 Otherwise, it is chicken to be sure. And we had already promised that we will be coming out with the second part of probable defenses in the partition suits. But today, there will be more emphasis on the judicial journey as such on this aspect. Since tomorrow we have Christmas and the people are in a celebration mood. We thought we should start perfectly on time. And as such, without taking much time, I would request Mr. Rao to share his knowledge. Over to you, sir. Mr. Rao. Good evening, everybody. This is the second part of my lecture. The first part basically focused on two important aspects. The first aspect was when property is acquired on succession to a male, the property is acquired by them as tenants in common and not as joint tenants. And I dealt with the matter as to what happens to the property in the hands of the persons who succeed to the property. And what is meant by tenancy in common and what is meant by joint tenancy. I also made a reference to a few decisions where property is acquired by a member of the joint family. There it would be joint family property of the parties or it would be self-acquired property of the person who has acquired the property in his name. These two aspects I dealt with in my last lecture. Now I go to a few other aspects of the matter. And the next question that I would like to take up for discussion would be where property is acquired in the name of a junior member of the family in what circumstances the property would be joint family property. In fact, the question is covered by a decision of the Supreme Court reported in the year 1966 Supreme Court, 411, A Nair versus G Amma. In this case, a decision of a bench of three judges. Justice K. Subbarov has delivered this judgment. And in this judgment, it is clearly stated that there is no presumption normally where property is acquired by a member of the joint family and the family had sufficient nucleus out of which the property in question could have been acquired. Then the presumption is that the property belongs to the joint family. But where the property is acquired by a junior member in his name, there is no presumption at all. The court will have got to investigate the facts and try to find out whether the money utilized for the purchase of this property by the junior member was, in fact, acquired with the funds belonging to the joint family. So if this connection is not available, then the property would continue to be the self-acquired property of the acquirer, though he is a member of the joint family. Now there are two decisions of the Karnataka High Court in this regard. One is a decision reported in year 1973 Mysore, page 113, Shivaji Rao versus Rukminyama. This is a case in which Justice E. S. Venkataramaya has delivered the judgment. I read only one paragraph from the head note. Ordinarily, when a property stands in the name of a junior member of the family who is not functioning as manager, the property would be considered as belonging to him until it is established by other persons who claim that the set property is joint family property by adusing reliable evidence showing that it is joint family property. If any evidence is forthcoming that the money utilized for buying the property belongs to the family, then the set property would be treated as joint family property. So therefore the court has said there is a presumption. The presumption is that it belongs to the joint family member and the person who asserts that the property is joint family property will have got to lead evidence to connect that the consideration for the purchase of this property flowed from joint family funds. In this particular case, which was before the Supreme Court, which was before the High Court, their lordships have made a reference to the various account books maintained by the joint family in respect of the business of the joint family. In those account books, the advance for purchase of this property and the consideration for purchase of the property had been supplied by the funds of the family generated by the joint family business. So therefore, in that particular case, the court held that the property did not belong to the junior member exclusively and it was joint family property. Then there is one other decision of the Karnataka High Court when their lordships have considered this matter and that is a decision reported in Ayala 1987 Karnataka, page 2883. In fact, how the evidence has got to be reduced has also been stated in this decision. In the case of acquisition by a junior member of a joint family, the fact that the joint family possess considerable nucleus capable of yielding income sufficient to enable the acquisition of the property is not by itself sufficient to afford that the acquisition by a junior member of the joint family is with the aid of the joint family and the presumption to that effect cannot be drawn. It shall have to be proved either by showing that it is acquired by the joint family funds or by proving that the junior member was in charge of the management of the joint family property or business, though not the karta of the family capable of yielding income so as to enable him to purchase the property. In the latter case, if such junior member was not able to show that he had independent source of income or consideration to the acquisition of the property had flown from particular source not connected with joint family property, a presumption shall have to be drawn that such acquisition of property was with the aid of the joint family funds in as much as in such a case, the junior member being in possession and management of the joint family property or business, his position will be akin to a karta. So therefore, the most important thing is if you are appearing for the defendant, see if the way you have got to cross examine is that on the date when the property was acquired he was not in the management of the joint family properties. Suppose it is admitted by the parties that the senior most member was in the management of the family properties, it is better not to ask further questions in regard to the management of these properties because when once it is admitted that the senior member of the joint family who is the karta of the family is in the management of the affairs of the family, the income from the joint family funds does not flow into the hands of the junior member who has acquired the property. In such a situation, the your defense that the property is not the joint family property but it is self-acquired property the junior member would succeed. So therefore, a careful pleading has got to be made and a careful cross examination should be there so as to guard the interest of your client that the property purchased by him being a junior member of the family does not belong to the joint family. So this is one aspect of the matter which arises on various occasions in a number of cases in which we appear. Then the next question I would like to deal with is where property is acquired in the name of a female member of the family. What should happen? Whether such a property could be joint family property or not? This, in fact, in most of the cases the father purchases the property in the name of the mother or the daughters who are unmarried. Therefore, in