Karnataka High Court
Sri Basavaraj vs Sri Nagaraj on 29 June, 2012
Author: B.S.Indrakala
Bench: B.S.Indrakala
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
2012
DATED THIS THE 29TH DAY OF JUNE,
BEFORE
ALA
THE HON'BLE MRS.JUSTICE B.S.INDRAK
R.F.A.NOS.98, 100 & 101/2007
IN R.F.A.NO.98/ 2007
BETWEEN
SRI BASAVARAJ
5/0 GULAB NIPPANI
AGED ABOUT 38 YRS
0CC AGRICULTURE
R/O HAYFYAN GALLI
ALAND
APPELLANT
, ADV.)
(BY SRI. SHARANABASAPPA K BABSHETFY
AND
1. SRI NAGARAJ
Sb GULAB NIPPANI
AGED ABOUT 23 YRS
0CC STUDENT R/O HAAN GALLI
ALAND, GULBARGA
2. SMT VIJAYALAXMI,
D/O GULAB NIPPANI
AGED ABOUT 16 YRS
0CC STUDENT,
SINCE MINOR REP BY NATURAL
GUARDIAN NEXT FRiEND HER MOTHER
SMT. TANGAMMA W/O GULAB,
AGED ABOUT 44 YRS
R/O HATT'YAN GALLI ALAND.
SAKKARGA
3. SMT TANGEMA
W/O GULAB
AGE: 44 YEARS,
0CC HOUSEHOLD
RIO. ALAND SAKKARGA, ALAND
GULBARGA
4. SRIGULAE
S/O SHIVANNA NIPPANI
MAJOR, 0CC WORKING AS ASST
EDUCATION OFFICER, ALAND
GULBARGA
5. SUBHADRABAI
W/O SHIVASHARANAPPA NIPPANI
SINCE DECEASED BY LRS
SMT. SUSHILA BAI,
W/O SHIVASHARANAPPA REVOOR,
AGED ABOUT 62 YRS
0CC HOUSEHOLD R/O MAKTAMPURA
GULBARGA
6. SMT JAGADEVI
W/0 CHANDRAKANT BIRADAR
MAJOR 0CC HOUSEHOLD
R/O BADOLA, AKKALKOT
SOLAPUR. MAHARASHTRA
7. SMT SUMITRA
X\1/Q KASHINATH PATIL
D
AGE: 44 YRS. 0CC HOUSEHOL
R/O OSMANABAD
BONIBAGH
TAMBAVI VILLAGE, V1BHAG AM
NDIR
OPP NARASIMHA MAHARAJ MA
OSMANABAD. MAHARASHTRA
8. BHAGIRATI
W/O MALLINATH PATIL
AGED ABOUT 39 YRS
0CC HOUSEHOLD
R/O BHUSNOOR, ALAND
9. SMT VASANTABAI
W/O ASHOK PATIL
AGED ABOUT 34 YRS
0CC HOUSEHOLD
R/O DHAITAN, P0 SHAHAPUR
TULJAPUR
OSMANABAD. MAHARASHTRA
RESPONDENTS
V. FOR R. 1 & R.3)
(BY SRI. VEERESH B PATIL. AD
***
LE 1 R/W SEC. 96
THIS RFA IS FILED U/O 41 RU
EMENT AND DECREE DT.
OF CPC AGAINST THE JUDG
242/2003 ON THE FILE
07. 10.2006 PASSED IN OS.NO.
ALAND. DECREEING THE
OF THE CIVIL JUDGE (SR.DN.)
ARATE POSSESSION.
SUIT FOR PARTITION AND SEP
4
IN R.F.A.NO. 100/2007
BETWEEN
GULAB S/O SHIVANNA NIPPANI
AGED ABOUT 57 YEARS.
0CC: WORKING AS ASST. EDUCATION OFFICER,
ALAND, R/O ALkND, DIST: GULBARGA-585 302 t
-----'
.jETIIj
c, •-y kY
Vickc C±
(BY SRI. AMEET KUMAR DESHPANDE, ADV.)
OLI:;L. ••
JLL.; H AND
1. NAGARAJ ALLEGED TO BE THE
/' S/O GULAB NIPPANI
AGE: 19 YRS, 0CC: STUDENT
0 R/O HAYFEN GALLI, ALAND
DIST GULBARGA. NOW AT SAKKARGA
TQ: ALAND, DIST: GULBARGA585 302
2. VIJAYALAXMI
ALLEGED TO BE THE D/O GULAB NIPPANI
AGE: 12 YRS, CCC: STUDENT MINOR
U/G HER MOTHER SMT. TANGEMMA
ALLAGED TO BE THE W/O GULAB NIPPANI.
