K. L. MANJUNATH, J.

( 1 ) AN interesting question that arise for consideration in these writ petitions is, whether the mother of a deceased child can maintain a suit, claiming partition against her husband and other members of the Joint Family?

( 2 ) THE marriage of the petitioner and respondent was solemnised on 6-1-1994 at Laxminarayanaswamy Temple, Krishnarajapet. Within three months from their marriage, a male child was born to them on 23-3-1994 and the child died on the same day in the evening. When the child was in the womb of the respondent, the petitioner herein had executed a release deed on 19-1-1994 in favour of his father and remaining members of the petitioner's family. Subsequently, the petitioner also filed a divorce petition in M. C. No. 11 of 1996 on the file of Principal Civil Judge (Senior Division) and Judicial Magistrate First class, Srirangapatna. The petition filed by the petitioner in M. C. No. 11 of 1996 was dismissed on merits on 6-11-2000. The respondent-wife filed a suit for partition and separate possession on the file of the Civil Judge (Senior Division), Srirangapatna in O. S. No. 7 of 2000 contending that she is entitled to 5/63rd share in all the suit schedule properties and she further requested the Court to declare that the release deed executed by the petitioner herein, in favour of his father and other members of the family on 19-1-1994 does not bind her and the same has to be set aside. The 1st defendant, who is the petitioner before this Court filed a detailed written statement. Based on the pleadings, the following issues were framed by the Court below:1. Whether the plaintiff proves that the suit schedule properties are joint family properties of the plaintiff and the defendants as they are in joint possession and enjoyment?2. Whether the plaintiff proves that the 1st defendant is having income of Rs. 3. 00 lakhs per year from the plaint schedule properties?3. Whether the 1st defendant proves that he had executed the release deed in favour of the other defendants and Rs. 60,000/- has been paid to the plaintiff through Vijaya Bank?4. Whether the 1st defendant proves that the plaintiff is not entitled for maintenance as the same is already decided in m. C. No. 11 of 1996 on the file of this Court?5. Whether the suit filed by the plaintiff is barred by limitation?6. Whether the suit is undervalued as Court fee paid on plaint is insufficient?7. What order or decree?

( 3 ) ADDITIONAL Issue No. 1 was treated as preliminary issue and after hearing both the parties, the Trial Court held the said additional issue in negative and after holding that the suit filed by the parties claiming share in the properties in person, as maintainable. The legality and correctness of this Order is called in question in this writ petition.

( 4 ) I have heard Sri Laxminarayana, learned Counsel appearing for the petitioner. According to him the suit filed by the respondent for partition and separate possession against the husband during his lifetime, as not maintainable. According to him, the wife cannot claim partition through her deceased son who died on the evening of 23-3-1994 and on which date the child was born, since there was no partition between the petitioner and his co-parcener. Therefore, the short question that arise for consideration in this Court is: whether the mother can claim a share in the properties of her deceased child?

( 5 ) IT is not in dispute that under the Hindu Law, even a child in the womb of the mother will acquire a right to claim partition. In the instant case, though the petitioner is contending that there is no partition between him and other members of the Joint Family, the same cannot be acceptable to this Court in view of the fact that on 19-1-1994, the petitioner herein has executed a release deed in favour of his father and other brothers by receiving a sum of Rs. 60,000/ -. On 19-1-1994, when such release deed was executed, the child was in the womb of the mother. Therefore, the

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