such situations we will have to defend our clients to say that the property purchased by the female member belongs to her exclusively and it is not joint family property. In fact, I would like to invite your attention to a decision of the Supreme Court reported in 2009, S.C.A.R. Civil, page 728. In this was a case arising out of a dispute from Karnataka and what had happened was a few properties were acquired in the name of the mother-in-law. It was a suit for partition by the daughter-in-law. Again, if the mother-in-law and others the father-in-law was dead. So some properties were acquired in the name of the mother-in-law. So the contention was that the mother-in-law had no independent income of her own. Therefore, these properties which are purchased though purchased in the name of the mother-in-law or purchased by the father-in-law with the funds belonging to him and therefore they are also joint family properties. The trial court decreased the suit in respect of the properties which were acquired in the name of the mother-in-law. The high court upheld it and this is how the Supreme Court has said that by operation of section 14 that this property would become the self-acquired property of the female and it does not become joint family property. I would like to make a reference to a few paragraphs in the decision of the Supreme Court. This is what the high court said. I read from paragraph 11 of the judgment. In the first page, the high court found that no evidence was used by the appellant that is the mother-in-law who had filed the appeal to show that she had any independent source of income. It has also come in evidence that the time of death of the husband of the appellant only G. Srinivas was 16 years old and the other children of the appellant herein were minors and they had no income. The high court found that evidence was used to show that the husband of the plaintiff had substantial income and he owned an ambassador car. In view of this evidence, the high court held that the properties at items one and two are joint family properties. So that was what had happened before the high court. Then the contention before the Supreme Court was this. The London Council for the Appellant contended that without any evidence, the high court came to the finding that the husband of plaintiff number one had substantial income. From the list of documentary evidence produced before the trial court, nothing appears on record to indicate that there was any document evidencing the income of the husband of plaintiff number one. Therefore, the high court fell in error by folding that though the properties at items one and two are recorded in the name of the appellant that is the mother-in-law, they are joint family properties. This was the argument. In fact, the court did not go into the question of the income at all. The court dealt with this matter squarely under section 14-1 of the Hindu Succession Act. This is what the court says in paragraph 14 of the judgment. Section 14-1 of the Hindu Succession Act has a bearing on this issue. As the properties at items one and two are recorded in the name of the appellant, this is what is important, are recorded in the name of the appellant. In the absence of any evidence to the contrary in this case, the appellant by operational section 14-1 of the Succession Act is the full owner of the properties. In the facts of this case discussed above, it has to be accepted that those properties are not joint family properties, but the appellant is the sole owner of these properties. The principle laid down in section 14-1 of the Succession Act has been read by courts in a very comprehensive manner. Since the Succession Act overrides the world law on Sridhana in respect of properties possessed by a female. They refer to year-year 1966 Supreme Court, 1879. Justice Ramaswamy speaking for the court held that section 14-1 of the Act contemplates that a female Hindu who in the absence of the said provision would have been a limited owner of the property will become full owner by virtue of the said section. Such female Hindu will have all powers of disposition to make the estate heritable by their own years and not revertible to the years of the lost male holder. They refer to about four or five decisions and ultimately the Supreme Court concludes in view of such consistent views taken by this court on the interpretation of section 14 before section 14-1 of the Set Act would apply in respect of the properties which stand in the name of the appellant is what is important in respect of the properties which stand in the name of the appellant and the appellant would become the full owner of the properties so therefore they allow the appeal so therefore when once the property is recorded in the name of the female then section 14-1 applies if section 14-1 applies she becomes the exclusive owner of the property and the property would not be joined by the property. In fact this there is another decision of the Karnataka there are two decisions of the Karnataka court which have dealt with this matter in fact in 2015 one Karnataka Lajarnal page 698 the one sentence in this decision is very important this is what the court has said even if it is presumed that the joint family by investing its funds has purchased the property in the name of a female member of the property such property becomes the absolute property of the female member and the other members of the property family have no right to ask such female member to put the property into the common hotspot seeing part seeking partition and respect of the property between the members of the family this legal aspect has been completely overlooked by the courts below so in that case the high court had held that even if the joint family funds for utilization for the purchase of the property in the hands of the female then the court said even in such a situation the property would not be joint family property it would be the individual property of the female then the third decision is the decision of the Karnataka High Court reported in ILR 2020 Karnataka page 2697 that is Padnavati versus Jayama it's a bench decision of justice Govindra Raju and T. Raju justice B. Nagaratha in this decision the decision of justice the 2015 Supreme Court justice Mudihar was not referred to but in that case what happened was the lady in Foo's name the property was acquired in her evidence said that she was actually in the management of the properties of the family and that she was receiving the funds of the joint family into her hands and she has actually purchased the properties in her name with the joint family funds so in view of these admissions made by the female herself that the property was in fact purchased from the joint family funds the court came to the conclusion that the property belonged to the joint family and not to the female so therefore the broad proposition that section 14-1 applies but even if the property is purchased from joint family funds it would be the property of the female was not pressing to service and the court made a departure from that rule and said when there are admissions in that regard that the property in fact was purchased with joint family funds the property belongs to the joint family