AGED: MAJOR
0CC: HOUSEHOLD. R/O HATFEN GALLI. ALAID
DIST: GULBARGA, NOW AT SAKKARGA
TQ: ALAND DIST: GULBARGA-585 302
.
3. SMT TANGEMMA ALLEGED TO BE THE W/O GULAB
NIPPANI
AGED: 40 YRS, 0CC: HOUSEHOLD
R/O ALAND. DIST: GULBARGA
NOW AT SAKEARGA, TQ: ALAND
DIST: GULBARGA --585 302
JYOTI D/0 GULAB NIPPANI
AGE: 16 YEARS. 0CC: STUDENT, MINOR
MIBAI
U/G OF THEIR NATURAL MOTHER LAX
ALIAS IRAMMA W/0 GULAB NIPPANI
AGED ABOUT 45 YRS, 0CC: HOUSEHOLD
R/O HATFEN GALLI, TQ: ALAND
DIST: GULBARGA-585 302
RAJSHEKAR S/O GULAB NIPPANI
AGE: 10 YEARS, 0CC: STUDENT. MINOR
MIBAI
U/G OF THEIR NATURAL MOTHER LAX
ALIAS IRAMMA W/0 GULAB NIPPANI
AGED ABOUT 45 YRS, 0CC: HOUSEHOLD
R/O HAYI'EN GALLI, TQ: ALAND
DIST: GULBARGA-585 302
ANI
BASWARAJ 5/0 GULAB NIPP
AGED ABOUT 34 YEARS, 0CC: AGRI.,
R/O HAYFEN GALLI, ALAND-585 302
NIPPANI
)6j SUBHADRABAI W/0 SHIVASHARNAPPA
HAYFEN
AGE: MAJOR, 0CC: HOUSEHOLD, R/O
GALLI. ALAND. SINCE DECEASED BY LRS
OOR
SUSHILABAI W/O SHIVASHARNAPPA REV
AGE: 58 YRS. 0CC: HOUSEHOLD
R/O MAKTAMPURA, GULBARGA-585 103
JAGDEVI D/0 CHANDRAKANT BIRADAR
AGE: MAJOR, 0CC: HOUSEHOLD
R/O BADOLA. TQ: AKKALKOT
DIST: SOLAPUR(MAHARASTRA)
L8.J SUMITRA W/0 KASHINATH PATIL
AGE: 40 YRS., 0CC: HOUSEHOLD
)
R/O OSMANABAD(TAMBAVI VILLAGE
-- CierJ "cLQ c--f cr
6
VJBHAG AMBONI BAGH. OPP: NARSIM
MAHARAJA MANDI
OSMANABAD(MAHARASTRA)
79' BHAGIRATI W/O MALLINATH PATIL
AGE: 35 YRS. 0CC: HOUSEHOLD
R/O BHUSNOOR
TQ: ALAND
DIST: GULBARGA585 302
[ioj VASATABAI W/O ASHOK PATIL
AGE: 30 YRS, 0CC: HOUSEHOLD
R/O DHALTEN P0
SHAHAPUR. TQ:TULJAPUR
DIST: OSMANABAD(MAHARASTRA STATE)
k
Ci9J ... RESPONDENTS
r' C-
I. (BY SRI. VEERESH B PATIL, ADV. FOR R. 1 & R3)
( ( .
..
/
a
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
IN
JUDGMENT AND DECREE DT.7. 10.2006 PASSED
GE
O.S.NO.242/03 ON THE FILE OF THE CIVIL JUD
(SRDN), ALAND. DECREEING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.
R.F.A.NO. 10 1/2007
BETWEEN
.1. JYOTI D/O GULAB NIPPANI
AGE: 16YRS.. 0CC: STUDENT.
MINOR
2. RAJSHEKHAR S/0 GULAB NIPPANI
AGED ABOUT 10 YRS. MINOR, STUDENT
BOTH ARE MINOR U/G OF THEIR NATURAL
MOTHER LA)MIBAI ALIAS IRAMMA W/O
GULAB NIPPANI A/A 45 YRS. 0CC: HOUSEHD
,
R/O HXITEN GALLI, TQ: ALAND \
DIST GULBARGA-585 302
.
C - -°
.
