Karnataka High Court
Thimmakka W/O. H. Kattebasappa, vs Mariyamma W/O. A. Thimmana Gouda, on 10 August, 2012
Bench: N.Kumar, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 10th day of August 2012
Present
THE HON'BLE MR.JUSTICE N.KUMAR
and
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
R.F.A Crob No.102/2012 (PAR) C/W
R.F.A Crob No.101/2012,
R.F.A No.3121/2011
R.F.A Crob No.102/2012:
Between:
Smt. Mariyamma
W/o. A Thimmana Gouda,
Age: 71 Years,
C/o. A, Basavana Gouda,
R/o. Eshwara Temple, Basapur Oni,
Lakshmeshwara, Shirahatti,
Taluk, Dist: Gadag-582 101.
...Cross Objector
(By Sri. Rajashekar R Gunjalli, Advocate)
And:
1. Smt. Thimmakka
W/o. H Kattebasappa,
Age: 49 Years, Occ: House hold,
R/o. Halakundi Village,
Tq. & Dist: Bellary-583 201.
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2. A Gangadhara Gouda
S/o. A Thimmanagouda,
Age: 52 Years, Occ: Agriculture,
R/o. D.No.24, Ward No.5,
Ganesh Temple Street,
Bruce Peth, Bellary-583 201.
3. A Basavanagouda
S/o. A Thimmanagouda,
Age: 48 Years,
R/o. D.No.24, Ward No.5,
Ganesh Temple Street,
Bruce Peth, Bellary-583 201.
4. Shiva Basavana Gouda
S/o. A Thimmana Gouda,
Age: 41 Years, Occ: Agriculture,
R/o. D.No.24, Ward No.5,
Ganesh Temple Street,
Bruce Peth, Bellary-583 201.
5. Smt. Siddamma
W/o. Thippana Gouda,
Age: 38 years, Occ: House hold,
C/o. H Kattebasappa,
R/o. Halakundi Village,
Tq. & Dist: Bellary-583 201.
...Respondents
(By Sri. M.S Haravi for R.1,
Sri. Laxman T Mantagani for R.2,
Sri. Ravi N Chikkaradder for R.3 & 4,
Sri. G.N Narasammanavar for R. 5, Advocates)
This Cross objection is filed under Order 41 Rule
22 of CPC., against the judgment and decree dated
06.08.2011 passed in O.S No.112/2009 on the file of
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the I-Addl. Senior Civil Judge, Bellary, dismissing the
suit filed for partition and possession.
In R.F.A Crob No.101/2012:
Between:
Smt. Siddamma
W/o. Thippana Gouda,
Age: 39 years, Occ: House hold,
C/o. H Kattebasappa,
R/o. Halakundi Village,
Tq. & Dist: Bellary-583 201.
... Cross Objector
(By Sri. G.N Narasammanavar, Advocate)
And:
1. Smt. Thimmakka
W/o. H Kattebasappa,
Age: 50 Years, Occ: House hold,
R/o. Halakundi Village,
Tq. & Dist: Bellary-583 201.
2. Smt. Mariyamma
W/o. A Thimmana Gouda,
Age: 72 Years,
C/o. A, Basavana Gouda,
R/o. Eshwara Temple, Basapur Oni,
Lakshmeshwara, Shirahatti,
Taluk, Dist: Gadag-582 101.
3. A Gangadhara Gouda
S/o. A Thimmanagouda,
Age: 53 Years, Occ: Agriculture,
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R/o. D.No.24, Ward No.5,
Ganesh Temple Street,
Bruce Peth, Bellary-583 201.
4. A Basavanagouda
S/o. A Thimmanagouda,
Age: 49 Years,
R/o. D.No.24, Ward No.5,
Ganesh Temple Street,
Bruce Peth, Bellary-583 201.
5. Shiva Basavana Gouda
S/o. A Thimmana Gouda,
Age: 42 Years, Occ: Agriculture,
R/o. D.No.24, Ward No.5,
Ganesh Temple Street,
Bruce Peth, Bellary-583 201.
