JUDGMENT : 1. This appeal is by the defendants No. 4 and 5 in O.S.200/1985 on the file of the I Additional Civil Judge (Junior Division), KGF. They have challenged the judgment of the Senior Civil Judge, KGF, in RA 47/2001, who reversed the judgment of dismissing the suit for partition and granted decree of partition holding that the plaintiff is entitled to 1/3rd share in the suit schedule properties. 2. The original plaintiff Rukkubai was the widow of one Balaji Singh. The first defendant Anantharam Singh, the second defendant Krishna Singh, the third defendant Rukkubai and Balaji Singh are all children of Hanuman Singh. The plaintiff sought partition of suit schedule properties which according to her belonged to the joint family being managed by the first defendant. At the inception of the suit, the plaintiff claimed partition only in respect of four items and after the amending the plaint, she included one more property at Sl. No. 2A in Sy. No. 6 measuring 4 acres. After the death of plaintiff, her daughter Saroja Bai came on record. 3. The defendants contended that none of the suit schedule properties belonged to the joint family. The first item of the schedule was the self acquired property of Hanuman Singh, the propositus, who during his lifetime gifted it to his grandson Poorna Singh, i.e., the fourth defendant. The first defendant succeeded to 3 acres 4 guntas of land in item No. 2 and a portion of house property described in item No. 3. The movable properties described in item No.4 do not exist. On 9.2.1971 the second defendant, on his behalf as also on behalf of his minor son sold away the house property with vacant space bearing khaneshumari No. 84 to Poorrna Singh for consideration. On 6.12.1982, the said Poorrna Singh sold the property in favour of Muniyamma @ Kamalamma and she in turn sold the very same property to Sakkubai, the fifth defendant and wife of the fourth defendant on 8.5.1986. The fifth defendant purchased this property from her stridana and, therefore, it is her absolute property. The defendants further pleaded that the original plaintiff Rukkubai deserted her husband Balaji Singh after giving birth to a female child. She left the husband’s house willfully about 40 years ago and, therefore, she had been excluded and ousted from the joint family. For this reason, she was not entitled to claim partition. The defendants further pleaded that the original plaintiff Rukkubai deserted her husband Balaji Singh after giving birth to a female child. She left the husband’s house willfully about 40 years ago and, therefore, she had been excluded and ousted from the joint family. For this reason, she was not entitled to claim partition. 4. In the trial court, ten issues were raised in the beginning; thereafter, some additional issues were also framed on different dates. The main issues relate to the existence of joint family properties to be proved by the plaintiff; and the defendants’ requiring to prove that first item of the suit property was the self acquisition of the propositus Hanuman Singh; the defendant 4 establishing the gift in his favour, and defendant 5 establishing the subsequent sales of property bearing khaneshumari No. 84. One additional issue related to limitation also. 5. The trial court after appreciating the evidence, both oral and documentary, held that the first item of the suit property was the self acquisition of the propositus Hanuman Singh since it had been granted to him by the Government and that PW1, the daughter of the plaintiff, failed to prove that this property became part of joint family. PW1 admitted in the cross-examination that the first item of the suit property was the self acquisition of Hanuman Singh. The trial court also upheld the specific defence that the plaintiff had been ousted from the joint family and thereby she lost right to claim partition and that the suit was also time barred. In this regard, the clear finding of the trial court is that since the plaintiff claimed declaration and partition, the suit should have been filed within three years after her ouster from the joint family property in the year 1971. The learned judge held that Article 58 of the Limitation Act was applicable. He also further held that even if Article 110 of the Limitation Act could be held to be applicable, the suit was time barred. With these conclusions, the trial judge dismissed the suit. 6. The first appellate court re-appreciated the evidence and came to a contrary conclusion that the suit should be decreed. With regard to limitation, the first appellate court held that, it was not necessary for the plaintiff to have sought the relief of declaration. It was a misplaced relief. Partition could have been directly claimed by the plaintiff. 6. The first appellate court re-appreciated the evidence and came to a contrary conclusion that the suit should be decreed. With regard to limitation, the first appellate court held that, it was not necessary for the plaintiff to have sought the relief of declaration. It was a misplaced relief. Partition could have been directly claimed by the plaintiff. The relief that the plaintiff actually wanted was partition and, therefore, Article 58 was wrongly applied by the trial court. With regard to applicability of Article 110 of the Limitation Act, the first appellate court held that according to this Article, suit should be filed within 12 years from the date when the plaintiff came to know about exclusion. In the present case, the plaintiff had not been excluded from the joint family and, therefore, even Article 110 was not applicable. 