Shylendra Kumar, J.

This second appeal under Section 100 of Code of Civil Procedure involves two short but interesting questions of law. The first is as to whether the customary practice prevalent in a community can prevail over the statutory provisions, particularly a customary practice of aliya santana can prevail over the provisions of Section 8 of the Hindu Succession Act, 1956 [for short, the Act], and secondly as to whether the parties by their conduct start a custom afresh, though such custom was not prevalent earlier but sought to be followed by the act of parties?

2. This second appeal is by the plaintiff in OS No.101 of 1992, on the file of court of Munsiff at Karwar, praying for plaintiffs 1/6th share in the suit schedule properties and for division by metes and bounds, which suit was rightly decreed by the trial court came to be reversed in the RA No.7 of 1997, on the file of court of Principal Civil Judge (Sr Dn), Karwar, wherein the learned judge of the lower appellate court has reversed the judgment and decree of the trial court and has dismissed the suit. Therefore this second appeal.

3. Plaintiff claiming to be a daughter of one Bhanu Naik sued for her share in the properties that were left behind by her father, comprising of five suit items, and contending that while in respect of two suit items i.e. suit item Nos.1 and 4, these items were absolutely owned by her father, the other three suit items were the properties in which the plaintiffs father had 1/6th right. The defendants 1 to 3 are daughters of one of the five daughters of said Bhanu Naik, while defendants 4, 5, 6 and 7 are the other four daughters and defendants 8 to 12 were the brothers-cousins of deceased Bhanu Naik with whom Bhanu Naik had 1/6th share in respect of suit item Nos.2, 3 and 5. The relationship amongst the parties can be better depicted by the following chart:

4. It is the further case of the plaintiff that her father Bhanu Naik died intestate leaving behind five surviving daughters — plaintiff and defendants 4, 5, 6 and 7 - and defendants 1 to 3 — children of the pre-deceased daughter by name Vamakshi, together were each entitled for 1/6th share in the properties left behind by Bhanu Naik i.e. in equal measure.

5. On notice, mainly defendants 1, 2 and 5 contested the suit by filing written statement contending that the suit schedule properties having already been acquired for the formation of Naval base, there is no property available for sharing and division; that no suit schedule property was in possession of the defendants, but the contesting defendants were entitled to claim exclusively for themselves the entire compensation for the reason that the propositor Bhanu Naik had requested Keera Naik,

husband of second daughter Vamakshi @ Sharada to reside in the house as mane aliya and to take care of the properties; that the father of defendants 1 and 2 had taken care of the properties including cultivating the agricultural lands; that the he had on his own by raising loan from a bank constructed, a house located in suit item No.1; that the house exclusively belongs to the said Keera Naik and as the said Keera Naik had become mane aliya, all the properties of the family are inherited by him and through his daughter the other heirs would get share in the properties sought to be divided and therefore sought for dismissal of the suit. It was also pleaded that non-impleading of said Keera Naik as a party to the suit has rendered the suit bad for non-joinder of necessary parties and therefore prayed for dismissal of the suit on such premise also.

6. Defendants 4, 5, 6 and 7 — the other daughters of Bhanu Naik - filed separate written statement, supporting the case of the plaintiff.

7. It is in such circumstances, the trial court framed the following issues:

1. "Whether the Plaintiff proves his [her] share in suit property? If so, what is his [her] share?

2. Whether he [she] is entitled to partition and separate possession of hi