IMPORTANT POINT
Daughters have equal rights to inherit family property under the Hindu Succession Act, regardless of their marital status or the timing of their birth relative to the Act's enactment.

JUDGMENT :

C.M. Poonacha, J.

The present second appeal is filed under Section 100 of the Code of Civil Procedure, 1908, [Hereinafter referred to as the ‘CPC’] by the defendant No.1 challenging the judgment and decree dated 05.12.2017 passed in R.A.No.76/2017 by the Senior Civil Judge and JMFC, Bhatkal, [Hereinafter referred to as the ‘First Appellate Court’] and the judgment and decree dated 15.03.2017 passed in O.S.No.6/2015 by the Additional Civil Judge, Bhatkal, [Hereinafter referred to as the ‘Trial Court’], whereunder the suit for partition has been dismissed by the Trial Court and the First Appellate Court allowed the appeal of the plaintiff, decreed the suit and it has been ordered that the plaintiff, defendants No.1 and 2 are entitled to 1/3rd share each in the suit ‘A’ schedule properties.

2. The parties herein are referred to as per their status before the Trial Court for the sake of convenience.

3. It is the case of the plaintiff that the plaintiff, defendants No.1 and 2 are the members of Hindu Undivided Family. That the suit lands were personal lease hold properties of late Jatta Naik and after his death his wife Smt. Subbi applied for grant of suit ‘A’ schedule properties before the Land Tribunal, Bhatkal as minor guardian of defendant No.1 who was the only male member of the family and thereafter the Land Tribunal granted suit ‘A’ schedule properties in favour of Smt. Subbi as minor guardian as per order bearing No.9464 dated 02.11.1982. That the mutation entries were made in terms of the order of the Land Tribunal. That the plaintiff and defendants are joint owners of the suit properties and the same has not been denied. That since demand for partition made by the plaintiff was refused, the suit for partition was filed.

4. The defendant No.1 entered appearance and filed written statement contending that the plaintiff has no right to seek partition in the suit properties. That the plaintiff was born prior to coming into force of Hindu Succession Act, 1956, [Hereinafter referred to as the ‘Act of 1956’] and hence she is not a coparcener. That the plaintiff got married prior to coming into force of the Land Reforms Act, 1961, [Hereinafter referred to as the ‘Act of 1961’] and hence has no right in the suit properties granted by the Tribunal, as she was not a member of the family at the point of time when the suit properties were granted by the Land Tribunal. That the Land Tribunal granted suit properties in favour of the defendant in his individual name and he is in actual possession and enjoyment of suit properties and that they are the absolute properties of the defendant No.1. Hence, the defendants sought for dismissal of the suit.

5. Defendants No.2(a to f) adopted the written statement of defendant No.1. The Trial Court consequent to the pleadings of the parties, framed the following issues :

“ISSUES

1. Whether the plaintiff proves that suit ‘A’ schedule properties are the personal lease hold properties of Late Jatta Shaniyar Naik?

2. Whether the plaintiff proves that she is entitled for partition and separate possession of 1/3rd share in shit schedule properties?

3. What order or decree?”

6. The plaintiff is examined as PW.1. Exs.P.1 to P.6 were marked in evidence. The defendant No.1 was examined as DW.1. Exs.D.1 to D.5 were marked in evidence. The Trial Court by its judgment and decree dated 15.03.2017 dismissed the suit. Being aggrieved, the plaintiff preferred R.A.No.76/2017. The defendants entered appearance before the First Appellate Court and contested the same. The First Appellate Court framed the following points for consideration :

“POINTS

1. Whether the appellant established that suit schedule properties are the joint family properties of plaintiff and defendants?

2. Whether the appellant established that she is entitle for 1/3rd share in the suit schedule properties?

3. Whether the impugned judgment and decree requires to be interfered with?

4. What order or decree?”

7. The First Appellate Court by its judgment an