7. The further finding of the first appellate court regarding ouster and exclusion is that the burden is entirely on the defendants. The trial court should have framed an issue in this regard and answered it. But, however, while discussing the question of limitation, the trial court has considered this aspect but the conclusions arrived at by the trial court in this regard are not correct. It is further held by the first appellate court that it is not enough if it is pleaded in the written statement, the defendant should prove it with cogent evidence. It held that the defendants failed to prove on what date or in which year the plaintiff had been ousted from the joint family property. On the contrary the evidence on record would establish that the plaintiff had not been excluded at all. She lived with her husband for a few years after the birth of her daughter, i.e., PW1 and that she had to leave the joint family at the instance of the defendants. This did not mean that she was ousted from the joint family. It also further observed that refusal by the defendants to partition the property did not amount to exclusion of the person demanding partition. 8. With regard to grant of first item of the property to Hanuman Singh, it has been held by the first appellate court that though the grant was in his favour, the said grant was to the joint family. The defendant should have produced the original grant certificate. 8. With regard to grant of first item of the property to Hanuman Singh, it has been held by the first appellate court that though the grant was in his favour, the said grant was to the joint family. The defendant should have produced the original grant certificate. The answer given by DW1 in the cross-examination shows that the said land was also under the cultivation of joint family. He also admits that there was no partition of the joint family. Even the evidence given by defendants 2 and 5 shows that item No.1 of the suit property was held by the joint family. In fact, Hanuman Singh could not have gifted this property to his grandson, i.e., the fourth defendant. Since it was a joint family property, the gift made by Hanuman Singh was against the principles of Hindu Law. The first appellate court also held that though the gift was made on 11.5.1957, it was not acted upon and till 1989-90; as can be noticed from Exs. P13 and P14, the 4th defendant had not obtained the katha of the said property to his name and, therefore, the gift had not been acted upon. Referring to Ex.D21, original sale deed in favour of Poorrna Singh, the fourth defendant, in respect of a portion of land in Sy. No. 6, it has been observed by the first appellate court that in the sale deed there is a clear recital that it is ancestral property of Krishna Singh, i..e, the second defendant. The first purchaser of this land was one Venkateshappa as per Ex.D22 and then he sold the same to the 4th defendant as per Ex. D23. This clear recital found in the first sale deed shows the land in Sy. No. 6 was ancestral joint family property. The first appellate court then held that the very specific plea of the defendants that the plaintiff had been ousted from the joint family itself shows that they indirectly admitted that the plaintiff was member of the joint family entitled to a share. With these findings, the first appellate court came to the conclusion that the findings of the trial judge were not sustainable and therefore reversed the finding of the trial judge to decree the suit as prayed for by the plaintiff. 9. On 4.1.2006 this appeal was admitted to consider the following substantial questions of law :- “1. With these findings, the first appellate court came to the conclusion that the findings of the trial judge were not sustainable and therefore reversed the finding of the trial judge to decree the suit as prayed for by the plaintiff. 9. On 4.1.2006 this appeal was admitted to consider the following substantial questions of law :- “1. Whether the finding of the first appellate court reversing the finding passed by the trial court and decreeing the suit of the plaintiff is perverse and arbitrary, being contrary to law and the material on record? 2. Whether the finding of the first appellate court that item No.1 of the suit schedule properties is not the self acquired property of the father of Defendants 1 and 2 for non-production of the grant certificate, is perverse and arbitrary in view of the admission of PW1 in his evidence that the said property was granted by the government in favour of father of defendants 1 and 2? 3. Whether the first appellate court could have decreed the suit when the legal representatives of defendants 2 and 3, who died during the pendency of the appeal, were not brought on record?” 10. The appellants have also filed an application under Order XLI Rule 27 read with Section 151 CPC for production of grant certificate dated 11.10.1941 in respect of first item of the suit property by way of additional evidence. Questions Nos. (i) & (ii):- 11. It is well established principle that in a second appeal, re-appreciation of the evidence is not permitted even though the first appellate court has wrongly appreciated the evidence. But, re-appreciation of evidence is permitted only when the findings of the trial court and the first appellate court are perverse. 12. The learned counsel for the appellants/defendants 4 and 5 argued that it is not disputed that the plaintiff was not living in the family of the defendants’ and that she herself deserted her husband and, therefore, she lost the right to claim partition. On the other hand, the learned counsel for the plaintiff/respondent argued that the defendants having taken up a plea failed to prove it. The first appellate court has come to right conclusion in this regard. On the other hand, the learned counsel for the plaintiff/respondent argued that the defendants having taken up a plea failed to prove it. The first appellate court has come to right conclusion in this regard. He referred to the judgment of the Supreme Court in the case of KARBALAI BEGUM vs. MOHAMMED SAYYED AND ANOTHER [ AIR 1981 SC 77 ] and the Orissa High Court in the case of CHISTROPHER ORAM AND OTHERS vs. JULIAS ORAM AND OTHERS [AIR 2003 NOC 519] [ORISSA]. 