... Respondents
(By Sri. M.S Haravi for R.1,
Sri. Laxman T Mantagani for R.3,
Sri. Ravi N Chikkaradder for R.4 & 5,
Sri. Rajashekar R Gunjalli for R.2, Advocates)
This Cross Objection is filed under Order 41 Rule
22 of the CPC., against the judgment & decree dated
06.08.2011 passed in O.S No.112/2009 on the file of
the I Addl. Senior Civil Judge at Bellary, dismissing the
suit filed for partition and possession.
In R.F.A No.3121/2011:
Between:
Smt. Thimmakka
W/o. H Kattebasappa,
Age: 49 Years, Occ: House hold,
:5:
R/o. Halakundi Village,
Tq. & Dist: Bellary-583 201.
... Appellant
(By Sri. M.S Haravi, Advocate)
And:
1. Smt. Mariyamma
W/o. A Thimmana Gouda,
Age: 71 Years,
C/o. A, Basavana Gouda,
R/o. Eshwara Temple, Basapur Oni,
Lakshmeshwara, Shirahatti,
Taluk, Dist: Gadag-582 101.
2. A Gangadhara Gouda
S/o. A Thimmanagouda,
Age: 52 Years, Occ: Agriculture,
R/o. D.No.24, Ward No.5,
Ganesh Temple Street,
Bruce Peth, Bellary-583 201.
3. A Basavanagouda
S/o. A Thimmanagouda,
Age: 48 Years,
R/o. D.No.24, Ward No.5,
Ganesh Temple Street,
Bruce Peth, Bellary-583 201.
4. Shiva Basavana Gouda
S/o. A Thimmana Gouda,
Age: 41 Years, Occ: Agriculture,
R/o. D.No.24, Ward No.5,
Ganesh Temple Street,
Bruce Peth, Bellary-583 201.
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5. Smt. Siddamma
W/o. Thippana Gouda,
Age: 38 years, Occ: House hold,
C/o. H Kattebasappa,
R/o. Halakundi Village,
Tq. & Dist: Bellary-583 201.
... Respondents
(By Sri. Rajshekhar R Gunjalli for R.1,
Sri. Laxman T Mantagani &
Sri. G.R Turamari for R.2,
Sri. Ravi N Chikkaradder for R.3 & 4,
Sri. G.N Narasammanavar for R.5, Advocates)
This RFA is filed under Section 96 of the CPC.,
against the judgment and decree dated 06.08.2011
passed in O.S No.112/2009 on the file of the I Addl.
Senior Civil Judge at Bellary, dismissing the suit filed
for partition and possession.
--------
This appeal & R.F.A Cross Objections coming on
for admission this day, N.Kumar, J, delivered the
following:
JUDGMENT
R.F.A. No.3121/2011 is an appeal filed by the plaintiff challenging the judgment and decree of the Trial Court which has dismissed the suit for partition and separate possession. In the said appeal two cross :7: objections are filed one by the 1st defendant - the mother of the plaintiff and another by the 5th defendant
- the sister of the plaintiff and they are numbered as RFA Cross Objection Nos. 102/2012 and 101/2012. Therefore, both the cross objections and the appeal are taken up for consideration together and disposed of by this common order.
2. For the purpose of convenience, the parties are referred to as they are referred to in the plaint.
3. The subject matter of the suit is agricultural lands as set out in 'A' schedule to the plaint, house property as set out in 'B' schedule and open space as set out in 'C' schedule and yet another house property as set out in 'D' schedule. All these properties, for short, hereinafter are referred to as 'schedule properties'.
