M.R.SHAH, J. - (1.) Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 22.11.2006 passed by the High Court of Karnataka at Bangalore in R.F.A. No. 546/2004 and R.F.A. No. 940/2004, the appellant herein ­ original defendant no.2 has preferred the present appeals.
(2.) The facts leading to the present appeals in nutshell are as under: That one John D. Abraham is the propositus. That original defendant no.1 is the wife of the said John D. Abraham. Original defendant no.2, defendant no.3, one Triza Kalyani John (wife of original plaintiff no.1) and one late Maccabeaus are the children of propositus. That the suit schedule house is the estate of the propositus. That original defendant no.1 ­ wife of the propositus ­ John D. Abraham died intestate during the pendency of the suit. That after the demise of the propositus, his daughter Triza Kalyani John married with original plaintiff no.1, who was a Hindu. At the relevant time, Triza Kalyani John ­ daughter of the propositus got herself converted to Hinduism and changed her name as A.S. Meenakshi. Original plaintiff nos. 2 and 3 are the children born out of the said wedlock. Triza Kalyani John died in the year 1986. That thereafter and after the death of the said Triza Kalyani John, the original plaintiffs ­ husband of Triza Kalyani John and their two children instituted original suit no. 591/1987 in the Court of learned City Civil Judge, Bangalore for partition and separate possession of the suit schedule property. Original plaintiffs filed the suit seeking share of Triza Kalyani John (A.S. Meenakshi). It was the case on behalf of the plaintiffs that the said A.S.Meenakshi @ Triza Kalyani John was having 1/4th share in the suit property ­ property belonged to propositus ­ John D. Abraham. The plaintiffs sought the following reliefs in the suit: i) for partition and separate possession of their one third right and share, in absolute estate and title, in and in relation to the properties and premises described in the schedule 'A' hereunder, by metes and bounds, having due regard to the quality of soil, utility and access to the buildings and premises thereon and convenience of enjoyment thereof, directing the defendants to put the plaintiffs in such exclusive possession and enjoyment thereof; ii) appointing one or more Commissioners to inspect the suit properties and premises and submits proposals, together with plans and sketches of the buildings thereon and of the premises thereat, allotting onethird share and extent thereat to the plaintiffs; iii) passing final decree in pursuance of the preliminary decree herein; iv) directing the defendants to pay the plaintiffs their cost of the suit and glaring such other reliefs and making such further orders v) as to it may deem fit and proper in the circumstances of this case." 2.1 It is required to be noted that initially the suit was filed only against the two defendants ­ wife of late John D. Abraham (defendant no.1) and the appellant herein ­ Pharez John Abraham, son of late John D. Abraham (defendant no.2). 2.2 The suit was resisted by defendant nos. 1 and 2 by filing the joint written statement. It was contended that John D. Abraham had another son and daughter, namely, Vasanthi and Maccabeaus. It was contended that the said Vasanthi and Maccabeaus were born to John D. Abraham on account of the intimate relationship of John D. Abraham with St. Pushpa. It was submitted that they are also entitled to share in the suit property of John D. Abraham. Therefore, it was requested to dismiss the suit on the ground of nonjoinder of proper parties. It was also contended on behalf of defendant nos. 1 & 2 that Meenakshi @ Triza Kalyani John being a Christian opted to marry plaintiff no.1, a Hindu, much against the wishes of the members of the family. Meenakshi @ Triza Kalyani John expressed that she will marry plaintiff no.1 by converting herself to Hinduism and also that a share in the assets of John D. Abraham may be given. According to the defendants, in pursuance to the said demand put forth by Meenakshi @ Triza Kalyani John, a sum of Rs.50,000/ and certain gold ornaments were given to her as defendant nos. 1 & 2 felt that it was not proper to partition the living house or to induct a non Christian to stay in the house. According to the defendants, Meenakshi @ Triza Kalyani John had taken her share in the assets of John D. Abraham and therefore the plaintiffs are not entitled to any share and the suit of the plaintiffs is liable to be dismissed.
(3.) The learned trial Court framed the following issues: i) whether plaintiffs prove that they and the defendants are members of Hindu Joint Family? ii) Do they further prove that late A.S. Meenakshi is the wife of 1st plaintiff and mother of 2nd and 3rd plaintiffs, dies(sic) as member of joint family and was in joint possession of the suit properties? iii) whether defendants prove that there was a family arrangement or settlement and that late A.S. Meenakshi has given up her claim for Rs.50,000/-? iv) whether the suit is bad for nonjoinder of necessary parties? v)What is the share of the plaintiffs, if any, in the suit properties? vi)Whether the settlement pleaded by the defendants is binding upon the parties? vii)Whether the suit is properly valued and requisite court fee has been paid/ viii)To what relief, if any, the plaintiffs are entitled? 3.1 That subsequently Vasanthi and Maccabeaus were also impleaded as parties to the suit and as Maccabeaus had died, his widow and his daughter were brought on record. They were joined as defendant nos. 3 to 5. 3.2 Both the parties led evidence, oral as well as documentary. That thereafter on appreciation of evidence and considering the evidence on record, the learned trial Court answered issue no.3 in the affirmative and held that there was a family arrangement or settlement and that late A.S. Meenakshi @ Triza Kalyani John has given up her claim for Rs.50,000/-. It was held by the learned trial Court that in that view of the matter, the plaintiffs are not entitled to the partition and the share of late A.S. Meenakshi @ Triza Kalyani John. Consequently, the learned trial Court dismissed the suit. The learned trial Court also observed and held that the suit was barred by limitation as John D. Abraham died intestate in the year 1964 and in Christanity the property would be divided immediately after the death of the intestate person and that during the life time Triza Kalyani John @ A.S. Meenakshi has not put forth any claim against the members of the erstwhile family after 1964 till her demise in the year 1986 and if she wanted any share in the assets of John D. Abraham, then she should have done so within three years. The learned trial Court also observed that for separate possession in the suit property, the period would have been 12 years from the date of the death of John D. Abraham and accordingly the limitation got expired by 1976 itself. ;