so therefore this is the second aspect of the matter which I have dealt with in the current in the present lecture then the third question that normally arises is properties are acquired in the name of some of the members of the family after there is a division of status in fact partition consists of division of status number two and division of properties by means and bounds these are the two stages in fact a division of status may take place in some cases and the actual partition may postpone in fact the situations in which a division of status takes place is in a situation where a member of the joint family dies where a member of the joint family dies there is a notional partition by reason of the death of a member of the joint family and therefore there notionally there is a division of status and number two when one member of the family conveys his intention to have a partition of the properties by issue of a notice if a notice is issued and there are number of and it is brought and this intention is brought to the notice of all persons who are entitled to a share at a partition then that would result in the division of status though a partition actually by means and bounds does not take place or the third situation is where a suit for partition is filed immediately after a suit for partition is filed there is an unequivocal expression of an intention to separate from the family and in such a situation also there is a division of status in fact when once a division of status takes place and the continues to be in the management of the family and he acquires properties even with the aid of the joint family income what would be the character of those practices so therefore in the supreme court has said in area 1972 supreme court page 1279 that is if a member of the joint family remains in possession of the entire properties of the family after a severance of status there is no presumption that the property acquired in his name must be regarded as a as acquired for the family where this is what is important where rents and profits are received by the member in possession he would be liable to account for the same but the funds in the hands of that member does not become impressed with any trust in favor of the other members therefore if yes if such such a member acquires property with the funds in his possession the other members could not climb any share in this property so therefore this is what is important so therefore suppose a notice is issued and the proper and the manager of the family who is in possession of joint family funds which is acquired by him subsequently purchase of some properties in fact he is liable to account for the funds but the property does not get impressed with the character of joint family properties and the property remains to be the self-acquired property of the manager because it is acquired after the division of status in fact this question has also been referred to in a decision with Karnataka High Court reported in 2012 three cases here page 422 in fact this is a division bench decision consisting of Mohan Shardan Shandran Gaudran and K. Govinder Rajalu in fact a reference may be made to paragraph page 430 of the judgment in fact this is a what they have said at paragraph 17 at page 430 it is needless to observe that partition brings severance of status between the co-partners the members become tenants in common subsequent acquisition by a member even with joint family funds in his possession belonging to him alone even with joint family funds in his possession belongs to him alone and the other members cannot time a share therein in M they refer to the supreme court decision if one of the member remains in possession of the entire property even after severance of status there is no presumption that the property which is acquired by him after severance of status must be regarded as acquired by him after the severance of status and the same must be regarded as acquired for the family where rents and profits are received by the member in possession he would be liable to account for the same but the funds in the hands of the member do not become impressed with any trust in favor of the other members therefore if such a member acquired some property with the funds in his possession the other members could climb no share in this property so therefore these are the principle this principle will have got to be kept in mind where large number of properties are there and a notice is issued for seeking a partition and if these properties are acquired subsequent to the issue of the notice then it would be the exclusive property of the Kartha though he has acquired these properties with the joint family funds in his possession so therefore and there in fact the if we go to Vinita Sharma's case there are a few passages in Vinita Sharma's case which throw a doubt on the proposition that where a member of the family dies and a notional partition takes place where a notice is issued and a partition takes place the notional part and a assurance of status takes place when a suit is filed the assurance of partition takes place this is the established law prior to Vinita Sharma's case but however the Vinita Sharma's case has expressed some doubts in this regard and the law appears to have changed and the principle has not in fact the earlier decisions have not been overruled in this regard in fact this is what in fact there is one decision of the supreme court in Guru Padappa Karnappa Magadam's case where the principle with regard to the notional partition has been discussed in great detail by J. S. Chandrashtur the court makes a reference to the decision in Vinita Sharma's case and this is what the court has said the only question involved that is in that Guru Padappa's case this is what the supreme court says the only question involved in the aforesaid matter was with respect to the explanation of section 6 and the determination of the video share in that case the question was not of fluctuation in the coparstery body or by a legal or by a legal provision or otherwise everything remained steady no doubt about it the share of the disease has to be worked out as per statutory fiction of partition created however this is what is important however in case of change of body of coparsters by a legal provision or otherwise unless and until the actual partition is finally worked out rights have to be recognized as they existed at the time of the final decree it is only the share of the disease coparstner and the years are ascertained under the explanation to section 6 and not that of other coparstners which keep on changing with birth and death so the in fact when once a notional partition takes place the shares of all the coparsters they get crystallized that's the established principle in fact the supreme court has said in even in the Taishar mass case that no when the body of coparsters itself changes what is contemplated on section 6 is only for the purpose of ascertaining the share of the person who died and his share will have got to be worked out by succession under section 8 and it does not bring about a division of status that is what the supreme court has said then there is another paragraph that is a paragraph 99 in Vinita Sharma's case this is what