13. If the entire judgment of the trial court is perused, it becomes very clear that it has simply accepted the case of the defendants without discussing the evidence available in this regard. For the reason that the plaintiff left the house of her husband and went to her parents house, it has held that she lost her right to claim partition and that the suit was also time barred. On the other hand, the first appellate court has held that the burden was on the defendants to prove that the plaintiff had been ousted from the joint family. The entire findings of the first appellate court do not appear to be perverse. It has founded its conclusions on the evidence available on record. PW1 is the daughter of the plaintiff. She has clearly stated that her mother was forced to leave the house of the defendants after the death of her father. PWs 2 and 3 also have given evidence that the plaintiff lived in the house of her husband five to six years even after the death of her husband. They have also stated that the first defendant was sending agricultural produce to the plaintiff. They also say that the relationship between the plaintiff and her husband were good. These two witnesses have not been discredited in the cross-examination. Per contra, the oral evidence adduced by the defendants’ witnesses does not establish that the plaintiff left her husband’s house even during the lifetime of her husband. Rather DW1 has clearly answered in the cross-examination that the plaintiff lived with her husband for three years. To a specific question whether that relationship between them was good, he appears to have given an evasive answer by saying that he used to leave the house at about 4 O’clock in the morning and return to the house in the night. To a specific question whether that relationship between them was good, he appears to have given an evasive answer by saying that he used to leave the house at about 4 O’clock in the morning and return to the house in the night. This answer makes it very clear that he did not want to answer that the relationship between the plaintiff and her husband was good. When the defendants’ take a specific plea with regard to exclusion of plaintiff, it was for them to prove this. The reason why the plaintiff left the house is not forthcoming in their evidence. When it is not the case of the defendants that the relationship between the plaintiff and her husband was not cordial, whatever they say that the plaintiff left the house voluntarily cannot be accepted per se. Even according to the defendants there had not taken place partition of the joint family properties when the plaintiff’s husband was alive. Therefore, the plaintiff had the right of maintenance after the death of her husband. Just because she lived separately it does not mean that she gave up her right for partition. In this context, it may be useful to refer to judgment of the Supreme Court in the case of Karbalai Begum (supra) where it is held as below :- “7. ….. It is well settled that mere nonparticipation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Basir and Mohd. Rashid, being co-sharers of plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees. The learned counsel appearing for the respondent was unable to contest this position of law. In the present case, it is therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff.” Therefore, the first appellate court has rightly come to conclusion that there was no ouster. 14. In the present case, it is therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff.” Therefore, the first appellate court has rightly come to conclusion that there was no ouster. 14. The learned counsel for the appellants argued that the first appellate court has committed an error in holding that the first item of the suit property was not the self acquired property of Hanuman Singh, the father of defendants 1 and 2 only for the reason that the original grant certificate was not produced. It is his argument that grant of this land to Hanuman Singh is not disputed. It was not necessary that original was required to be produced, anyhow an application under Order XLI Rule 27 CPC has been made seeking production of the original grant certificate. He further argued that when the grant was made exclusively in the name of Hanuman Singh, it became his self acquired property and he had all the right to gift it away to his grandson, i.e., 4th defendant. The trial court has rightly appreciated the evidence in this regard, especially by taking into consideration the answer given by PW1 in the cross-examination that the said grant was made to the name of Hanuman Singh. He further argued that the first appellate court reversed this finding by holding that it was a joint family property and, therefore, it is not sustainable. The learned counsel further argued that Hanuman Singh had right to gift the said land and therefore the gift made by him to the 4th defendant cannot be questioned. The plaintiff should have sought for cancellation of this gift deed and without this relief, mere suit for partition is not maintainable. 