Sou Pushpa Parashram Marihalkar Vs Sri. Neminath S/O. Mahaveer Padmannavar

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IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 16^TH DAY OF SEPTEMBER 2025

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PRESENT

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THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 100215 OF 2018 (PAR-)

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BETWEEN:

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SOU PUSHPA PARASHRAM MARIHALKAR, AGED ABOUT 42 YEARS, OCC: HOUSEHOLD, R/AT MAYANNA GALLI, KODOLI VILLAGE, TQ: AND DIST: BELAGAVI-590010, BY GPA HOLDER SRI PARASHURAM BHAVAKU MARIHALKAR, AGED 45 YEARS, OCC: BUSINESS, R/AT HANUMAN NAGAR, BELAGAVI. &APPELLANT

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(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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AND:

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SRI. NEMINATH S/O. MAHAVEER PADMANNAVAR, AGED ABOUT 34 YEARS, OCC: AGRICULTURE AND PVT. SERVICE, R/AT. CTS NO.1403/B-2, BASAVAN GALLI, BELAGAVI-590003.

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SOU CHALANADEVI D/O. MAHAVEER PADMANNAVAR, (W/O. BAHUBALI NEGINAHAL), AGED ABOUT 30 YEARS, OCC: HOUSEHOLD,

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2 -

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R/AT. CTS NO. 1403/B-2, BASAVAN GALLI, BELAGAVI-590003.

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SRI. MAHAVEER S/O. LATE KUGAPPA PADMANNAVAR, AGED ABOUT 70 YEARS, OCC: AGRICULTURE AND PVT. SERVICE, R/AT. CTS NO. 1403/B-2, BASAVAN GALLI, BELAGAVI-590003.

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SRI. VAIJU S/O. YALLAPPA PATIL, AGED ABOUT 64 YEARS, OCC: AGRICULTURE, R/AT. SAVAGAON VILLAGE, TQ: AND DIST: BELAGAVI-590008.

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&RESPONDENTS

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(BY SRI. CHETAN MUNNOLLI, ADVOCATE FOR R1 & R2; SRI. MRUTYUNJAYA S. HALLIKERI, ADVOCATE FOR R3; APPEAL AGAINST R4 IS DISMISSED AS ABATED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SETASIDE THE JUDGMENT AND DECREE PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI PASSED IN O.S.NO.243/2010 DATED 24.04.2018 AND DISMISS THE SUIT WITH COSTS THROUGHOUT BY ALLOWING THE PRESENT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

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This appeal by defendant No.2 in OS No.243/2010 is directed against the impugned judgment and decree dated 24.04.2018 passed by the Principal Senior Civil Judge and C.J.M., Belagavi (for short, 8the Trial Court9), whereby the said suit filed by the respondent Nos.1 and 2/plaintiffs against the appellant, respondent Nos.3 and 4, who are the defendant Nos.2, 1 and 3 respectively before the Trial Court, for partition and separate possession of the plaintiffs9 alleged 1/3^rd share in the suit schedule immovable property, was decreed in favour of the plaintiffs against the defendants.

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For the purpose of convenience, the parties are referred to as per their respective ranks before the Trial Court.

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The plaintiffs are the sons of defendant No.1Mahaveer and defendant Nos.2 and 3 are purchasers of the suit schedule immovable property from defendant No.1, vide registered sale deeds dated 24.08.2006 and 16.08.2007. The plaintiffs instituted the aforesaid suit inter alia contending that

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in the year 1951 there was a partition between the grandfather of the plaintiffs by name Kugappa and his brother Parisappa, in which the total extent of land bearing RS No.84/1 measuring 8 acres 30 guntas was equally divided between the aforesaid Kugappa and Parisappa by allotting southern half(½) portion measuring 4 acres 15 guntas in favour of Kugappa and northern half(½)portion measuring 4 acres 15 guntas in favour of Parisappa. It is alleged that Kugappa was married to one Ratnawwa and they had three sons namely, Ashok, Mahaveer and Ajit. The plaintiffs are the children of aforesaid Mahaveer-defendant No.1, the second son of Kugappa referred to supra.

