Ishwar S/O. Badka Naik (Deceased) ... vs Smt. Jattamma Yane Mastamma Kom ...
2023 Latest Caselaw 2555 Kant

                                                     -1-




                             IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                   DATED THIS THE 24TH DAY OF MAY, 2023

                                                  BEFORE

                                 THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

                                REGULAR SECOND APPEAL NO.100212 OF 2017
                        BETWEEN:
                        ISHWAR S/O. BADKA NAIK (DECEASED)
                        AND HIS LR's
                        (AS PER O.S.NO.83/2011)

                        1.     SMT. IRAMMA KOM ISHWAR NAIK,
                               AGED ABOUT 72 YEARS

                        2.     MADEV S/O ISHWAR NAIK,
                               AGED ABOUT 47 YEARS,

                        3.     SOMAIYYA S/O ISHWAR NAIK,
                               AGED ABOUT 45 YEARS,

                        4.     SMT. MASTAMMA KOM VENKATESH NAIK,
                               AGED ABOUT 40 YEARS,

                        5.     NAGAPPA S/O ISHWAR NAIK,
           Digitally
           signed by
           YASHAVANT
                               AGED ABOUT 39 YEARS,
YASHAVANT  NARAYANKAR
NARAYANKAR Date:
           2023.05.26
           12:00:40
                        6.     PRAKASH S/O ISHWAR NAIK,
           +0530
                               AGED ABOUT 38 YEARS,

                        ALL ARE R/AT: HADI JATTANAMANE,
                        DIVAGERI, MURUDESHWAR
                        TA: BHATKAL, UTTARAKANNADA - 581 350.       ... APPELLANTS

                        (BY SRI LAXMESH PUTTA MATAGUPPI,
                            SMT. HEMAVATI P. MATAGUPPI AND
                            SRI. SANGAMESH S. GHULAPPANAVAR, ADVOCATES)

                        AND:
                        1.     SMT. JATTAMMA @ MASTAMMA KOM MANJAPPA NAIK,
                               AGED ABOUT 52 YEARS,
                               SAKIN, DARIMANE,
                               PO: HEBLE, TQ: BHATKAL,
                               UTTARAKANNADA - 581 350.

                        2.     SMT. MASTI KOM MANJUNATH NAIK,
                               AGED ABOUT 55 YEARS,
                               DEAD BY LR's
                               -2-




2(A) SMT. MANJAMMA MANJUNATH NAIK
     AGED ABOUT 55 YEARS,
     AT KEPPINMANE,
     PO: MATADAHITLU,
     TQ: BHATKAL,
     DIST: UTTARA KANNADA - 581 320.

2(B) SMT. NAGU MADEVA NAIK
     AGED ABOUT 52 YEARS,
     AT: MALGADDE,
     PO: BASTI, TQ: BHATKAL,
     DIST: UTTARA KANNADA - 581 321.

2(C) SRI. VENKATESH MANJUNATH NAIK
     AGED ABOUT 50 YEARS,
     AT: GARADIGADDE,
     PO: MURUDESHWAR,
     TQ:BHATKAL,
     DIST: UTTARA KANNADA - 581 350.

2(D) SRI. ISHWAR MANJUNATH NAIK
     AGED ABOUT 45 YEARS,
     AT: GARADIGADDI,
     PO:MURUDESHWAR,
     TQ: BHATKAL,
     DIST:UTTARA KANNADA - 581 350.

     (CAUSE TITLE AMENDED AS PER
     ORDER DATED 18.04.2022)

3.   SMT. TARA KOM RAJU NAIK,
     AGED ABOUT 32 YEARS,
     SAKIN, CHANDRAHITLU,
     MURUDESHWAR, TQ: BHATKAL,
     UTTARAKANNADA - 581 350.                 ... RESPONDENTS

(BY SRI. VENKATESH M. KHARVI, ADVOCATE FOR R-1;
 R-2 - DECEASED; R-3, R-2(A), R-2(C) & R-2(D) - ARE SERVED;
 R-2(B) - HELD SUFFICIENT)

      THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 09.12.2016 PASSED IN RA
NO.12/2014 ON THE FILE OF CIVIL JUDGE (SR. DN.), HONNAVARA,
SITTING AT BHATKAL, PARTLY ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 25.03.2013 PASSED IN
O.S. NO.83/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
BHATKAL, DECREEING THE SUIT FILED FOR PARTITION AND
PERMANENT INJUNCTION.
                                  -3-




      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
11/04/2023 FOR JUDGMENT AND COMING FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

                            JUDGMENT

The present regular second appeal by the legal

representatives of the original defendant No.1 assailing

the judgment and decree in R.A.No.12/2014 dated

09.12.2016 on the file of the Civil Judge (Sr. Dn.),

Honnavar sitting at Batkal, confirming and modifying the

shares in O.S.No.83/2011 dated 23.4.2011 on the file of

Prl. Civil Judge, Batkal.

2. The parties herein are referred to as per their

ranking before the trial Court.

3. This Court, while admitting the appeal on

15.09.2022, has framed the following substantial question

of law:

"Whether both Courts justified in holding that even daughters who were married before 1967 would be entitled to claim equal share upon death of their father after grant of occupancy rights?"

4. Heard Smt. Hemavati P.Mataguppi appearing

for Sri Laxmesh Putta Mataguppi learned counsel for the

appellants and Sri Venkatesh M.Kharvi, learned counsel

appearing for the respondents.

5. Brief facts of the case are that, the suit

schedule properties are the landed properties which were

held by the father of the plaintiff and defendant Nos.1 and

2-Badka, son of Naga Naik and on the death of their

father, name of defendant No.1 was entered in respect of

the suit schedule properties, subsequent to which

defendant No.1 filed an application for grant of occupancy

rights before the Land Tribunal and the Land Tribunal on

considering the application granted occupancy rights in the

name of defendant No.1 and accordingly, the mutation

entries were effected. The plaint avers that when the

plaintiff sought for partition of the suit schedule

properties, defendant No.1 refused to give share and later,

defendant No.1 sold "B" schedule property in favour of

defendant No.3 in October 2010 and defendant No.1,

though promised to give share to the plaintiff, is trying to

alienate the other suit schedule properties and the cause

of action to file the suit arose on refusal of defendant No.1

to effect partition and hence sought for partition and

separate possession to allot 1/3rd share and for the relief

of permanent injunction in respect of the suit schedule

properties.

6. Pursuant to the issuance of summons,

defendant Nos.1 and 3 appeared and filed their written

statement.

7. Defendant No.1 contended that the suit

schedule properties were granted in his individual capacity

and as such, the plaintiff does not have any share in the

suit schedule properties. It is stated that, at the time of

marriage of the plaintiff, defendant No.1 had spent

substantial amount and the plaintiff is not entitled for any

share. It is stated that the grant is exclusively in the

name of defendant No.1 and the plaintiff is not the joint

family member and she does not have any right over the

suit schedule properties.

8. Defendant No.3 filed his written statement

contending that the suit schedule properties are not the

tenanted properties of deceased Badka Naga Naik the

father of plaintiff and defendant Nos.1 and 2. It is

contended that defendant No.1 is the exclusive owner of

the suit schedule properties as the Land Tribunal granted

occupancy rights in his individual capacity. According to

defendant No.3, at the time of purchase of "B" schedule

property the records were verified, and finding the name

of defendant No.1 being entered in the revenue records,

has purchased the "B" schedule property under registered

sale deed dated 29.06.2010 for a valuable consideration

and that defendant No.3 is a bona fide purchaser of "B"

schedule property. It is stated that on purchase of the "B"

schedule property, defendant No.3 has constructed a

residential house by obtaining loan from bank and

defendant No.3 would be put to greater hardship if the

plaintiff is allotted share in the suit "B" schedule property.

It is further stated that without seeking cancellation of the

sale deed, the suit of the plaintiff is not maintainable.

9. The trial Court based on the pleadings and

documents on record, famed the following:

ISSUES

1. Whether the plaintiff proves that suit properties are the joint family properties of the plaintiff and defendants Nos.1 & 2?

2. Whether the defendant No.3 proves that he is bonafide purchaser of suit "B" schedule property for value?

3. Whether the defendant No.1 proves that the suit properties are granted by the Land Tribunal in his individual capacity?

