th Cross 6th Phase,Ist Stage, West of Chord Road Bangalore 560 044ProformaRespondent No.18Respondent No.15

24. Sri MunihanumaiahS/o late HonappaHindu, MajorNo.18, 4th Main Road,9th Cross, 6th Phase,West of Chord Road, Bangalore 560 044ProformaRespondent No.19Respondent No.16

25. Sri LingaiahNo.19, residing atWest of Chord Road,BangaloreProformaRespondent No.20Respondent No.17

26. Sri Jagannatha ShettyS/o Narayana ShettyHindu, MajorNo.1572, II Cross,Nagappa Block(Srirampuram)Bangalore 560 021ProformaRespondent No.21Respondent No.18

27. Sri RamakrishnaMajorProformaRespondent No.22Respondent No.19

28. Sri KrishnamurthyProformaRespondent No.23Respondent No.20

Respondents No.19 and 20Both are Sons of LingappaiahNo.306, 4th Main,8th Cross, 6th Phase,West of Chord RoadBangalore 560 044ProformaRespondent No.24Respondent No.21

29. Smt.SharadammaW/o K.NarayanaShettyMajorProformaRespondent No.24Respondent No.21

30. Sri Sathyanarayanna Shetty S/o K.NarayanaShettyProformaRespondent No.25Respondent No.22

31. Sri Venugopal ShettyS/o K.NarayanaShettyProformaRespondent No.26Respondent No.23Respondents No.21 to 23are Hindus, Major, residingat No.1572, II Cross,Nagappa Block,Bangalore 560 021

32. Sri S.K.LakshminarasappaSince Deceased by L.Rs33. Smt.NagarathnammaW/o late S.K.Lakshminarasappa Proforma Respondent No.27(a) Respondent No.23(a)34. Smt.Shamala DeviD/o late S.K.Lakshminarasappa Proforma Respondent No.27(b) Respondent No.23(b)

35. Sri Mohan S/o late S.K.Lakshminarasappa Proforma Respondent No.27(c) Respondent No.23(c)

36. Sri S.L.VijayakumarS/o late S.K.Lakshminarasappa Proforma Respondent No.23(d) Respondent No.23(d)

37. Smt.S.L.UmadeviD/o late S.K.Lakshminarasappa Proforma Respondent No.23(e) Respondent No.23(e)

38. Sri S.L.HarshaS/o late S.K.Lakshminarasappa Proforma Respondent No.23(f) Respondent No.23(f)

39. Smt.S.L.LathaD/o late S.K.Lakshminarasappa Proforma Respondent No.23(g) Respondent No.23(g)

40. Sri S.L.KishoreS/o late S.K.Lakshminarasappa Proforma Respondent No.23(h) Respondent No.23(h)

Respondents No.23(a) to 23(h)all are residing at No.84, 12th Main Road Shivanagar, (Shivanahalli)Rajajinagar, Bangalore 560 010

To,The Honble Chief Justice of India and his Companion Judges ofthe Supreme Court of IndiaThe humble petition of the Petitioners above namedMOST RESPECTFULLY SHOWETH:1. The Petitioners above-named respectfully submit that these Petitions seeking Special Leave to Appeal (Civil) under Article 136 of our Constitution are arising from the grievance from the impugned Judgment and Final Common Order dated 16-12-2011 passed in Regular First Appeal No.271 of 1998 and Regular First Appeal No.275 of 1998 by the Honble Division Bench of High Court of Karnataka at Bangalore, whereby the Honble Division Bench of the High Court has very erroneously and incorrectly reversed a considered and a compelling Judgment and decree passed by the Learned City Civil Court, Bangalore City in Original Suit No.10311 of 1983 on 27-02-2008 wherein a suit for partition, separate possession, etc against the petitioners herein was correctly dismissed by the said Trial Court.

2. QUESTIONS OF LAW:-The impugned Order and Judgment raises substantial questions of law. The same, for the consideration of this Honble Court, are as under: (for the sake of simplicity, the impugned Order and Judgment shall be referred to as impugned Judgment)

(i) Whether the impugned Judgment that has grossly erred in interpreting the provisions of the Karnataka Village Offices Abolition Act, 1961 is not sustainable in law?

(ii) Whether the impugned Judgment by a Division Bench of the High Court that has failed to recognise the vested rights of a purchaser of erstwhile inam land as protected by an earlier Division Bench decision of the High Court in Lakshmana Gowda v. State of Karnataka [1981 (1) Kar LJ 1 approved in State of Karnataka v. G.Seenappa [AIR 1992 SC 1531 : 1993 Supp (1) SCC 648] and the Constitution Bench decision of the High Court in Syed Basheer Ahmed v. State of Karnataka [AIR 1994 Kant 227 : 1994 (1) Kar LJ 385] is unsustainable in law?

(iii) Whether the Hon'ble Division Bench has wholly erred in reversing the well considered judgment and decree of the Trial Court without assigning any justification or satisfactory finding to support such reversal?

(iv) Whether the impugned Judgment that has held that a person in actual possession of an erstwhile joint family property is not a necessary party at all to a partition suit seeking his ejection is wholly opposed to the established rule of Hindu law as also to the decision of this Honble Court in Vishwambhar v. Laxminarayana (Dead) through LRs [AIR 2001 SC 2607 : 2001 (6) SCC 163] and so, unsustainable in law?

(v) Whether the impugned Judgment that has held that justice is done when a person in actual possession of an erstwhile joint family property is heard for the first time after having suffered a preliminary decree against his interest and possession is not contrary to the decision of this Honble Court in Kanakarathanammal v. Loganatha Mudaliar [AIR 1965 SC 271 : 1964 (6) SCR 1] and is therefore, wholly unsustainable in law?

(vi) Whether the impugned Judgment that has held that subsequent purchasers from original stranger-purchaser of erstwhile joint family properties are not necessary parties to a partition suit even when the coparceners possess knowledge of the fact of subsequent sale and of the fact that the original purchaser is no longer in possession is wholly unsustainable in law?

(vii) Whether the impugned Judgment that has led to a preliminary decree without intending it to be final even with respect to matters already decided by the Court is wholly opposed to the provisions of the Code of Civil Procedure, 1908 as also to the decision of this Honble Court in Venkata Reddi v. Pothi Reddi [AIR 1963 SC 992] and so, unsustainable in law?

(viii) Whether the impugned Judgment is opposed to the provisions of the Code of Civil Procedure, 1908 to the extent it has directed the addition of fresh parties under Order 1 Rule 10 after the passage of a preliminary decree notwithstanding the decisions in Baman Chandra Acharya v. Balaram Achary [AIR 1966 Ori 160] and Neelakantha Pillai Ramachandran v. Ayyappan Pillai [AIR 1978 Ker 152] that hold that any such addition is limited to purchasers of property subsequent to the passage of the preliminary decree and to legal representatives of a party who dies subsequent to the passage of the decree?

(ix) Whether the impugned Judgment is a complete nullity by reason of the law laid down by this Honble Court in Jaladi Suguna (Deceased) Through LRs v. Satya Sai Central Trust [2008 (8) SCC 521] wherein it was held that a decision on who is a legal representative of a dead person delivered after a judgment on merits is a decision made by purporting to hear that dead person and so, both the judgment on merit as well as the decision itself are complete nullities in the eyes of law? (x) Whether the impugned Judgment that does not uphold alienation that is fully supported by family necessity and in the absence of a specific prayer for cancellation of the Sale Deed is wholly opposed to well-established Hindu law and is also contrary to the decision of this Honble Court in Sushil Kumar v. Ram Prakash [1988 (2) SCC 77 : AIR 1988 SC 576 ] and so, unsustainable in law?

(xi) Whether the impugned Judgment that has permitted, in the absence of any excuse, the institution and prosecution of a partition suit by coparceners against stranger purchasers without bringing in the entire joint family property is contrary to the established rule of Hindu law as well as to the decision of this Honble Court in Kenchegowda v. Sidde Gowda [1994 (4) SCC 294 : JT 1994 (4) SC 125] and so, unsustainable in law?

(xii) Whether the impugned Judgment that has held that a person in lawful possession of a property acquired under a registered instrument and not barred under any law in force and never impeached thereafter should first admit another as the true owner in order to prevail on a claim of adverse possession is contrary to well established law and specifically, to the decision of this Honble Court in State of West Bengal v. Dalhousie Institute Society [(1970) 3 SCC 802 : AIR 1970 SC 1778] and is so, unsustainable in law?

