(Prayer: This RSA is filed u/S.100 of CPC., praying to call for the records in O.S.No.104/2007 on the file of Civil Judge Bulagi and the records in R.A.No.29/2011 on the file of Senior Civil Judge, Bilagi dated 09.11.2012 in R.A.No.29/2011 bt allowing this appeal and the suit at O.S.No.104/2007 on the file of Civil Judge Bilagi be dismissed with cost throughout in the interest of justice.)

CAV Judgment

1. Defendant No.3 in O.S.No.104/2007 on the file of learned Civil Judge (Jr. Dn.), Bilagi has maintained this regular second appeal.

2. The plaintiff namely Smt. Rukmavva maintained the suit in O.S. No.104/2007 for the relief of partition and separate possession claiming her 1/4th share in total eight items of suit properties on the ground that they are her ancestral joint family properties and that there was no partition of the suit properties till date. She alleges that Defendant No.3 got entered his name in respect of some of the suit properties without her knowledge and denied her share in the suit property. She further alleges that the defendants intended to alienate the suit property to deprive her legitimate share therein and in the said circumstances she was constrained to maintain the suit for partition and separate possession.

3. On service of summons, Defendant Nos.1 and 3 appeared before the trial court through their counsel and filed their separate written statements. Defendant No.2 remained absent before the trial court. Hence, she was placed ex-parte.

4. Defendant No.1, in his written statement, admitted that the suit properties are the ancestral joint family properties of the parties to the suit and that the plaintiff is having 1/4th share in those properties. He further stated that he has no objection to award share to the plaintiff as prayed in this suit.

5. On the other hand, Defendant No.3 denied the claim of the plaintiff as well as her right to claim share in the suit properties. According to him the marriage of the plaintiff was performed in the year 1999 by incurring huge expenses and thereafter she was residing with her husband for some time. He stated that House No.208 is the only ancestral and all other properties are the self- acquired properties of the defendants. He further stated that there was a partition between the defendants on 26.06.1997, wherein three properties fell to his share and that Defendant No.1 relinquished the property bearing R.S. No.66/1 in his favour. He stated that the property allotted to the share of Defendant No.1 was acquired for UKP and the compensation for the said property was received by Defendant No.2. He also contended that there is one more pending suit in O.S. No.35/2006 in respect of R.S. No.288 and 76/2B+3A and that the plaintiff has maintained the suit by suppressing the material facts. Hence, he prayed for dismissal of the suit.

6. Based on the pleadings of the parties, the trial court framed the following issues:

          "1. Whether plaintiff proves that, the suit schedule properties are the joint family properties?

          2. Whether defendants prove that, already partition had taken place in between them?

          3. Whether plaintiff is entitled for relief as prayed for?

          4. What order or decree?"

7. During the trial, the plaintiff adduced her evidence as PW-1 and got marked documents at Exs.P1 to P8. Further, she examined one more witness in support of her case. On the other hand, Defendant Nos.1 and 3 deposed before the court as DW-1 and DW-2 respectively and got marked documents at Exs.D1 to D3. However, Defendant No.3/DW-2 did not appear before the court for cross-examination. Hence, the trial court discarded his evidence.

8. Afterwards, the trial court heard the arguments of both sides, considered the materials on record and disposed of the suit on merits of the case vide its judgment dated 30.11.2010. The trial court decreed the suit in part holding that the plaintiff is entitled to 1/4th share in 6 items of suit properties and dismissed her claim in respect of other two items of properties i.e., RS No.76/2B+3A measuring 7 acre 28 guntas in Balluru Village and RS No.288 measuring 16 acre 24 guntas situated in Arakeri Village.

9. The plaintiff has not challenged the dismissal of suit in respect of two items of suit properties, i.e, Item Nos.3 and 5. Thereby, the dismissal of the suit in respect of these two properties attained finality.

10. Defendant No.3 preferred the appeal in R.A.No.29/2011 praying to set-aside the judgment and decree passed in O.S.No.104/2007. Learned first appellate court, after re-appreciating the materials on record, dismissed the appeal on the ground that it did not find any illegality committed by the trial court in holding that the plaintiff is entitled for a share in six items of the suit properties and that the claim of the plaintiff is justified in view of amendment to Hindu Succession Act.

11. Defendant No.3 directed this regular second appeal praying to set-aside the judgment and decree dated 9.11.2012 passed in RA No.29/2011 by allowing the appeal and to dismiss the suit in O.S. No.104/2007 in entirety. This Court admitted the appeal on 25.06.2020 to consider the following substantial questions of law:

          "(a) Whether the plaintiff-daughter claiming a right as coparcener under the Hindu Succession Amendment Act, 2005, can seek for partition of the coparcener property during the life time of her father-defendant No.1?

          (b) Whether the Trial Court and the Appellate Court could have entertained the suit of the daughter during the life time of the father merely because the first defendant (the father) admitted the claim of the daughter?"