4. Whether court fee paid is proper and sufficient?

5. Whether defendants prove that this Court has no pecuniary jurisdiction to try and entertain this suit?

6. Whether the plaintiff is entitled to 1/3rd share in the suit properties?

10. In order to substantiate her claim, the plaintiff

examined herself as PW.1 and got marked documents at

Exs.P-1 to P-27. On the other hand, defendants examined

defendant Nos.1 and 3 as DWs.1 and 3 and another

witness as DW.2 and got marked documents at Exs.D-1 to

D-10.

11. The trial Court, on the basis of the pleadings,

oral and documentary evidence and considering the

material on record, held that the suit schedule properties

are the joint family properties of the plaintiff and

defendant Nos.1 and 2, that defendant No.3 has proved

that he is a bona fide purchaser for a valuable

consideration and defendant No.3 is entitled for equity by

seeking for allotting the property purchased by defendant

No.3 to the share of defendant No.1, that defendant No.1

failed to prove that the suit schedule properties are the

exclusive property of defendant No.1 and the grant by the

Land Tribunal is in his individual capacity and the trial

Court decreed the suit of the plaintiff holding that the

plaintiff is entitled for her legitimate 1/6th share as per the

notional partition in respect of the suit schedule properties

and the defendants were restrained by way of a

permanent injunction from creating any third party rights

or creating any charge or encumbrance in respect of the

suit schedule properties till actual partition is effected by

metes and bounds.

12. Being aggrieved, defendant No.1 preferred

regular appeal before the first appellate Court, during the

pendency of the appeal, defendant No.1 died and his legal

representatives were brought on record. The first

appellate Court on re-appreciation of the entire evidence

and while answering the point for consideration, held that

the occupancy rights granted in favour of defendant No.1

was not for his exclusive benefit, but would enure to the

benefit of the family. The first appellate Court taking note

of the provisions of Section 24 and meaning of the family

as enumerated under Section 2(12) of the Karnataka Land

Reforms Act and taking into consideration of the

enactment of Hindu Succession Act, 1956 held that the

plaintiff being the daughter is entitled for partition and

separate possession under Section 8 of the Hindu

Succession Act. The first appellate Court also modified the

shares by allotting equal shares to the daughter as that of

the son by awarding 1/3rd share in the suit schedule

properties.

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13. The unsuccessful legal representatives of

original defendant No.1 have preferred the present appeal

assailing the concurrent judgments of the Courts below.

14. Learned counsel for the appellants would

vehemently contend that the Courts below fell in error in

not considering that the suit schedule properties were

granted exclusively to defendant No.1 by the Land

Tribunal and the plaintiffs have no right over the suit

schedule property as defendant No.1 is the exclusive

owner of the suit schedule properties and the granting of

occupancy rights in his favour was in his individual

capacity. Learned counsel would contend that the plaintiff

was not entitled for share in the tenanted properties as

she was married prior to 01.03.1974 and the Courts below

have failed to consider that the married daughters cannot

claim share in respect of the tenanted lands as the

definition of "family" as contemplated under Section 2(12)

read with Section 24 of the Karnataka Land Reforms Act,

1961 excludes the married daughters. In support of her

contention, learned counsel has placed reliance on the

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judgment of the Division Bench of this Court in the case of

Nimbavva & others vs. Channaveerayya & others

[ILR 2013 Kar. 6202].

15. Per contra, learned counsel appearing for the

respondent - plaintiffs would contend that the father of the

plaintiff and defendant Nos.1 and 2 were cultivating the

suit schedule properties as a tenant and on his death

defendant No.1 filed Form No.7 seeking occupancy rights

and defendant No.1 now cannot contend that the grant of

occupancy rights to defendant No.1 is exclusively for his

benefit. Learned counsel would contend that the plaintiffs

have right in the suit schedule properties in light of the

amended Hindu Succession Act, 2005 which has an

overriding effect and the first appellate Court, taking into

consideration the definition of "family" as defined under

Karnataka Land Reforms Act, 1961 and taking note of the

omission of sub-section (2) of Section 4 of the amended

Hindu Succession Act, 2005 by act 39 of 2005, has rightly

held that the plaintiff is entitled for share in the tenanted

properties and granted equal share to the plaintiff.