(xiii) Whether the impugned Judgment holding that a second partition suit is not barred under Order 9, Rule 9 of the Code of Civil Procedure, 1908 is grossly perverse in law and so, unsustainable to the extent it has extended such a principle to previously dismissed partition suits involving stranger-purchasers?

(xiv) Whether the impugned Judgment that has held that the joint status of a Hindu joint family is not disrupted even after execution and adherence to a formal, irrevocable and unequivocal registered separation and partition deed by and between all the coparceners is opposed to the well-established rule of Hindu law as well as to the decision of this Honble Court in Girija Nandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124 : 1967 (1) SCR 93] and so, unsustainable in law?

(xv) Whether the impugned Judgment that has held that the joint status of a Hindu joint family is not disrupted even when a member thereof institutes and prosecutes a partition suit against other coparceners demanding equal share and separate and distinct possession is wholly opposed to the well-established rule of Hindu law as well as to the decision in Soundararajan v. Arunachalam Chetti [1915 (29) MLJ 793 :(1916) ILR 39 Mad 159] and so, unsustainable in law?

(xvi) Whether the impugned Judgment that has held that the joint status of a Hindu joint family is not disrupted even when a member thereof claims separateness in a disruptive written statement made in response to a disruptive partition suit is wholly opposed to the well-established rule of Hindu law as well as to the decision in T.S.Swaminatha Odayar v. T.S.Gopalaswamy Odayar [AIR 1939 Mad 81 : 1938 (2) MLJ 704] and is so, unsustainable in law?

(xvii) Whether the impugned Judgment that has held that the joint status of a Hindu joint family is not disrupted even when the plaintiff coparcener seeks imprisonment of defendant coparcener through a court of law in the course of prosecution of a disruptive partition suit is wholly opposed to the well-established rule of Hindu law and is so, unsustainable in law?

(xviii) Whether the impugned Judgment that has mischaracterized mere co-sharers as co-parceners of a non-existent Hindu joint family and has accordingly misapplied the law of co-parceners to defacto co-sharers is not contrary to the decision of this Honble Court in Kalika Prasad v. Chhatrapal Singh (Dead) [AIR 1997 SC 1699 : 1997 (2) SCC 544] and so, unsustainable in law?

(xix) Whether the impugned Judgment that has created a rule permitting coparceners to continue an appeal from a dismissed partition suit against stranger purchasers upon the death of the only coparcener-vendor is unsustainable in law besides being contrary to the decision of this Honble Court in Perinadu village v. Bhargavi Amma (Dead) by LRs [2008 (8) SCC 321]?

(xx) Whether the impugned Judgment that has arisen from a proceeding that suppressed the argument of a dead and non-substituted coparcener-vendor who acted as the only vital link between plaintiff-coparceners and defendant-stranger purchasers is unsustainable in law?

(xxi) Whether the impugned Judgment that failed to dismiss the partition suit instituted on suppression, lies and fraud is contrary to the decision of this Honble Court in Chengalvaraya Naidu v. Jagannath [1994 AIR 853 : 1994 (1) SCC 1 ] and is so, unsustainable in law?

(xxii) Whether the impugned Judgment that has held that the possession of a transferee-stranger from a co-sharer through a registered instrument in which the transferor-cosharer proclaims absolute ownership is not adverse to the non-alienating cosharers from the date of possession by that transferee-stranger is contrary to well established law as well as to the decision of this Honble Court in Achal Reddi v. Ramakrishna Reddiar [AIR 1990 SC 553 : 1990 (4) SCC 706] and so, unsustainable in law?

(xxiii) Whether the impugned Judgment that has misconstrued the scope of a regrant proceeding under the Karnataka Village Offices Abolition Act, 1961 is unsustainable in law?

(xxiv) Whether the impugned Judgment that has held that a regrant proceeding under the Karnataka Village Offices Abolition Act, 1961 is in the nature of a proceeding described under Section 14 of the Limitation Act, 1963 in relation to post-regrant partition suits is contrary to the decision of this Honble Court in Rajendar Singh v. Santa Singh [AIR 1973 SC 2537 : 1974 SCR (1) 381] and is so, unsustainable in law?

(xxv) Whether the impugned Judgment that has held that the limitation to disturb the lawful possession of a person in an erstwhile inam land begins only upon the passage of a regrant Order made under the Karnataka Village Offices Abolition Act, 1961 is contrary to well established law governing injunction and so, unsustainable in law?

(xxvi) Whether the impugned Judgment that has held that the limitation to sue is arrested and dissolved once the underlying regrant Order is set aside is unsustainable in law besides being opposed to Section 3 of the Limitation Act, 1963?

(xxvii) Whether the impugned Judgment that has held that a mere regrant Order under the Karnataka Village Offices Abolition Act, 1961 enables a regrantee to seek mandatory injunction with respect to construction or improvement effected by a person in lawful possession of the erstwhile inam land is wholly opposed to the established interpretation of the Karnataka Village Offices Abolition Act, 1961 and therefore, unsustainable in law?

(xxviii) Whether the impugned Judgment that has misconstrued the scope of a regrant Order passed under the Karnataka Village Offices Abolition Act, 1961 by not recognising the power of a civil court to determine the benefit from such regrant Order is unsustainable in law as it is opposed to the decision of this Honble Court in State of Rajasthan v. Harpool Singh (Dead) by LRs [2000 (5) SCC 652 : 2000 (4) SCALE 336]?

(xxix)Whether the impugned Judgment that has held that a partition suit instituted by persons who have secured a regrant under the Karnataka Village Offices Abolition Act, 1961 becomes non-est, null and void in the eyes of law in the event of a subsequent set-aside of the regrant order is unsustainable in law?

(xxx) Whether the impugned Judgment that has, in essence, ruled that all decrees, injunction or other Order passed by a competent court of civil jurisdiction upon a partition suit instituted by regrantees under the Karnataka Village Offices Abolition Act, 1961 are automatically nullified, set at naught and rendered void in the event the regrant order is subsequently set aside is wholly bad in law?

(xxxi) Whether the impugned Judgment that has awarded two preliminary decrees with respect to the same piece of Government land is unsustainable in law?

(xxxii) Whether the impugned Judgment that has decreed title and separate possession of property upon suit property that has become Government land and is under the control of the Bangalore Development Authority without even hearing the Bangalore Development Authority is not wholly unsustainable in law?

(xxxiii) Whether the impugned Judgment that has held that dispossessed coparceners in a partition suit against stranger-purchasers need only pay a nominal fee instead of ad-valorem fees is fully contrary to the well established rule of law and so, unsustainable in law besides being in violation of the Karnataka Court Fees And Suits Valuation Act, 1958?

(xxxiv) Whether the impugned Judgment is sustainable in law when it declares that, notwithstanding the previous decision of a Division Bench of the High Court that the possession of a certain person is lawful, a Civil Court may still reach a different conclusion on the very controversy settled by the previous decision of the High Court?

(xxxvi) Whether the impugned Judgment is unsustainable in law when it departs from the presumption that a prior partition between coparceners of a Hindu joint family is complete, both as to parties and properties without any evidence offered to rebut that presumption and so, acts contrary to the decision in Narmada Tulsiram Shet Agarwal v. Rupsing Bhila (AIR 1938 Bom 69)?

(xxxvii) Whether the impugned Judgment that has limited the doctrine of estoppel to mere acts of representation and not to acts of omission and conduct is contrary to the decision of this Honble Court in B.L.Sreedhar v. K.M.Munireddy (Dead) [AIR 2003 SC 578 : 2003 (2) SCC 355] and is therefore, unsustainable in law?

(xxxviii) Whether the impugned Judgment that has refused to uphold the claim of estoppel in the circumstances of the case is contrary to the decision of this Honble Court in Manibhai v. Hemraj [1990 (3) SCC 68 : 1990 (2) SCR 40] and so, unsustainable in law?

(xxxix) Whether the decision of the Division Bench to permit two living wives of a deceased Hindu male and children born to the two wives to represent his estate in a subsisting partition suit that was instituted by him to claim ancestral property violates Section 16(3) of the Hindu Marriage Act, 1955 and is so, unsustainable in law? (in terms of the decision of this Honble Court in Jinia Keotin v. Kumar Sitaram Manjhi [2003 (1) SCC 441 : 2002 (10) JT 571].