15. On the other hand, the learned counsel for the respondents argued that the trial court had proceeded on assumptions and presumptions without discussing the evidence. The RTC extracts show that though the said land was granted to Hanuman Singh, it was held by the joint family and was being cultivated by the first defendant. DW1 has given admission in this regard. In fact, PW1 has not admitted that it was the self acquired property of Hanuman Singh. The RTC extracts show that though the said land was granted to Hanuman Singh, it was held by the joint family and was being cultivated by the first defendant. DW1 has given admission in this regard. In fact, PW1 has not admitted that it was the self acquired property of Hanuman Singh. He further argued that the gift made by Hanuman Singh in favour of 4th defendant was against law and he had no right to gift it away. On this point, he referred to the judgment of the Supreme Court in the case of THAMMA VENKATA SUBBAMMA (DEAD) BY LR vs. THAMMA RATTAMMA AND OTHERS [ AIR 1987 SC 1775 ] and of this Court in the case of BABU MOTHER SAVAVVA NAVALGUND AND OTHERS vs. GOPINATH [ILR 1999 KAR 3129]. 16. The Supreme Court in the case of Thamma Venkata Subbamma (supra) has held as below : - “15. The rigor of this rule against alienation by gift has been to some extent relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary property. The most significant fact which may be noticed in this connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of a male Hindu in a Mitakshara coparcenary property. The Legislature did not, therefore, deliberately provide for any gift by a coparcenary of his undivided interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the personal law of the Hindus, governed by Mitakshara School 0f Hindu Law, is that a coparcener can dispose of his undivided interest in the coparcenary property by a will, but he cannot make a gift of such interest”. 17. This Court also in the case of Babu Mother Savavva (supra) by following the judgment of the Supreme Court came to the same conclusion. Now, what requires to be examined is, whether the grant was exclusively to Hanuman Singh so that the gift could be held to be valid or whether the said grant was to the benefit of the joint family. There is no dispute that the grant was made to Hanuman Singh. Now, what requires to be examined is, whether the grant was exclusively to Hanuman Singh so that the gift could be held to be valid or whether the said grant was to the benefit of the joint family. There is no dispute that the grant was made to Hanuman Singh. The first appellate court should not have come to conclusion that non-production of the original grant certificate by the defendants would show that the grant was to the benefit of the joint family. The examination should have been from other angle, in the sense that although the said grant was made by Hanuman Singh, was there evidence to come to conclusion that the joint family cultivated the land? The trial court has observed that PW1 has clearly admitted that the first item of the suit property was the self acquisition of Hanuman Singh. But, this finding does not appear to be correct. If the answer given by PW1 in the cross-examination is perused, it cannot be said that she has admitted it, rather she has denied a suggestion that item No.1 is the self acquired property of father of defendants 1 and 2 and not the joint family property. Probably, the trial court appears to have been carried away by another answer that item No.1 was granted in the name of the father of defendants 1 and 2 by the Government and that she has no document to show that the Government granted the land to the father of defendants 1 and 2. The net effect of these answers is that she does not admit this land to be self acquisition of Hanuman Singh and that she asserted that it was held by the joint family. The document produced by the plaintiff as per Ex. P6 shows that Hanuman Singh was the grantee of the land and from 1982-83 onwards, his son Anantram Singh was the cultivator. The answer given by DW1, i.e., the first defendant shows that he cultivated that land for about two years after the grant and then his father, i..e, Hanuman Singh gifted that land to Poorna Singh, i.e., fourth defendant. It is his further answer that when he was cultivating this land, he and his brother, Balaji Singh, i.e., the husband of the plaintiff were staying together in the joint family and that there had not taken place partition. It is his further answer that when he was cultivating this land, he and his brother, Balaji Singh, i.e., the husband of the plaintiff were staying together in the joint family and that there had not taken place partition. DW2, Bhavani Singh, has also clearly answered in the cross-examination that 4 acres 10 guntas of land in Sy. No. 6, i.e., item No. 1 of the suit property and another piece of land to an extent of 4 acres in Sy. No. 6, i.e., item No.2A of the suit property were under the cultivation of joint family. DW5 is the donee of the first item of the suit property. In the cross-examination it is his answer that during lifetime of his grandfather Hanuman Singh, there had not taken place partition of the joint family properties and that the family did not have income from any source other than agriculture. He may have asserted that the gift was made to his name exclusively, but if the net effect of the answers given by DW1 and 2 is considered it is not impossible to draw an inference that even though the grant was to the name of Hanuman Singh, the first item of the suit property was held and cultivated by the joint family. The fourth defendant claims to be a donee under the gift deed dated 11.5.1957. The documentary evidence and the oral evidence show that even after the gift, the land was being cultivated by the first defendant, i.e., DW1 whose clear answer is that all the lands were held jointly even during the lifetime of Balaji Singh. Therefore, the conclusion drawn by the first appellate court that the first item of the suit property belonged to the joint family cannot