4. The plaintiff is the daughter of one Shri A.Thimmana Gouda. The 1st defendant is the widow of :8: A.Thimmana Gouda. Defendant Nos.2, 3 and 4 are the sons of Thimmana Gouda whereas the 5th defendant is another daughter of A.Thimmana Gouda. All the plaint schedule properties originally belonged to one H.Thimmana Gouda, the propositus. He died about 60 years ago and his wife Siddamma died about 35 years ago. He has four sons by name, Devendra Gouda, Shiva Reddy Gouda, Shankara Gouda and Thimmana Gouda. Among the four sons, Shankar Gouda has taken his share in the joint family properties long ago and he has no right in the said properties. The father of the plaintiff and defendant Nos.2 to 5 died on 28.03.2003 leaving behind the plaintiff and defendants as his legal representatives. During his life time, there was no partition. On 31.07.2003, defendant Nos.2 to 4 along with Devendra Gouda and the sons of Shiva Reddy viz., Vemana Gouda and Omkar Gouda effected partition of the properties belonging to the joint family and it was duly registered. The properties allotted to defendant :9: Nos.2 to 4 under the registered partition deed was to the branch of Thimmana Gouda, father of the plaintiff and defendant Nos.2 to 5 and husband of 1st defendant. In the said partition, all these properties are 'C' schedule. Defendant Nos.2 to 4 never chose to include the plaintiff and the 5th defendant in the partition deed and allot their share. After the partition, defendant Nos.2 to 4 continued to live in the joint family along with the plaintiff and 5th defendant.
5. On the basis of the said partition deed, defendant Nos.2 to 4 got entries of the properties changed in their name in respect of the schedule property, now they are making attempts to alienate some of the properties without giving a share to the plaintiff. Plaintiff demanded defendant Nos.2 to 4 to effect partition and allot her 7/36th share in the suit schedule properties and the defendants refused to do so. Hence, the suit was filed.
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6. After service of summons, the defendants entered appearance through their respective counsel. The 5th defendant, another daughter of A.Thimmana Gouda filed separate statement admitting the claim of the plaintiff. She also claimed 7/36th share in the schedule properties. Defendant No.2 filed a separate statement contesting the claim. The relationship between the parties was admitted. It is his specific case that the plaintiff and her husband were witness to the partition dated 31.07.2003. The partitioned properties belongs to A.Thimmana Gouda's son and their uncles as they have jointly inherited the properties out of their own funds but not the properties of H.Thimmana Gouda as alleged by the plaintiff. Plaintiff got married in the year 1980 by dividing her share at the time of her marriage, in the properties of A.Thimmana Gouda, who is none other than the father of the plaintiff herein is very much alive by that time. The plaintiff has no manner of right, title and interest to claim the suit : 11 : properties. Hence, the suit is to be dismissed in limini. He has got issued the lawyer's notice as against A.Basavana Gouda and A.Shivasabavana Gouda i.e., defendant Nos.3 and 4 herein on 01.08.2009 claiming the accounts of the transactions made by them and also to clear off bank loan dues amounting to Rs.21,38,860/- and Rs.5,92,728/-; though they acknowledged the receipt of the said notice, they neither replied to the said notice nor cleared off the account and dues of the bank; they instigated plaintiff and defendant no.5 herein to file a false and frivolous suit against the defendants. The plaintiff's father was working as a Railway Contractor and was doing the said contract works prior to his death; some of the amount due to him were of the said contract works which are collected by defendant Nos.1, 3 and 4 and they have also been doing the business under the name and style of "M/s. A. Shivabasavana Gouda" at Gadag. They have got movable properties viz., 3 tippers bearing registration : 12 : No.KA 26/4068, M.P.09/KC 6849, KA34/4167 and a crushing machine worth Rs.4,52,500/-. They are income tax assessees. They also submitted the returns to the income tax department through their auditor R.R.Joshi. Defendant Nos. 1, 3 and 4 are the partners of the said firm. When he asked for a share in the accounts of his father, defendant Nos.1, 3 and 4 instigated the plaintiff and defendant No.5 to file the false and frivolous suit as against him. The allegation that he never chose to include the plaintiff and defendant No.5 in the partition deed and allot their share is not true and correct. Neither the plaintiff nor defendant No.5 have got any right, title and interest over the suit properties as they were married in the year 1980 and 2000 respectively during the life time of A.Thimmana Gouda by getting their share in the property of A.Thimmana Gouda at the time of their marriage. Hence, they have no right to claim partition in the suit properties. After effecting partition by defendant : 13 : Nos.2 to 4 they have continued to live in the joint family along with the plaintiff and defendant No.5 is far from truth and the plaintiff is put to strict proof of said allegations. Even prior to death of A.Thimmana Gouda, this defendant is living separately at Bellary. Defendants 