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Learned counsel placed reliance upon the following

judgments:

(i) Ramesh Sangappa Ragha @ Raghannavar

& another [RFA.No.100274/2017 disposed

on 05.10.2020]

(ii) Girija & others vs. Ramanagouda & others

[RFA.No.100194/2015 disposed on

03.03.2022]

(iii) Sri Arvind & another vs. Sunanda & others

[RFA.No.100149/2014 disposed on

13.01.2020]

(iv) Dyamavva & others vs. Tulasavva & others

[RSA.No.100389/2018 disposed on

16.12.2020]

16. This Court has carefully considered the rival

contentions urged by the learned counsel for the parties

and perused the material on record.

17. The relationship between the plaintiff and

defendant Nos.1 and 2 is not in dispute. It is also not in

dispute that the suit schedule property was originally

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standing in the name of the original propositus Badka

Naga Naik. According to defendant No.1, on the death of

original propositus, his name came to be entered

exclusively in the record of rights and on coming into force

the Karnataka Land Reforms Act, Form No.7 was filed by

defendant No.1 in his individual capacity and that the

plaintiff is not entitled for any share in the suit schedule

property as it is his individual property. The material on

record would reveal that the name of the original

propositus Badka Naga Naik appeared in the revenue

records which are at Exs.P-10 to P-17 and subsequently,

the name of defendant No.1 appeared as the eldest male

member of the family at Ex.P-18, which is the revenue

entry for the year 1965-66. As on the date, when

defendant No.1 filed an application for grant of occupancy

rights, the father of plaintiff and defendant Nos.1 and 2

was not alive, and on the application of defendant No.1,

the occupancy rights were granted in his favour. The

documentary evidence clearly establishes that till the

death of the original propositus - Badka Naga Naik, his

name found place in the revenue records and it is only

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subsequent to the death of the original propositus the

name of defendant No.1 came to be entered. The Land

Tribunal can only decide the tenancy, possession and

entitlement and it is the jurisdiction of the Civil Court to

decide as to whether the granting of occupancy right in

favour of a family member is in his individual capacity or

enures to the benefit of the family members. The trial

Court and the first appellate Court, taking into

consideration the material on record, held that the name

of the father was entered prior to the name of defendant

No.1 and the granting of occupancy right in favour of

defendant No.1 enures to the benefit of the family

members.

18. The trial Court in terms of the order rightly held

that the suit schedule properties are not the exclusive

properties of defendant No.1 and the plaintiff is entitled for

share. However, notional partition was granted to the

plaintiff awarding 1/6th share in respect of the suit

schedule properties. The first appellate Court meticulously

considered in detail regarding the grant of occupancy

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rights and held that defendant No.1 cannot claim exclusive

grant in his favour and declined to accept the contention

of defendant No.1 that the married daughters are not

entitled for a share in the tenanted lands.

19. The first appellate Court, while re-appreciating

the material on record, has considered the definition of

"family" under the Karnataka Land Reforms Act and the

overriding effect of Section 4(2) of the Hindu Succession

Act, 1956 by omission of sub-section (2) of Section 4 by

the amended Act 39 of 2005. Learned counsel for the

appellant relied upon the judgment of the Division Bench

of this Court in the case of Nimbavva stated supra to

contend that the daughters who sought partition and

separate possession were married and not entitled to

claim partition in the tenanted lands within the definition

of "family" as the married daughters are excluded from

the definition of "family" under the Karnataka Land

Reforms Act.

20. The subsequent judgments of the Division

Bench in Arvind, Ramesh and Girija as well as the

judgment of a Co-ordinate Bench of this Court in

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Dyamavva has considered and distinguished judgment

rendered in Nimbavva's case. The Division Bench of this

Court in the case of Arvind stated supra has held at para

Nos.23, 24, 25, 26 and 27 as under:

"23. As regards the succession to the said tenanted lands by the plaintiffs upon the death of Sri Narasimha Venkatesh Kamat, the defendants contended that the plaintiffs being daughters of Sri Narasimha Venkatesh Kamat were married prior to 01.03.1974 and therefore, were excluded under the definition of 'family' in terms of clause 12 of Section 2 of the KLR Act. They also placed reliance on Section 24 of the KLR Act to contend that the rights of tenancy can be continued only to the heirs of such tenant on the same terms and conditions on which the tenant was put in at the time of his death to contend that the plaintiffs were not heirs of Sri Narasimha Venkatesh Kamat and thus, were not entitled to any share in the suit properties. Alternatively, it was contended that the plaintiffs were given money in lieu of they relinquishing their shares and that such a relinquishment was done when proceedings before the Tahasildar were pending. It is no doubt true that PW.1 admitted to have received a sum of Rs.2,00,000/- towards relinquishing her share, but she resiled and contended that she had accepted to relinquish her share subject to payment of Rs.5,00,000/- and

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meeting the cost of construction of a house. At any rate, relinquishment of a property by an undivided owner is to be in writing and is to be registered in accordance with Section 17 of the Registration Act, 1908. The defendants have not placed any convincing material to establish that there was a settlement or relinquishment between the plaintiffs and defendants and therefore, this contention is hard to believe and cannot be accepted.

24. Insofar as the contention that the plaintiffs being daughters, who were married prior to 01.03.1974, and that they were not entitled to inherit the rights of tenancy, the word 'Family as defined in clause (12) of Section of the KLR Act is extracted below:

"Family" means.-

(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;

(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;

(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and

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(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;

Similarly, Section 24 of the KLR Act reads as under: "24. Rights of tenant to be heritable.- Where a tenant dies, the landlord shall be deemed to have continued the tenancy to the heirs of such tenant on the same terms and conditions on which such tenant was holding at the time of his death."

Section 4(2) of the Hindu Succession Act, 1956 is also extracted below:

4. Over-riding effect of Act.-(1) Save as otherwise expressly provided in this Act,-

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

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*(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings."

*Sub-Section (2) was omitted by Act 39 of 2005, sec. 2 (w.e.f. 9-9-2005). Sub Section (2), before omission, stood as above.

25. In order to pursue their contentions as stated above, the defendants relied upon the judgment of Division Bench of this Court in the case of Nimbavva and Others vs. Channaveerayya and Others reported in ILR 2013 KAR 6202 to contend that the daughters who were married were not entitled to succeed to tenanted property. The facts of the case on hand and the facts of the case that were involved in Nimbavva's case (referred supra) are completely different. In the cited case, the propositus died on 04.01.1974 i.e., prior to 01.03.1974, which was the appointed date under the KLR Act. One of the sons of the original tenant sought and obtained occupancy rights in respect of the land. It was therefore, pointed out in the cited judgment that the person, who was registered as an occupant became the absolute owner as the married

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daughters were not entitled to seek occupancy rights as they were not members of a family.

26. In the case on hand, the property in question was admittedly cultivated by Sri Narasimha Venkatesh Kamat as a tenant and he filed an application seeking grant of occupancy rights and the occupancy rights were indeed granted to Sri Narasimha Venkatesh Kamat. Thus the lands that vested in the Government were divested in favour of Sri Narasimha Venkatesh Kamat thus creating a fresh right, title and interest and therefore, these lands became the absolute properties of Sri Narasimha Venkatesh Kamat. He having died intestate on 01.04.1989, there cannot be any doubt that his successors, who are the plaintiffs and the defendant Nos.1 to 6 are entitled to an undivided 1/9th share in the suit schedule properties by operation of Section 8 of the Hindu Succession Act. The defendant Nos.2 and 3 / appellants herein were unable to show any provision in the KLR Act that determined the succession of the lands in question after the death of Sri Narasimha Venkatesh Kamat. As a matter of fact, there is no provision delineating the mode of succession to the lands that are conferred on tenants under the KLR Act and the only substantive provision that determines succession to such properties is section 8 of the Hindu Succession Act, 1956, which is a central legislation.

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27. The reliance of the defendant No.3 on section 4(2) of the Hindu Succession Act to contend that the provisions of the said Act would not affect the provisions of any law for the devolution of tenancy rights in respect of such holdings. It is to be noted that section 4(2) of the Hindu Succession Act was omitted with effect from 09.09.2005 and the present suit is filed in the year 2011. In addition, the relief sought for in the suit is not regarding the devolution of tenancy rights but relates to partitioning of an estate subsequent to confirmation of rights of tenancy. Therefore, this argument too does not take the case of the defendants any forward."