the supreme court has said once the constitution of the coparstern changes by birth or death shares have to be worked out at the time of actual partition the shares will have got to be determined in the changes scenario the severance of status cannot come in the way to give effect to statutory provision and change by subsequent event the statutory fiction of provision is for short of actual provision it does not bring about the disruption of the joint family or that of a coparsternary is a central position of law so therefore the court goes to the extent of saying that it does not bring about a disruption of the joint family or the coparsternary for the reasons mentioned about we are also the opinion that mere severance of status by way of filing a suit does not bring about the partition till the date of the final decree change in law and change due to subsequent event can be taken into consideration then in the operative portion of the judgment also they make a reference to this and this is what he stated in the operative portion of the judgment at Satara 4 of Parah 129 in Vinita Sharma's case the statutory fiction of partition created by Prabhupada's order section 6 of the Hindu succession act 1956 as originally enacted did not bring about the actual partition or disruption of coparsternary the fiction was only for the purpose of ascertaining share of the deceased coparsternar and when he was survived by a female heir of class 1 as specified in the schedule of the act 1956 or a male relative of such female the provision of the substituted section 6 are required to be given full effect notwithstanding a preliminary decree has been passed the daughters ought to be given a share in the coparsternary equal to that of a son in pending proceedings for final decree or in appeal so therefore the whether this decision in Vinita Sharma's case which says that the death of a coparsternar does not bring about a division of status issue of a notice filing of a suit none of these things brings about a division of status whether such a rule would apply only to cases where there are yes where there are women in the family who get the status of coparsternars by reason of the amendment of section 6 of the 2005 act in the absence of female coparsternars then my feeling is that the law with regard to division of status established by a large number of decisions would still continue to apply so therefore this is a gray area created after the supreme court decision in Vinita Sharma's case and the confusion will have got to be cleared by the supreme court itself and the law is not very clear on this aspect of the matter then I would go to one other question normally what happens is in large number of cases there will be no registered document evidencing a partition the clients come up with an unregistered document bringing about a partition a list of properties and all those documents will be brought to you for preparing a defense if it is a document under which an actual partition has taken place in that in such a situation under section 17 of the Indian Registration Act registration is compulsory if it is not registered the document would not be admissible in evidence number two if the document says that we have already partitioned the properties and what is being recorded is only a record of a previous partition in such a situation the court has said in a large number of cases that the document does not require registration and it is admissible in evidence number three there are cases where nothing is written only four or five schedules indicating the properties allotted to the shares of various persons is mentioned when the list of properties are available the list of properties are signed by all the persons who are entitled to a partition in such a situation the courts have had that mere list of properties indicating the properties allotted to the shares of different sharers it would not require partition so therefore when these documents are placed before the court we have got to first look at these documents and honestly decide whether the document is admissible in evidence or not and if the document is admissible in evidence your claim for partition can be upheld on the basis of the document if the document is admissible in evidence what happens then I would like to invite your notice to one decision of the supreme court reported in year-year 1968 supreme court page 1299 shiro mani versus hem kumar in fact in this decision the document was held to be admissible in evidence exhibit d4 was a document in fact I would only read one or two lines we are satisfied in this case upon examination of the evidence that the intention of the parties was that exhibit d4 should be the sole evidence of partition since we have held that exhibit d4 is not admissible in evidence an account of non-registration to establish when the property was so partition it is manifest this is what is important it is manifest that no oral evidence is admissible to prove any subsequent partition having regard to the provisions of section 91 of the Indian Evidence Act so therefore you have got an unregistered partition deed mutations have taken place all other documents indicate that the properties or persons are residing separately from each other so therefore when once you produce such a document and the document is held to be inadmissible you are totally gagged you cannot lead any other evidence to show that there was actually a partition if the document is held to be inadmissible in evidence oral evidence regarding partition is not admissible in section 92 of the act therefore as a defense counsel what is it that you can do the best way is not produce don't produce the unregistered partition deed which would be inadmissible in evidence take a plea that an oral partition has taken place and the oral partition has been acted upon and you can in that such a situation a oral partition is tenable in law such a crime can certainly be applied and in such a situation you can also show that mutations have been accepted in regard to the oral partition persons are in possession of those properties which are allotted to their share they have paid kandahim separately to the properties allotted to their share so therefore your plea of oral partition could be substantiated by the conduct of the parties subsequent to the partition so if this is established you will be able to justify a oral partition if you produce the document then you will be gagged document is inadmissible in evidence no oral evidence can be given under section 92 so therefore this important factor will have got to be borne in mind and it is at the time of filing your defense you have got to take a proper stand in this regard in fact that oral evidence of partition would be admissible where the document is said to be inadmissible in evidence that would there is another decision of the Karnataka High Court reported in 2015 5 KCCR page 373 this edition of Justice Yen Kumar Venkataswamy versus Anima I read only one sentence from the head note unregistered partition did admissibility of head such document must be registered if not the same is inadmissible in evidence for want of registration then the next few sentence next portion is important and oral evidence to prove