(xl) Whether the Hon'ble Division Bench has grossly erred in proposing in paragraphs 61, 88 and 99 of the impugned Judgment, propositions of law that wholly derogate from the principles of natural justice and deprive a person of property without adhering to the procedure established by law?

(xli) Whether the impugned Judgment is grossly perverse when it proposes that the title, interest and relief in respect of subsequent impleaders to the suit properties could be decided even without a full-fledged trial?

(xlii) Whether a partition-Court is empowered to decree the suit by granting reliefs not claimed or granting reliefs beyond what is claimed in a suit?

(xliii) Whether a Court may treat a purchaser through a registered transfer deed as an intermeddler for the purpose of Section 2(11) of the Code of Civil Procedure, 1908 even without hearing such a purchaser?

(xliv) Whether a body of unknown, indefinite and shifting persons could be treated by any Court as the legal representatives of a deceased person in terms of Section 2(11) of the Code of Civil Procedure, 1908?

3. DECLARATION IN TERMS OF RULE 4(2):The Petitioners states that no other Petition seeking Special Leave to Appeal has been filed by them against the above said impugned Judgment and Final Common Order dated 16-12-2011 passed in Regular First Appeal No.271 of 1998 and in Regular First Appeal No.275 of 1998 by the Honble Division Bench of High Court of Karnataka at Bangalore.

4. DECLARATION IN TERMS OF RULE 6:-The Annexure-P/1 to P/ produced along with the Special Leave Petitions are true copies of the pleading/documents which form part of the record of the case in the Courts below against whose order the Leave to Appeal is sought for in these Petitions.

