A father cannot bequeath his son's share in ancestral property as per Hindu Succession Act, 1956, Section 30.

JUDGMENT :

ASHOK S.KINAGI, J.

This Regular Second Appeal is filed by the legal representatives of the deceased plaintiff challenging the judgment and decree dated 19.09.2015 passed in R.A.No.181/2003 by the learned VII Additional District and Sessions Judge, Bangalore Rural District, Bangalore, and the judgment and decree dated 23.07.2003 passed in O.S.No.182/1995 by the learned Additional II Civil Judge (Jr. Dn.), Bangalore Rural District, Bangalore.

2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the legal representatives of the deceased plaintiff, and the respondents were the defendants.

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

The plaintiff filed a suit against the defendants for partition and separate possession, contending that the suit schedule properties were acquired by the plaintiff’s father in the partition entered into between him and his brothers and the suit schedule properties were the ancestral properties of the family of the plaintiff. The plaintiff and his father were the members of the Hindu joint family and no partition is effected. It is contended that the plaintiff’s father had no right to bequeath the share of the plaintiff in favour of defendant No.1. It is contended that a Will was executed by father Munivenkatappa on 22.11.1979 bequeathing the properties described in the schedule item Nos.1 to 7 to the plaintiff's minor children and item Nos.1 to 6 in 'B' schedule properties in favour of the plaintiff's sister and defendant No.1. It is contended that the plaintiff demanded a partition and separate possession, however defendant No.1 refused to effect a partition. Hence, cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

3.1. Defendant No.1 filed a written statement denying the averments made in the plaint. It is contended that the suit filed by the plaintiff is not maintainable for non-joinder of necessary properties. It is contended that defendant No.1 became the absolute owner of the suit schedule properties by a Will dated 23.11.1979 executed by Munivenkatappa i.e., the testator. After his demise, defendant No.1 became the absolute owner and it is also contended that the plaintiff's children are also beneficiaries or propounders of a Will. All the properties are not included in the suit schedule properties. Hence, the suit is bad for partition partition. It is also contended that as of the date of filing the suit for partition, the properties were not available for partition. Hence, prays to dismiss the suit.

3.2. The Trial Court, based on the above said pleadings, framed the following issues and additional issues:

Issues

1. Whether the plaintiff proves that the will dated 13.01.1979 executed by his father in favour of the defendants not binding on him in so far as his share is concerned?

2. Whether the suit is liable to be dismissed for non-inclusion of all the properties that belonged to the father of the plaintiff?

3. Whether the defendant proves that the father of the plaintiff himself has divided the properties between the plaintiff and the defendant and the suit properties have been exclusively given to her and that she is in exclusive possession of the same as contended by her in her written statement?

4. Whether the suit is bad for mis-joinder of parties and non-joinder of necessary parties?

5. Whether the plaintiff is entitled for partition and separate possession of half share in the suit properties?

6. To what order or decree?

Additional Issues framed on 19.01.1998

1. 1. Whether the defendant proves that the