12. Sri Vishwanath Hegde, learned Counsel for Defendant No.3 vigorously submitted that the plaintiff being the daughter of Defendant No.1, she was not entitled to maintain a suit for partition during the lifetime of her father and that the courts below have failed to take note of this legal position. In support of this contention he relied on the decision in UTTAM VS SAUBHAG SINGH AND OTHERS reported in (2016) 4 SCC 68.

13. The above referred case pertains to a proceeding initiated by a grandson, for partition of joint family property against his father and uncles on the footing that suit property was the ancestral property and he being a coparcener, has right by birth in the said property. In this case Hon'ble Apex Court held that when a male Hindu having interest in Mitakshara coparcenary property dies intestate after commencement of Hindu Succession Act, leaving behind a Class-I female heir and sons, then by operation of proviso to Section 6, the deceased's interest in coparcenary property would devolve by intestate succession under Section 8 of the Act and not by survivorship under Section 6 of the Act. Accordingly, Hon'ble Apex Court held that the grandson born after the death of the male Hindu cannot maintain a suit for partition claiming his share by division of alleged joint family property.

14. Learned Counsel for Defendant No.3 has relied on one more decision in SMT. USHA N. SWAMY VS SRI M. VENKATASWAMY AND OTHERS [RFA No.1568/2018 DD 16.06.2026]. This is a case wherein a daughter maintained the suit for partition against her parents and the sisters, wherein the Division Bench of this Court has held that the property acquired by the father either under the partition/ family arrangement or by way of succession becomes his individual and separate property and as such the plaintiff is not entitled to claim a share in such property under Section 6 of the Hindu Succession Act.

15. Per contra, Sri Mrutyunjaya Tata Bangi, learned Counsel for Plaintiff relied on the decision in VINEETA SHARMA VS RAKESH SHARMA AND OTHERS reported in (2020) 9 SCC 1 and submitted that the daughter being a coparcener, she is entitled to maintain a suit for partition and claim a share in coparcenary property during the lifetime of her father. In this case, Hon'ble Apex Court has held that pursuant to the amendment of Section 6 of the Hindu Succession Act, the daughter is a coparcener by birth and she has the exact same rights as a son to claim and demand a partition of ancestral or joint family property during her father's lifetime. Consequently, this Court must ascertain the nature of the suit properties to answer the substantial questions of law framed in this appeal.

16. In the case on hand, the plaintiff is claiming her share in the suit properties on the ground that they are the ancestral joint family properties and that the suit properties are not yet partitioned. Defendant No.1, who is the father of the plaintiff, in his written statement categorically admitted that the suit properties are the ancestral joint family properties of the parties to the suit and that she is entitled for a share in those properties. In this case, Defendant No. 3 is the only contesting party. He has denied the plaintiff's case and contends that the suit properties are not inherited from ancestors. However, he further states that House No.208 is the only ancestral property and that all other suit properties are the self- acquired properties of the defendants. According to him House No.208 is the only ancestral property and all other suit properties are the self-acquired properties of the defendants.

17. It is true that the plaintiff has not produced any documentary evidence before the court to show that the suit properties are the properties inherited by Defendant No.1 from his ancestors. This lapse on the part of the plaintiff is not fatal to the case. It is because the documents on record show that initially the suit properties, i.e, Item Nos.1, 2, 4, 6 and 7 stood in Defendant No.1's name. Defendant No.1 has neither disputed the claim of the plaintiff nor asserted his independent right over these properties.

18. Further, though Defendant No.3 contended that except House No.208 all other suit properties are the self acquired properties of the defendants, he has not adduced any evidence to support his contention. It is pertinent to note that Defendant No.3 has even not come up with a specific statement about the person who acquired these properties or the manner of its acquisition. On the other hand, Defendant No.3 asserts his rights over these properties based on alleged partition affected on 26.06.1997 and the alleged relinquishment/giving up of some of the properties by Defendant Nos.1 and 2. Defendant No.3 has even failed to prove the alleged partition and relinquishment of their rights by Defendant Nos.1 and 2. Since Defendant No.3 has failed to establish that the suit properties are the self-acquired properties of the defendants, and given that earlier the properties stood in the name of Defendant No.1, it must be presumed by natural corollary that these are either the individual or separate properties of Defendant No.1. Under these circumstances, Defendant No.3 could neither have claimed nor received any share in the suit properties through the alleged partition between himself and his father (Defendant No.1). In light of Defendant No.1's admission of the plaintiff's claim against this background, this Court finds no error or illegality in the concurrent findings of the courts below that the suit properties, specially Item Nos. 1, 2, 4, 6, and 7 (VPC Nos. 125 and 208) are the ancestral and joint family properties of the parties, and that the plaintiff is entitled to a share therein. Accordingly, both the substantial questions of law are answered in the affirmative.

19. In the result, this Court proceeds to pass the following:

ORDER

The regular second appeal is dismissed.