5. G R O U N D S:-(A) The interpretation by the Division Bench of the provisions of the Karnataka Village Offices Abolition Act, 1961 is grossly erroneous:- (i) The High Court fell into complete error in the matter of interpreting the provisions of the Karnataka Village Offices Abolition Act, 1961 to the facts of this case. As such, by reason of such erroneous interpretation of the statute, the High Court has deprived Rudraiah of a bundle of rights that had lawfully accrued to him. (ii) Further, the High Court fell into error in assuming that the suit schedule lands were Government lands. To begin with, the suit schedule lands were not Government lands. Since the High Court had mis-characterised the suit schedule lands as Government lands, the High Court fell into further error by refusing to notice the vested rights of Rudraiah who had acquired lands that the High Court had already mis-characterised as Government lands. (iii) The High Court failed to assess the scope of the Karnataka Village Offices Abolition Act, 1961 in the correct perspective. A short and compact legislation, the Karnataka Village Offices Abolition Act, 1961 had abolished all village offices on and from the appointed date. The High Court has wholly erred in viewing this statute as if it were passed solely for the welfare of village officers and to the detriment of whoever came into contact with erstwhile inam lands. (iv) The object and reasons to this statute had said that: in pursuance of the Government policy of abolition of intermediaries, it is considered desirable to abolish all the hereditary village officesMoreover, these offices are a relic of the old feudal system and Government considers that the time has come to abolish them. Further, Section 9 of the Karnataka Village Offices Abolition Act, 1961 did provide for a scheme for compensation to the erstwhile holders of village offices. The said scheme is both elaborate and substantial. As such, the High Court failed to notice that persons who had acquired erstwhile inam lands did not deserve to be penalised or denied the due protection of the laws that apply to other persons similarly situated as them. In the instant case, Rudraiahs conduct with Narasimha Murthy was truthful and he has stated and maintained as such in every Court or Tribunal.(v) Section 4 of the Karnataka Village Offices Abolition Act, 1961 had provided that all lands that were annexed to the village offices stood resumed to the Government on and from the appointed date. Specifically, the provision read: Section 4: Abolition of village offices together with incidents thereof. Notwithstanding anything in any usage, custom, settlement, grant, agreement, sanad, or in any decree or order of a Court, or in an existing law relating to village offices, with effect on and from the appointed date -(1) all village offices shall be and are hereby abolished;(2) all incidents (including the right to hold office and the emoluments attached thereto, the right to levy customary fees or perquisites in money or in kind and the liability to render service) appertaining to the said village offices shall be and are hereby extinguished;(3) subject to the provision of Section 5, Section 6 and Section 7, all land granted or continued in respect of or annexed to a village office by the State shall be and is hereby resumed, and shall be subject to the payment of land revenue under the provisions of the Code and the rules and orders made thereunder as if it were an unalienated land or ryotwari land.(vi) The High Court failed to appreciate the fact that the word resumed occurring in Section 4 above had acquired a well-established judicial meaning by reason of the fact that the word resume in such legislation meant nothing more than a symbolic or nominal resumption with a clear right upon the erstwhile office holder to seek regrant of such resumed lands. Primarily, upon the coming into force of the statute, the statute did not even equate resumption with dispossession as the Holder or the Authorised Holder continued to be in possession of the resumed land and his possession over the resumed land was unambiguously allowed by the statute itself. Also, the statute did not even vest the Government with any discretion to not regrant resumed land when sought by the Holder or the Authorised Holder. Similarly, the Government did not possess any authority to put the resumed land to a different or public purpose at all. As such, the land resumed under Section 4(3) was not and never Government land but a land awaiting a formal declaration from the Government in favour of a private person through the medium of regrant under Section 5 or 6. The High Court wholly failed to notice so much.(vii) To repeat, nothing in the said statute had imposed any requirement that the erstwhile village officer (Holder) or Authorised Holder should be dispossessed from the erstwhile inam lands that stood resumed to the Government on the appointed date.(viii) Further, the High Court failed to note that the Karnataka Village Offices Abolition Act, 1961 had not, when enacted, imposed any bar, express or implied, upon the alienation of resumed land by the erstwhile holder of village office. On 11-03-1970, the day on which the erstwhile holder of village office, Narasimha Murthy, alienated Sy.No.55 and 62 of Saneguruvanahalli village to Rudraiah, there existed no statutory bar upon such alienation. This principle has been judicially too well settled. Further, when a statute did not forbid alienation, it is only proper to assume that alienation was not opposed to public policy either.(ix) As such, the sale of the resumed land by Narasimha Murthy to Rudraiah on 11-03-1970 was perfectly valid in the eyes of law though it did not immediately confer a perfect tile upon Rudraiah. After such alienation, any event whereby the title of Narasimha Murthy would become perfected would operate instantly to also perfect the title of Rudraiah. This much is a well-established principle of law referred to as feeding of grant by estoppel.(x) As such, the Sale Deed entered into between Narasimha Murthy and Rudraiah on 11-03-1970 to discharge a pre-existing lawful family debt and a moral and pious obligation was not illegal under any statute, much less, the Karnataka Village Offices Abolition Act, 1961. The High Court, therefore, erred in not noticing that the Sale Deed entered into between Narasimha Murthy and Rudraiah did not violate any term of the Karnataka Village Offices Abolition Act, 1961 or of any other statute in effect in the territory of the State of Karnataka.(xi) Therefore, the High Court failed to recognise the vested rights that Rudraiah had acquired under the said Sale Deed. As such, without a due and proper recognition of the rights that stood vested in Rudraiah pursuant to the Sale Deed dated 11-03-1970, the High Court has fallen into error by not duly adjudging the rights of Rudraiah under the said Sale Deed.(xii) Further, the High Court appears to have been erroneously influenced by the argument of the plaintiffs that Rudraiah was an unauthorised holder within the meaning of the Karnataka Village Offices Abolition Act, 1961. The plaintiffs had also made representations to several statutory bodies asking them to summarily evict Rudraiah and his family members from the suit properties. Although the argument of the plaintiffs was fully negatived by Rudraiah, the High Court appears to have been misled by the repeated argument of the plaintiffs to the effect that Rudraiah was an unauthorised holder and that he deserved to be evicted summarily from the suit properties.(xiii) The definition of unauthorised holder as it occurs in Section 2(m) of the Karnataka Village Offices Abolition Act, 1961 says: Unauthorised holder means a person in possession of a land granted or continued in respect of or annexed to a village office by the State without any right, or under any lease, mortgage, sale, gift or any other kind of alienation thereof, which is null and void under the existing law, relating to such village office.(xiv) The aforesaid definition of an unauthorised holder is, therefore, wholly dependent upon the further definition of existing law occurring in the same statute.(xv) Section 2(f) of the Karnataka Village Offices Abolition Act, 1961 defines existing law as under: Existing law relating to a village office includes any enactment, ordinance, rule, bye-law, regulation, order, notification, Firman, hukum, vat hukum or any other instrument or any custom or usage having the force of law, relating to a village office, which may be in force immediately before the appointed date.(xvi) By a notification dated 20-07-1961, the Karnataka Village Offices Abolition Act, 1961 was brought into effect from 01-02-1963. As such, the law that governed village offices only up to 01-02-1963 is the reference point for determining if a person is an unauthorised holder. Simply put, certain statutes and other laws that governed village offices until the commencement of the Karnataka Village Offices Abolition Act, 1961 were to be referred to for the purpose of determining who is an unauthorised holder.(xvii) Further, Section 12 of the Karnataka Village Offices Abolition Act, 1961 had specified that: Section 12 - Repeal and savings: The enactments specified in Schedule I and any existing law relating to a village office in force in any area of the State of Karnataka so far as they apply to village offices or to emoluments attached to such offices are hereby repealed.(xviii) Schedule I to the Karnataka Village Offices Abolition Act, 1961 had originally covered these statutes: the Mysore Village Offices Act, 1908, the Madras Hereditary Village Offices Act, 1895, the Bombay Hereditary Offices Act, 1874, the Bombay Hereditary Offices (Amendment) Act, 1886, the Madras Proprietary Estates Village Service Act, 1894 and the Madras Karnams Regulation, 1802.(xix) Accordingly, the aforesaid statutes that were included in Schedule I to the Karnataka Village Offices Abolition Act, 1961 stood expressly repealed upon the very moment, the statute was brought into effect on 01-02-1963. As such, to constitute an unauthorised holder, a person ought to have violated one or more of those statutes or other regulation at a point of time prior to 01-02-1963 as all such statutes and laws stood expressly repealed by the commencement of the statute on 01-02-1963.(xx) Therefore, an unauthorised holder should have come into contact with inam land in derogation of the statutes repealed by the Karnataka Village Offices Abolition Act, 1961 at a point of time prior to 01-02-1963. The Sale Deed entered into between Narasimha Murthy and Rudraiah was not entered into prior to 01-02-1963. It was entered into on 11-03-1970 - a full seven years after the Karnataka Village Offices Abolition Act, 1961 was brought into effect.(xxi) Therefore, the High Court failed to note that the entering into and execution of the Sale Deed between Narasimha Murthy and Rudraiah did not violate any known law or statute on the date it was executed, 11-03-1970. For the same set of reasons, even 42 years after it was entered into and executed, it has not run afoul of any known law or statute.(xxii) Further, it was only in the year 1978 that the Karnataka Village Offices Abolition Act, 1961 was amended to provide an express statutory bar upon alienation of resumed land by the holder of an erstwhile village office. In the context of interpreting such a bar introduced from 1978, alienations made prior to 1978 Amendment (07-08-1978) were judicially held to be completely protected.