its terms is not permissible to be adduced oral evidence to prove its terms is not permissible to be adduced so therefore well when a document like that is brought before the court you will have to be very careful to decide whether the document should be produced or not and there is also one other important thing in some situations it so happens that after such a document has come into existence your client has purchased large number of properties say she is the manager of the family even with the funds of the family he has purchased these properties then this document could be relied upon to show that there was division of status but the document cannot be relied upon to show that there was a partition by bits and bounds so therefore if on examination of the entire matter if you find that putting this document if you can prove a division of status very clearly then and the properties acquired by your client subsequent to date that they are large in number and if you want to protect those properties though you are claimed for partition by bits and bounds cannot be applied in such a situation you can take the risk of producing the document therefore you at the time of preparing this defense you will have to be very careful when once you take a stand into the written statement you cannot decide from that stand subsequently and therefore this question will have got to be very clearly kept in mind while preparing a defense then there is one other aspect of the matter about which I would like to draw the attention of the audience that is there are situations where one person in a joint family walks out of the family and a registered release date is executed under the registered release date probably a few properties are given and or sometimes a small consideration is shown for the release then it would be very difficult for you to convince the court when properties worth crores of rupees are there and the release date under the release date when 500 or 10000 rupees is given under the release date on the fair circuit it would appear that the release is not a document which was intended to be acted upon in fact this question was considered by the Karnataka High Court and the Karnataka High Court has said that a release is a unilateral document a release can be executed for consideration or even no consideration even in such a situation the release would be valid in fact this is a decision of the Karnataka High Court reported in 2006 3 Karnataka Large Journal page 177 this is a bench decision and I would draw the attention of the court to one important in fact this was the argument that was advanced before the court it is not 3 GS Vishweshwara I read from paragraph 56 3 GS Vishweshwara the learned senior counsel for the second appellant contains that the document exhibit D6 is void hit by section 25 the contract act since the consideration of rupee 1 to each of the daughters that is sisters for release and relinquishment of their rights to climate share is illusory and is no consideration the eye of law while placing reliance upon the decision of the upper court in so and so and so and the decision of the division bench of this court in Sajansah versus Esen Dhondusa 3 Narayan Learned counsel for the first appellant acts that rupee one consideration to each of the sisters would shock the conscience of the court an ingredient which would weigh heavily with the court of equity so therefore that was a case where one rupee was given to the sisters as consideration for the release then this the counter argument this was the counter argument that was placed before the court countering the plea of inadequate consideration 3 Ron places reliance on the decision with special bench of the Madras High Court in the case of chief controlling revenue authority world of revenue Madras versus Dr. K. Manjunath Ray very needy said that a release in law may be affected either for consideration or for no consideration then considering this question the this is what the court said that paragraph 71 of the judgment it is not no doubt true that the governance in the portion did exhibit D6 read that the sisters have released and relinquished their right to climate share in the family properties for a consideration of rupees one each it is straight that relinquishment did is effective with regard to joint or joint family properties but not separate properties which could be done only by a conveyance at a partition it is open to the parties to arrive at an arrangement which which according to them is just and equitable in the circumstances of the family at that time a partition is an agreement between two or more persons who are bound by it whereas a release deed is a one-sided document which binds the executant alone a release in law may be affected either for consideration or for no consideration we draw then that is what the court has said so therefore see in many cases it happens in fact the release deeds could have been executed by some sometimes it happens that there will be intercast marriages of some of the daughters in the family and at that time release deeds would have been executed and the entire consideration would not have been shown the release deed and some large number of gifts would have been given and in the release deed a small property or a small sum of money would have been shown and normally these documents are attacked on the ground that the family want to cross of rupees and the release deed is for a part result so in such a situation you should be able to justify that the release deed though for a small sum is recognized by law as a release deed is a unilateral document and it could be either for consideration or for no consideration so therefore these principle unless these principles are clearly in mind the defense would not be very effective therefore the entire situation will have got to be analyzed you have got to carefully hear your client understand the situation and then prepare the pleadings in this case because ultimately if your climb is not supported by proper pleadings the climb will not be ultimately applied this is one other important factor then there are cases which are before courts where alienations would have taken place long back and in such situations the grandsons of the family they come before the court after passage long passage of time and they question these alienations then in such a situation what are the questions that should be in our mind the most important question that should always remain in our mind is to find out whether the person who has come before the court explained if was born on the date when the alienation is made if he was not born at all on the date when the alienation is made he cannot challenge the alienation at all and therefore the dates of birth the dates of alienation all those things will have got to be properly appreciated in conducting the defense in fact this is a settled position but anyway I would invite your attention to a decision of the supreme court reported in 2013 sccr 746 Rohit Chauhan versus Suryandr Singh this is what the court says supreme court has said the movement a son is born properties become copartnery property and the son acquires an interest in the copartnery property and becomes a copartner for this reason