3 & 4 are residing even before the date of A.Thimmana Gouda at Gadag and at present Lakshmeshwar. The plaintiff being very well aware of this fact, intentionally shown the address of defendant No.3 to 5 as at door No.24, Ward No.5, Ganesh Temple Street, bellary and C/o H.Kattebasappa at Alkundi village, Bellary Taluk and District respectively, actually the defendant No.5 is residing along with her husband H.Thippana Gouda at Bachi muth of Sirpur Taluk, Gulbarga District. The 'A' schedule landed properties are originally purchased by Devendara Gouda and Shiva Reddy Gouda as per document No.226/1944 dated 26.01.1944. the 'B' Schedule house property purchased by Siddamma W/o late H.Thimmana Gouda on : 14 : 28.01.1953. The 'C' schedule open space purchased by A.Vemanna S/o A.Shivareddy on 25.02.1985. The 'D' schedule house property purchased by Devendra Gouda S/o H.Thimmana Gouda on 31.10.1968. The said facts have been suppressed by the plaintiff claiming that the suit properties are joint family properties of H.Thimmana Gouda as alleged. Hence neither the plaintiff nor the defendant No.5 has got any right over the suit property. The suit of the plaintiff has to be dismissed in limini. The suit is bad for non-joinder of necessary parties and on this count also the suit has to be dismissed. The allegation that the defendant Nos.2 to 4 have got mutated the entries of 'A' to 'D' schedule properties after partition is true. Further, the allegation that this defendant is making attempts to alienate some of the suit properties is not true and correct. After partition between defendant Nos. 2 to 4 and their paternal uncles and sons on 31.07.2003, the A schedule property is in joint possession of defendant Nos.2 to 4, : 15 : the 'B' schedule property is the property of grandmother of plaintiff, defendant Nos.2 to 5 and mother-in-law, the said house is kept vacant and dilapidated condition. The 'C' schedule properties a open space. The 'D' schedule property is in possession of defendant No.2, defendant Nos.3 and 4 have broke open the first floor without the consent of defendant No.2 after filing of the above suit and as they are his younger brothers, he has not complained this fact to the police.
7. The suit is bad for non-joinder of necessary properties of deceased A.Thimmana Gouda, the properties viz., 2 plots bearing 6 and 7 of S.No.431(d) of Gadag which are in the names of defendant No.3 and deceased A.Thimmana Gouda. Those properties have not been shown for partition, hence the suit for partial partition is not sustainable in law.
8. Without prejudice to the aforesaid contentions, it was contended that H.Thimmana Gouda got the : 16 : landed properties at Honnalli village of Bellary Taluk bearing Sy. No. 173 measuring 11.57 cents and Sy. No. 177/B measuring 3.17 cents and Sy. No. 152(H) measuring 7.67 cents. The said property inherited by Siddamma after the death of her husband. She had executed a settlement deed on 24.08.1945 in favour of Gangamma wife of late Kumarappa of Obalapuram village and her daughter Maremma, minor by that time, represented by Shankara Gouda son of H. Thimmana Gouda of Haladahalli village, not only the said H. Thimmana Gouda has got a house property at Halakundi village measuring 12 ½ x 13 yards, i.e., 7 ankanama house absolutely belongs to Maremma and sons of Shankara Gouda since 1945. Hence H. Thimmana Gouda, the grandfather of the plaintiff herein has got the above mentioned property only, but not in the suit property as alleged by the plaintiff in the plaint. Therefore they sought for dismissal of the suit. : 17 :
9. The third defendant also filed a separate written statement. After denying the allegations in the plaint he has stated that the father of defendant no. 3 had three sons and two daughters, i.e., the plaintiff and defendant nos. 2 to 5. The father of the defendants died on 28.03.2003 leaving behind the defendant no. 3, defendant nos. 1, 2, 4, 5 and the plaintiff as his legal heirs. During the lifetime of the father of defendant no. 3 there was no partition between the joint family members of the father of defendant no. 3 and the children of Thimmana Gouda. After demise of the father of the plaintiff, the defendant nos. 2 to 4 and Devanna Gouda and Onkara Gouda of the joint family members partitioned the ancestral property by virtue of the Registered Partition Deed dated 21.07.2003. After the partition the 'C' schedule of the said partition deed allotted to the share of this defendant and defendant nos. 2 to 4. Thereafter the properties are mutated in their names. However, these three defendants are living : 18 : separately right from 31.07.2003. Defendant no. 2 is only getting the income from the agricultural land. Moreover he is only collecting rents from the remaining portion of the house at Bellary. Inpite of the several requests, defendant no. 2 deliberately failed to show the accounts of the agricultural income as well as rents collected from remaining houses situated at Bellary. There is no severance of jointness and unity in this defendant and defendants 2 to 4. Defendant no. 3 is also entitled to equal share in the property in C schedule of Partition Deed dated 31.07.2003. Defendant no. 4 filed a memo adopting the written statement of defendant no. 3. Defendant no. 1 also filed a written statement virtually admitting the claim of the plaintiff.