(BY SRI. H R MALIPATIL, ADV.
AND
r /
1. NAGARAJ,
ALLEGED TO BE THE S/0 GULAB NIPPANI
AGE: 19 YRS, 0CC: STUDENT
R/0 HATI'EN GALLI, ALAND
J &?o?
/7 DIST GULBARGA, NOW AT SAKKARGA
TQ: ALAND. DIST: GULBARGA-585 302
2. VIJAYALAXMI,
ALLEGED TO BE THE D/O GULAB NIPPANI
AGE: 12 YRS, 0CC: STUDENT MINOR
U/G HER MOTHER SMT. TANGEMMA,
ALLAGED TO BE THE W/O GULAB NIPPANI,
AGED: MAJOR
0CC: HOUSEHOLD, R/O HATT'EN GALLI, ALAND
DIST: GULBARGA, NOW AT SAKKARGA
TQ: ALAND, DIST: GULBARGA-585 302
3, SMT TANGEMMA,
ALLEGED TO BE THE W/O GULAB NIPPANI
AGED 40 YRS, 0CC: HOUSEHOLD
R/O ALAND, DIST: GULBARGA
NOW AT SAKKARGA. TQ: ALAND
8
F
DIST: GULBARGA -585 302
4. GULAB S/0 SHIVANNA NIPPANI
AGED ABOUT 57 YEARS,
0CC: WORKING AS ASSI. EDUCATION OFFICER,
ALAND, R/O ALAND, DIST: GULBARGA-585 302
5. BASWARAJ 5/0 GULAB NIPPANI
AGED ABOUT 34 YEARS, 0CC: AGRI..
R/O HAYFEN GALLI, ALAND-585 302
6. SUBHADIABAI W/O SHIVASHARNAPPA NIPPANI
AGE: MAJOR, 0CC: HOUSEHOLD, R/O HAYI'EN
GALLI, ALAND, SINCE DECEASED BY LRS
SUSHILABAI W/O SHIVASHARNAPPA REVOOR
AGE: 58 YRS, 0CC: HOUSEHOLD
R/O MAKTAMPURA, GULBARGA-585 103
7. JAGDEVI D/0 CHANDRAKANT BIRADAR
AGE: MAJOR, 0CC: HOUSEHOLD
RIO BADOLA, TQ: AKKALKOT
DIST: SOLAPUR(MAHARASTRA)
8. SUMITRA W/O KASHINATH PATIL
AGE: 40 YRS., 0CC: HOUSEHOLD
R/O OSMANABAD(TAMBAVI VILLAGE)
VIBHAG AMBONI BAGH. OPP: NARSIM
MAHARAJA MANDI
OSMANABAD (MAHARASTRA)
9. BHAGIRATI \iT/O MALLINATH PATIL
AGE: 35 YRS. 0CC: HOUSEHOLD
R/O BHUSNOOR
TQ: ALAND
DIST: GULBARGA-585 302
9
10. VASATABAI W/O ASHOK PATIL
AGE: 30 YRS, 0CC: HOUSEHOLD
R/O DHALTEN P0
SHAHAPUR. TQ :TULJAPUR
DIST: OSMANABAD(MAHARASTRA STATE)
RESPONDENTS
(BY SRI. VEERESH B PATIL, ADV. FOR R. 1 & R.3)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.7. 10.2006 PASSED IN
O.S.NO.242/03 ON THE FILE OF THE CIVIL JUDGE
(SRDN), ALAND, DECREEING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.
THESE RFAS COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Respondent Nos. 1 to 3 in all the three appeals filed O.S.No.242/2003 on the file of Civil Judge (Sr.Dn.), Aland, Gulbarga. against the appellant in all the three cases, except the respondents who got impleaded in the appeal proceedings as respondent Nos.8. 12 & 11 respectively in these three appeals respectively, seeking judgment and I0 ,0- decree of partition of 1/6th share in property mentioned in the schedule to the plaint; and also for possession to be delivered under Section 54 of CPC and for other consequential reliefs as permissible under law.
2. As all the aforesaid three appeals are ified against one and the same Judgement viz. judgment and decree dated 07.10.2007 passed in O.S.No.242/2003 on the the of the Civil Judge (Sr.Dn.), Aland, all the three appeals are taken up together for consideration.
3. For the sake of convenience, the parties herein are referred to by their respective rank as arrayed before the Court below.
