(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)
2. For the purpose of convenience, the parties are
referred to as their respective ranks before the Trial Court.
3. The plaintiffs are the sons of defendant No.1-Ajit
S/o. late Kugappa Padmannavar, since deceased, represented
through his legal representative Smt.Sunita W/o. Late Ajit
vide registered sale deeds dated 24.08.2006 and 16.08.2007.
acres 15 guntas in favour of Parisappa. It is alleged that
sons namely, Ashok, Mahaveer and Ajit. The plaintiffs are the
children of the aforesaid late Ajit-defendant No.1.
4. The plaintiffs alleged that after the demise of
Kugappa, his widow Ratnawwa and three sons i.e. Ashok,
persons. It is alleged that, under the aforesaid registered
concerned. It was alleged that the suit schedule property was
the joint family property of the plaintiffs and defendant No.1.
party including the defendants No.2 and 3. As a result, the
1/3rd share each) in the suit schedule 'A' property.
shares each in the suit schedule 'A' property. They also sought
5. It is a matter of record and an undisputed fact that
registered Sale Deed dated 16.08.2007. Subsequently, the
by filing a compromise petition dated 02.09.2014. The said
compromise was accepted by the Trial Court. As a result, the
defendant Nos.1 and 2.
6. Being aggrieved by the impugned judgment and
No.2 is before this Court by way of the present appeal.
7. In the present appeal, the appellant/defendant
of this Court to amend the written statement.
8. The said application is opposed by the
9. A perusal of the material on record indicates that,
the plaintiffs. It was contended that the defendant No.1 was
without notice of the plaintiffs' alleged claims. It was therefore
10. Based on the pleadings of the parties, the Trial
3. Does the 2nd defendant proves that he is the
bonafide purchaser for value in respect of 7 Acres 11
Guntas in R.S. No.84/1 of Benakanhalli village?
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4. Does defendant No.3 proves that the
defendant No.1 and his brother Ajit Kugappa
Padmannavar had jointly executed an Agreement of
Sale in respect of 1 Acre out of R.S.No.84/1 of
Benakanhalli village and later have sold the said
property to him for lawful consideration vide sale
deed dated 16.08.2007?
5. Do defendant No.2 and defendant No.3 prove
that they were put in lawful possession and
enjoyment of their respective properties under the
sale deeds as alleged by them?
6. Is the suit bad for non-joinder of proper and
necessary parties as contended by defendant No.3 in
his written statement at paras 16 and 19?
7. Is the Court fee paid on the plaint is proper
and sufficient?
8. Do the plaintiffs prove that the sale deeds
dated 24.08.2006 and 16.8.2007 in favour of
defendant Nos.2 and 3 respectively do not bind
them?
9. Is the suit barred by limitation?
10. Are the plaintiffs entitled to the relief of
partition and separate possession? If so, to what
extent and in which of the properties?
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11. What order or decree?
11. The plaintiff No.1 examined himself as PW.1 and
documentary evidence at Exs.P1 to Ex.P5 were marked. The
defendant No.2 examined one witness as DW1 and
documentary evidence at Exs.D1 to D3 were marked.
12. As stated supra, during the pendency of the suit, a
compromise petition was filed on 02.09.2014 jointly by the
plaintiffs and defendant No.3, which was accepted by the Trial
Court at the time of passing the impugned judgment decree.
13. The impugned judgment and decree also indicate
that, in addition to the suit schedule 'A' property bearing
R.S.No.84/1 measuring 1 acre 18 guntas, there is also suit
schedule 'B' property, which is a house property over which
the appellant/defendant No.2 has no claim. Accordingly, the
present appeal is restricted / limited only to the suit schedule
'A' property and does not relate to suit schedule 'B' property.
14. The points that arise for consideration in the
present appeal are:
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(i) Whether the application I.A.No.1/2025 filed
by the appellant under Order VI Rule 17 of the
Code of Civil Procedure, 19084, seeking
amendment of her written statement deserves to
be allowed?