10. On the aforesaid pleadings, the trial Court has framed the following issues:
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"1. Whether the plaintiff proves that, the suit schedule properties are the ancestral properties of the parties?
2. Whether defendants prove that the Court fee paid by the plaintiff is insufficient?
3. Whether defendants further prove that the suit of the plaintiff is bad for non joinder of necessary parties?
4. Whether defendants prove that partition is not maintainable?
5. Whether defendants further prove that already the partition took place on 31.7.2003 in between the parties, hence not entitled?
6. Whether plaintiff is entitled for partition and separate possession of 7/36th share in the suit schedule property by metes and bounds?
7. What order or decree?"
The plaintiff in order to substantiate her claim, examined herself as P.W.1 and produced 9 documents which are marked as Ex.P.1 to Ex.P.9. On behalf of the defendants, defendant no. 2-A. Gangadhara Gouda was examined as D.W.1. He produced 75 documents which are marked as Ex.D.1 to 75.
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11. The trial Court on appreciation of the oral and documentary evidence on record held, the relationship between the parties is proved. It further held, under a partition deed dated 31.07.2003 the schedule properties fell to the share of the branch of A. Thimmana Gouda and therefore whether it is an ancestral property or a self acquired property or a joint family property, it matters very little. Having held that the Thimmana Gouda's branch got the schedule property in the said partition, it held, as the plaintiff and her husband have put their signature to the registered partition deed as witnesses, she has lost her right to claim share in the said property. The suit having been filed six years after the date of partition, the trial Court Judge was of the view, the plaintiff is not entitled to a share. According to him, the suit has to be filed within three years from the date of partition and the suit is filed beyond three years and hence the suit filed is time barred. It also recorded a finding that the plaintiff appears to have won : 21 : over by Ex.D.3 and 4 and they have set up to prefer this claim. Therefore it held that the plaintiff is not entitled to 7/36th share in the suit. It held that the Court fee paid u/S 35(2) of the Karnataka Court Fees & Suit Valuation Act, is proper.
12. The defendant no. 2 has produced Ex.D.4 to
30. The said properties are not the subject matter of the partition dated 31.7.2003. The plaintiff could have filed a suit in respect of those properties by making all the beneficiaries of the partition deed dated 31.7.2003, as parties. Therefore the Court below held the suit is bad for non joinder of necessary parties. It also held the plaintiff could have included the said properties and therefore the suit for partial partition is not maintainable and therefore it dismissed the suit of the plaintiff.