4. From the records it is seen that, the plaintiffs (respondent No.1 to 3) origInally filed O.S.No.219/2001 on the the of the Addi. Civil Judge (Sr.Dn.), Gulbarga, which is subsequently transferred to the the of the Civil Judge fr Ii (Sr.Dn.). Aland on establishment of the said Court and the same is renumbered as O.S.No.242/2003.
5. It is the case of the plaintiffs that defendant No.1 was earlier married to one Smt.Basamrna and after her death he married one Smt,Kasturibai whom he divorced by filing joint petition under Section 13(b) of Hindu Marriage Act in M,C.No.3/ 1980 as per the orders dated 24.01.1981; thereafter the defendant No.1 married plaintiff No.3 on 20.02.1981 and from the wed lock they have two children i.e. plaintiffs No.1 and 2, Further it is the case of plaintiffs that, defendant No.2 is the son of defendant No. 1 begotten from his first wife Smt. Basamma, It is further case of plaintiffs that all the three plaintiffs along with defendant No, 1 resided jointly as Hindu Undivided joint family; however, due to differences 1s defendant as the 1st between plaintiff No.3 and defendant neglected the plaintiffs, they were forced to file criminal Misc. Case.No.4/99 on the file of JMFC Akkalkot 12 petition under Section 125 of Cr.PC; after trial, the said to plaintiff was allowed granting maintenance of Rs.300/-
2 per No.3 and Rs.200/- each to plaintIffs No.1 and endant No.1 month; and In the said proceeds the def with herein filed objections denying his relationship 3n1 plaintiff plaintiffs, but, on long trial, the marriage of with the jet defendant and also the birth of plaIntiffs No.1 and 2 from the wed lock stood established.
6. In the circumstances, the plaintiffs have and for sought partition of joint family properties .
possession of their 1/6th share of entire properties
7. During the course of the proceedings, the endant defendant No.3 who Is said to be the mother of def ant No.1 No.1 died and on her death the sisters of defend are In other words the daughters of defendant No.3 , during Impleaded as defendant No.3 (a) to (e). Likewise 4 and 5 the course of the proceedings defendant Nos.
fr 13 one claiming to be the children of N defendant and Iramma are also impleaded.
8. Defendant No. 1 filed his written statement the denying his relationship with plaintiff No.3 and also wise parentage birth of the said plaintiff Nos. 1 and 2. Like en all the other defendants filed their respective writt 1st statement denying the relationship of the plaintiffs with defendant.
9. Subsequently, after framing of issues, the got plaintiffs got examined the plaintiff No.3 as PW1 and marked Exs.P. 1 to P.11. On behalf of defendants. 211d 1st defendant got defendant got examined as DW. 1, the examined as DW.3, Laxmibai © Iramma claiming to be her wife of 1st defendant got examined as DW2 aid anot 1 one Vishnu got examined as DW.4 and got marked ExsD to D.4 14
10. After hearing the arguments, learned Civil allotting Judge (Sr.Dn.) deemed it fit to decree the suit by 36% of the properties in favour of the plaintiffs.
1L Aggrieved by the said judgment and decree, the ls defendant preferred R.F.A.No. 100/2007, defendant Nos.4 No.2 preferred R.F.ANo.98/2007 and defendant three and 5 preferred RFA. No. 10 1/2007 and all the entions appellants inter alLa contended amongst other cont evidence that the learned Judge erred in dis-carding the no of DWs- 1 to 4 on the ground that the same has value; the learned Judge ignored the evidentiary inconsistencies in the pleadings of the plaintiffs etc.
12. It is further contended that the finding on rds of Issues No. 1 to 4 are incorrect and against the reco cogent the case while the plaintiffs have not produced any of the evidence to prove that she is the legally wedded wife itself defendant no. 1: mere production of the voter list by 15 is not proof of the relationship of the defendant no.1 with the plaintiffs.
13. It is further contended by the Appellant in RA.No. 100/2007 that the trial court erred by relying upon the decision rendered in Crl.Misc.No.4/1990: the trial court ignored the fact that the plaintiff has not chosen to examine any of the independent witnesses to prove the alleged factum of relationship. it is further contended that while defendant no. 1 has not denied the relationship of the defendants no.4 and 5 with him; giving finding on such relationship is unwarranted; the trial Court has ignored the contents of Ex.D-1(h) while a public authority has issued an endorsement stating that there is no Mallikarjun Temple at Vagdhari. The finding given in the impugned judgernent that the judgernent and decree passed in O,S.No.34/1995 is not binding on the plaintiffs is not proper as no such declaration is sought by the plaintiffs.