(ii) Whether the Trial Court was justified in
coming to the conclusion that the suit schedule
property was joint family property belonging to
the plaintiffs and defendant No.1, and that the
plaintiffs were entitled to their legitimate share
therein?
(iii) Whether the impugned judgment and decree
passed by the Trial Court warrants interference
in the present appeal?
Regarding Point No.(i):
15. A perusal of the material on record indicates that it
is the specific contention of the plaintiffs that the entire land
bearing R.S.No.84/1, measuring a total of 8 acres 30 guntas,
originally belonged to Parisappa and Kugappa, sons of
Basappa. At the time of partition in the year 1951, 4 acres 15
guntas fell to the share of Kugappa, and the remaining 4 acres
15 guntas fell to the share of Parisappa. It is also an
Hereinafter referred to as the 'CPC'
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undisputed fact that the Kugappa expired leaving behind his
widow Ratnawwa and three sons, namely Ashok, Mahaveer
and Ajit, who succeeded to his estate, including the aforesaid
R.S.No.84/1 measuring 4 acres 15 guntas. In order to
establish that the suit schedule property, which is a portion of
R.S.No.84/1 measuring 1 acre 18 guntas fell to the share of
the defendant No.1-Ajit, the plaintiffs have produced Ex.P1,
which is a certified copy of the registered partition deed dated
30.10.1999. A perusal of this document indicates that the suit
schedule property, described as suit schedule 'A' in the plaint,
was allotted to the defendant No.1 in the said partition. The
Trial Court has also taken into account that the share of
ancestral/joint family property allotted at partition between
the defendant No.1 and his brothers would become ancestral
in his hands, qua the plaintiffs, who are his children, and
would partake of the nature of ancestral/joint family property
insofar as the plaintiffs are concerned. While arriving at the
said conclusion, the Trial court held as under:
"15. The case of the plaintiffs is that, they
are the sons of defendant No.1. The defendant
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No.1 is the father of plaintiffs. Thus, the
plaintiffs and defendant No.1 constitute the
Joint Hindu Family. It is further the case of
the plaintiffs that, the agricultural land bearing
R.S. No.84/1 totally admeasuring 8 Acres 30
Gunthas was partitioned between the plaintiffs
grandfather by name Kugappa Basappa
Padmannavar and his brother by name
Parisappa Basappa Padmannavar in the month
of August, 1951 under a registered Partition
Deed. As per the said Partition Deed, southern
half (½) portion land was allotted towards the
legitimate share of late Shri. Kugappa Basappa
Padmannavar-the grandfather of the plaintiffs
and he become the absolute owner and in
exclusive possession of the said southern half
portion of the land i.e., 4 Acres 15 Gunthas and
the northern half (½) portion was allotted
towards the legitimate share of late Shri.
Parisappa Basappa Padmannavar. Accordingly,
he became the absolute owner and in exclusive
possession of the said northern half portion of
land i.e., 04 Acres 15 Gunthas. Kugappa
Basappa Padmannavar had three sons by
name (1) Ashok, (2) Mahaveer and (3)
Ajit. After the death of Shri. Kugappa
Basappa Padmannavar, his widow by name
Smt. Ratnawwa and his three sons-Ashok,
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Mahaveer and Ajit are inherited the said
property and subsequently, got partitioned the
same under a registered Partition Deed dated :
30.10.1999 including other house properties
held by deceased Kugappa Basappa
Padmannavar. By virtue of the registered
Partition Deed dated : 30.10.1999, the suit
schedule 'A' and 'B' properties came to be
allotted towards the legitimate share of
Ajit-the the son of late Shri. Kugappa
Basappa Padmannavar i.e., the defendant
No.1. Thus, the plaintiffs and defendant No.1
constitute a joint Hindu family. The suit
properties are the ancestral, coparcenary and
joint family properties owned and possessed by
the plaintiffs and defendant No.1 jointly. The
plaintiffs have got undivided right, title and
interest over the suit properties to the extent of
their legitimate shares. So far, no partition has
taken place between the plaintiffs and
defendant No.1 in respect of suit properties by
metes and bounds.
