B. Shrinath Rao v. Vijayan et al.

1 RFA 120/2021 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945 ``` ## **`RFA NO. 120 OF 2021`** ``` OS 179/2011 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT,KOCHI ``` ## **`APPELLANT/S:`** ``` B.SHRINATH RAO, AGED 60 YEARS, S/O LATE BHASKAR RAO, FORMERLY RESIDENT OF H.NO.766, SECTOR 5, SAKET, PUSHPA VIHAR, NEW DELHI-110017 (ACTUALLY RESIDING AT "K 114C", DDA FLATS, PHASE-2, SHEIK SARAI, NEW DELHI- 110027)(PRESENTLY RESIDING AT 14 JOURNALIST COLONY, JUDGE'S AVENUE, KALOOR, KOCHI-686668) FORMERLY RESIDING AT 48D DDA FLAT, PHASE-1, MASJID MOTH, NEW DELHI ``` ``` BY ADV B.SHRINATH RAO(Party-In-Person) ``` ## **`RESPONDENT/S:`** - `1 VIJAYAN AGED 50 YEARS, S/O ANANTHA SIVAN, RESIDING AT H.NO.10/1663, AMARAVATHY, FORT KOCHI-682001` - `2 PRASANNA, AGED 51 YEARS, W/O LATE REGHUNATHA RAO, (48-D MASJID MOTH, DDA FLATS, NEW DELHI-110048), NOW RESIDENT OF H.NO.766, SECTOR 5, SAKET, PUSHPA VIHAR, NEW DELHI110017` - `3 SAINATH, AGED 29 YEARS, S/O REGHUNATHA RAO, (48-D MASJID MOTH, DDA FLATS, NEW DELHI-110048), NOW RESIDENT OF H.NO.766, SECTOR 5, SAKET, PUSHPA VIHAR, NEW DELHI-110017` - `4 SUDARSHAN, AGED 27 YEARS, S/O REGHUNATHA RAO, (48-D MASJID MOTH, DDA FLATS, NEW DELHI-110048), NOW RESIDENT OF H.NO.766, SECTOR 5, SAKET, PUSHPA VIHAR, NEW DELHI110017` - `5 PAVANA, W/O LATE VISHWANATHA RAO, AGED 63 YEARS, S/O RAGHUNATHA RAO, 48-D MASJID MOTH, DDA FLATS, NEW DELHI110048` - `6 SANGEETHA, AGED 30 YEARS, D/O LATE VISHWANATHA RAO, 48-D MASJID MOTH, DDA FLATS, NEW DELHI-110048` 2 RFA 120/2021 - `7 POOJA, AGED 27 YEARS, D/O LATE VISHWANATHA RAO, 48-D MASJID MOTH, DDA FLATS, NEW DELHI-110048` - `8 SAROJINI, W/O LATE GOVARDHAN, AGED 68 YEARS, RESIDING AT H.NO.10/1616, AMARAVATHY, FORT KOCHI-682001` - `9 G.S.UMANATH, S/O GOVARDHAN, AGED 46, BUSINESS, RESIDING AT H.NO.10/1616, AMARAVATHY, FORT KOCHI-682001` - `10 JAYACHANDRAN, S/O GOVARDHAN, AGED 40 YEARS, BUSINESS, RESIDING AT H.NO.10/1616, AMARAVATHY, FORT KOCHI-682001` - `11 SREEKUMAR, S/O GOVARDHAN, AGED 37 YEARS, BUSINESS, RESIDING AT H.NO.10/1616, AMARAVATHY, FORT KOCHI-682001` - `12 ANITHA, D/O GOVARDHAN, AGED 42 YEARS, RESIDING AT H.NO.11/271-A, THUNDIPPARAMBIL HOUSE, CHIRAKKARAM, VARAPPUZHA-682517` - `13 JAYANTHI MADHUSUSHANAN D/O GOVARDHAN, AGED 47 YEARS, RESIDING AT H.NO.10/15,91, AMARAVATHY, FORT KOCHI-682 001` - `14 RAJESH, S/O GIRIVASA RAO, AGED 45 YEARS, BUSINESS, RESIDING AT H.NO.19/967, ANUGRAHA, CHIRAKUZHI PARAMBU, NEAR ACHUTHAN GIRLS HIGH SCHOOL, CHALEPURAM, KOZHIKODE673 002` - `15 RITHESH ,S/O GIRIVASA RAO, AGED 41 YEARS, BUSINESS, RESIDING AT H.NO.19/967, ANUGRAHA, CHIRAKUZHI PARAMBU, NEAR ACHUTHAN GIRLS HIGH SCHOOL, CHALEPURAM, KOZHIKODE673 002, NOW RESIDING AT MASJID MOTH DDA FLATS, NEW DELHI-110048` - `16 PREETHY, D/O PRABHAKAR RAO, AGED 39 YEARS, RESIDING AT H.NO.10/67, AMARAVATHY, KOCHI-682001` ``` BY ADVS. M.A.ZOHRA Praveen H Harikumar G.KRISHNAKUMAR ``` ## **`OTHER PRESENT:`** ``` SRI. A. ANIL KUMAR R1 ``` ``` THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 26.9.2023, THE COURT ON 28.11.2023 DELIVERED THE FOLLOWING: ``` 3 RFA 120/2021 ## **JUDGMENT** (Dated this the 28[th] day of November2023) The appellant was the 3[rd] defendant in O.S. No.179 of 2011 on the files of the Sub Judge-V, Kochi. The 1[st] respondent was the plaintiff and respondent Nos.2 to 16 were defendants 4 to 17 and 19 therein. The suit was filed for partition. (The parties are referred to as they appeared in the trial court). 