(xxiii) First in 1981, in the case of Lakshmana Gowda v. State of Karnataka [1981 (1) Kar LJ 1 approved by this Honble Court in State of Karnataka v. Seenappa, [ AIR 1992 SC 1531 : 1993 Supp (1) SCC 648 As we are of the view that the judgment in Lakshmana Gowda's case deserves to be upheld ] it was held that: From this pronouncement of the Supreme Court, it follows that the holder or the authorised holder of a Service Inam land did not get title to such land simultaneously with the coming into force of the Principal Act providing for resumption and regrant of such land only after such actual regrant was made, though by such actual regrant, his title to the land related back to the date of commencement of the Principal Act We have already held that though the holder or the authorised holder of a Service Inam Land got title to such land only when it was actually regranted to him under Section 5 or 6 of the Principal Act, such title related back to the date of coming into force of that Act. From this, it would follow that if he purported to alienate such land before it was regranted to him, but after the Principal Act came into force, the doctrine of feeding the grant by estoppel embodied in Section 43 of the Transfer of Property Act came into force, the doctrine of feeding the grant by estoppel embodied in Section 43 of the Transfer of Property Act would apply and the title he subsequently acquired on such regrant of that Land, would enure to the benefit of his alienee who would get a good title to such land after such regrant into his alienor. There is also no good reason why the benefit of Section 43 should be denied to such an alienee when the Principal Act did not prohibit the holder or the authorised holder of a Service Inam Land from transferring his interest or right therein after it was resumed and before it was regranted to him(xxiv) Notwithstanding the clear and decisive reasoning in the aforesaid decision, judicial doubts were again raised about the correctness of the aforesaid decision. To resolve such recurring doubts and conflicts over the correctness of the aforesaid decision, a Constitution Bench of the Honble Karnataka High Court was convened and it decided as under: [Syed Basheer Ahmed v. State of Karnataka decided on 20-12-1993 and reported in AIR 1994 Kant 227 : ILR 1994 KAR 159 : 1994 (1) Kar LJ 385]: The definitions of the terms 'holder', authorised holder' and 'unauthorised holder' in the Act have one thing in common. They are all with reference to the appointed date, namely, 1-2-1963 An alienee in possession of a service inam land, in pursuance of an alienation between 1-2-1963 and 7-8-1978, is not a person without any right, but a person, who gets an imperfect title with possession on the date of alienation and whose title gets perfected on re-grant in favour of the alienor. Further an alienation of a service inam land between 1-2-1963 and 7-8-1978 is not an alienation which is null and void under the existing law relating to the village office, that is, laws in force immediately before 1-2-1963. It therefore follows that a person in whose favour, a service inam land is alienated during the period 1-2-1963 to 7-8-1978 by a 'holder' or an 'authorised holder', before re-grant to such holder or authorised holder under S. 5(1) or 6, will neither be a 'holder' or an 'authorised holder' or an unauthorised holder'. Such a person will be an 'alienee from a holder/authorised holder with imperfect title (hereinafter referred to as 'Alienee with Imperfect Title' or 'Alienee between 1-2-1963 and 7-8-1978). There is no provision in the Act for summary eviction of an alienee with imperfect title that is an alienee between 1-2-1963 and 7-8-1978 We therefore hold that alienations between 1-2-1963 and 7-8-1978 cannot be invalidated on the ground that there was no regrant prior to 7-8-1978 We are not in agreement with the said view. What has been overlooked in Chikkanarasaiah [ILR (1989) Kant 1520] is that where the sale is prior to 7-8-1978, and a re-grant is after 7-8-1978, the benefit of re-grant relates back to the date of commencement of the Principal Act and thereby enures to the benefit of the alienee in whose favour, alienation has been made prior to 7-8-1978. The bar against alienation affected only alienations after 7-8-1978 and not alienations prior to 7-8-1978 There is no provision in the Act authorising the State Government or its authorities to evict an alienee under an alienation made between 1-2-1963 and 7-8-1978. Section 7 is not applicable, as such an alienee is not an 'unauthorised holder'(xxv) As such, the impugned Judgment has grossly erred in not recognising the vested rights of Rudraiah pursuant to the Sale Deed dated 11-03-1970 executed by Narasimha Murthy in his favour. As such, the Division Bench has applied the law contrary to the Division Bench decision of the High Court in Lakshmana Gowda v. State of Karnataka [1981 (1) Kar LJ 1] and of the Constitution Bench decision of the High Court in Syed Basheer Ahmed v State of Karnataka.(xxvi) As the impugned Judgment has mis-characterised the suit schedule properties as Government lands and has accordingly recognised little or fewer rights in the hands of Rudraiah, it deserves to be set aside.(B) Because, the High Court grossly erred in deciding upon who is a necessary party to a partition suit seeking ejectment of stranger-purchasers and recovery of possession thereof. The Suit is bad for non-joinder of necessary parties.(i) The High Court wholly erred in considering and applying the law relating to who is a necessary party to a partition suit brought about by coparceners to recover property alienated without consent by a defendant-coparcener.(ii) The decision of the High Court that in a partition suit by coparceners to eject stranger-purchasers and to recover possession therefrom, stranger-purchasers are not even necessary parties is a decision without any precedent. With the greatest of respects, it is submitted that the declaration of law in this regard as stated by the Honble High Court in paragraph 61 of the impugned Judgment is wholly absurd and puts the entire judgment of the High Court to grave doubt.(iii) That the High Court was indeed dealing with a partition suit seeking relief against stranger purchasers who had held not less than 90% of the suit property, the declaration of the Court in regard to who are necessary parties at the stage of a preliminary decree may be noted: 61. In a suit for partition, at the stage of passing of a preliminary decree for partition, the only question that needs to be adjudicated by the trial Court is, whether the property in question is a coparcenery property or a joint family property and if so, what is the share to which these family members are entitled to. For the declaration of such shares, the presence of alienees is not necessary. Even in their absence the suit of the plaintiff can be adjudicated upon and their presence is in no way necessary for the court to determine the questions involved in the suit. It is only after declaration of shares, at the stage of dividing the property by metes and bounds and putting them in possession of the extent of the share so declared, the character, validity and the nature of alienations have to be taken note of. It is at that stage, it is necessary to hear the persons who are claiming title through such members of the family and who have parted with valuable consideration and who are in possession of the property(iv) With the greatest of respects, it is submitted that the aforesaid expression of law is grossly absurd. The Honble High Court appears to have wholly missed the fundamental characteristic of a partition suit against stranger-purchasers. The law as laid down by the High Court is not even applicable to a text book case of partition simpliciter between coparceners as such a suit would merely seek a declaration concerning coparcenary property and the only parties to such a suit being the coparceners and none else, the very question of a preliminary decree being passed in such a suit would not arise as whatever declaratory Order is passed in the first instance should itself dispose off the whole controversy and nothing would survive for consideration by a Final Decree Court. And, stranger-purchasers would have no role whatsoever in such proceedings and such a declaration would be worthless and ineffective against stranger-purchasers in any fresh suit or proceeding.(v) Further, the High Court failed to appreciate the proper context for the passage in Hindu Law by Mulla wherein it has been said that purchasers are not necessary parties to a partition suit. Under the prevailing scheme of the Code of Civil Procedure, should some coparceners choose to institute a partition suit solely against other coparceners and do not wish to seek any relief against alienees, the law does not compel such plaintiffs to also bring in the alienees. That a plaintiff-coparcener in a partition suit is the dominus litus, the law does not cast any duty upon him to bring in alienees as well if he chooses not to. Instead, the interpretation placed by the High Court upon that passage is erroneous and holds potential for great mischief. (vi) As such, the Honble High Court has laid down a grossly absurd proposition that declarations may be made against a stranger-purchasers interest and possession without even hearing him in a partition suit. The preliminary decree that the plaintiffs had sought was not for a mere declaration but for actual division, ejectment of stranger-purchasers and for possession therefrom. As such, the preliminary decree issued by the High Court is not a mere declaration that the suit properties are joint family properties. It is so much more than that and is clearly against the interests of known and unknown stranger-purchasers. As such, the impugned Judgment is wholly liable to be set aside for a gross absence of application of judicial mind.(C) The High Court overlooked its own quotation from Hindu Law by Mulla wherein it is said that purchasers from plaintiff should be impleaded in a partition suit. Purchasers from Plaintiff Prahlada Rao in Sy.No.1 are according to the High Court, necessary parties. Yet, none of these purchasers are brought into the suit.(i) Further, the very text of Mullas Hindu Law relied upon by the High Court in paragraph 60 of the impugned Judgment states that The plaintiff in a partition suit should implead as defendants, the purchaser of a portion of the plaintiffs share, the plaintiff himself being a coparcener.(ii) The High Court has failed to note that, in the partition deed dated 11-08-1960 executed between Narasimha Murthy, Lakshminarasappa and Prahlada Rao, one of the items of property that was divided was Sy.No.1 of Shivanahalli measuring 2 Acres 10 Guntas. This is an inam land as well as suit property.(iii) Both the first regrant Order dated 20-06-1970 and the second regrant Order dated 21-04-1982 correctly describe Sy.No.1 as inam land. As such, it was vehemently contended before the Trial Court by Smt.Kittamma that Sy.No.1, an inam land so known to the plaintiffs was itself partitioned in 1960. It was this fact and argument that lent support to the further argument of Rudraiah in Court that Narasimha Murthy therefore acted as if he was solely entitled to Sy.No.55 and 62 properties not included in the partition deed dated 11-08-1960.(iv) In the partition deed dated 11-08-1960, Prahlada Rao was conferred with 30 Guntas in the said Sy.No.1, an inam land. The Trial Court has duly noted the deposition of Prahlada Rao on the aspect of what he did with the 30 guntas in Sy.No.1 of Shivanahalli that came to his share and possession. Prahlada Rao had himself stated in his evidence that he had made several sites in Sy.No.1 and had sold off all of it to various persons. Yet, Prahlada Rao had not made any buyer of those sites in Sy.No.1 as defendants to the suit. On this ground, the Trial Court correctly dismissed the suit as not-maintainable due to non-joinder of necessary parties.(v) As such, even the plaintiffs own argument that original purchasers alone are necessary parties to a partition suit and that later-purchasers from the original purchaser are not necessary parties works against them so far as Sy.No.1 is concerned. That there is no dispute that 30 Guntas in Sy.No.1 had already been sold off by Prahlada Rao, there has been no representation whatsoever from those purchasers of Sy.No.1. This is also the correct ground on which the Trial Court has held that the suit was not maintainable. Yet, the High Court has completely ignored this aspect. As such, the High Court grossly erred when it held that the original purchasers were on record in this partition suit. Sy.No.1 does not contain original purchasers from sales effected by Prahlada Rao and the suit is therefore, bad in law and on facts. As such, the High Court was bound to notice so much and to dismiss the appeal in entirety. The decreeing of the suit in favour of the plaintiffs instead is therefore, perverse and liable to be set aside.