16. On the other hand, the defendant No.2
and defendant No.3 have denied that, the
plaintiffs and defendant No.1 constitute a joint
Hindu family and the suit properties are the
ancestral, joint family properties of the plaintiffs
and defendant No.1. The defendant No.2 in the
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written statement at para 10 has specifically
contended that, the suit property being the
absolute property of the defendant No.1, the
plaintiffs and other defendants have no right to
claim partition in the suit properties during the
life time of defendant No.1.
17. In order to prove their case, the plaintiff
No.1 himself got examined as P.W.1. He
reiterates the averments and allegations made
in the plaint. In the cross examination, nothing
worthwhile material is elicited from the mouth
of this witness so as to discredit his version in
the examination-in-chief.
18. The plaintiffs have relied upon the
documents produced at Ex.P.1 to Ex.P.5. Out of
these documents, Ex.P.1 is the Certified Copy
of Partition Deed dated : 30.10.1999. Ex.P.2 is
the Record of Rights pertaining to Sy. No.84/1.
Ex.P.3 is the Record of Rights pertaining to Sy.
No.69/1A/23/1. Ex.P.4 is the Certified Copy of
Sale Deed dated : 24.08.2006 executed by
Mahaveer and Ajit in favour of defendant No.2.
Ex.P.5 is the Certified Copy of Sale Deed dated
: 16.08.2007 executed by Mahaveer and Ajit in
favour of defendant No.3.
19. In order to rebut the evidence so placed
on record by the plaintiffs, the defendant No.2
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examined herself through her power of
attorney Holder as D.W.1. Admittedly, D.W.1 is
the husband of defendant No.2. D.W.1
corroborates the contentions taken up in the
written statement in the examination-in-chief
filed by way of affidavit. The cross examination
directed to D.W.1 is worth reading. In the
cross examination, D.W.1 has deposed that, at
the time of execution of the Sale Deed,
Partition Deed has been shown to the
defendant No.2 and the copy of the said
Partition Deed has been enclosed with the Sale
Deed. D.W.1 admits that, the Partition Deed
enclosed with the Sale Deed is same as Ex.P.1.
D.W.1 admits that, the suit property totally
measures 08 Acres 30 Gunthas and out of the
total extent of 08 Acres 30 Gunthas was
originally belongs to Kugappa Basappa
Padmannavar and his brother Parisappa
Basappa Padmannavar. D.W.1 admits that,
Ex.D.1 is executed in respect of R.S. No.84/1
measuring 04 Acres 15 Gunthas and house
property. D.W.1 further admits that, suit
schedule 'A' property is originally ancestral
property of Padmannavar family. He also
admits that, suit schedule 'A' property is not
self acquired property of Mahaveer
Padmannavar. The evidence of D.W.1 clearly
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discloses that, suit schedule properties are the
ancestral, joint family properties of the
plaintiffs and defendant No.1 and there was
registered Partition Deed dated : 30.10.1999
between the widow of Kugappa Padmannavar
and defendant No.1 and Mahaveer and Ashok
and in the said partition, suit 'A' and 'B'
schedule properties came to be allotted to the
share of first defendant as per Ex.P.1. Since
the suit properties are ancestral, joint family
properties belonging to the plaintiffs and
defendant No.1, all of them are in joint
possession of the suit properties. Admittedly,
so far there is no partition between the
plaintiffs and defendant No.1. Accordingly,
issue No.1 is answered in the affirmative, issue
No.2 is answered in the affirmative."
16. As can be seen from the aforesaid findings
recorded by the Trial Court, the evidence produced by the
plaintiffs, as well as the various admissions in the evidence of
the appellant/defendant No.2, were taken into account by the
Trial Court to arrive at the conclusion that the suit schedule
property was ancestral, joint family property, as it was
originally allotted to the share of the plaintiffs grandfather
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Kugappa, in the year 1951, and thereafter, allotted to
defendant No.1-Ajit under the partition deed of 1999.
17. Under these circumstances, we are of the
considered opinion that the findings recorded by the Trial
Court, while answering Issue Nos.1 and 2 in the affirmative
and holding that the suit schedule properties are ancestral,
joint family properties, do not suffer any illegality or infirmity,
nor can the same be said to be perverse, capricious or
contrary to the facts of law so as to warrant interference by
this Court in the present appeal.
