JUDGMENT

1. This second appeal is filed by plaintiff No.2 challenging the judgment and decree dated 20.02.2020 passed in R.A.No.26/2019 on the file of the Senior Civil Judge, Bhatkal and the judgment and decree dated 02.01.2019 passed in O.S.No.37/2016 on the file of the Principal Civil Judge, Bhatkal.

2. For the purpose of convenience, ranking of the parties is referred to as per their status before the trial Court.

3. Respondent No.4 is plaintiff No.1. Plaintiff Nos.1 and 2 have filed suit for partition and separate possession claiming 1/4th share in the suit schedule properties. The genealogy is as follows:

GENEOLOGY Narayan Pundalik Prabhu (Propositus, dead)

Laxmidevi (Wife, dead)

Mahamaya Janardhan Gajanan Raghuram @Ratnabai (Deft.1) (Deft.2) (Deft.3)

Ramakant (Husband, Plt.3)

Santosh (Plt.1) Sandeep (Plt.2)

4. The plaintiffs have contended that suit properties are self acquired properties of original propositus-Narayan Pundalik Prabhu. The defendants are contending that the suit schedule properties are ancestral properties. Both the trial Court and the first appellate Court have held that the suit schedule properties are joint family properties and ancestral properties. The finding of both the trial Court and the first appellate Court that the suit schedule properties are joint family properties and ancestral properties, attained finality as the plaintiffs have not challenged the said finding. The plaintiff No.2 has filed this appeal for claiming partition of properties of 1/4th share as per the judgment of the Hon’ble Supreme Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others reported in (2020)9 SCC 1 (Vineeta Sharma case).

5. The trial Court has granted 1/16th share upon following the judgment in Prakash and others Vs.Phulvati and others reported in (2016) 2 SCC 36 (Prakash case), for the reason that the original propositus-Narayan Pundalik Prabhu died in the year 1966, therefore by adopting the theory of making notional partition between Narayan Pundalik Prabhu and three sons without recognizing the mother of plaintiffs as coparcenor, has granted 1/16th share in the suit schedule properties.

6. This Court on 02.03.2022 has framed the following substantial question of law:

“Whether it is just and necessary to modify the judgments and decrees passed by the Courts below and grant an equal 1/4th share together to plaintiffs no.1 and 2 as against 1/6th notional share granted by Courts below in view of law laid down by Hon’ble Apex Court in the case of Vineeta Sharma V/s Rakesh Sharma?”

7. As per the genealogy described above, the mother of plaintiff Nos.1 and 2 is daughter of Narayan Pundalik Prabhu and Laxmidevi. Defendant Nos.1 to 3 are the sons. Therefore, as per Section 6 of the Hindu Succession Act, and as per law laid down by the Hon’ble Supreme Court in the case of Vineeta Sharma, since daughter is also recognized as coparcenor, is entitled equal share as that of sons. Therefore, the plaintiffs’ mother is entitled 1/4th share, consequently both plaintiff Nos.1 and 2 being children of Ratnabai are entitled their mother’s share of 1/4th together. Both the trial Court and the first appellate Court have lost sight of the law recognizing daughter is also coparcenor and thus without considering the daughter as coparcenor, has decreed the suit by granting 1/16th share, which is not correct, as this is contrary to the principle of law laid down by the Hon’ble Supreme Court in the case of Vineeta Sharma (supra).

8. Therefore, the judgment and decree passed by the trial Court and the first appellate Court are liable to be modified so far as grating extent of share is concerned. Hence, answered substantial question of law in the affirmative that the judgment and decree passed by the trial Court and the first appellate Court are modified holding that the plaintiffs are entitled for 1/4th share together but not 1/16th share. Therefore, the appeal filed by the appellant/plaintiff No.2 is allowed. Hence, I proceed to pass the fo