JUDGMENT :

Mr. Anant Ramanath Hegde, J. - The suit in O.S.No.247/2000 is filed for the relief of partition and separate possession. There are five properties described in the plaint. Four are agricultural lands and one is the residential house. The suit is filed by the wife and children of late Kanaksingh. The relationship is not in dispute. The genealogy is as under:

2. One Govind Singh was the propositus. He died in 1972. After his demise, the properties were inherited by his wife Smt.Bhavani Bai, two sons i.e. Kanaksingh and Raghunath Singh and two daughters i.e., Smt Padma Bai and Smt Ambu Bai. The admitted facts would reveal that after the demise of Govind Singh, wife of Govind Singh and his two daughters did not make any claim in respect of the properties. The properties were mutated jointly in the names of two sons viz., Raghunath Singh and Kanak Singh. It appears that Raghunath Singh transferred his share in the properties in favour of his three sons in respect of one of the suit properties namely the property bearing Sy No.233. Later some of the properties were sold in favour of defendants 6 to 10. The sale transactions have taken place in respect of the following suit schedule properties in the following manner:

(a) Kanaksingh and three sons of Raghunathsingh have sold property bearing Sy.No.233 measuring 3 acres 4 guntas in favour of defendant No.6 vide sale deed dated 16.05.1995.

(b) Kanaksingh and three sons of Raghunathsingh have sold property bearing Sy.No.233 measuring 4 acres 20 guntas in favour of defendant No.7 vide sale deed dated 16.05.1995.

(c) Kanaksingh executed registered sale deed in respect of Sy.No.109 measuring 2 acres 28 guntas in favour of defendants 8 and 9 vide registered sale deed dated 23.10.2000.

3. The wife and children of Kanaksingh have filed a suit for partition claiming share in the suit schedule properties on the premise that the properties in the hands of Kanaksingh are the ancestral properties and Kanaksingh could not have sold the properties in favour of defendants 6 to 10. The suit was contested by the purchasers. Raghunathsingh - the brother of Kanaksingh filed written statement opposing the claim.

4. The trial Court has held that the properties could not have been sold and has granted a decree for partition in respect of properties declaring 5/6th share in the suit properties and has held that the alienation made by Kanaksingh in favour of defendants 6 to 10 are not binding on the plaintiffs.

5. Aggrieved by the aforementioned judgment and decree, the present appeal is filed.

6. Sri S S Yadrami, learned senior counsel appearing for the appellants would submit that the properties in the hands of Kanaksingh were the properties inherited under section 8 of the HINDU SUCCESSION ACT , 1956 (for short, the 'Act') as such, he was the absolute owner of the properties and he had every right to alienate the properties and there are no restrictions what-so-ever under any provision of law on Kanaksingh from alienating the properties. He would further submit that the trial Court erred in granting the decree for partition on the premise that the properties are ancestral properties in the hands of Kanaksingh. In support of his contention, he would rely upon the judgment of the Hon'ble Apex Court in the case of Commercial Of Wealth Tax v. Commissioner Of Income Tax, Lucknow (1986)3 SCC 567.

7. Sri Deepak S Shettar, learned counsel appearing for the respondents justifying the judgment and decree would submit that the property in the hands of Kanaksingh though were inheri