2. The brief facts of the suit are as follows: The plaintiff is the great grand son of one Anantha Shiva Shetty, who belongs to Vysya Vaanika community and the family was following the Joint Hindu Family System and governed by uncodified Hindu Mithakshara Law for the purpose of intestate succession. Anantha Shiva 4 RFA 120/2021 Shetty have 5 sons, one Govinda Shetty, Girivasa Shetty, Bruhaspathi Shetty, Uddhava Shetty and Bruhu Shetty. On the death of Anantha Shiva Shetty in 1902, the sons of Anantha Siva Shetty partitioned the property as per registered partition deed No.326/1078 ME of S.R.O., Kochi. Except 2[nd] item of A-schedule, all other properties were partitioned by metes and bounds and separate possession was taken by the respective sharers. Plaint schedule property is having an extent of 15 cents and a two storied building apart from a padippura with two shop rooms on the ground floor and a hall upstairs. As per the recitals in the partition deed No.326/1078 ME, this property was also partitioned into five shares along with the remaining properties, but separate possession was not taken by means and bounds. They opted to hold 5 RFA 120/2021 the same as tenants in common. Thus, the joint family status of the five sons of Anantha Shiva Shetty had come to an end as per this deed and changed over to tenancy in common in respect of the plaint schedule property. Out of the five sharers, Bruhaspathi Shetty and Bruhu Shetty died as unmarried and issueless. Therefore, their shares devolved upon the three remaining sharers, namely, Govinda Shetty, Girivasa Shetty and Uddhava Shetty. On partition, the share of each branch has become separate property of that branch. Uddhava Shetty had three sons Venkateswara Shetty, Anantha Sivan and Vasudev. Vasudev died as an unmarried and issueless. On the death of Uddhava Shetty, the 1/3[rd] right over the property devolved upon Venkateswara Shetty and Anantha Sivan. On the death of Venkateswara Shetty in 6 RFA 120/2021 1963, the 1/6[th] share obtained by him in the plaint schedule property devolved upon his wife Sarojini and daughter Vishi. They released their right in favour of Godavari, Prabhakar Rao, Vamana Shetty and Anantha Sivan as per release deed No.1980/1963. The recipients, thereafter, mortgaged the whole plaint schedule property to one Surendranath as per document No.1986/1963 of SRO, Kochi, for raising fund of Rs.1,500/- to pay the consideration to Sarojini and Vishi. Anantha Sivan, the father of the plaintiff was not able to procure Rs.375/-, i.e., his share to redeem the mortgage, to redeem the mortgage from Surendranath. Therefore, Anantha Sivan released his right in the portion of the shares of Sarojini and Vishi, i.e., 1/24[th ] share in the plaint schedule property, which were released to him along with the other 7 RFA 120/2021 three acquirers as per release deed No.586/1975 of SRO, Kochi, in favour of Bhaskar Rao, who is the predecessor in interest of defendant Nos.1 to 6. By retaining the 1/6[th] original share in the plaint schedule property obtained along with Venkateshwara Shetty. Bhaskar Rao redeemed the plaint schedule property from the mortgagee, Surendranath. The plaintiff is the son of Anantha Sivan, who took birth in the family of Anantha Sivan in 1966 and thus became a coparcener in the family having 4/24[th] share in the property. On 01.12.1976, when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force, a deemed partition took place and he obtained 4/48 shares in the property. Anantha Sivan died in 1992 leaving behind Padmavathy, his wife and the plaintiff/son. Therefore, 4/48[th] shares of Anantha 8 RFA 120/2021 Sivam devolved upon the mother Padmavathy and the plaintiff together in equal shares. The mother of the plaintiff Padmavathy died in 2003, resulting in the devolution of her share back to the plaintiff. Accordingly, the plaintiff became the absolute owner of his 4/24[th] shares in plaint schedule property from 2003 onwards. 