an alienation made before his birth cannot be questioned by the copartner so these are no doubt very settled principles but what happens is in trial courts unless you are able to justify your argument by authorities you would not be able to pursue the court to come to a particular conclusion though these are obvious legal propositions it would always be better that we are armed with proper authorities in this regard then the next question is limitation in a suit for partition see is there a limitation in a suit for partition in fact in large number of cases in my 50 years of practice daughters attack alienations which have which are made by all the male members of the family long back and the purchasers will have would have formed layoffs they would have sold the properties to various persons also in such a situation is there any limitation for firing a suit for partition in fact this question has been considered by the karnataka i court in a decision reported in 2015 to kccr 1437 in fact in this case this is a bench judgment and in this case justice kumar has analyzed the entire law on this question by referring to various authorities and we may make a reference to paragraph i would in fact this is one important question that a suit for partition has practically no limitation at all this question this must be always in our mind and this is what in fact co-ownership has been discussed in the earlier paragraphs and this is what is stated at paragraph 64 of the judgment merely because one co-owner is in exclusive possession of the property and the other co-owners are deciding separately it cannot be said that the co-owner who is not in possession or hosted from the property in the absence of ouster hostile title mere exclusive possession would not constitute either adverse position or ouster even in case of alienation though the alini is put in exclusive position of portion of the property as the property is not divided by meats and bones he cannot live the exclusive title in the property for the co-owner who is not a party to the alienation is deemed to be in possession of the property in fact that was a case where the sisters were married in 1958 and the father died in 1972 and the suit was filed subsequently in fact under the under it I read from paragraph 67 because it is settled principle of law that mappusal pleadings but we deliberately construed and pleadings but we construed as a whole in the instant case absolutely there is no plea of adverse position or buster in the written statement no doubt applications are filed for conversion of land for non agricultural purpose layouts have been formed and approval has been obtained even these acts cannot constitute a hostile act or assertion of hostile title against the co-owners at best it may amount to development of the properties by those in charge of the same and managing their properties so therefore see the plea of ouster is something which is very difficult to prove in fact in one of the cases which I was conducting I was appearing for the plaintiff I was appearing for the defendants the plaintiff had filed a suit relationship had been admitted here we was residing for almost 30 or 40 years in Andhra Pradesh and he came back and filed a suit for partition in fact there was nothing on record when I spoke to my client to say that there was ouster in the that could be pleaded but in the course of evidence it so developed that the person who had gone away over 30 or 40 years bad the reason why he went away was this he allowed with his with his brother's wife see if this one situation was put in the pleading I could have substantiated my client for ouster because this particular fact was not brought to my notice to my clients I did not plead this ultimately I could not succeed on this plea because there was no pleading in this regard with regard to ouster so therefore see in a partition suit whatever defense you might have taken one thing must be in your mind you cannot normally succeed on a plea of ouster or at birth position however strong the plea is and even if the suit is filed after 100 years then even then the suit would not be barred by time in fact that's exactly what the Karnataka High Court has said in one decision 2015 five Karnataka large journal page 478 D Ramakrishna versus D Balakrishna if you in fact I would read only one two sentences in this you know in this matter that is by making a reference to the last portion at page 497 it is settled law that even 100 years of possession will not create title and until that there is a plea of adverse possession unless and until there is a plea of adverse possession the question of title does not arise in the case on hand there is no plea of adverse possession the the seventh defendant do not admit the title of the plaintiff the plaintiff do not admit the title of the seventh defendant so the issue is who is having title there is no question of limitation because there is no plea of adverse possession but that was also a suit for partition in fact see the law of limitation is always intended to limit the exercise of the right and there are two situations which are not met by the law one is a suit for partition in fact in a suit for partition some type some if a person acquires a right as a co-poster or as a sharer at some point of time some limitation should be fixed for exercising the right for if a suit could be filed after 100 years imagine what should happen to the purchase what should happen to is a number of transactions that would have taken place therefore it is high time that the legislature should step in in fact even after the amendment of article 65 of the Indian limitation act if the plaintiff proves title and if the defendant does not prove adverse possession even if 100 years has elapsed the suit for declaration of title truth does succeed so therefore I feel that having regard to the object of the law of limitation there must be some limit for a sharer or a co-personer or for a person who has become the owner of the property to exercise that right either for recovery of possession or for injunction a limitation must be there if that limit otherwise there will be the whole title would get unsettled even after a large number of years this is a area where the legislature should step in and take remedial measures then there is one other situation which we normally come across there's a situation where the a minor challenges the alienation made by the by the father who was a minor at the time the property was sold and then the start this the son challenges the alienation then in such situations section 60 article 60 of the limitation act would be applied therefore such a suit will have got to be filed within three years from the date on which the minor attains majority if the suit is not filed within three years after he the minor attains majority the suit would be barred by time and one of the important factor is that there must be a specific plea for a challenge for cancellation of that document because the document is executed on behalf of the minor the minor would be bound by the sale deed if there is no prayer for cancellation of the document then even in such a situation the suit would not be would not be entertained in one particular case the