18. As noticed supra, the suit schedule 'A' property
forms a portion of larger extent of land bearing R.S.No.84/1,
measuring 1 acre 18 guntas, which was allotted in favour of
defendant No.1-Ajit. This allotment took place after the total
extent of 4 acres 15 guntas, which had fallen to the share of
Kugappa in the year 1951, was divided by metes and bounds
and partitioned among his heirs, with the suit schedule 'A'
property being allotted exclusively to defendant No.1-Ajit. This
undisputed fact stands clearly established by the recitals
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contained in the registered partition deed dated 30.10.1999,
coupled with the revenue records and other documents. The
materials collectively demonstrate that the suit schedule
property was carved out of the total extent of 4 acres 15
guntas and allotted to the individual share of defendant No.1-
Ajit, after division by metes and bounds. It follows therefrom
that, except the plaintiffs, who would be entitled to a share in
the suit schedule property, as it constituted joint family
property in the hands of Ajit, the other two brothers,
Mahaveer and Ashok, would have no claim over it, particularly
since they were also allotted separate and distinct portions of
the same property under the said partition.
19. The aforesaid facts and circumstances clearly
indicate that, to the extent the suit schedule property
constituted ancestral joint family property namely, suit
schedule 'A' property measuring 1 acre 18 guntas, which was
allotted to the share of Ajit, no one other than Ajit and the
plaintiffs (his children) could claim any share therein,
especially when the remaining extent of the land was allotted
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to Ajit's two brothers under the very same partition. In other
words, while the Ashok and Mahaveer and their respective
family members, could lay a claim only in respect of the
properties allotted to them under the partition deed dated
30.10.1999, none of the three parties to the said partition, nor
their family members could put forth any claim over the
properties allotted to the other party/branches of the said
partition. It is therefore clear that, in the present partition
filed by the plaintiffs against their father (defendant No.1-Ajit)
in respect of only the suit schedule 'A' property, which was
exclusively allotted to Ajit under the said partition, it was
absolutely unnecessary to implead the remaining parties to
the partition deed, i.e., Mahaveer and Ashok or their family
members. They cannot be considered proper or necessary
parties to the present suit, which is restricted/limited only to
the share allotted to defendant No.1-Mahaveer by dividing the
same by metes and bounds, and has no relation to the shares
allotted to his brother i.e., Mahaveer or Ashok or their family
members.
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20. In this context, a perusal of the application
I.A.No.1/2025 filed by the appellant/defendant No.2 will
indicate that the sole contention urged by the
appellant/defendant No.2 is that, since the Sale Deed dated
24.08.2006, was executed jointly by defendant No.1-Ajit and
his brother Mahaveer in favour of defendant No.2. The said
Mahaveer and his heirs ought to have been made parties to
the suit. In this context, a perusal of the aforesaid registered
Sale Deed dated 24.08.2006 produced as Ex.P4 will indicate
that the same refers to the earlier partition deed dated
30.10.1999, under which, both Mahaveer and defendant No.1-
Ajit, were allotted separate portion of R.S.No.84/1, measuring
1 acre 18 guntas. It is needless to state that merely because
Mahaveer and defendant No.1-Ajit chose to jointly execute
one (single) Sale Deed jointly selling their respective exclusive
properties measuring 1 acre 18 guntas which is
divided/demarcated by metes and bonds in favour of
defendant No.2, the said circumstance cannot be made the
basis to come to the conclusion that Mahaveer, the co-seller,
or his heirs, ought to have been made the parties to the
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present suit for partition, which is restricted only to the suit
schedule 'A' schedule property, which was the property
allotted to the share of Ajit, over which, neither his brother
Mahaveer nor his family members had any right.
Consequently, the said contention urged by the appellant
cannot accepted. Accordingly, I.A.No.1/2025 is devoid of merit
and is liable to be dismissed.