3. Bhaskar Rao obtained 8/24[th] shares of Govinda Shetty's branch and the balance shares in the branch of Girivasa Shetty, totalling 16/24[th] shares in the plaint schedule property. Bhaskar Rao also acquired another 1/24[th] from Sarojini and Vishi by a separate registered release deed. Thus, Bhaskar Rao owns 19/24[th] shares in the plaint schedule property. Rongana Shetty, the father of Bhaskar Rao and husband 9 RFA 120/2021 Godavari died in 1951, before the commencement of Hindu Succession Act, 1956. Therefore, Godavari was not competent to acquire 1/24[th] share from Sarojini and Vishi by way of release deed or to mortgage the plaint schedule property to Surendranath in 1963 along with the other three persons. As the acquisition of 1/24[th] share by Godavari is not operational, the plaintiff claims that the said share would continue vested in Uddhava Shetty's branch and devolves upon the plaintiff. As a result, the plaintiff claims a total share of 5/24 in the plaint schedule property. The descendants of Govinda Shetty and Girivasa Shetty, except Bhaskar Rao, left the plaint schedule property years back and residing elsewhere in various parts of the country. Bhaskar Rao died in 1993 leaving behind defendant Nos.1 to 3, and another son 10 RFA 120/2021 Reghunantha Rao, who died in 2010 leaving behind defendant Nos.4 to 6. Therefore, defendant Nos.1 to 6 are the legal heirs of Bhaskar Rao. Thus, the plaintiff and defendants became the absolute owners of 5/24[th] and 19/24[th] shares in the plaint schedule property. They are in joint possession and enjoyment of the same. The plaintiff does not want to continue the joint possession an therefore, demanded the partition of the plaint schedule property, but the defendants are not willing for partition. Bhaskar Rao and his legal heirs, defendant Nos.1 to 6 are permanently residing in Delhi. Bhaskar Rao is the only well educated and employed as a Civilian Officer in Indian Air Force, and he was in a position to dominate the will of the plaintiff and the family. Plaintiff's parents are barely literate so as to understand 11 RFA 120/2021 the sharing of yield of plaint schedule property between plaintiff's family and Bhaskar Rao. Adv. Sivasankar Rao, who was the adjoining southern neighbour of the plaint schedule property, was entrusted with the management of the shares of the plaintiff's family in the plaint schedule property, on the understanding that he would manage the plaint schedule property in the best interest of all the co-owners. Bhaskar Rao was holding a major share in the plaint schedule property at all times and the plaintiff’s family owing a minor share confined their residence in plaint schedule property in two rooms on the northern side of it. The rest of the plaint schedule property is being rented out by Adv. Sivasanker Rao to various persons. Sivasanker Rao was trying to snatch the shares of the plaintiff and he filed complaints before the 12 RFA 120/2021 police and Lok adalath. The property will fetch a monthly rent of Rs.3,000/- and the plaintiff is entitled to Rs.500/- per month as a share of rent. Adv. Shivasanker Rao had been sharing the profit till 1995 with the family of the plaintiff. 4. During the marriage of the plaintiff in 1995, when the plaintiff occupied two rooms in upstairs of the plaint schedule property, Adv. Sivasankar Rao got annoyed and thus, the relationship got strained. Since then, he was not given his due share of the yield from the plaint schedule property. Thus, the suit was filed for partition and separate possession of 5/24[th] shares of the plaintiff in the plaint schedule property. Though there was a claim for past and future profits, the same was deleted and confined the suit for partition alone. 13 RFA 120/2021 5. Defendant Nos.1, and 3 to 6 filed a written statement contending as follows: The plaintiff has not obtained any birthright nor any kind of right, title or interest in the plaint schedule property. Plaintiff has been residing in the northern side of the building as a licensee. O.S. No.398/1995 was filed by the defendants to evict the plaintiff from the building when the plaintiff trespassed upon the upstair portion of the building by breaking open the door. Summons in the suit was served on the mother and wife of the plaintiff and they remained ex-parte and the suit was decreed for eviction on 12.04.1996. The decree was executed in E.P.No.308/1996. Though the plaintiff filed an application to set aside the ex-parte decree, the same was dismissed and he did not pursue further. The property 14 RFA 120/2021 was delivered on 21.01.2000. When the plaintiff trespassed into the room in upstairs, the defendants filed O.S.No.7 of 2000 before the Munsiff's Court, Kochi, for recovery of possession of the ground floor occupied by him terminating his license. The said suit was decreed on 05.02.2000 as ex-parte. The plaintiff had full knowledge of the decree. 