Daughters of propositus entitled to equal shares in ancestral property under Hindu Succession Act, despite claims of non-joinder of necessary parties; court established existing legal rights clarifying that mutation does not confer absolute title.

JUDGMENT :

G. BASAVARAJA, J.

1. Appellants, who are the legal representatives of Satteppa, being defendants 1(a) to 1(e), have preferred this appeal against the judgment and decree dated 26^th February 2020 passed in OS No.22 of 2017 by the Additional Civil Judge & JMFC, Jamkhandi (for short “the trial Court”) which in appeal, before the Additional Senior Civil Judge, Jamakhandi (for short “the first appellate Court”) in RA No.14 of 2020 is allowed in part by judgment and decree dated 5^th August, 2021.

2. For the sake of convenience, the parties herein are referred to as per their status and rank before the trial Court.

3. Brief facts leading to this appeal are that the plaintiff has filed suit for partition and separate position of the suit property. Propositus-Ramappa died on 15^th May, 1970 and his wife Bhagawwa is also no more. They had three sons, viz. Sathyappa (D1), Bhimappa (D3) and deceased Sangappa, who died on 1^st August, 2006, leaving behind legal heirs i.e. plaintiffs 1 to 7. Defendant No.2 is the son of defendant No.1. After demise of propositus-Ramappa, their names were mutated in the revenue records and they constitute the joint family. The names of three sons were mutated to the suit land under ME No.1029 dated 14^th June, 1970. During that time, Sangappa and Bheemappa were minors and as such they were represented by their elder brother defendant No.1-Satyappa. In ME No.1815, it is clearly indicated that the mother Smt. Bhagawwa has to enjoy the property during her lifetime for her maintenance, and after her death, the same reverts back to defendants and they have equal share in the said land. When such being the fact, the defendant No.1, behind the back of other brothers, got mutated his name in the suit land under MR No.H24/15-16 dated 30^th April, 2016 and thereafter, executed a registered gift deed dated 14^th January, 2015 in favour office his son-defendant No.2. On the basis of the gift, defendants 1 and 2 submitted representation to the Tahsildar, Jamakhandi to mutate the name of defendant No.2. Plaintiff raised objections to this and as such, the matter is registered as dispute in RTS/SR-55/14–15. After enquiry, the Tahasildar, vide order dated 20^th December, 2015, rejected MR No.14/14–15, which was impugned in RTS/AP.No.91/15–16, which came to be dismissed on 13^th October, 2016. Plaintiffs demanded the defendant to allot their one-third share in the suit land, but defendants have not acceded to their request. Hence plaintiffs filed suit and the defendants have resisted the suit by filing written statement denying the averments contending that plaintiffs have not arrayed six daughters of propositus-Ramappa, who are also necessary parties to the suit. Properties indicated in ME No.1029 and ME No.1815 are not included in the suit. Hence, suit is bad for non- joinder of necessary parties, so also, for non-inclusion of all properties. Suit is filed suppressing true facts. ME No.1029 was certified in the year 1970 and till this date it is not questioned. It is contended that propositus-Ramappa and other members of the family have given consent to mutate the name of Satyappa to the suit land. Satyappa was having absolute right over the suit land and as such he has executed registered gift deed in favour of his son-defendant No.2, who got mutated his name and is in possession of the said land. Plaintiffs have no right over the suit land. Suit is not properly valued and court fee paid is also not sufficient. On all these grounds, it was prayed for dismissal of the suit.

4. On the basis of pleadings, the trial Court has framed five issues. To prove the case of the plaintiff, one witness was examined as PW1 and six docu