13. Aggrieved by the said judgment and decree of the trial Court, the plaintiff has preferred this appeal. : 22 :
14. Learned counsel appearing for the appellant assailing the judgment and decree of the trial Court contended, once it is admitted under a registered partition deed dated 31.07.2003 the 'C' schedule properties mentioned in the said partition deed is allotted to the share of A. Thimmana Gouda's branch, Thimmana Gouda having died on 28.03.2003, as there was no further partition among the legal heirs of A. Thimmana Gouda, by virtue of amendment introducing Sec. 6A to the Hindu Succession Act, the daughters would become coparceners by birth and therefore they are entitled to equal share with the sons in the said properties. Merely because the plaintiff and her husband was a witness to the partition deed dated 31.7.2003 that would not take away their right for a share in their father's property. Similarly, as there is no limitation prescribed for filing a suit for partition, the finding of the trial Court that the suit is barred by time : 23 : as it is filed within 3 years, from the date of partition, is ex facie illegal. The defendant produced Ex.D.24 to 30 showing those properties stood in the name of his grandfather. After the death of his grandfather and after the death of plaintiff's father all the properties are divided and schedule properties are allotted to the share of A. Thimmana Gouda's branch. Therefore now the question of plaintiff including the properties standing in the name of her grandfather which was partitioned on 31.07.2003 would not arise and the suit could not have dismissed on the ground of non inclusion of those properties, on the ground all the family properties are not included in the suit. Therefore he submits that the judgment and decree of the trial Court requires to be set aside.
15. Per contra, the learned counsel for the second defendant submitted, defendant nos. 3 and 4 are continuing the contract business of their father with the : 24 : Railways, huge amounts which are due to their father is collected by these defendants, that amount is not made a subject matter of this suit and therefore the suit for partial partition is not maintainable. Similarly he contended, property standing in the name of the grandfather are also not included in the suit and rightly the trial Court dismissed the suit on the ground of non inclusion of the said property. He further submitted, the plaintiffs are not entitled to any share in the suit schedule property as they affixing their signature as witnesses under the partition deed 31.07.2003 they have given up their right in the properties equally. Therefore he submits no case for interference with the order of the trial Court is made out.
16. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal is:
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1. Whether the plaintiff lost her right to her father's property by being an attesting witness to a registered Partition Deed dated 31.07.2003 between her brothers and uncles?
2. Is the suit for partition is barred by time?
3. Is the suit for partition is bad for non inclusion of all the family properties and also for non joinder of necessary parties?
17. Point No. 1: The facts are not in dispute. The propositus is one H.Thimmana Gouda. He had four sons by name Devendra Gouda, Shivana Reddy, Shankar Reddy and A. Thimmana Gouda. The propositus owned several properties. Some properties were purchased in the name of his wife Siddamma also. Therefore the joint family owned coparcenary properties and joint family properties. During the lifetime of Thimmana Gouda there was no partition. Even during the lifetime of A. Thimmana Gouda there was no partition. Thimmana : 26 : Gouda died on 28.03.2003. After his death there was a partition on 31.07.2003 as per Ex.P.1. between the sons of Thimmana Gouda and his uncles and the children. In the said partition which is a registered one the plaint schedule properties were shown as 'C' schedule properties which are allotted to the share of the branch of A. Thimmana Gouda. After the said partition no property of the joint family remained undivided. It is not in dispute that the plaintiff and her husband who are the attesting witnesses to the registered partition deed dated 31.07.2003. The partition deed is not a document which requires attestation. By attesting the said document as an witness, the right, if any, of the attesting witness in the property is not lost. Under the said partition deed the share of Thimmana Gouda was carved out and it is allotted to his share. Therefore plaintiff being the daughter of Thimmana Gouda is entitled to a share in the said property at a partition. Plaintiff demanded her share, in particular after amendment of the Hindu : 27 : Succession Act by introduction of Sec. 6A where they have been conferred right of a coparcener. On the day the amendment Act came into force, there was no partition in the family of Thimmana Gouda, after his death property and the property which fell to the share of Thimmana Gouda's branch is ancestral property, as the defendant nos. 2, 3 and 4 had a right by birth in the said property, the daughters, plaintiffs and defendant no. 5, also were given right as coparcener by virtue of the amendment. Therefore on the day she filed the suit for partition, as a coparcener she was entitled to equal right with the sons of A. Thimmana Gouda. If one of the items of the property did not belong to said H.Thimmana Gouda and it belong to his wife and that property is allotted to the branch of Thimmana Gouda, then by virtue of Sec. 8 of the Hindu Succession Act, that property belongs to Thimmana Gouda, all his children including his wife are entitled to equal share. Therefore seen from any angle the plaintiff is entitled to equal share with the sons in the : 28 : 'C' schedule property. Therefore by affixing her signature to the partition deed, she did not loose her right to claim a share in the said property.