(D) Should the reasoning by the High Court on the issue of necessary party be held to be correct, the very question of Courts dismissing partition suits on grounds of alienation for family necessity, adverse possession, implied consent, non tendering of ad-valorem Court fee, suit barred by estoppel or acquiescence or ostensible authority, person in possession not impleaded and the like would not arise at all as it could be wholly overcome by altogether dispensing with stranger-purchasers as defendants: If only the reasoning of the High Court on the issue of necessary party is held to be correct, the very question of Courts dismissing partition suits involving stranger-purchasers on diverse and multifarious grounds would not arise at all. Just to demonstrate the absurdity of the reasoning by the Honble High Court, it could be said that A, B and C, three coparceners could simply set up a partition suit between themselves and secure a preliminary decree by paying a nominal court fee to the Court and ask for ejection of all stranger-purchasers and for recovery of their possession. In the process they could easily defeat all the decisions of the various High Courts, Privy Council and of this Honble Court that could have come in their way on the issues of alienation for family necessity, adverse possession, implied consent, non tendering of ad-valorem court fee, suit barred by estoppel or acquiescence, person in possession not impleaded and the like. Say, with a preliminary decree that declares that each of the three coparceners is entitled to partition and possession of the suit properties, the Final Decree Court would have no option but to altogether dismiss the defense all such bar to the decreeing of a partition suit. Such a result, with the greatest of respects to the High Court, may only be termed as grossly absurd.(E) If a purchaser alone is a necessary party to a partition suit and not the subsequent purchaser who is in actual possession, the bringing of survivors of a deceased original purchaser may not serve any legal purpose or objective:(i) The High Court also failed to notice that the Trial Court had also correctly noted that it would be farcical to state that only the original purchaser is a necessary party in a partition suit and that the purchasers from the original purchasers who are in actual possession are not necessary parties. The Trial Court had held in essence that, if such a principle were to be accepted, upon the death of such original purchaser, no worthwhile purpose would be served by bringing in his legal representatives at all as whatever reason is there to bring in an original purchaser has simply disappeared upon his death and that bringing in his legal representatives may have to be done mechanically and for no intelligible reason. (ii) Particularly, the plaintiffs had brought in the legal representatives of a few deceased original purchasers notwithstanding their full knowledge that the original purchasers had already alienated the property and that the same was in the possession of subsequent purchasers. (ii) As such, the Trial Court correctly held that the plaintiffs could not at all be heard to say that original purchasers alone are necessary parties under circumstances where the original purchasers are dead and the plaintiffs bring in the legal representatives notwithstanding their own knowledge that the property is in the possession of someone else. The Trial Court correctly analysed this aspect of the matter. Yet, the High Court has completely omitted to address this substantive issue altogether.(iii) The High Court simply failed to note that if it was simply enough to bring in the original purchaser of a joint family property in a suit for partition without any regard to who is in possession of the property, it should be equally possible to dispense with the original purchaser altogether should he be dead on the date of the institution of the suit. In a case such as this where sales and alienations were effected prior to 1971, none of the original purchasers are believed to be alive as of today. Numerous partition suits that are instituted across the country involve alienations made to persons who are often dead by the time a partition suit is instituted by coparceners. Should the impugned Judgment be held to have laid down the law correctly, it should be entirely possible for such partition suits to dispense with purchasers altogether and secure a decree for dispossession of property even against subsequent purchasers who are in actual possession in their complete absence and behind their back. It is submitted with the greatest of respects that any rule that leads to such a result is oppressive, unjust and legally absurd. As such, the Honble High Court committed a grave error in reversing the well-considered dismissal Order of the Trial Court.(iv) The High Court failed to note that the legal representatives of some of the original purchasers who had sold off those properties prior to the institution of the partition suit and who had, therefore no interest whatsoever in the suit property had deposed that they had never in their lifetime either seen or had been to the suit property. As such, there is no intelligible reason that the High Court could provide to hold that it is sufficient to place as defendants in a partition suit, persons who have no interest in suit property and persons who have never seen or had ever been to the suit property.(F) The plaintiffs had full knowledge that 84 different purchasers from Rudraiah were in possession of Sy.No.55 and that Rudraiah had no interest in it. Yet, the High Court inexplicably reverses the finding of the Trial Court that the suit is bad for non-joinder of those persons:The High Court also erred in not noticing that the plaintiffs had themselves stated in their deposition that they were aware that 84 different persons were in possession of Sy.No.55 of Saneguruvanahalli and that none of them were arrayed as defendants. Therefore, the reasoning of the High Court that persons in actual possession of suit properties are not necessary parties even when the plaintiffs possess actual knowledge about who is in possession is grossly erroneous and is liable to be reversed.(G) The proceeding at the High Court after 16-04-2005 is a complete nullity as the High Court purported to hear a dead plaintiff, Prahlada Rao. Such proceeding and the impugned Judgment are complete nullities in the eyes of law.(i) The proceeding as well as the impugned Judgment are nullities in the eye of law in terms of decision of this Honble Court in Jaladi Suguna (Deceased) Through LRs v. Satya Sai Central Trust [2008 (8) SCC 521] (ii) That Prahlada Rao had expired on 03-12-2004, his legal representatives had made an application to the High Court on 16-04-2005 to come on record. The said application dated 16-04-2005 states that the appeal had abated. Three distinct applications were made by these legal representatives on the said date one for delay in filing the applications, the second seeking setting aside the abatement and the third for coming on record as legal representatives. Further, there were nine persons who sought to come on record as such legal representatives. There were two wives and seven children and no information is provided on whether these seven children were born to the first wife or to the second wife. It may be noted that under Section 16(3) of the Hindu Marriage Act, 1955, children born to the second marriage are precluded from claiming any right with respect to the ancestral property of their parents [Jinia Keotin v. Kumar Sitaram Manjhi 2003 (1) SCC 441 : 2002 (10) JT 571]. (iii) However, for the next six years, the Honble High Court did not decide upon the said applications notwithstanding the request of counsel for defendants that the applications were required to be first adjudicated. It is only on 16-12-2011, after the pronouncement of the final judgment on that very day that the Honble High Court has permitted the legal representatives of deceased Prahlada Rao to come on record. The High Court ruled on 16-12-2011 after delivering its final judgment that:16-Dec-2011:Order in RFA No.275/1998The appellant is dead. Wife and children have filed an application to come on record. There is a delay in filing the applications to bring the LRs on record and an application for setting aside abatement was also filed.Accepting the cause shown in the affidavits filed in support of the applications, application for condoning the delay, application for setting aside abatement and application to bring the LRs on record are allowed. Appellant to amend the cause title.(iv) As such, for the period of six and a half years between 16-04-2005 and 16-12-2011, the High Court had purported to hear a dead person. As such, applying the decision of this Honble Court in Jaladi Suguna (Deceased) Through LRs v. Satya Sai Central Trust [2008 (8) SCC 521] which involved identical facts, the entire proceeding between 16-04-2005 and 16-12-2011 is bound to be declared as a nullity and the impugned Judgment delivered pursuant to hearing a dead person is therefore, a nullity in view of the mandatory provisions of the Code of Civil Procedure, 1908 as decisively laid down by this Honble Court in Jaladi Suguna (Deceased) Through LRs v. Satya Sai Central Trust [2008 (8) SCC 521] wherein it was held that: the High Court ought to have determined the question as to who are the legal representatives of the deceased Suguna, as required by Order 22 Rule 5 CPC. But it did not do so. Instead, it proceeded to hear the main appeal itself as also the said two LR applications and rendered its Judgment dated 19.9.2006 When a respondent in an appeal dies, and the right to sue survives, the legal representatives of the deceased respondent have to be brought on record before the court can proceed further in the appeal. Where the respondent-plaintiff who has succeeded in a suit, dies during the pendency of the appeal, any judgment rendered on hearing the appeal filed by the defendant, without bringing the legal representatives of the deceased respondent-plaintiff on record, will be a nullity. In the appeal before the High Court, the first respondent therein (Suguna) was the contesting respondent When first respondent in the appeal died, the right to prosecute the appeal survived against her estate. Therefore it was necessary to bring the legal representative/s of the deceased Suguna on record to proceed with the appeal. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented. The provisions of Rules 4 and 5 of Order 22 are mandatory. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 make it clear that the appeal can be heard only after the legal representatives are brought on record. When Suguna - the first respondent in the appeal before the High Court died, the proper course for the High Court, was first to decide as to who were her legal representatives. For this purpose the High Court could, as in fact it did, refer the question to a Subordinate Court under the proviso to Rule 5 of Order 22 CPC, to secure findings. After getting the findings, it ought to have decided that question, and permitted the person/s who are held to be the legal representative/s to come on record. Only then there would be representation of the estate of the deceased respondent in the appeal. The appeal could be heard on merits only after the legal representatives of the deceased first respondent were brought on record. But in this case, on the dates when the appeal was heard and disposed of, the first respondent therein was dead, and though rival claimants to her estate had put forth their claim to represent her estate, the dispute as to who should be the legal representative was left undecided, and as a result the estate of the deceased had remained unrepresented. The third respondent was added as the legal representative of the deceased first respondent only after the final judgment was rendered allowing the appeal. That amounts to the appeal being heard against a dead person. That is clearly impermissible in law. We, therefore, hold that the entire judgment is a nullity and inoperative.(iv) As such, the impugned Judgment is delivered in a proceeding that purported to hear a dead person, plaintiff Prahlada Rao between 16-04-2005 and 16-12-2011. As such, the impugned Judgment is liable to be declared as a nullity in view of the mandatory provisions of the Code and the decision of this Honble Court in Jaladi Suguna (Deceased) Through LRs v. Satya Sai Central Trust [2008 (8) SCC 521].