supreme court said that an application for cancellation of the sale deed or with a prayer that the sale deed does not bind him should be made within three years so therefore there was a lacuna in the client an application was filed for amending the client the court said that he cannot seek an order for cancellation of this document without beyond three years and therefore the application for cancellation of the document was also rejected by the court in fact i would invite your attention to few decisions in this regard and because of paucity of time i would not go into into into these cases in detail that is there are two supreme court decisions a i r 2001 supreme court paid 2607 that is in a suit by a minor challenging the alienation made by the guardian relief for setting aside the sale deeds should be made and this relief can be climbed by the minor only within three years from the date of attaining majority further it is also necessary to seek a prayer for setting aside the sale deeds as otherwise the suit would not be maintainable in fact i would request every one of you to read this decision here you are 2001 supreme court paid 2607 and another decision is here 2016 supreme court 1666 that is Narayan versus Varsha south then there is one other decision of supreme court in a i r 2001 supreme court 2607 in fact these principles are established and they are followed by a number of decisions of the karnataka high court and to make a reference to two really recently decisions i would say 2014 two cases here page 1587 h m rudra radhya versus umma and others then 2011 one karnataka larger than page 49 that is hd hanumanthappa versus mahmad saab and others so therefore see we will have to we will have to carefully find out by preparing a defense whether we can take a successful plea to say that the suit is barred by time in fact the kerala high court while considering the limitation for a suit for partition where properties are alienated they have evolved one principle this is what the kerala high court has said if at the time when the property is sold the vendors profess to be the exclusive owners of the property and they sell the property then in such a situation the suit by the other co-sharers who have not joined the sale deed will have got to file a suit within 12 years from the date of the sale so therefore what is professed to be sold is not a portion of the property the entire as if the vendors are the owners of the entire property the property sold therefore the court falls from that date the adverse position would begin to run and if the vendors say that they are not the owners of the entire property and what they are selling is an undivided portion of the entire property and though the entire property is delivered to the purchase in such a situation adverse position does not begin to run and the suit would not get time for so therefore it is necessary for the legislature to properly remedy these areas before a a a conclusive conclusion be arrived at in respect of such situations and this is another important factor that has to be kept in mind then there is one other area under section article 65 of the limitation act in fact article 65 explanation 2 deals with the case where a person climbs title to the property on on succession to a female and and in such a situation what would happen if the suit is not filed within 12 years from the date of death of the female in fact one decision of the supreme court is there in this regard that is ILR 2014 2006 Karnataka page 2291 it is Jagat Ram versus Varinder Prakash in this decision the client if filed a suit after a period of 12 years from the death of the lost female holder who was in who was the owner of the owner of the property and the court held that because the suit was not filed within 12 years from the date of death of the female under from the plaintiff was climbing title the suit was barred by time in fact I would refer to a particular portion of the judgment of the supreme court that is a paragraph 6 in our view the high court was right in folding that the suit was barred by limitation article 65 the limitation act 1963 prescribes the period of limitation for possession of immobile property or any interest based on title where the suit is by a hindu or a muslim entitled to possession of immobile property on the death of on the death of a hindu or muslim female section 65 b in express term provides that the possession of the defendant shall be deemed to become adverse only when the female dies now that's the wording of the statute itself the limitation prescribed is 12 years beginning from the date when the possession of defendant becomes adverse to the plaintiff learn that counsel submitted that in view of section 65 the indian limitation act 1963 the suit had to be filed within 12 years from the date on which possession of the defendant became adverse and therefore it was immaterial as to when the hindu female died it is not possible to sustain the contention because the article itself provides that possession of the defendant shall be deemed to become adverse only when the female dies thus there is no scope for the argument that limitation does not run from the date on which the hindu female died and it would start running from some other date in our view the court has right to help that the suit should be filed by the plaintiff within 12 years of the death of the hindu female namely Srimati Krupi and the same not having been filed within 12 years was barred by limitation in fact this decision is subsequently distinguished by the supreme court in AIR 2017 supreme court 2491 there the lordship to supreme court have distinguished this earlier decision by saying that where the climate is under the female so where the female had a life interest in the property and hurry interest was not exclusive and where the female was not the exclusive owner of the property then this article would not apply if the female is a limited owner of the property this article would apply and there is one other decision of the cannot type court supreme court which is reported in 2014 five cases here paid 154 in that decision the supreme court has said article 65 b would not apply to suits for partition so therefore unless these three decisions are carefully read it would not be possible to understand the nicety of the interpretation of article 65 b of the indian limitation line then then there is one other question which normally arises in the courts is this in fact the property belongs to the father the father would have sold the property and normally it happens that the sons are also included as windows this property so therefore when the this alienation is telling the the the plaintiff would say look at the sale deal all the members of the family have joined together and sold the property so therefore obviously the property is joint family property therefore we cannot content that the property is not joint family property at all merely because the property is purchased by the father in his day in fact such a contention is repelled in one of the in fact there are a few supreme court decisions also in this regard i would refer to a decision reported in air 2004 karnataka page 479 the contents of the sale deed i read from headnote 2 sale