The main legal point established is that the daughter, under the amended Hindu Succession Act, is entitled to partition of joint family properties and that the dismissal of a previous suit does not bar her from seeking partition.

JUDGMENT :

N.K. Sudhindrarao, J.

1. Though the matter was listed for admission, with the consent of learned counsels for both sides, the same is taken up for final disposal.

2. The present appeal is directed against the judgment and decree dated 18.09.2012 passed in R.A. No. 26/2011 by the Presiding Officer, Fast Track Court at Chikkamagaluru, wherein, the appeal came to be dismissed confirming the judgment and decree dated 06.12.2010 passed in O.S. No. 80/2006 by the Senior Civil Judge and JMFC, Kadur.

3. In order to avoid confusion and overlapping, parties are referred in accordance with their status as it stood before the trial court.

4. The plaintiff earlier had filed a suit for declaration of title and possession in O.S. No. 434/2001 on the file of the Additional Civil Judge (Jr. Dn.) and JMFC, Kadur, which came to be decreed in part on 20.01.2006. The said suit was for declaration of the status of the plaintiff as the daughter of defendant No. 1 and one Rathnamma. The relief of plaintiff as the daughter was granted, however her relief in respect of the suit schedule property was dismissed.

5. Meanwhile, plaintiff had filed another suit in O.S. No. 80/2006 for partition and separate possession, by virtue of amended Hindu Succession Act. It is stated that, she has obtained the status of coparceners and that the defendant No. 1 has married another lady and seeks for partition of the schedule properties which are claimed by her as joint family properties. Defendants resisted the same. The trial Judge, on the basis of oral and documentary evidence, decreed the suit and granted half share to the plaintiff. Being aggrieved by the said judgment and decree, defendant No. 1 Gadigappa who is the father of the plaintiff preferred an appeal in R.A. No. 26/2011. The said appeal also came to be dismissed.

6. Thus, the appellants are seeking to aside the judgment and decree passed by the first appellate Court confirming the judgment and decree passed by the learned Trial Judge in O.S. No. 80/2006.

7. The operative portion of the judgment passed in O.S. No. 80/2006 is as under:

"Suit of the plaintiff is decreed.

The Plaintiff is entitled for partition and separate possession in respect of her half share in the suit schedule properties by metes and bounds.

Looking to the relationship, parties shall bear their own costs.

Draw preliminary decree accordingly."

8. It is necessary to make a mention of the earlier proceedings in O.S. No. 434/2001 filed by the present plaintiff against Gadigappa claiming herself to be his daughter and also seeking declaration of title of the schedule properties. The said suit came to be partly decreed holding the plaintiff Sujatha as the daughter of Gadigappa and Rathnamma Defendant No. 2, however, suit for declaration of title over the schedule property came to be rejected. The judgment and decree passed in O.S. No. 434/2001 was challenged in R.A. No. 51/2006. However, the said appeal also came to be dismissed.

9. The substantial questions of law that arise for consideration would be:

(i) Whether the dismissal of suit in O.S. No. 434/2001 would operate res-judicata on O.S. No. 80/2006?

(ii) Whether the release deed or relinquishment deed Exhibit-D2, restricts the right of the plaintiff?

(iii) Whether the plaintiff Sujatha being the daughter of Gadigappa is entitled for equal share of the property with Gadigappa Defendant No. 1?

10. Gadigappa is defendant No. 1 in the suit filed by plaintiff-Sujatha in O.S. No. 434/2011. It was her contention in the said suit that she was both the daughter of Gadigappa and owner of suit properties. However, she was declared to be the daughter of defendant No. 1- Gadigappa and Rathnamma. Thus the claim of the plaintiff Sujatha was accepted to the effect that she is the daughter of Gadigappa Defendant No. 1. But, her claim for declaration of title and injunction over the schedule properties was rejected on the ground that the properties belonged to the joint family and no partition had been effecte