The court found that Section 7(2) of the Hindu Succession Act governs the distribution of undivided property among Class-I heirs, negating the application of the Aliyasantana Law in this context.

JUDGMENT :

M.G.UMA, J.

The legal representatives of deceased plaintiff No.1 and plaintiff Nos.2 to 8 in OS No.46 of 1992 on the file of the learned II Additional Civil Judge (Jr.Dn.), Udupi (hereinafter referred to as 'the Trial Court' for short) have preferred this appeal, impugning the judgment and decree dated 11.07.1997 passed by the Trial Court dismissing the suit of the plaintiffs filed for partition and separate possession of the schedule properties, and also the judgment dated 22.06.2009 passed in RA No.143 of 1997 on the file of Fast Track Court at Udupi, dismissing the appeal and confirming the judgment and decree passed by the Trial Court.

2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

3. Facts of the case in brief are that, plaintiff Nos.1 to 8 have filed the suit OS No.46 of 1992 before the Trial Court seeking partition and separate possession of plaint 'A' schedule property declaring that they are having 8/15^th share, and to divide the same by metes and bounds and for mesne profits. Schedule 'A' appended to the plaint describes Sy.No.83/4 bagayat measuring 44 cents situated in Shivalli village, Udupi Taluk.

4. It is the contention of the plaintiffs that one Kitta Sherigara is the propositus of the family. He had 4 children i.e., Kamala Sherigarthi, Sheena Sherigara, and Korapalu Sherigarthi. Kalyani Sherigarthi Kalyani Sherigarthi died issueless in the year 1962. Defendant No.4 to 7 are the children of Korapalu Sherigarthi, who died in the year 1969. Plaintiff Nos.1 to 8 are the children of Sheena Sherigara who died in the year 1972. Defendant Nos.1 to 3 are the children of Kamala Sherigarthi, who died in the year 1976. After the death of Kitta Sherigara, Sheena Sherigara, the father of plaintiffs along with his uncle Mutha Sherigara got executed a chalugeni chit dated 12.04.1951 from Shri Puttige Mutt, Udupi in respect of plaint 'A' schedule property. Mutha Sherigara had never in possession and enjoyment of the plaint 'A' schedule property, but Sheena Sherigara was in possession and cultivating the same. Mutha Sherigara died in the year 1962. Later Sheena Sherigara got executed another chalugeni chit on 20.09.1965 from the Mutt. Thus, Sheena Sherigara was the tenant in respect of the schedule 'A' property.

5. After coming into force of Karnataka Land Reforms Act, 1961., Kalyani Sherigarthi filed Form No.7 suppressing the exclusive chalugeni tenancy of Sheena Sherigara. The Land Tribunal, Udupi granted occupancy rights in her favour for and on behalf of her family. Plaintiff No.1 had also claimed occupancy rights, but the same was rejected by the Land Tribunal, since the occupancy rights in respect of the same property was already granted in favour of Kalyani Sherigarthi on behalf of her family.

6. It is contended that Korapalu Sherigarthi filed HRC No.47 of 1984 before the Trial Court against plaintiff No.1, seeking his eviction from the schedule 'A' property, contending that, he was a monthly tenant in respect of the premises in question. The said HRC came to be dismissed, thereby rejecting the claim of Korapalu Sherigarthi that she is the absolute owner and plaintiff No.1 was the tenant in respect of the schedule property. Thus it is contended that the plaintiffs are having equal rights over the schedule property along with the defendants and accordingly, prayed for granting 8/15^th share in favour for the plaintiffs.

7. Defendant No.7 filed the written statement denying the contentions taken by the plaintiffs. It is contented that the suit came to be filed only upon dismissal of HR