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The plaintiffs alleged that after the demise of Kugappa, his widow Ratnawwa and three sons i.e. Ashok, Mahaveer and Ajit entered into a registered partition deed dated 30.10.1999, whereby, all the joint family properties, including the aforesaid land bearing R.S.No.84/1 measuring 4 acres 15 guntas was divided and partitioned between the said persons. It is alleged that, under the aforesaid registered

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partition deed dated 30.10.1999, the suit schedule 8A9 property was allotted to the share of defendant No.1Mahaveer, as a result of which, the suit schedule 8A9 property measuring 1 acre 18 guntas in R.S.No.84/1 became ancestral property in the hands of defendant No.1-Mahaveer, qua his children, the plaintiffs herein, and the same was the ancestral property insofar as the plaintiffs were concerned. It was alleged that the suit schedule property was the joint family property of the plaintiffs and defendant No.1. Therefore, the defendant No.1 was not entitled to alienate the entire extent of suit schedule property in favour of any third party including the defendants No.2 and 3. As a result, the registered Sale Deeds dated 24.08.2006 and 16.08.2007 executed by the defendant No.1 in favour of defendant Nos.2 and 3, are not binding upon the plaintiffs 2/3^rd share (1/3^rd + 1/3^rd share each) in the suit schedule 8A9 property. Accordingly, the plaintiffs instituted the aforesaid suit seeking partition and separate possession of their legitimate 1/3^rd shares each in the suit schedule 8A9 property. They also sought a declaration that the Sale Deed dated 24.08.2006, executed by the

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defendant No.1-Mahaveer in favour of defendant No.2, is not binding upon their share in the suit schedule property.

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It is a matter of record and an undisputed fact that a portion of suit schedule 8A9 property was sold by the defendant No.1 in favour of defendant No.3 through a registered Sale Deed dated 16.08.2007. Subsequently, the defendant No.3 amicably settled the dispute with the plaintiffs by filing a compromise petition dated 02.09.2014. The said compromise was accepted by the Trial Court. As a result, the plaintiffs9 suit was decreed in their favour only as against the defendant Nos.1 and 2.

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Being aggrieved by the impugned judgment and

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decree passed by the Trial Court, the appellant/defendant No.2 is before this Court by way of the present appeal.

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In the present appeal, the appellant/defendant

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No.2 filed an application I.A.No.1/2025 under Order VI Rule

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17 of the Code of Civil procedure, 1908¹ , seeking permission of this Court to amend the written statement.

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The said application is opposed by the

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respondents/plaintiffs.

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A perusal of the material on record indicates that, as against the aforesaid contentions put forth by the plaintiffs, the appellant-defendant No.2 filed her written statement disputing and denying various allegations and claims made by the plaintiffs. It was contended that the defendant No.1 was the absolute owner, in lawful and peaceful possession and enjoyment of the suit schedule property, and had executed a registered Sale Deed dated 24.08.2006, selling and transferring the entire suit schedule property in favour of defendant No.2, who was a bona fide purchaser for value without notice of the plaintiffs9 alleged claims. It was therefore contended that the suit was devoid of merit and liable to be dismissed.

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1 Hereinafter referred to as the 8CPC9

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Based on the pleadings of the parties, the Trial Court framed the following issues:

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ISSUES

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1. Do the plaintiffs prove that the suit properties are the ancestral properties and there was a registered partition deed dated 30-10-1999 between the widow and sons of Kugappa Padmannavar and the suit 8A9 and 8B9 schedule properties came to be allotted to the share of 1^st defendant?

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2. Whether the plaintiffs prove that the suit properties are the ancestral and joint family properties belonging to the plaintiffs and defendant No.1 and all of them are in joint possession and enjoyment of the said properties?

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3. Does the 2^nd 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?

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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?

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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?

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7. Is the Court fee paid on the plaint is proper and sufficient?

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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?

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9. Is the suit barred by limitation?

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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?

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The plaintiff No.1 examined himself as PW.1 and documentary evidence at Exs.P1 to Ex.P4 were marked. The defendant No.2 examined one witness as DW1 and documentary evidence at Exs.D1 to D21 were marked.