be said to be incorrect although his another finding that non-production of the original grant shows that it was a joint family property cannot be accepted. As has been held by the Supreme Court and this Court in the above two decisions, Hanuman Singh could not have gifted the first item of the suit property to the fourth defendant. For this reason, the first and second questions need to be answered in the negative. No purpose would be served even if the application under Order XLI Rule 27 CPC is allowed. Question No. (iii):- 18. For this reason, the first and second questions need to be answered in the negative. No purpose would be served even if the application under Order XLI Rule 27 CPC is allowed. Question No. (iii):- 18. The learned counsel for the appellants argued that during the pendency of the first appeal, the defendants 2 and 3 died and their legal representatives were not brought on record. This resulted in the abatement of appeal against them and consequently the entire appeal abated and, therefore, the judgment of the first appellate court was bad. His further argument was that in a suit for partition, the cause of action against all the defendants who are arrayed as necessary parties, was inseparable and, therefore, abatement of appeal against one respondent/defendant would result in abatement of the entire appeal and in this regard he referred to the judgment of the Supreme Court in RAMESHWAR PRASAD AND OTHERS vs. SHAMBEHARI LAL JAGANNATH AND ANOTHER [ AIR 1963 SC 1901 ]. 19. The learned counsel for the respondent argued that there was no abatement of the entire appeal as the other members of the family were already on record and that in this appeal, the legal representatives of defendants 2 and 3 have been arrayed as parties. 20. I find force in the argument of the appellants’ counsel. If the cause of action is joint and inseparable, the entire suit or the appeal abates if the legal representatives of the deceased party is not brought on record. This is not so if the cause of action is separable and not joint. In a suit for partition of joint family property, the cause of action is inseparable. It is for this reason that it in a suit for partition all the members who are entitled to partition must be made parties. Consequent to death of defendants 2 and 3 during the pendency of the first appeal, if their legal representatives were not brought on record, it only resulted in abatement of the entire appeal. The Supreme Court in the case of Rameshwar Prasad (supra) has reiterated the position that was taken by it earlier in the case of State of Punjab vs Nath Ram [ AIR 1962 SC 89 ]. The said principle is as below : - "15. The Supreme Court in the case of Rameshwar Prasad (supra) has reiterated the position that was taken by it earlier in the case of State of Punjab vs Nath Ram [ AIR 1962 SC 89 ]. The said principle is as below : - "15. ………The abatement of an appeal means not only that the decree between the appellant and the deceased respondent had become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken". 21. Therefore, it is to be held now that the entire judgment of the first appellate court was bad in the eye of law because of not impleading the legal representatives of defendants 2 and 3 who died during the pendency of the appeal. Therefore, first appellate court should have dismissed the appeal instead of allowing the appeal. This question is to be answered in the negative. 22. In view of discussion on questions (i) to (iii), the conclusion is that although questions (i) & (ii) are answered in the negative, the finding on question No. (iii) takes me to conclude that the judgment of the first appellate court is not sustainable. This appeal, therefore, requires to be allowed. 23. The appellants have filed an application for recalling the judgment passed by this Court on the Cross-Objections (1/2006) filed by the respondent. It appears that the appeal was dismissed for non-prosecution and that the Cross-Objection was decided by this court on 9.6.2015 by directing an enquiry in accordance with Order XX Rule 18 CPC. Since Cross-Objection was heard in the absence of counsel for appellant, they made an application seeking to recall that judgment, and that the said application is still pending. It appears that the appeal was dismissed for non-prosecution and that the Cross-Objection was decided by this court on 9.6.2015 by directing an enquiry in accordance with Order XX Rule 18 CPC. Since Cross-Objection was heard in the absence of counsel for appellant, they made an application seeking to recall that judgment, and that the said application is still pending. In view of the fact that the second Appeal filed by the defendants needs to be allowed and consequently the judgment of the first appellate court requires to be set aside which results in restoration of the trial court judgment dismissing the suit, the judgment dated 9.6.2015 in the Cross-Objections 1/2006 becomes infructuous. No enquiry can be held according to Order XX Rule 18 CPC as the suit stands dismissed. Therefore, there is no need to consider the application filed under Order XLI Rule 21 CPC by the appellants who are the respondents in the Cross-Objections. From the above discussion, I proceed to pass the following order:- (a) Application filed by the appellants under Order XLI Rule 27 CPC is dismissed. (b) RSA No. 2563/2005 is allowed. (c) Judgment dated 29.8.2005 in RA 47/2001 by the learned Senior Civil Judge, KGF, is set aside and the judgment of the trial court in O.S. 200/1985 on the file of Civil Judge (Senior Division), KGF, is restored. (d) The application filed under Order XLI Rule 21 CPC by the appellants in Cross Objections 1/2006 is dismissed as it does not survive for consideration.