The court affirmed the plaintiffs' rights to ancestral property, while recognizing the defendants' claim on item B(2) as self-acquired, thus requiring its exclusion from partition.

JUDGMENT :

Ashok S. Kinagi, J.

This Regular First Appeal is filed by the appellants, challenging the judgment and preliminary decree dated 01.08.2013 passed in O.S.No.10/2013 by the learned Principal Senior Civil Judge and JMFC, Hubli.

2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were defendant Nos. 1 to 5, 7, and 8, respondents No.1 to 4 were the plaintiffs and respondent No.5 was defendant No.6.

3. Brief facts, leading rise to the filing of this Regular First Appeal, are as follows:

The plaintiffs filed a suit against the defendants for a partition and separate possession. It is the case of the plaintiffs that the suit schedule properties belonging to Nagendra Wadekar, who died on 30.08.1979, leaving behind the plaintiffs and defendant No.7 as the daughters and defendants No.1 to 6 being the sons of the deceased Nagendra Wadekar. After the demise of Nagendra Wadekar, the plaintiffs and defendants have succeeded to the estate of the deceased Nagendra Wadekar. The suit schedule properties are the joint family properties of the plaintiffs and defendants; they are the members of Hindu Undivided Family and no partition is effected between the parties to the suit. The plaintiffs demanded a partition and separate possession, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for a partition and separate possession. Accordingly, prays to decree the suit.

4. The defendants appeared through counsel; however, did not file a written statement. The defendants filed an application seeking permission to file the written statement when the case was posted for judgment, and the said application was rejected by the trial court.

5. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1 and 11 documents were marked as Exs.P1 to P11.

6. The trial court, after hearing the learned counsel for the parties, framed the following points for consideration:

i. Whether the plaintiffs are entitled for share in the suit properties by way of partition?

ii. What order?

7. The trial court, after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, answered point No.1 in the affirmative, and point No.2 as per the final order. The suit of the plaintiffs was decreed vide judgment dated 01.0.2013 and it is declared that the plaintiffs and defendant No.7 have equal i.e., 1/11^th share each in the suit properties. It is also held that, if the defendants failed to effect the partition, the plaintiffs are at liberty to appoint the court commissioner to effect a partition.

8. The defendants, aggrieved by the judgment and preliminary decree passed in O.S.No.10/2013 on the file of the learned Principal Senior Civil Jude, Hubli, filed this Regular First Appeal.

9. Heard the arguments of the learned counsel for the defendants, and learned counsel for the plaintiffs.

10. Learned counsel for the defendants submits that, except, schedule B(2) of the suit schedule property, all other properties are the ancestral /joint family properties. The plaintiffs have no right to claim share in item No.B(2) of the suit schedule property. He submits that the trial court committed an error in decreeing the suit regarding schedule B(2) of the suit property. He submits that he has no objection to confirm the judgment and preliminary decree passed regarding the other items of the suit schedule properties. Hence, prays to allow the appeal.

11. Per contra, the learned counsel for the plaintiffs fairly concedes that schedule