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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.

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The impugned judgment and decree also indicate that, in addition to the suit schedule 8A9 property bearing R.S.No.84/1 measuring 1 acre 18 guntas, there is also suit schedule 8B9 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 8A9 property and does not relate to suit schedule 8B9 property.

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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, 1908² , seeking amendment of her written statement deserves to be allowed?

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2 Hereinafter referred to as the 8CPC9

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(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?

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(iii) Whether the impugned judgment and decree passed by the Trial Court warrants interference in the present appeal?

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Regarding Point No.(i):

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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 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

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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-Mahaveer, 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 8A9 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:

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<24) The case of the plaintiff is that, the plaintiff No.1 is the son of defendant No.1 and plaintiff No.2 is the daughter of defendant No.1. Thus, the plaintiffs and defendant No.1 constitute the joint Hindu family. It is further the case of the plaintiff that, agricultural land bearing R.S. No.84/1 totally measuring 8 Acres 30 Gunthas situated at Benakanhalli Village, Taluka and District Belagavi, was partitioned between the

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plaintiffs9 grandfather by name Kugappa Basappa Padmannavar and his brother Parisappa Basappa Padmannavar in the month of August, 1951 under a registered Partition Deed. As per the registered Partition Deed, southern half portion of R.S. No.84/1 was allotted towards legitimate share of Shri. Kugappa Basappa Padmannavar i.e.. the grandfather of the plaintiffs and accordingly, he became the absolute owner and in exclusive possession of the said southern half portion i.e.. 4 Acres 15 Gunthas and northern half portion i.e., 4 Acres 15 Gunthas was allotted towards legitimate share of late Shri. Parisappa Basappa Padmannavar. Accordingly, he became the absolute owner and in exclusive possession of the said northern half portion. Shri. 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 sonsAshok, 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 Mahaveer-the second son of late Shri. Kugappa Basappa Padmannavar i.e.,

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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.

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25) 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 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.

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26) 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.

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27) The plaintiffs have relied upon the documents produced at Ex.P.1 to Ex.P.4. 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 Property Register Card pertaining to CTS No.1403/B2 and Ex.P.4 is the Sale Deed executed by Mahaveer Padmannavar and Ajit Kugappa Padmannavar in favour of defendant No.2.

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28) In order to rebut the evidence so placed on record by the plaintiff, the defendant No.2 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 examinationin-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

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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 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 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 Ajit 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.=

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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

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property was ancestral, joint family property, as it was originally allotted to the share of the plaintiffs grandfather Kugappa, in the year 1951, and thereafter, allotted to defendant No.1-Mahaveer under the partition deed of 1999.

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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.

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As noticed supra, the suit schedule 8A9 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-Mahaveer. 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

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8A9 property being allotted exclusively to defendant No.1Mahaveer. This undisputed fact stands clearly established by the recitals 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-Mahaveer, 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 Mahaveer, the other two brothers, Ajit 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.

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The aforesaid facts and circumstances clearly indicate that, to the extent the suit schedule property constituted ancestral joint family property namely, suit schedule 8A9 property measuring 1 acre 18 guntas, which was allotted to the share of Mahaveer, no one other than Mahaveer

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and the plaintiffs (his children) could claim any share therein, especially when the remaining extent of the land was allotted to Mahaveer9s two brothers under the very same partition. In other words, while the Ashok and Ajith 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.1Mahaveer) in respect of only the suit schedule 8A9 property, which was exclusively allotted to Mahaveer under the said partition, it was absolutely unnecessary to implead the remaining parties to the partition deed, i.e., Ajit 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.1Mahaveer by dividing the same by metes and bounds, and has

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no relation to the shares allotted to his brother i.e., Ajit or Ashok or their family members.