6. In 2005, the plaintiff’s mother died and in 2010, he began to raise false claims over the property. When E.P.No.75 of 2010 was filed to execute the decree in O.S.No.7 of 2000, the plaintiff filed a petition for setting aside the ex-parte decree with a petition to condone the delay taking a stand that he had not received the summons in the suit, in fact, the summons was served on the mother and she had put her thumb mark. In view of 15 RFA 120/2021 the decree in O.S.No.7 of 2000, also it can be seen that the plaintiff is only a licensee on the premises. The suit is barred by _res-judicata_ and hit by the provisions of Order 2 Rule 2 CPC, and it is also hit by Order 23 Rule 4(a) CPC and also barred by limitation. The plaintiff is neither a co-owner nor a tenant in common. The father of the plaintiff has already released his right over the property. After the release deed Nos.586/75 and 585/75, Bhaskar Rao became the full owner of the property. Anantha Sivan had no residence at Kochi and therefore, he was permitted to occupy a portion of the house after the release deed. After his death, the plaintiff was allowed to occupy the room with his mother. Anantha Sivan released his entire right to the property and that is the sole reason that he did not participate in O.S.No.216 16 RFA 120/2021 of 1975 filed by Bhaskar Rao for redeeming the mortgage. The ground floor portion of the building was given on usufructuary mortgage to Surendranath, son of Gopalakrishna Kammath as per document No.1986/1963. While the mortgagee took possession of the ground floor and land, Prabhakar Rao executed a simple mortgage deed in respect of his share in the property and the house in favour of Gopalakrishna Kammath as per document No. 2328/1963. A suit for realisation of mortgage money was filed as O.S.No.535 of 1968 and the suit was decreed and in execution petition Gopalakrishna Kammath purchased the property in court auction. Since Gopalakrishna Kammath was a stranger, who was not put in possession, filed a suit for partition. Anantha Sivan or Vamana Shetty did not take 17 RFA 120/2021 any steps when Gopalakrishna Kammath trespassed into a portion of the house and occupied the same. Bhaskar Rao, later filed a suit as O.S.No.622 of 1974 against his brother and tenants for declaration of his absolute right over the two shop rooms and up-stair hall, and the suit was decreed on 03.12.1975 declaring that Bhaskar Rao is the absolute owner of the building and directed payment of rent to him. Thereafter, he filed R.C.P. No.43 of 1977 against the tenant of the up-stair hall. Another petition was filed as R.C.P. No.112 of 1978, both the RCPs were closed since the tenant paid the entire rent. Venkateswara Shetty died on 16.05.1958, and his right over the property devolved upon his wife Sarojini and daughter Vishi and they executed a released deed in favour of 4 persons. The plaintiff has no right in the 18 RFA 120/2021 property as claimed by him and therefore, prayed for dismissal of the suit with compensatory costs. 