- (1.) Leave granted. Heard learned counsel for the parties. This appeal arises out of a suit for partition filed by respondents 1 to 5. The appellant and the sixth respondent were respectively the defendants 1 and 2. For convenience, we will also refer to the parties by their rank in the trial court.
(2.) Briefly stated, the facts are : Keshava Bhat - the first defendant, Narayana Bhat - the second defendant, and late Anantheshwara Bhat (husband of plaintiff no.1 and father of plaintiffs 2 to 5) were sons of one Sham Bhat who died around the year 1964. The plaintiffs filed the suit for partition of the joint family properties in the year 1971. In addition to defendants 1 and 2, the plaintiffs impleaded as defendants, the six sons of first defendant (defendants 3 to 8), the only son of second defendant (defendant no.9), the widow of Sham Bhat (defendant no.10), two daughters of Sham Bhat (defendants 11 and 13) and a daughter of a deceased daughter of Sham Bhat (defendant no.13). Sham Bhat's widow (10th defendant) died during the pendency of the suit. The plaintiffs alleged that the first plaintiff was a young widow and the plaintiffs 2 to 5 were all minors when the suit was filed 37 years ago; that they were kept away from the joint family properties; and that they had no access to the records pertaining to the joint family properties.
(3.) The plaintiffs alleged that the immovable properties described in Schedule 'A' and the movables described in Schedule 'B' to the plaint were the joint family properties which required to be partitioned. Schedule 'A' consisted of four parts (referred to as 'items' in the plaint) of the following description: (i) Part I of 'A' Schedule enumerates the muli right properties, that is, properties which belonged to the joint family. They were in the possession of tenants and were the subject matter of tenancy claims by tenants. It is not in dispute that none of these lands is available for partition, as occupancy rights in respect of these lands have been granted to the tenants under the Karnataka Land Reforms Act, 1961. (ii) Part II of 'A' Schedule enumerates the mulgeni properties, that is, lands held by the joint family on perpetual tenancy. It is admitted that these are joint family properties and are in the possession of the family (except an extent of 23 cents in survey No.94/1B and an extend of 1A.56 Cents in survey No.97/2). (iii) Part III of 'A' Schedule enumerates the chalgeni properties, that is, lands held under tenancy at will in regard to which claims for occupancy rights in Form No.7 under the Karnataka Land Reforms Act were filed by the first defendant and occupancy rights have been registered in the name of first defendant. The plaintiffs contend that they are the joint family properties as they were earlier in the occupation of Sham Bhat and that the first defendant as the eldest son of Sham Bhat was representing the family in the tenancy claim proceedings and benefit received by registration of occupancy rights in his favour would enure to the joint family and therefore, the said lands were liable for partition. The first defendant on the other hand contended that they were his self- acquired properties. He denies that his father Sham Bhat was the tenant of any of these lands. (iv) Part IV of 'A' schedule refers to properties which were added as joint family properties, subsequent to the filing of the suit, by an amendment to the plaint. Item (a) stood in the name of Sham Bhat and items (b), (c) and (d) stood in the names of the first defendant.;