Abdul Nazeer, J.

This appeal is directed against the judgment and decree in R.A.No.39/2002 dated 22.12.2009 on the file of the Fast Track Court-II, Dharwad, whereby the judgment and decree in O.S.No.80/1977 dated 25.9.2002 on the file of the Additional Civil Judge (Sr.Dn.) at Hubli has been set aside. The appellants were the defendants in the suit and the respondents were the plaintiffs. For the sake of convenience, the parties are referred to by their respective ranking before the Trial Court.

2. The plaintiffs filed the above suit for partition and separate possession of the suit schedule property. The genealogical tree of the family is as under:

Neelappa Havalappa Boli (Dead)

Ningappa (Dead) Basavanneppa Mahadevappa

Honnappa Gundappa MahalingappaShivalingappa Shekappa

(D-1) (D-2) (P-1) (P-2) (P-3) Yellappa DoddakoteppaSannokoteppaShankrappa (D-3)(D-4) (Dead) (D-7) Parvatevva (D-5) Mahantappa (D-6)

It is contended that the suit properties are ancestral properties of the joint and undivided

Hindu family of the plaintiffs grand father Neelappa. He died on 21.6.1955 leaving

behind him his three sons, Ningappa, Basvanneppa and Mahadevappa. Mahadevappa

was the genitive father of the plaintiffs. Mahadevappa was given in adoption to another family after the plaintiffs were born to him. The plaintiffs remained in their genitive family and became heirs and surviving co-parceners after the death of their grand father Neelappa. After the death of Neelappa, plaintiff Nos.1 to 3, Ningappa and Basavanneppa continued to be the members of Hindu coparcenery. Ningappa died on 30.3.1969. It is contended that though the plaintiffs are in joint and undivided possession and enjoyment of the suit properties along with the defendants, the property in question was divided into two sub-divisions. The first defendant’s name was entered in respect of RS No.5/1 and the name of defendant No.3 was entered in respect of RS No.5/2. It is contended that plaintiffs have 1/3rd share in the suit schedule property.

4. The defendants have filed their written statement contending that after the death of Neelappa, Ningappa, Basavanneppa and the wife of Yellappa were joint family members as Mahadevappa was given in adoption. The plaintiffs were living with Mahadevappa from the date of adoption itself. Ningappa and Basavanneppa continued to be the joint family members and each of them is entitled for ½ share in the properties.

5. On the basis of the pleadings, the Trial Court had framed the issues. The relevant issues for the purpose of this appeal are as under:

“(i) Whether the plaintiffs prove that as the sons of Mahadevappa before his adoption are entitled to 1/3rd share in the suit properties?

(ii) xxxxxx xxxxx xxxxx

(iii) xxxxx xxxxx xxxxx]

(iv) Whether the plaintiffs are entitled to partition and possession of their share?”

6. The parties have let in their evidence. On consideration of the materials on record, the Trial Court has dismissed the suit. However, the Lower Appellate Court has allowed the appeal. Consequently, the judgment and decree in O.S.No.8/1977 dated 25.9.2002 on the file of the Civil Judge (Sr.Dn.), Hubli, was set aside. The Lower Appellate Court has held that the plaintiffs are entitled for 1/3rd share in R.S.No. 5/1, measuring 6 acres

.21 guntas of Pashupathihal village, Kundagol Taluk.

7. While admitting the appeal, this Court has framed the following substantial question of law:

.“Whether the plaintiffs whose father was given in adoption after their birth have right of inheritance in the family of their birth?”

8. Learned Counsel for the appellants/defendants would contend that when the father of the plaintiffs was given in adoption to some other family, he ceases to be a member of the genitive family for all purposes. Mahadevappa having gone in adoption in the year 1951, the children though born prior to his date of adoption cannot claim any share in the property of genitive family of Mahadevappa as the line of succession of Mahadeva