21. Accordingly point No.(i) is answered against the
appellant by holding that I.A.No.1/2025 is devoid of merit and
the same is dismissed accordingly.
Regarding Point No.(ii and iii):
22. In this context, it is relevant to note that the entire
land bearing R.S.No.84/1, totally measuring 8 acres 30
guntas, was originally ancestral property in the hands of the
original propositus Basappa. Upon his demise, his two sons,
namely Kugappa and Parisappa entered into a partition in the
year 1951, under which, 4 acres 15 guntas were allotted to
Kugappa and the remaining 4 acres 15 guntas to Parisappa. It
is also an undisputed fact that Kugappa left behind his widow
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Ratnawwa and his 3 sons Ashok, Mahaveer and Ajit. A perusal
of the registered partition deed dated 30.10.1999, entered
into between Ratnawwa, Ajit (defendant No.1), Ashok and
Mahaveer, reveals specific recitals acknowledging that the
land bearing R.S.No.84/1 was joint family property and was
being equally divided among the three sons of Kugappa, viz.,
Ajit (defendant No.1), Mahaveer and Ashok. In the said
partition, the suit schedule 'A' property, measuring 1 acre 18
guntas in R.S.No.84/1, was allotted to the share of Mahaveer
(defendant No.1). It is well settled in law that the share
allotted at a coparcener at a partition of ancestral or joint
family property partakes the nature of ancestral/joint family
property in the hands of the allottee, qua his children and as
regards his children, including the plaintiff Nos.1 and 2.
23. The Hon'ble Apex Court in the case of Vineeta
Sharma Vs. Rakesh Sharma5, held as follows:
AIR 2020 Supreme Court 3717
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137. Resultantly, we answer the reference as under:
137.1. The provisions contained in
substituted Section 6 of the Hindu Succession Act,
1956 confer status of coparcener on the daughter born
before or after amendment in the same manner as son
with same rights and liabilities.
137.2. The rights can be claimed by the daughter
born earlier with effect from 9.9.2005 with savings as
provided in Section 6(1) as to the disposition or
alienation, partition or testamentary disposition which
had taken place before 20th day of December, 2004.
137.3. Since the right in coparcenary is by birth, it
is not necessary that father coparcener should be living
as on 9.9.2005.
137.4. The statutory fiction of partition created by
proviso to Section 6 of the Hindu Succession Act, 1956
as originally enacted did not bring about the actual
partition or disruption of coparcenary. The fiction was
only for the purpose of ascertaining share of deceased
coparcener when he was survived by a female heir, of
Class I as specified in the Schedule to the 1956 Act or
male relative of such female. The provisions of the
substituted Section 6 are required to be given full
effect. Notwithstanding that a preliminary decree has
been passed, the daughters are to be given share in
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coparcenary equal to that of a son in pending
proceedings for final decree or in an appeal.
24. In the case of Arshnoor Singh Vs. Harpal Kaur
and Others6, the Hon'ble Apex Court held as under:
7. With respect to the first issue, it is the admitted
position that Inder Singh had inherited the entire suit
property from his father Lal Singh upon his death. As
per the mutation entry dated 16.01.1956 produced by
Respondent No. 1, Lal Singh's death took place in
1951. Therefore, the succession in this case opened in
1951 prior to the commencement of the Hindu
Succession Act, 1956 when Inder Singh succeeded to
his father Lal's Singh's property in accordance with the
old Hindu Mitakshara law.
7.1. Mulla in his Commentary on Hindu Law (22nd
En.) has stated the position with respect to succession
under Mitakshara law as follows:
"A son, a grandson whose father is dead, and a
greatgrandson whose father and grandfather are
both dead, succeed simultaneously as single heir to
the separate or selfacquired property of the
deceased with rights of survivorship."
(2020) 14 Supreme Court Cases 436
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"All property inherited by a male Hindu from his
father, father's father or father's father's father, is
ancestral property. The essential feature of ancestral
property according to Mitakshara law is that the
sons, grandsons and great-grandsons of the person
who inherits it, acquire an interest, and the rights
attached to such property at the moment of their
birth.