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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.1Mahaveer and his brother Ajit in favour of defendant No.2. The said Ajit 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.D2 will indicate that the same refers to the earlier partition deed dated 30.10.1999, under which, both Ajit and defendant No.1Mahaveer, were allotted separate portion of R.S.No.84/1, measuring 1 acre 18 guntas. It is needless to state that merely because Ajit and defendant No.1-Mahaveer 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

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defendant No.2, the said circumstance cannot be made the basis to come to the conclusion that Ajit, the co-seller, or his heirs, ought to have been made parties to the present suit for partition, which is restricted only to the suit schedule 8A9 schedule property, which was the property allotted to the share of Mahaveer, over which, neither his brother Ajit 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.

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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.

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Regarding Point No.(ii and iii):

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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

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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 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, Ashok and Mahaveer (defendant No.1), 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, Mahaveer (defendant No.1) and Ashok. In the said partition, the suit schedule 8A9 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.

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The Hon9ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma³ , held as follows:

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137. Resultantly, we answer the reference as under:

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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.

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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.

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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.

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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

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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 coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

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137.5. In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

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138. We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months.

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24. In the case of Arshnoor Singh Vs. Harpal Kaur

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and Others⁴ , the Hon9ble Apex Court held as under:

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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 Singh9s 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 Lal9s Singh9s property in accordance with the old Hindu Mitakshara law.

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7.1. Mulla in his Commentary on Hindu Law (22nd En.) has stated the position with respect to succession under Mitakshara law as follows:

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<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.=

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<All property inherited by a male Hindu from his father, father9s father or father9s father9s father, is ancestral property. The essential feature of ancestral property according to Mitakshara law is that the

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4 (2020) 14 Supreme Court Cases 436

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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.

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A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son9s sons, and son9s son9s sons, but as regards other relations, he holds it, and is entitled to hold it as his absolute property.=

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7.2. In Shyam Narayan Prasad v. Krishna Prasad⁵ , this Court has recently held that : (SCC p.651, para 12)

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< 12. It is settled that the property inherited by a male Hindu from his father, father9s father or father9s father9s 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 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.=

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5 (2018) 7 SCC 646: (2018) 3 SCC (Civ) 702

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27 -

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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.

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7.4. In Yudhishter v. Ashok Kumar⁶ , this Court held that:

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< 10. This question has been considered by this Court in CWT v. Chander Sen⁷ 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 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

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6 7 (1987) 1 SCC 204

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7 8 (1986) 3 SCC 567 : 1986 SCC (Tax) 641

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take it as Karta of his own undivided family but takes it in his individual capacity.= (emphasis supplied)

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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.

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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.

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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 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 Singh9s sons would remain as

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coparcenary property qua their male descendants up to three degrees below them.

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7.8. The judgment in Uttam v. Saubhag Singh⁸ 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 appellant9s 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.

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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 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

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8 (2016) 4 SCC 68 : (2016) 2 SCC (Civ) 545

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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.

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7.10. With respect to the devolution of a share acquired on partition, Mulla on Hindu Law (22nd Edn.) states the following:

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< 339. Devolution of share acquired on partition . 3 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)].=

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7.11. This Court in Valliammai Achi v. Nagappa Chettiar⁹ and Ors.,4 held that:

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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

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9 AIR 1967 SC 1153

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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.=

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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.=

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(emphasis supplied)

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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 No.1-Mahaveer, pursuant to a partition between his father Kugappa, and Parisappa, and subsequently through a partition between defendant No.1-Mahaveer and his brothers. As such,

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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 1/3^rd share each in the suit schedule 8A9 property, as correctly held by the Trial court.

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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 8A9 property was a joint family property, and that the Sale Deed dated 24.08.2006 executed by the defendant No.1-Mahaveer, was valid only to the extent of his 1/3^rd share, and the same was not binding upon the plaintiffs9 2/3^rd (i.e., 1/3^rd + 1/3^rd 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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Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, we are of the considered opinion that the impugned judgment and decree

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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.

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Hence, the following:

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ORDER

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i) The above appeal is dismissed.

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ii) I.A.No.1/2025 filed by the appellant/defendant No.2 under Order VI Rule 17 of the CPC is also dismissed.

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iii) The judgment and decree dated 24.04.2018 passed in O.S.No.243/2010 by the Court of Principal Senior Civil Judge and Chief Judicial Magistrate, Belagavi, is hereby confirmed.

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