The court applied the Hindu Succession Act to determine the allotment of shares in ancestral joint family properties and dismissed the appeal for lack of substantial question of law.

JUDGMENT :

K.S. Mudagal, J.

This Second Appeal of the first defendant arises out of the judgment and decree dated 9.4.2015 passed by the Principal Senior Civil Judge and CJM, Tumakuru, in R.A. No.19/2009. By the impugned judgment and decree the First Appellate Court dismissed the appeal of the appellant and modified the decree granting 1/9th share to plaintiff No.1(a) and 4/9th share each to plaintiff No.2 and defendant No.1/appellant.

2. Brief facts of the case are as follows: Plaintiff No.1 Dalappa had two wives by name Giriyamma and Lakshmakka. First defendant Narasimhamurthy and second defendant Gangamma were his son and daughter through his first wife Giriyamma. Second plaintiff Nagarathnamma was his daughter through his second wife Lakshmakka.

3. Dalappa and Nagarathnamma filed O.S. No.383/1996 against the present appellant and his sister Gangamma for partition and separate possession of their 2/3rd share in the suit properties. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Trial Court.

4. The subject matter of the suit were the agricultural lands shown as item Nos.1 and 2 in the suit schedule and house properties shown as suit schedule item No.3 situated within the limits of Huchabasavanahalli village of Tumakuru taluk.

5. Plaintiffs contended that themselves and defendants constitute the joint Hindu family and the suit schedule properties were the ancestral joint family properties. Therefore they sought decree for partition and separate possession of 1/3rd share each.

6. Pending the suit first plaintiff Dalappa died and his second widow Lakshmakka was brought on record as plaintiff No.1(a). Even before the institution of the suit his first wife Giriyamma had predeceased Dalappa.

7. Only defendant No.1 contested the suit. He admitted the relationship, but contended that he has incurred huge loan from PLD Bank to improve the suit schedule properties, for finding a bridegroom for second plaintiff and for treatment of the first plaintiff and unless the plaintiff's share the liability, they are not entitled to any share in the properties.

8. On the basis of such pleadings the trial Court framed the following issues:

1. Does the defendant prove that, he had raised loan from PLD Bank and he has discharged the same as alleged in para 5 of the written statement?

2. Does the defendant prove that, the suit is not maintainable for non-joinder of necessary parties?

3. Are the plaintiffs entitled for separate possession of 2/3rd share in the suit schedule properties?

4. Whether the court fee paid is sufficient?

5. What order or decree?

9. The parties adduced evidence. Second plaintiff was examined as PW.1 and plaintiff No.1(a) was examined as PW.2. On their behalf EXs.P1 to P4 were produced. Defendant No.1 was examined as DW.1, but no documentary evidence was adduced.

10. The trial Court after hearing the parties held that the first defendant has failed to prove his defence and granted 1/3rd share to the plaintiff No.2. So far as plaintiff No.1(a) the trial Court held that since she is the second wife, she is not entitled to any share.

11. The first defendant challenged the said judgment and decree before the First Appellate Court in R.A. No.19/2009. The First Appellate Court concurring with the findings of the trial Court with regard to the nature of the properties and rejection of the defence of the defendants dismissed the appeal.

12. However, the First Appellate Court modified the decree by allotting one share to Dalappa. The First Appellate Court further held that on death of Dalappa plaintiff No.1(a), plaintiff No.2 and defendant No.1 being his class one heirs get 1/3rd each in his 1/3rd share which comes to 1/9th share and allotted 1/9th share to plaintiff No.1(a) and 4/9th share to plaintiff No.2 and defendant No.1.

13. This being the second appeal under Section 100 CPC can be admitted for hearing, only if there is substantial question of law in the case. The Hon'ble Apex Court in G