A person inheriting property from his three
immediate paternal ancestors holds it, and must
hold it, in coparcenary with his sons, son's sons, and
son's son's sons, but as regards other relations, he
holds it, and is entitled to hold it as his absolute
property."
7.2. In Shyam Narayan Prasad v. Krishna Prasad7,
this Court has recently held that : (SCC p.651, para 12)
"12. It is settled that the property inherited by a
male Hindu from his father, father's father or
father's father's father is an ancestral property. The
essential feature of ancestral property, according to
Mitakshara Law, is that the sons, grandsons, and
great-grandsons of the person who inherits it,
acquire an interest, and the rights attached to such
property at the moment of their birth. The share
which a coparcener obtains on partition of ancestral
property is ancestral property as regards his male
(2018) 7 SCC 646: (2018) 3 SCC (Civ) 702
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issue. After partition, the property in the hands of
the son will continue to be the ancestral property
and the natural or adopted son of that son will take
interest in it and is entitled to it by survivorship."
7.3. Under Mitakshara law, whenever a male
ancestor inherits any property from any of his paternal
ancestors up to three degrees above him, then his male
legal heirs up to three degrees below him, would get an
equal right as coparceners in that property.
7.4. In Yudhishter v. Ashok Kumar8, this Court held
that:
"10. This question has been considered by this
Court in CWT v. Chander Sen9 where one of us
(Sabyasachi Mukharji, J) observed that under the
Hindu Law, the moment a son is born, he gets a
share in father's property and becomes part of the
coparcenary. His right accrues to him not on the
death of the father or inheritance from the father
but with the very fact of his birth. Normally,
therefore whenever the father gets a property
from whatever source, from the grandfather or
from any other source, be it separated property or
not, his son should have a share in that and it will
become part of the joint Hindu family of his son
and grandson and other members who form joint
7 (1987) 1 SCC 204
8 (1986) 3 SCC 567 : 1986 SCC (Tax) 641
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Hindu family with him. This Court observed that
this position has been affected by Section 8 of the
Hindu Succession Act, 1956 and, therefore, after
the Act, when the son inherited the property in the
situation contemplated by Section 8, he does not
take it as Karta of his own undivided family but
takes it in his individual capacity." (emphasis
supplied)
7.5. After the Hindu Succession Act, 1956 came into
force, this position has undergone a change. Post 1956,
if a person inherits a self-acquired property from his
paternal ancestors, the said property becomes his self
acquired property, and does not remain coparcenary
property.
7.6. If succession opened under the old Hindu law,
i.e. prior to the commencement of the Hindu
Succession Act, 1956, the parties would be governed
by Mitakshara law. The property inherited by a male
Hindu from his paternal male ancestor shall be
coparcenary property in his hands vis-à-vis his male
descendants up to three degrees below him. The nature
of property will remain as coparcenary property even
after the commencement of the Hindu Succession Act,
1956.
7.7. In the present case, the succession opened in
1951 on the death of Lal Singh. The nature of the
property inherited by his son Inder Singh was
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coparcenary in nature. Even though Inder Singh had
effected a partition of the coparcenary property
amongst his sons in 1964, the nature of the property
inherited by Inder Singh's sons would remain as
coparcenary property qua their male descendants up to
three degrees below them.
7.8. The judgment in Uttam v. Saubhag
Singh relied upon by the respondents is not applicable
to the facts of the present case. In Uttam4, the
appellant therein was claiming a share in the
coparcenary property of his grandfather, who had died
in 1973 before the appellant was born. The succession
opened in 1973 after the Hindu Succession Act,
1956 came into force. The Court was concerned with
the share of the appellant's grandfather in the ancestral
property, and the impact of Section 8 of the Hindu
Succession Act, 1956. In light of these facts, this Court
held that after property is distributed in accordance
with Section 8 of the Hindu Succession Act, 1956, such
property ceases to be joint family property in the hands
of the various persons who have succeeded to it. It was
therefore held that the appellant was not a coparcener
vis-à-vis the share of his grandfather.
