JUDGMENT :

Mr. Anant Ramanath Hegde, J. - This appeal is filed by defendant No.1 in O.S.No.19/2010 on the file of the Senior Civil Judge, Raibag, assailing the judgment and decree dated 26.02.2014.

2. The suit was one for partition and separate possession. The suit is decreed as prayed for awarding 1/3rd share each to plaintiffs No.1 and 2 as well as defendant No.1. The genealogy of the parties is as under:

3. One Ittappa was the propositus. Plaintiff No.1 Kanakavva is the wife of Ittappa. Siddawwa and Pundalik are the daughter and son of Ittappa and Kannawwa. Ittappa died prior to 1994. Pundalik died in the year 2009 and he is survived by his wife Nirmala (defendant No.1) and Kannawwa, his mother the plaintiff No.1. Admittedly, Pundalik was serving as an employer in the South Western Railway prior to his death.

4. The plaintiffs claimed share in the immovable properties described in suit 'A' schedule property and also share suit 'B' schedule property i.e., in Rs. 6,00,000/-, service benefits alleged to have been received by the defendant No.1 - Nirmala, the wife of Pundalik.

5. Plaintiff No.1/respondent No.1 died during the pendency of this appeal on 03.01.2022. Application is filed before this Court by the 2nd respondent, who claims to be the legatee under the alleged Will dated 24.12.2010. Application was allowed for a limited purpose of enabling the 2nd respondent to defend the appeal as a legatee of the deceased 1st respondent.

6. The suit was contested by the defendant No.1 Nirmala and defendants No.2 and 3, the employer of Pundalik also contested the suit and took a stand that the plaintiffs are not entitled for the service benefits of late Pundalik. The defendant No.1 also took a contention that other two joint family properties are not included in the suit and as such, the suit is not maintainable.

7. The trial Court decreed the suit holding that the plaintiff No.1 is entitled to 1/3rd share, plaintiff No.2 is entitled for 1/3rd share and defendant No.1 is entitled to 1/3rd share in the suit 'A' schedule property. The trial Court also held that the plaintiff No.1 is entitled to 1/2 share in the suit 'B' schedule property, i.e., the service benefits received after the demise of Pundalik.

8. Sri. Vitthal S. Teli, learned counsel appearing for the defendant no.1/appellant, submits that;

8.1. The impugned judgment and decree awarding 1/2 share in favour of the plaintiff No.1 in respect of suit 'B' schedule property are impermissible.

8.2. The mother of the deceased employee is not entitled to any share in the service benefits after the demise of late Pundalik and all the service benefits should go to defendant No.1, wife of late Pundalik.

8.3. The suit is not maintainable as other two properties belonging to joint family are not included in the suit for partition.

8.4. Though specific stand is taken in the written statement, issue is not framed by the trial Court relating to maintainability of the suit for not including other two joint family properties.

9. Sri. Sangram Kulkarni, learned counsel appearing for the plaintiffs/respondents, would submit that;

9.1. The trial Court is justified in passing the decree for partition and separate possession.

9.2. As far as suit 'A' schedule property is concerned, there is no dispute that the properties originally belonged to one Itappa and are inherited by the plaintiff and the defendant.

9.3. As far as service benefits is concerned, that is the estate standing in the name of deceased Pundalik at the time of his death, who is the son of plaintiff No.1 and that being the case, plaintiff No.1 and defendant No.1 would succeed to the estate as Class-I heirs.

10. This Court has considered the contentions raised at the bar and also perused the impugned judgment and decree.

11. The following points arise for consideration:

i. Whether the trial Court is justified in granting ½ share in the service benefits of deceased Pundalik in favour of plaintiff No.1 and ½ share in favour of defendant No.1?

ii. Whether th