7. Defendant Nos.10 to 14, and 16 to 19 also filed a joint written statement contending that defendant Nos. 11 to 13 are the great grand children of Govinda Shetty and 10[th] defendant is the mother of defendant Nos.11 to 13, they became coparceners in the shares of the property devolved upon their father Govardhan. They are joint owners in possession of the property. It is not correct to say that Bhaskar Rao obtained the shares of Govinda Shetty's branch. The additional defendant Nos.16 and 17 are the children of Girivasa Rao. The rights of Girivasa Rao devolved upon the children of Rongana Shetty and Babu Rao. Babu Rao died leaving his only son Girivasa Rao, the father of defendant Nos. 16 and 17. Girivasa 19 RFA 120/2021 Rao died intestate and his right devolved upon defendant Nos.16 and 17. The 18[th] defendant is the wife of Prabakar Rao and 19[th] defendant is his daughter. They are entitled to inherit the property of Prabakar Rao as he died intestate, therefore, prayed for a separate allotment of rights in the plaint schedule property. 8. The trial court raised 12 issues. On the side of the plaintiff, PW1 was examined and Ext. Nos.A1 to A7 were marked. DW1 was examined on the side of the defendants and marked Ext.Nos.B1 to B38. 9. The trial court, on an appreciation of the oral as well as the documentary evidence, decreed the suit and the preliminary decree for partition was passed. Aggrieved by the preliminary decree, the 3[rd] defendant in the suit has filed this appeal. 20 RFA 120/2021 10. The appellant appeared before the court as party-in- person and argued the case. His main contention in the appeal is that the suit is barred by limitation, _res judicata_ and hit by Order 2 Rule 2 CPC. His second contention is regarding the execution of release deed Ext.Nos.B6 and B7, by which the entire right of the plaintiff has been released by his father to Bhaskar Rao in 1975 itself and therefore, whatever right the plaintiff's father had, is extinguished by the release and therefore, the plaintiff will not become coparcener by his birth. 11. The plaintiff has instituted his share for partition upon his birth in the plaint schedule property, which is 15 cents and building. The plaintiff was born on 16.05.1966. On abolishment of joint family system, a 21 RFA 120/2021 notional partition occurred on 01.12.1976. According to him, by his birth, he has obtained his right on coparcenary property, which can only be extinguished by any conveyance executed by him or by ouster or adverse possession by the other co-sharers. As far as ouster is concerned, the defendants do not have a case that they are holding the property adverse to the interest of the plaintiff openly and uninterruptedly to constitute ouster. It is settled law that in a suit for partition, there is no question of limitation as it is a continuous cause of action and therefore, there is no question of any claim to be barred by limitation. _res-_ 12. The second question raised is regarding _judicata_ . The appellant relies on the judgment of trial Courts in O.S. No.145 of 1986, O.S. No.398 of 1995, 22 RFA 120/2021 O.S.No.622 of 1974, O.S.No.653 of 1980, and O.S.No. 7 of 2000. 13. O.S. No.145 of 1986 was a suit filed for partition and separate possession filed by the mortgagee Gopalakrishna Kammath. The plaintiff’s father was the defendant therein. He claimed 1/3[rd] share in the plaint schedule property. In the judgment of the Trial Court in O.S. No.145 of 1986, in paragraph No.16, it was specifically observed by the Court that, the share claimed by Anatha Shivan cannot be decided in the suit and it was left open to be decided in a suit for partition among the co-owners of the property. Therefore, the said suit will also not act as a _res- judicata_ to the present suit. 23 RFA 120/2021 14. O.S.No.398 of 1995 is another suit filed by the 1[st] defendant and his brothers against the plaintiff for recovery of possession of a room. The said suit was also decreed ex-parte. The suit was filed under Sec.6 of the Specific Relief Act. A suit under Sec.6 of the said Act is of a summary nature. The only question that is considered in such a case is previous possession, and there is no adjudication on the rights of the parties in respect of the building. The suit is to be filed by the person dispossessed of immovable property, therefore the plaintiff cannot file a cross-appeal claiming partition in the suit of summary nature. Therefore, even if the suit was decreed and through execution proceedings, he was evicted, the said judgment will not act as res judicata. 