(G) Again, the proceeding at the High Court after 09-11-2006 is a complete nullity as the High Court purported to hear a dead defendant, Smt.Kittamma. Again, such proceeding and the impugned Judgment are complete nullities in the eyes of law.(i) Smt.Kittamma expired on 26-06-2005 without any issues or survivors and that the fact of her death was brought to the notice of the High Court on many occasions. The High Court committed a grave error by withholding judgment on who would constitute the legal representatives of Smt.Kittamma. The High Court was informed by the counsel for Rudraiah whereupon, the High Court had passed the following Order on 09-11-2006: Sri Surana, learned counsel would say that the cause of action is not available in the light of the death of Kittamma. Office to list this matter after two weeks for the purpose of hearing with regard to the availability of the suit(ii) However, instead of immediately adjudicating upon the effect of the death of Smt.Kittamma or upon the issue of who would constitute her legal representatives and could act as such in the course of appeal, the High Court has committed a grave error by not adjudging upon either of the two issues and by indicating its response only in the Final Order and Judgment delivered 6 years later on 16-12-2011. As such, the High Court has failed to recognise that the appeal was bound to and had abated once it was informed about the fact of Smt.Kittammas death 6 years prior to the passage of the final judgment. As such, by reason of operation of Order 22 Rule 3(2) of the Code of Civil Procedure, the appeal simply stood abated on the expiry of 90 days from the date of death of Smt.Kittamma on 26-06-2005.(iii) Upon such abatement, there was simply no jurisdiction available to the High Court to continue with the matter in the absence of a determination of who would constitute the legal representatives of Smt.Kittamma. The continuation of the proceeding before the High Court between 09-11-2006 and 16-12-2011 is tantamount to the Honble High Court purporting to hear a dead person and the law does not recognise as valid any judicial proceeding that purports to hear from a dead person. The decision of this Honble Court in Jaladi Suguna (Deceased) Through LRs v. Satya Sai Central Trust [2008 (8) SCC 521] is therefore, twice applicable to the impugned Judgment. Accordingly, the impugned Judgment is liable to be set aside as a complete nullity in the eyes of law.(iv) As such, despite request by the counsel for Rudraiah on 09-11-2006 and repeatedly thereafter during the course of later hearings, the failure of the High Court to adjudge upon the abatement of the appeal as well as upon the issue of who would constitute the legal representatives of Smt.Kittamma and the adjudication only through the final Order and Judgment on 16-12-2011 is grossly illegal as also without jurisdiction.(I) The Sale Deed dated 11-03-1970 is a bar to decree the plaintiffs suit:(i) The well-established principle of Hindu Law necessitated the upholding of the sale deed executed by Narasimha Murthy in favour of Rudraiah on 11-03-1970. By wholly ignoring the said sale deed, the High Court committed a gross and grave error of law and the impugned Judgment is therefore, unsustainable in law.(ii) The High Court fell into grave error in not noticing the proper and legal impact of the Sale Deed entered into between Narasimha Murthy and Rudraiah on 11-03-1970 for a consideration of Rs.20,000/-. This sale deed was no private document. It was validly entered into, duly executed and promptly registered on 11-03-1970 with the office of the Sub-Registrar, Bangalore North Taluk (Register No: 3984/69-70, Volume 2726, Book No. I, Pages 171-174). Further the subject of Sale was not a portion of any item of property but the entire property itself. Sy.No.55 and 62 of Saneguruvanahalli was sold in entirety.(iii) Both Rudraiah and Smt.Kittamma had always and at all times maintained, in every Court, Tribunal and forum that all of the recitals in the Sale Deed dated 11-03-1970 were true and speak to the complete truth. As of this day, no person, not even the plaintiffs, has sought to impeach the said Sale Deed. That is, no person has made any effort, howsoever, to secure any judicial Order to invalidate the said Sale Deed.(iv) The High Court failed to note that, as the plaintiffs had never bothered to lead evidence in a Court of law to show that the recitals in the Sale Deed were not true or that the state of affairs presented in the said Sale Deed were not true, the plaintiffs were not free to avoid the adverse consequences flowing from the said Sale Deed to their interests. The terms of the said Sale Deed and the legal meaning and impact thereof, in the absence of challenge, was completely ignored by the High Court.(v) The High Court failed to note the recitals altogether in the said Sale Deed. Some of the recitals were as under: Narasimha Murthy - That I am now in dire need of money due to certain family necessities and adverse family circumstances. I had raised loans for construction of house earlier, for performing the obsequies and religious rituals upon the death of my mother and for performing marriages and related expenses. For clearing these liabilities and also for the purpose of discharging debt incurred by my mother; Narasimha Murthy - I hereby declare that being the absolute and lawful owner in respect of these lands, I have delivered absolute possession under this document. I hereby assure you, should any dispute or litigation arise in the future, it will be binding on me to set right the same out of my own cost and responsibility; Narasimha Murthy - I hereby declare that I have not alienated the schedule property in favour of any other person or persons;Narasimha Murthy - I hereby declare that hereafter, being the sole and absolute owner of the schedule property, you and your children and your descendants are at full liberty to enjoy the same peacefully with all that the treasure, trees, fences, detunes, water ways, water crosses, liberties, privileges and appurtenances whatsoever available in the schedule property. And, hereafter you are at liberty to enjoy the schedule property by getting the transfer of Khata and other records in your name and by paying the taxes to the Government andNarasimha Murthy - thus I have executed and signed this Absolute Sale Deed in respect of the schedule property in your favour out of my own free will and consent.(vi) The High Court failed to note that as the plaintiffs had called themselves as coparceners of the Hindu Joint family and that Narasimha Murthy was their Manager and Karta, Hindu law had squarely demanded the plaintiffs to recognise that none of the following obligations were the sole or exclusive obligation of Narasimha Murthy:medical expenses of an ailing family member, a mother, no less;expenses for funeral, obsequies and performance of religious rites upon the death of the mother;repayment of lawful debts incurred by that mother;repayment of loans raised for conducting marriage and other religious ceremonies and for connected expenses.(vii) The above pre-existing obligations for the due discharge of which, Narasimha Murthy proceeded to transact with Rudraiah and to sell the property bearing Sy.No.55 and 62 of Saneguruvanahalli village were simply the joint family obligations upon all members of the Hindu joint family. As such, in their capacity as coparceners, the plaintiffs were not free, under whatever interpretation of any text of the Hindu law, ancient, modern or contemporary, to claim that they did not have any obligation towards the aforesaid financial, familial, moral, pious and religious obligations of their family.(viii) As such, the High Court failed to note that the Hindu law deems that the said Sale Deed executed by Narasimha Murthy for the benefit of the family would fully bind the other members of that family. For all practical purposes, it is as if the plaintiffs too were joined with Narasimha Murthy in the said Sale Deed.(ix) The High Court failed to note that Hindu law does not permit the plaintiffs, as members of that family, to evade their obligation and responsibility to their joint family and to still stake claim to the joint family property. Under the Hindu law, there is no requirement that every Hindu joint family should hold some property or the other. However, where a Hindu joint family holds any property, the same is held in trust for the good and welfare of the family. Such property is always held in trust for the due discharge of the familial, moral, religious and pious obligations of the family.(x) Further, Prahlada Rao had himself deposed during trial that he did not know anything about the loans raised by Narasimha Murthy to treat his ailing mother. As such, both Lakshminarasappa and Prahlada Rao were wholly ignorant about the adversity and difficulties in their own family. Therefore, the High Court failed to note that the plaintiffs claim to family property without assuming the financial, moral and religious obligation of the family is simply unsupported to any tenet of Hindu law. As such, the High Court fell into grave error in allowing the plaintiffs to simply stake claim to the joint family property without first subjecting that property to satisfy the familial, moral, pious and religious obligations cast upon the plaintiffs.(xi) Therefore, the preliminary decree passed by the High Court purporting to apply the Hindu law is fully opposed to the very basic faith and tenet of Hindu law. The impugned Judgment is therefore contrary and wholly opposed to the well-established principles of Hindu law as administered in this country. (xii) As such, unless and until the plaintiffs proceeded to a Court of law and sought the invalidation of the Sale Deed made in favour of Rudraiah on 11-03-1970, the Sale Deed is legally deemed to bind the plaintiffs and is further deemed to have been made for the benefit of the joint family and therefore, also represents the will of the plaintiffs themselves. Therefore, unless a Court of law received due evidence to invalidate the Sale Deed and proceeded to invalidate the Said Deed containing the aforesaid terms, the Sale Deed stands in the eye of law and the plaintiffs have no legal choice but to be bound by it.