7.9. In the present case, the entire property of Lal
Singh was inherited by his son Inder Singh as
coparcenary property prior to 1956. This coparcenary
(2016) 4 SCC 68 : (2016) 2 SCC (Civ) 545
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property was partitioned between the three sons of
Inder Singh by the court vide a decree of partition
dated 04.11.1964. The shares allotted in partition to
the coparceners, continued to remain coparcenary
property in their hands qua their male descendants. As
a consequence, the property allotted to Dharam Singh
in partition continued to remain coparcenary property
qua the Appellant.
7.10. With respect to the devolution of a share
acquired on partition, Mulla on Hindu Law (22nd Edn.)
states the following:
"339. Devolution of share acquired on
partition. - The effect of a partition is to dissolve the
coparcenary, with the result, that the separating
members thenceforth hold their respective shares as
their separate property, and the share of each member
will pass on his death to his heirs. However, if a
member while separating from his other coparceners
continues joint with his own male issue, the share
allotted to him on partition, will in his hands, retain the
character of a coparcenary property as regards the
male issue [Section 221, sub-section(4)]."
7.11. This Court in Valliammai Achi v. Nagappa
Chettiar11 and Ors.,4 held that:
AIR 1967 SC 1153
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"10. ... It is well settled that the share which a
cosharer obtains on partition of ancestral property
is ancestral property as regards his male issues.
They take an interest in it by birth whether they
are in existence at the time of partition or are born
subsequently: [see Hindu Law by Mulla, Thirteenth
Edition p. 249, para 223 (2)(4)]. If that is so and
the character of the ancestral property does not
change so far as sons are concerned even after
partition, we fail to see how that character can
change merely because the father makes a will by
which he gives the residue of the joint family
property (after making certain bequests) to the
son."
7.12. The suit property which came to the share of
late Dharam Singh through partition, remained
coparcenary property qua his son, the appellant herein,
who became a coparcener in the suit property on his
birth i.e. on 22.08.1985.Dharam Singh purportedly
executed the two Sale Deeds on 01.09.1999 in favour
of Respondent No. 1 after the appellant became a
coparcener in the suit property."
(emphasis supplied)
25. In the instant case, as stated supra, the suit
schedule property forms a portion of the larger extent of land
bearing R.S.No.84/1. The said property came to defendant
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No.1-Ajit, pursuant to a partition between his father Kugappa,
and Parisappa, and subsequently through a partition between
defendant No.1-Ajit and his brothers. As such, the suit
schedule property would clearly partake of the nature of
ancestral joint family property in the hands of defendant No.1.
Consequently, the plaintiffs would be entitled to their
legitimate 1/3rd share each in the suit schedule 'A' property,
as correctly held by the Trial court.
26. While arriving at the said conclusion, the Trial court
took into account the pleadings and evidence of the parties
and has recorded a correct finding that the suit schedule 'A'
property was a joint family property, and that the Sale Deed
dated 24.08.2006 executed by the defendant No.1-Ajit, was
valid only to the extent of his 1/3rd share, and the same was
not binding upon the plaintiffs' 2/3rd (i.e., 1/3rd + 1/3rd each)
in this property. Under these circumstances, we are of the
considered opinion that, the Trial Court was fully justified in
coming to the conclusion that the plaintiffs were entitled to
their legitimate share in the suit schedule property.
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27. Upon re-appreciation, re-evaluation and re-
consideration of the entire material on record, we are of the
considered opinion that the impugned judgment and decree
passed by the Trial Court cannot be said to suffer from any
illegality or infirmity, nor can the same be said to be
capricious or perverse or contrary to law or facts, warranting
interference by this Court in the present appeal.
28. Hence, the following:
ORDER
i) The above appeal is dismissed.
ii) I.A.No.1/2025 filed by the appellant/defendant
No.2 under Order VI Rule 17 of the CPC is also
dismissed.
iii) The judgment and decree dated 24.04.2018
passed in O.S.No.47/2011 by the Court of
Principal Senior Civil Judge and Chief Judicial
Magistrate, Belagavi, is hereby confirmed.
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iv) Draw decree accordingly.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
PMP
CT-MCK