24 RFA 120/2021 15. As far as O.S.No.622 of 1974 is concerned, it was a suit for declaration of ownership situated in the plaint schedule property by Bhaskar Rao against Prabhakar Rao and three tenants. The plaintiff was not a party to the suit and therefore, the said suit will not operate as a _res-judicata._ 16. With respect to O.S.No.653 of 1980, it was a suit filed by the predecessors of defendant Nos.1 to 9 against Surendrantah and Gopalakrishna Kammath. the plaintiff was not a party to the suit and therefore, it will not act as a. _res-judicat_ 17. O.S. No.7 of 2000 was decreed on 05.02.2000, which was a suit filed to order surrender vacant possession of a room scheduled as B schedule room in 25 RFA 120/2021 the ground floor of the building. The plaintiff and his mother and wife were the defendants in the suits. The suits were decreed and an execution petition was filed as E.P.No.75 of 2010. The plaintiff, on coming to know the ex-parte decree, filed I.A. No.1475 of 2010 for setting aside the ex-parte decree with a petition to condone delay of 12 days. The said interlocutory application is pending and therefore, the judgment and decree in O.S.No.7 of 2000 cannot be said to have become final. 18. The next contention raised by the appellant is the bar under Order 2 Rule 2 CPC. He contends that the plaintiff ought to have raised a question of partition and separate possession by mets and bounds as a counter claim in O.S. No.398 of 1995, which was a suit filed under Sec.6 of the Specific Relief Act. As mentioned 26 RFA 120/2021 earlier, in a suit filed under Sec 6 of the Specific Relief Act, the Court is called upon to look into whether a person is dispossessed without his consent of immovable property otherwise than in due course of law and nothing more. Therefore, in a suit of summary nature, the plaintiff cannot file a cross objection claiming partition of the suit property in respect of his share. Therefore, the present suit is not hit by Order 2 Rule 2 CPC. 19. The main question to be decided in this appeal is whether the plaintiff has obtained a birthright in the coparcenary property. The case of the appellant is that, as per Ext.A2, the right of Venkateswara Shetty, who is the brother of plaintiff’s father had obtained a right in the branch of Udhava Shetty, on the death of Venkateswara Shetty, his right devolved on Sarojini and Vishi, who are 27 RFA 120/2021 his wife and daughter. As per Ext.A2, Release Deed No.1980/63 the right obtained by Sarojini and Vishi were released in favour of Vamana Shetty, Anantha Sivan, Rongana Shetty, Prabhakar Rao and Godavari, the wife of Rongana Shetty. The aforesaid persons, by Ext.A3 mortgaged the right of Sarojini and Vishi to a minor by name Surendranath. The father of Surendranath, Sri Gopalakrishna Kammath was acting as the guardian of Surendranath. The contentions raised by the appellant is that, as per Ext.Nos.B6 and B7, Vamana Shetty and Anantha Sivan had relinquished their entire share in the plaint Schedule property in the name of Bhaskar Rao and therefore, the plaintiff who is the son of Anantha Sivan, cannot claim any property under Anatha Sivan as it has been already released by Ext.B7 document. 28 RFA 120/2021 20. A reading of Ext.Nos.B6 and B7 would show that what is released is the right of redemption in respect of the shares of Sarojini and Vishi obtained by them as per Ext.A2 release deed. It specifically states that Bhaskar Rao has to pay the mortgagee and release it from the mortgagor. This was executed because Anantha Sivan did not have money to redeem the mortgage. This has been specifically stated in the document. So, it is crystal clear that, what is released through Ext.B7 is the right to redeem the property by paying the mortgage money in respect of the right of Sarojini and Vishi. In this context, it is to be noted that, Anantha Sivan was having an independent right in the shares of Uddhava Shetty, which he always retains. Therefore, on the birth of the plaintiff in 1966, the plaintiff obtained a coparcenary right in the 29 RFA 120/2021 property as he was born before 01.12.1976. Ext.B7 is executed on 18.03.1975. Therefore by birth of the plaintiff in 1966, he has already become a sharer in the property. 