The judgment establishes that legal heirs have rights to ancestral properties under the Hindu Succession Act, 1956, and that partition deeds not challenged by all parties may not be binding, necessitating a thorough examination of evidence in partition suits.

JUDGMENT

1. Heard the learned counsel for the appellant and learned counsel for the Caveator-respondent Nos.1 and 2 and learned counsel for respondent Nos.4 and 5.

2. These regular second appeal and miscellaneous second appeal are filed against the judgment and decree passed in R.A.Nos.87/2014 and 86/2014 respectively for setting aside the judgment of the Trial Court and remanding the matter to the Trial Court to consider the same afresh, in view of allowing the application filed under Order 41, Rule 27 read with Sec. 151 of C.P.C. in R.A.No.86/2014.

3. The appellant in R.S.A.No.1291/2017 and M.S.A.No.41/2017 is the defendant No.1 in O.S.No.24/2011 and the respondent Nos.1 and 2 are the plaintiffs in O.S.No.24/2011 i.e., the daughters of G.H. Mariyappa have filed the suit for the relief of partition and separate possession of their 1/7th share by metes and bounds claiming that they are entitled for share in the suit schedule properties. It is contended that the suit schedule properties are joint family properties of plaintiffs and the defendants. The plaintiffs and defendant Nos.1 to 4 and deceased Bharathi are children of G.H. Mariyappa. The said G.H. Mariyappa died leaving behind his wife and children and subsequently, the mother of them also died and one Bharathi, who is the daughter of G.H. Mariyappa also died leaving behind her husband and two children, who are defendant Nos.5 to 7 and they are also made as parties.

4. It is the contention of the plaintiffs that suit schedule properties are in joint possession and enjoyment of the plaintiffs and defendants as coparceners which originated from original propositor Gurushanthappa and Kallavva. The family originally consists of Gurushanthappa, Gangappa and Gangadharappa and they got divided their properties. Gurushanthappa was the kartha of their joint family and he had one son by name G.H. Mariyappa. After the death of G.H. Mariyappa, his wife Gowramma, the mother of the plaintiffs and defendant Nos.1 to 4 and Bharathi succeeded to the joint family properties as the legal heirs. The defendant Nos.3 and 4 are settled in Mysuru. The defendant No.1 is looking after the joint family properties as kartha. The defendant No.1 in the last 7 to 8 years is not distributing the profits of the joint family. There is a misunderstanding between the plaintiffs and defendant No.1. The other defendants are colluding with the defendant No.1 supporting him blindly. The defendant No.1 stopped the distribution of the profit of the joint family income among the joint family members altogether and completely. When the demand was made to partition the properties, the defendant No.1 declined to allot the share. Hence, legal notice was issued and notice issued against the defendant Nos.3 and 4 was returned unserved with an endorsement that intimation is delivered but, not received. But, the defendants have not replied to their notice. The plaintiffs were constrained to publish paper publication on 31/1/2011 in local news daily. The defendant No.1 goes on making false promises and not shown any inclination for effecting division in the family. The defendant No.1 is making effort to alienate the suit schedule properties. Hence, the plaintiffs, without any other alternative, filed the suit for the relief of partition and separate possession.

5. In pursuance of the suit summons issued to the defendants, the defendant Nos.2, 5 to 7 not appeared before the Court and placed exparte and defendant Nos.1, 3 and 4 appeared through their advocates and filed the written statement separately. The defendant No.1 in his written statement contended that suit schedule properties were already partitioned after the death of their mother Gowramma under registered partition deed dtd. 30/1/2002 and hence, the plaintiffs are not entitled for any share in the suit schedule properties. The defendant No.1 also took the contention that plaintiffs and defendant No.2 were married prior to 1985 and hence, they are not entitled for