(xiii) Therefore, the plaintiffs were never entitled to any decree in respect of Sy.No.55 and 62 of Saneguruvanahalli village in view of their own choice, despite repeated argument and insistence in the Courts for the past 40 years that their claims upon Sy.No.55 and 62 may only be heard after they impeach the said Sale Deed. Forty Two years later, after it was executed, the Sale Deed continues to be free from any attack and remains in force.(xiv) Further, the High Court failed to note that the plaintiffs were under no disability of any kind to challenge the said Sale Deed. On the date the Sale Deed was executed .i.e., on 11-03-1970, Narasimha Murthy was aged 50 years. His brother Lakshminarasappa was aged 49 years, and his nephew, Prahlada Rao was aged 34 years. Therefore, neither Lakshminarasappa nor Prahlada Rao were minors or suffered from any legal disability. (xv) The High Court also failed to note that, only ten years prior to the said Sale Deed, a partition deed was entered into between Narasimha Murthy, Lakshminarasappa and Prahlada Rao on 11-08-1960. A bare perusal of this document clearly establishes that all the three individuals possessed the skills and ability to negotiate an equitable partition each of the 3 individuals negotiated and received properties the individual-wise valuation of which was remarkably near the value got by the other members - Narasimha Murthy received properties valued at Rs.2666.68, Lakshminarasappa received properties valued at Rs.2666.66 and Prahlada Rao received properties valued at Rs.2500. A deed disclosing such mathematically equitable partition clearly reveals that the executants were fully skilled in negotiating for their full legal entitlement. (xvi) Further, the High Court failed to note that Prahlada Rao had himself deposed in his evidence before the Trial Court that both he and Lakshminarasappa were very well educated and that both of them could read and write English very well. As such, the plaintiffs were under no legal or factual disability, having previously negotiated an equitable partition amongst themselves. Further, the record clearly shows that the plaintiffs were too familiar with litigation in Courts and Tribunals having litigated relentlessly for well over 40 years. So, the plaintiffs had every opportunity to ask for setting aside of the said Sale Deed. Yet, they chose not to. (xvii) Within 11 months of the execution and registration of the said Sale Deed, the plaintiffs sued Narasimha Murthy in a Court of Law. They filed a partition suit against Narasimha Murthy on 06-01-1971 in the Court of the Principal City Civil Judge at Bangalore. They conducted the partition suit for the next 7 years and even brought in Rudraiah as a fellow defendant. Even with awareness of their own legal right and the further awareness that Rudraiah held Sy.Nos.55 and 62 in his own name and had taken complete possession thereof on 11-03-1970 itself, the plaintiffs chose to not make any effort to seek the setting aside of the Sale Deed.(xvii) The High Court failed to note that the plaintiffs simply chose to not legally disturb those recitals despite electing to sue the very person in possession of those lands. Within the time allowed by the law of limitation to impeach such a Sale Deed, the plaintiffs chose to not disturb the recitals in the said deed. Even beyond the date of limitation, the plaintiffs chose to not even make a feeble attempt to disturb the said Sale Deed notwithstanding that any such belated attempt could not have been statutorily allowed.(xviii) The High Court failed to note that during their life time, the plaintiffs pursued every available line of attack against Narasimha Murthy and Rudraiah except an attack on the truthfulness of the said Sale Deed. The Sale Deed and all of its recitals remain intact. As such, with respect to Sy.No.55 and 62 of Saneguruvanahalli, the partition-Court was bound to rule that neither Lakshminarasappa nor Prahlada Rao could stake any claim unless the Sale Deed was lawfully impeached. That neither Lakshminarasappa nor Prahlada Rao chose to impeach it despite possessing the skill, opportunity, knowledge and resources to make an effort in that direction, no claim from them should have been rewarded with regard to Sy.No.55 and 62 of Saneguruvanahalli village.(xix) As such, in view of the fact that in the Sale Deed dated 11-03-1970, Narasimha Murthy had assigned specific, distinct and definite pre-existing reasons for the sale of property bearing Sy.No.55 and 62 of Saneguruvanahalli village to Rudraiah, the impugned Judgment decreeing the partition suit is made in complete ignorance of Hindu law and is wholly unsustainable in law and on facts. (xx) The High Court also failed to notice the applicable Hindu Law doctrine by Mayne (16th Edition, Bharat Law House, page 840) which states: .The text of Vyasa cited in the Mitakshara states the extent of the powers of the managing member, whether a father or not, to dispose of family property. Even a single individual may conclude a donation, mortgage, or sale of immovable property, during a season of distress, for the sake of the family, and especially for pious purposes. (xxi) Further, the burden upon Rudraiah was of bonafide enquiry and good faith both of which were duly discharged by him and in particular, due to his knowledge of the affairs of the family of Narasimha Murthy in view of his tenure as a tenant under him for two decades. In fact, even a routine allegation that is generally found in partition suits such as consideration was inadequate was not alleged by the plaintiffs. (xxii) As declared by the Full Bench decision of the Madras High Court in the case of Peramanayakam v. Sivaram [AIR 1952 Mad 419, (1952) 1 MLJ 308]: Where an alienation is made by a father or manager of a joint Hindu Family and if either the alienation is fully supported by necessity or supported by necessity except to a small extent, the alienation has to be upheld., the Division Bench was under a duty to uphold the alienation in respect of Sy.No.55 and 62 of Saneguruvanahalli which was the subject of the Sale Deed dated 11-03-1970 in view of absence of any challenge to its truthfulness. As such, the impugned Judgment deserves to be set aside in relation to Sy.No.55 and 62 of Saneguruvanahalli. (xxiii) Further, the decision of the High Court to not uphold the Sale Deed is also contrary to the decisions of this Honble Court: in Vriddhachalam Pillai v. Chaldean Syrian Bank Ltd [AIR 1964 SC 1425 : 1964 SCR (5) 647] wherein it was held: ...(1) A father can by incurring a debt, even though the same be not for any purpose necessary or beneficial to the family so long as it is not for illegal or immoral purposes, lay the entire joint family property including the interests of his sons open to be taken in execution proceedings upon a decree for the payment of that debt.(2) The father can, so long as the family continues undivided alienate the entirety of the family property for the discharge of his antecedent personal debts subject to their not being illegal or immoralin Manibhai v. Hemraj [1990 (3) SCC 68 : 1990 (2) SCR 40], wherein it was held:In any event, an alienation by the Manager of the Joint Hindu Family even without legal necessity and not tainted with immorality but for his personal benefit would be voidable and not voidin Sushil Kumar v. Ram Prakash [AIR 1988 SC 576 : 1988 (2) SCR 623 : 1988 (2) SCC 77] wherein this Honble Court had held:The managing member or Karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors(xxiv) Further, the decision of the High Court to grant relief to the plaintiffs despite their election to not ask for setting aside of the Sale Deed is also contrary to the decision of this Honble Court in Shamshersingh, v Rajinder Prashad [AIR 1973 SC 2384 : 1974 SCR (1) 322], wherein it was held:In a suit by the son for a declaration that the mortgage decree obtained against his father is not binding upon him, it is essential for the son to ask for setting aside the decree as a consequence of the declaration claimed and to pay ad valorem Court fee under s. 7(iv)(c). A decree against the father is a good decree against the son and unless the decree is set aside, it will remain executable against the son and it is essential for the son to ask to set aside the decree(J) The plaintiffs and Narasimha Murthy were not coparceners at all as there was no joint Hindu family in existence after 11-08-1960:(i) The High Court has proceeded on the basis that the joint family status between Narasimha Murthy, Lakshminarasappa and Prahlada Rao had not disrupted and that both the partition suits were made in respect of joint family property. It is said in the impugned Judgment [High Court: 46. The plaintiffs suit is for partition of certain joint family property which was jointly held at the time of the previous suit and continues to be joint up to now]. In the judgment of the Trial Court, it has been held that: [Trial Court: 89Admittedly, the jointness of the family got disrupted on 11-08-1960 when all the ancestral properties and other joint family properties were put into the hotch-pot and dividedIn view of the absence of the joint family as on this day, it cannot be said that the present schedule properties are joint family properties. Therefore, as on today, they are joint properties](ii) While the petitioners respectfully submit that there was no joint family at all after 11-08-1960 between the plaintiffs and Narasimha Murthy, even on the implausible theory that they were still a joint family, the petitioners submit that the impugned Judgment is not sustainable. As such, in some references, Lakshminarasappa, Prahlada Rao and Narasimha Murthy are referred to as coparceners for the purpose of argument and convenience only and not as an admission.(iii) The High Court committed a grave error in ruling that the plaintiffs were coparceners and that the joint family status between them was intact and not disrupted. Due to this mis-characterisation, the High Court has wrongly applied the law applicable to coparceners to mere co-sharers.(iv) The High Court failed to note that the plaintiffs were not coparceners at all with Narasimha Murthy. They were