21. The Trial Court had held that Vamana Shetty and Anantha Sivan had lost their old shares through Ext.B6 and B7 release deeds. The said finding is not correct. A conjoint reading of Ext.A2, A3, B6 and B7 would make it clear that, what was released as per Ext.A2 is the right obtained by Sarojini and Vishi from Venkateswara Shetty and the said right is mortgaged by Ext.A3 in favour of Surendranath. By no stretch of imagination, it can be contended that Anatha Sivan has released his entire shares obtained from Uddhava Shetty as per Ext.B7. Anatha Sivan, through Ext.B7, had only 30 RFA 120/2021 released the right to redeem the mortgage by paying the mortgage money in respect of the shares of Sarojini and Vishi and not his entire shares. He was always holding his independent right obtained under Uddhava Shetty. Therefore, the plaintiff has obtained his right on the coparcenary property on his birth. 22. On 01.12.1976, when a notional partition occurred, the plaintiff obtained a right in the property and thus the plaintiff is entitled to sue the other coparceners for his separate shares in the plaint schedule property. 23. Another objection raised by the appellant is that, Babu Rao, who was the son of Girivasa Shetty has two sons namely Girivasa Rao and Balakrishnan. The said Balakrishnan was not made a party in the suit and therefore, there is non-jointer of necessary parties. When 31 RFA 120/2021 the appellant was cross-examined in Court by the plaintiff, to a specific question regarding the whereabouts of Balakrishnan, the 3[rd] defendant's answer was that he had no idea about him. He could not give any evidence to suggest that Balakrishnan was alive as on 01.12.1976. Section 108 of the Indian Evidence Act deals with the presumption to death, when there is no evidence before the Court, and even the appellant was not aware that Balakrishnan was alive as on 01.12.1976, it can be presumed that he is not living and therefore, there is no non-jointer of necessary parties. This question was considered by the Privy Council in **Alluri Venkatapathi Raju and another v. Dantuluri Venkatanarasimha Raju and Ors. (1937 ILR Madras 1)** , wherein it was held that where a member of Hindu 32 RFA 120/2021 Joint Family, governed by Mithakshara Law, relinquished his interest in the family property left the ancestral village and settled in another village and where he and his descendants seized to have anything with the other members of the family, the renunciation merely extinguished the renouncing members interest in the family estate but did not affect the status of the remaining members quo-ad family property and they continued to be coparceners as before. Therefore, the non-joining of Balakrishnan in the suit is not fatal. 24. To conclude, it can be seen from Ext.Nos.B6 and B7 that, what is released to Bhaskar Rao is right to redeem the mortgage from Surendranath in respect of shares of Sarojini and Vishi and not the entire share of Anantha Sivan. Therefore, the plaintiff obtains a share in 33 RFA 120/2021 the coparcener property on his birth in 1966. Therefore, he is entitled to file a suit for partition of his share by metes and bounds. The Trial Court had elaborately considered pleadings, oral and documentary evidence and rightly came to the conclusion that the plaintiff is rightly entitled to share in the property to an extent of 5/4 shares in 5 cents in the branch of Uddhava Shetty out of the total 15 cents of property. Therefore, this Regular first Appeal fails and is dismissed. Sd/- **BASANT BALAJI, JUDGE** dl/