Upon the death of a defendant, legal heirs are entitled to equal shares in joint family properties under Hindu Succession Act, confirming the property as joint family assets.

JUDGMENT :

ASHOK S. KINAGI, J.

1. This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 07.08.2014 passed in Regular Appeal No.93 of 2009 on the file of the learned Senior Civil Judge and JMFC, Harapanahalli.

2. For convenience, the parties are referred to based on their rankings before the Trial Court, viz., the appellants herein were defendant Nos.3 to 5 and 7; respondent No.1 herein was the plaintiff and respondent Nos.2 to 4 herein were defendant Nos.1, 2 and 6.

3. Brief facts, leading rise to the filing of this appeal are as follows.

4. The plaintiff filed the suit against the defendants for partition and separate possession of his one-eighth share in the suit schedule “A” and “B” properties. It is the case of the plaintiff that defendant No.1 is the father of the plaintiff; defendant Nos.2, 4, 5 and 6 are the sisters; and defendant Nos.3 and 7 are the brothers of the plaintiff. The plaintiff and the defendants are the members of the Hindu Undivided Family constituted by the Hindu Mitakshara law. The suit schedule “A” and “B” properties are the ancestral and joint family properties of the plaintiff and the defendants. The suit schedule “A” properties stand in the name of defendant No.1 and the suit schedule “B” properties are situated at Kammathahalli village. All the suit schedule properties were managed by defendant No.1 as the Karta of the joint family.

5. When things stood thus, the plaintiff demanded a partition and separate possession, however, defendant No.1 refused to effect the partition. Hence, the cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

6. Defendant No.1 filed a written statement admitting the relationship between the parties to the suit and denying the existence of a joint family and that the suit schedule properties are ancestral and joint family properties. It is contended that defendant No.1 is not managing the affairs of the joint family. Defendant No.1 is originally a resident of Hoskote, Harapanahalli Taluk. His brothers got divided the properties long back i.e., about 42 years ago. The entire suit schedule properties were kept under mortgage, for the repayment of loan. Defendant No.1 came out of his father’s family and started residing at Kammathahalli Village by doing coolie work and out of his earnings, he had purchased the entire suit schedule properties except suit Item No. 8. All other properties are the self-acquired properties of defendant No.1. He submits that the plaintiff has no right to claim a share in these properties, except suit item No.8. Hence, pray to dismiss the suit in respect of the suit schedule properties except suit item No.8 property.

7. Defendant Nos.3 to 5 and 7 filed their separate written statements admitting the relationship between the parties to the suit. It is contended that the plaintiff was convicted in the JMFC Court, Harappanahalli and he has taken a certain amount from the joint family and started living with defendant No.2. It is contended that a suit in O.S. No.386 of 2002 is pending between the plaintiff and the defendants before the Civil Judge (Sr. Dvn.), Harihara. Hence, pray to dismiss the suit.

8. Defendant No.6 filed her written statement admitting the relationship between the parties to the suit and claimed an one-eighth share in the suit schedule properties, and prays to decree the suit.

9. The Trial Court, based on the pleadings of the parties, framed the following issues and additional issues:

Issues:

“1) Whether plaintiff proves that the defendant No.1 acting as kartha of the undivided family of plaintiff and defendants?

2) Whe