160%
14. Apart from the said contentions, the appellants In RF.A.No.1O1/2007 has contended that the very Issue casting the burden upon the defendants no.4 and 5 to prove that they are the children of defendant no.1 Is not properly framed. Thus the Appellants In all the three appeals sought setting aside of the judgement and decree passed.
15. Heard the Arguments of counsels for Appellants In all the three cases as well as counsels for the respondents.
16. In view of the submissions made, the points that arise for consideration are:
1) Whether the impugned judgment and decree of acquittal dated 7-10-2006 passed In O.S.NO.242/2003 on the file of Civil Judge (Sr.Dn) Aland, Is liable to be set aside?
2) What order?17
17. The Plaintiffs No.1 and 2 claiming themselves as the children and plaintiff no.3 as the wife of defendant no.1 filed the said suit seeking partition and separate possession of their 1/6h share in the properties mentioned in para no.2 of the plaint.
18. It is the case of the plaintiffs that defendant no.1 was married to one Basamma and from the said wedlock defendant no.2 born, However said Basamma expired in the year 1973 and after her death, the first defendant married one Kasturibai of V.K. Salgar; however, the said marriage ended in divorce as both the first defendant and his wife Kasturibai filed a joint petition seeking divorce U/Sec. 13-B of Hindu Marriage Act, which was allowed vide Order Dated 24- 1-1981.
19. It is further case of the plaintiffs that after such divorce, the first defendant married plaintiff no.3 on 20-2-1981 as per the Hindu rites and customs. From the said wedlock. plaintiffs no. 1 and 2 are born and thus the Is plaintiffs and defendants no.1 and 2 constituted a Hindu undivided joint family and they are the joint owners in possession of the properties mentioned in para no.2 of the plaint.
20. In this context, the learned counsel appearing for the defendant-appellants contended that the marriage of plaintiff no.3 with defendant no. 1 even if it is to be accepted. the same is celebrated admittedly within 30 days from the date of divorce i.e. even before the expiry of the time fixed for appeal and thus the said marriage is hit by Section 15 and 28 of Hindu Marriage Act. For the sake of convenience Section 15 of Hindu Marriage Act is excerpted hereunder "Divorced persons when may marry again -- When a marriage has been. dissolved by a decree of divorce and either there is no right f appeal against the decree or, f there is such a right of appeal, the time Jôr appealing has expired without an appeal having been presented. or an appeal has 19 been presented but has been dismissed, it shall be lqwfiul for either party to the marriage to marry again."
21. Thus either party to the divorce proceedings will have to wait till the period of appeal expires and ft will not be lawful for either of them to marry again within such period.
22. Thus, It is seen that the object of Section 15 of Hindu Marriage Act is to prevent further complications! multiplicity of proceedings on account of re-marriage of divorced person in case if an appeal is preferred against such decree and In the said appeal an order of divorce is going to be reversed or effected. The right of appeal only depends upon the choice and will of the aggrieved parties. Thus, an considering the facts of the case it Is seen that neither defendant no.1 nor the divorced wife Kasturibai preferred any appeal against such decree of divorce granted under Section 13B of Hindu Marriage Act at any time and the same has attained finality.
2O
23. Further doubt, under Section 28 of Hindu Marriage Act it is seen that all the orders! decrees made by the Court in any proceedings under the Hindu Marriage Act are appealable as decree made in exercise of its original jurisdiction. Nevertheless, considering the nature of decree which is compromise decree it cannot he said that as a matter of right such decree is also appealable. Thus, such contention of the learned counsel for the appellant cannot be accepted.