of property by father sale deed retries that the property in question for self-required property mere fact that he joined his sons in the execution of the sale deed would not be a ground to infer that property conveyed under the sale deed is joint family properties they also further say amongst Hindus it is common knowledge for the children of the vendor to join the execution of a sale deed of removal property for and by way of abundant caution merely because the son was joined in the execution of the sale deed it cannot be inferred that the removal property conveyed under the sale deed was answered for property in fact it could not in fact it could sometimes be even contended that the property is acquired is thrown into the common hodgepot and because the property was thrown in the common hodgepot all the persons have also joined and and have executed the sale deed the court says you have got to examine who has acquired the property whether the it has acquired the character of self-required property or joint family property independently merely because all the co-partner the father the sons everybody has joined it does not mean that the property is a joint family property and the plaintiff could be entitled to a share now and there are a few uh technical contentions which are generally taken in fact sometimes it happens that uh some one or two properties are partitioned some properties are not partitioned it's admitted so the house property was partitioned we begin to live separately the other properties are not partitioned normally the presumption is that the family is joined and it is for the person who says that the property that the family is divided to prove that it is so divided in fact the supreme court has said if there's an admission that one property is divided then it would mean that all the properties are divided that is that would be the presumption in fact I would invite your attention to a decision the supreme court reported in 2004 SAR civil 552 in this case this is what the supreme court has said I read only one sentence from this decision once a partition in the sense of division of right title and status is proved or admitted the presumption is all joint family properties was partitioned or divided so therefore when once the partition of one property is admitted the presumption is that all the properties are also divided so therefore these these principles are in our mind evolving a defense would be quite easy then there are cases where all the properties of the family are not included in a partition and one property is excluded and it is brought to the notice of the court that that property is excluded the normal rule is all properties of the joint family should be included in a suit for partition the principle is this in fact the question of a suit being bad for partial partition would arise only in cases where an alienation of some of the properties is made and the areas are also parties to the suit in such a case what happens is if the court should hold that the plaintiff is entitled to a share in the properties which are alienated then the court can direct unequitable partition of all the properties of the family which are alienated and not alienated and direct that the properties which are sold be allotted to the share of the co-personers who have sold this property so that the rights of the purchaser in the property which are purchased by them could be upheld that this is a rule of equity in fact in a according to me in a suit for partition where the properties are not sold at all and where are 102 properties are not included then what happens is merely because those 102 properties are not included the suit cannot be dismissed because the question of adjusting equities are not there here all the shareers are parties to the suit and if 102 properties are not included a separate suit cannot be filed because it would be barred under order to rule 2 unless leave is sought as to why those properties are not included in the suit for compelling reasons so therefore the second suit for partition in respect of properties which are not included in the earlier suit is also maintainable in certain circumstances or even if the second suit is not maintainable the worst thing that is going to happen is that the plaintiff cannot file another suit in respect of those two properties because the second suit would be barred by order to rule 2 and therefore a second suit would not would not be maintainable therefore the the principle of the suit being bad for partial partition according to me would apply only in cases where there is an alienation and alienies are parties to the suit where the alienies are not involved if some we have a few properties are not included in the suit the suit cannot be dismissed as being one for partial partition therefore my submission is and where in the in situations where a suit like that would not be maintainable I would only make a reference to two decisions a few decisions of the karnat kahi court that is 2004 three cases here page 1637 UG Srinivas Rao versus Vijay Kumar another decision is 2011 four Karnataka large journal page 2461 that is GM Mahendra versus GM Mohan and others and the earlier decisions are ILR 1998 Karnataka page 681 and ILR 1989 Karnataka page 1895 therefore these are principles would be very helpful for us in preparing a defense in a suit for partial partition the first and the most important thing is at the time when you prepare a defense sit with your client assess all the facts in detail try to find out what facts must be put in written statement what facts should be elicited in the cross examination what facts should be elicited by your client make a detailed notes get all the document relevant documents before you file a defense and then prepare a defense in this case therefore you cannot prepare a defense at the time of the evidence you cannot prepare a defense as the case evolves you must if you want to be a good lawyer you must apply your mind before you prepare a written statement in the case how the entire facts clearly in your mind then proceed with the battle then only you can defend your client effectively therefore these are a few thoughts which have come to my mind which have used often in my 50 years of practice and I have shared my ideas with you there are many other novel defenses which may be available and it is for us to explore depending on the facts of the case which are before us and therefore what I have stated is not the end of the matter this is only a beginning this is only an idea which I have given how you should think about the matter and evolve your own defense by keeping in mind the principles of law clearly before you prepare a defense this is what I want to place before you and thank you very much for having given me a patient hearing thank you Mr. Chathar for having spared two lectures in respect of this subject in fact the way you share knowledge any amount of lectures would always be short because you explain in such a elicited manner and that's why I was just checking it out on the YouTube and Facebook you don't even have any questions because you've elicited in such a nice manner yeah so thank you sir uh stay blessed and everyone enjoy the festive season thank you thank you