18. Point No. 2: A suit for partition could be filed as long as the property is joint. Limitation Act do not prescribe any period of limitation for filing a suit for partition. Right to file a suit for partition would not run from the date of a partition in the family, if in the said partition they exclude a sharer. Therefore the finding of the trial Court that the limitation for partition starts from the date of partition deed-Ex.P.1 and suit ought to have been filed within three years and the suit filed after six years is barred by time, is clearly illegal and therefore the said finding is set aside the suit is held to be maintainable.
19. Point No. 3: In coming to the conclusion that the suit is bad for non joinder of necessary parties and non inclusion of all the joint family properties, the Court : 29 : below has taken note of the R.O.R. standing in the name of H.Thimmana Gouda, the propositus. The question was, on the day the suit was filed whether those properties were available for partition, whether they belong to the family and whether in that property the branch of Thimmana Gouda had any right. As stated earlier, all the properties of H. Thimmana Gouda and his four children were partitioned under the registered partition deed dated 31.7.2003 irrespective of the fact in whose name the said property stood, and the mutation entries were made. Once under a partition schedule properties are allotted to the share of Thimmana Gouda, even if some properties mutation entry stands in the name of their grandfather, Thimmana Gouda's branch would not have any right in the said property. The said properties were not available for partition. The plaintiff or his brother and his sister had no right in the suit property, it is not a property allotted to the share of Thimmana Gouda and therefore non inclusion of the suit : 30 : property would not render the suit of the plaintiff as not maintainable. Similarly, if that property need not have been included in the suit, the question of impleading the other children of Thimmana Gouda or his grand children in the suit would not arise. Therefore the finding recorded by the trial Court that the suit is bad for non joinder of necessary parties and non inclusion of all the family properties, is ex facie illegal and requires to be set aside. In that view of the matter, the judgment and decree of the trial Court is per se illegal, perverse and requires to be set aside.
20. In so far as the contention that the amounts due to their father was received by defendant nos. 2 to 4 from the Railways and that is not included in the plaint schedule, on that ground the suit is liable to be dismissed, has no substance. It is because the contract work was not a family business. After the death of A. Thimmana Gouda, the other two brothers are also : 31 : carrying on contract work; if they have continued their father's business and received money due to them, it would not have the character of a joint family business. However, if the second defendant has any right over the said property he can workout his remedy against D2 and D3. But That is not a justification to dismiss the suit filed by the daughter for partition and separate possession of her share as a member of the joint family coparcener and therefore there is no substance in the said contention.
21. Now by virtue of the amendment to the Hindu Succession Act, the daughters are treated as coparceners and therefore on the date of death of their father, including their father there were six coparceners in the family, each one of them is entitled to 1/6th share, the 1/6th share of the father devolves on his legal heirs, i.e., two daughters, 3 sons and the widow. Therefore each one of them would get 1/6th share in the 1/6th share of : 32 : their father. Therefore the share of each coparcener is 7/36, whereas the share of the mother would be 1/36. In fact, both the mother and the defendant no. 5, another daughter, also have filed cross appeals claiming their respective shares. Hence we pass the following:
ORDER The appeal as well as the cross objections are allowed.
Judgment and decree of the trial Court is hereby set aside. The plaintiff, defendant nos. 2, 3, 4 and 5 are entitled to 7/36th share in all the suit schedule properties. Defendant no. 1 is entitled to 1/36th share in the plaint schedule properties.
Parties to bear their own costs.
Liberty is reserved to the defendant no. 1 to proceed against defendant nos. 2 and 3 in respect : 33 : of the amount stated to have been received by them from the Railways which are due to their father, if he is entitled to the same in law.
SD/-
JUDGE SD/-
JUDGE Kms/Bvv