24. Thus, it is seen thai the plaintiffs have proved that plaintiff no.3 is legally wedded wife of defendant no.1 and plaintiffs no.1 and 2 are the children born from such wedlock and likewise it is also proved that there is no partition effected between defendant no, 1 and 2 and the father of defendant no.1. and the joint status continues. 21
25. As already discussed supra it is further alleged by the plaintiffs that, on account of the difference between plaintiff no.3 and the first defendant, as the first defendant totally neglected the plaintiffs, thrown them out of the house without providing any maintenance, they were complied to file Cri.Misc.No.04/ 1990 on the file of J.M.F.C.. Akkalkot U/See.125 of Cr.P.C., which was allowed granting maintenance of Rs.3OO/ per month to plaintiff no.3 and Rs.200/- per month to plaintiffs no. 1 and 2 per month. it is further seen that the said order of awarding maintenance to plaintiffs has become conclusive. it is further alleged that, defendant no.1 in order to avoid and deny the legitimate share of the plaintiffs. with malafide intention on the deathof his father Shivasharnappa the defendant No.1 got entered the name of defendants no.2 and 3 in ROR without notice to the plaintiffs. It is also contended that mere entry in the said ROR does not create any right or title on them. 77
26. As against the said case of the plaintiffs, first defendant, against whom the case revolv es has pleaded that the defendant no.2 filed suit in O.S.No.34/1995 against himself and his parents/grand par ents of the defendant no.2 seeking partition and separat e possession of the land and the house and the same was decreed on 18-2-1995 allotting 24-Acres 5-guntas of land in land bearing sy.no.661 /A to him and the gra nd parents were allotted 15-Acres 25-Guntas and defendant no.1 was allotted 2-Acres 25-Guntas in the sam e survey number and the parties were also put in possession of the respective share and after the death of the father of the first defendant on 18-1 1-2000. the said lands are to be inherited by all the children of said Shivasharnappa, which includes not only first defendant but also five daughters, who are entitled for 1/6th sha re and thus first defendant got 1-acre 25-guntas of land from the share of his father 23 .4- a
27. On perusal of Ex.D1, copy of decree passed In O.S.No.34/ 1995 dated 18.02. 1995, It Is seen that the suit was ified on 14.02.1995 and withIn four days I.e.
Immediately on 18.02.1995 such a decree Is drawn on the basIs of compromIse memo med whIch prima fad e goes to show that the same Is collusIve suIt. Hence, the said decree cannot bInd the plaintiff to any extent.
In the circumstances, the findIng given by the Trial Cou rt on Issue no.1 to 5 does not call for Interference.
29. When the marriage of plaIntiff no.3 wIth defendant no.1 Is held to be a valid marrIag e, the contentIon of the defendant no.1 that he married another lady by name Laxmlbal 0 Irainma who Is exa mined as DW-2 In the case has to be held as not a valid marrIage as the same Is contacted by defendant no.1 dur ing the subsistence of a valid marriage wIth plaIntiff no.3 . In the circumstances, even if defendant nos.4 and 5 are said to be the children born from the alleged wedlock of 24 defendant no.1 with Laxmibai, they cannot be termed as coparceners of the Hindu undivided vamilv of plaintiff No.1, 2 defendantNo, 1 and 2. Hence, they are only entitled to the property of which will he fallen to the share of their father defendant No.1.
30. Admittedly, during the pendency of the original suit the mother of defendant no.1 who is arrayed as defendant no.3 died and her legal representatives are brought on record. Likewise during the course of appeal proceedings one Anveeramma claiming to be the daughter born from the wedlock of defendant no.1 with Kasturibai. by filing a petition sought to be impleaded in these appeals as a proper party to the proceedings. Hence right of Anveeramma if any will have to be taken into consideration for ascertaining exact share of plaintiffs in the suit. In the circumstances, though the plaintiff no, 1 and 2 are entitled to a share in the joint family property their entitlement will have to be ascertained by taking into 25 S '4 consideration the share of other co-parceners. Thus, though the finding of the Trial Court with the right of the plaintiff No.1 and 2 Is affirmed. the Trial Court is further required to find out the following:
1) Whether plaintIff no.3 is entitled to any share In suit schedule property out of the extent to which the 1st defendant Is entitled during the life time of jst defendant?
2) Whether newly Impleaded respondent In the appeal one Anveeranima proves that she Is the daughter of defendant no.1 and divorced wife Kasturibal? If yes whether she Is entitled for any share In suit schedule property?
3) Whether the daughters of defendant no.3 who are Impleaded subsequently on the death of defendant no.3 are entitled for any share In the property.
32. Thus all the above three appeals are partly allowed: the Judgment and decree dated 07.10.2006 26 passed in OS.No.242/2003 on the file of Civil Judge (Sr.Dn.) Aland, is hereby set aside and the matter is remanded to the said Court with a direction to dispose of the said suit afresh by providing further opportunities to the parties in relation to the points observed herein above in accordance with law.
33. The Trial Court is directed to dispose-off the suit within six months from the date of receipt of this order and records.
34. As the parties are duly represented by their respective counsel in these proceedings, they are directed to appear before the Court below on 1-8-2012.
Sd/ ITJDGE SGS