21. It is also relevant to state that the judgment

rendered by the Full Bench of the Hon'ble Apex Court in

N.Padmamma's has been referred by the Division Bench

of this Court in the case of Arvind wherein at para No.28

it is held as under:

"28. In this regard, it is profitable to refer to judgment rendered by Full Bench of the Hon'ble Apex Court in the case of N. Padmamma and Others vs. S. Ramakrishna Reddy and others reported in (2015) 1 Supreme Court Cases 417, wherein it is held as under:

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"The suit in the present case was filed after the grant of occupancy rights. The question here is whether the grant of such rights is for the benefit of one of the members of the joint family or for all the heirs left behind by Ramachandra Reddy. Our answer to that question is in favour of the appellants. In our opinion, the grant of such occupancy rights in favour of Respondent 1 was for the benefit of all the legal heirs left behind by Ramachandra Reddy. Reliance upon Lokraj case (Lokraj v. Kishan Lal, (1995) 3 SCC 291), therefore, is of no assistance to the respondents. We are also of the view that the decision in Lokraj case, does not correctly apply the earlier decision of this Court in Bhubaneshwar Prasad Narain Singh Case (Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee, (1971) 1 SCC 556). With utmost respect to the Hon`ble Judges who delivered the decision in Lokraj case, the law was not correctly laid down, if the same was meant to say that even in the absence of a plea of ouster, a co-heir could merely on the basis of grant of the occupancy rights in his name exclude the other co-heirs from partition of the property so granted."

22. The Division Bench of this Court held that in

view of the law declared by the Hon'ble Apex Court in

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N.Padmamma's case (stated supra), the law declared in

Nimbavva's case by another Division Bench of this Court

was not a good law and arrived at a conclusion that there

is no provision delineating the mode of succession to the

lands that are conferred on tenants under the Karnataka

Land Reforms Act and the only substantive provision that

determines succession to such property is Section 8 of the

Hindu Succession Act, 1956 which is a Central Legislation.

Therefore, the reliance placed by the appellants on the

judgment in Nimbavva is unacceptable to the present

facts and circumstances of the case.

23. In the present case, undisputedly the suit

properties were standing in the name of the original

propositus and on his death, defendant No.1 filed

application seeking occupancy rights in respect of the suit

schedule properties and therefore, the suit properties

cannot be the exclusive properties of defendant No.1, but

it has to be held that it was the property of the father of

the plaintiff and defendant Nos.1 and 2 and the plaintiff

and defendant Nos.1 and 2 being the successors are

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entitled for equal share in the suit schedule properties

under Section 8 of the Hindu Succession Act. It is relevant

to state that Sub-Section (2) of Section 4 of the Hindu

Succession Act has been omitted with effect from

09.09.2005 by amended Act 39 of 2005 and the suit is of

the year 2011 and thus, the contention of the defendant

that in light of Sub-Section 2 of Section 4 of the Hindu

Succession Act would not affect the provisions of any law

for the devolution of the tenancy rights is not acceptable.

24. For the foregoing reasons, the contention urged

by the appellant-defendant that the plaintiff being a

married daughter is not entitled for share in the granted

lands is not sustainable and this Court is of the considered

view that the Courts below have not committed any error

in decreeing the suit and granting partition and separate

possession in respect of the suit schedule properties and

the substantial question of law framed by this Court is

answered accordingly.

25. Since defendant No.3 has purchased "B"

schedule property from defendant No.1, defendant No.3

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can seek equity to allot the purchased portion to the share

of defendant No.1.

26. In the result, this Court pass the following:

ORDER

(i) The regular second appeal filed by the legal

representatives of defendant No.1 is hereby

dismissed.

(ii) The judgment and decree of the first appellate Court is

hereby confirmed and the plaintiff and defendant

Nos.1 and 2 are entitled for 1/3rd share in the suit

schedule properties.

(iii) The purchaser-defendant No.3 is at liberty to work out

his remedy in the final decree proceedings seeking to

allot the purchased property to the share of defendant

No.1.

No order as to costs.

Sd/-

JUDGE Ac/S*