Sister’s Half Share In Family Lands Stands Despite Buyer’s Specific-Performance Decree, As Karnataka HC Leaves Purchased Plot’s Allocation To Final Partition Proceedings

The plaintiff, sister of defendant No.1, sued for partition and separate possession of a half share in seven properties, claiming they were ancestral and joint family properties.

Defendant No.3, the appellant, asserted that defendant Nos.1 and 2 had agreed to sell Item No.1 to him and that he had obtained a decree for specific performance and a sale deed through execution proceedings.

The trial court declared the plaintiff entitled to a half share; the first appellate court dismissed defendant No.3’s appeal.

Defendant No.3 then filed this second appeal, principally challenging the decree insofar as it concerned Item No.1.

Section 100 of the Code of Civil Procedure limits a regular second appeal to cases involving a substantial question of law.

The appellant, as a purchaser outside the family, could not competently determine whether the property was ancestral or joint family property; the appellant’s purchase of a particular item could instead be addressed in the final decree proceedings through consideration of its allotment to the transferor’s share.

The court noted that defendant No.3 had obtained a sale deed for Item No.1 pursuant to the decree in the specific-performance suit, but treated him as a stranger to the family for purposes of challenging the finding that the properties were ancestral or joint family properties.

It therefore declined to disturb the concurrent findings granting the plaintiff a half share.

At the same time, it preserved the appellant’s ability to seek appropriate allotment of Item No.1 to defendant No.1’s share in the final decree proceedings, subject to the court’s assessment of feasibility.

No substantial question of law arose for consideration in the second appeal.

It observed that the appellant could seek, in the final decree proceedings, allotment of Item No.1 to defendant No.1’s share and apportionment of the plaintiff’s share in the other properties, if feasible.