The captioned second appeal is filed by the

unsuccessful plaintiffs assailing the concurrent judgments

of the Courts below wherein appellants' suit seeking relief

of partition is dismissed.

For the sake of brevity, the parties are referred

to as per their rank before the trial Court.

It would be useful for this Court to cull out the

family tree which is as under:

Subrayya

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Nanjundaswamy Mohan Swamy Subramany Salamma

1980

(Issue Less)

1970

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1985

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Varadaraj

Jayamma

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D2

D3

Baby

Dhanalakshmi

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The plaintiffs are the legal heirs of one

Subramani who are seeking share in the property left

behind by their paternal uncle Mohanswamy who died

issueless. Before I advert to the contentions of the

plaintiffs herein, I deem it necessary to cull out the

relevant portion at paragraph 2 of the plaint which reads

as under:

2. One Sri. S. Mohana Swamy Mudaliar was the

absolute owner and in possession of site bearing No.

25/6, bounded on East by : Road, West by: Private site,

North : Road and South by: Private site now situated at

Nazarbad Mohalla, Siddartha Layout, Lalithamahal

Extension,

Mysore,

and

also

lands

situated

at

Nanjangud Taluk specifically mentioned in the schedule

below. The said S. Mohana Swamy Mudaliar died in the

City of Mysore on 25.3.1985 without any issues. The

said Sri. Mohana Swamy Mudaliar is the younger

brother of T.S. Nanjundaswamy and Elder brother of

Subramani. Both his brothers were pre-deceased S.

Mohanaswamy Mudaliar, that means to say Sri. Mohana

Swamy Mudaliar has no first class heir at the time of

his death. T.S. Nanjundaswamy having a son by name

Varadaraj who is also died recently by leaving

Defendant No.2 and 3 as legal representative. The 1st

Defendant is the sister of S. Mohanaswamy Mudaliar.

The Plaintiff No.1 is the wife of Late. Subramani, and 2

to 8 are here children. Since there is no class I heir all

the Plaintiffs, 1st Defendant and Late. Varadaraj (now

defendant No. 2 and 3 are Legal Representatives were

become successors as Class II heirs jointly). The

Plaintiff submit that each of the plaintiffs are entitled

1/10 share each and 1st defendant 1/10th share,

defendant No.2 and 3 jointly 1/10 share in the schedule

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property. After the death of said S. Mohana Swamy

Mudaliar the Plaintiffs are also in joint possession and

enjoyment of the schedule property."

If the above culled out pleadings in the plaint

are examined, this Court is of the view that the grounds

and the substantial questions of law raised in the

captioned second appeal cannot be entertained in the light

of Schedule to Section 8 of Hindu Succession Act, 1956.

The plaintiffs have admitted in unequivocal terms that the

suit properties were admittedly self acquired properties of

Mohanswamy. The plaintiffs are banking on the pleadings

averred by their paternal aunt Salamma. The said suit is

filed by Varadaraj who is the son of Nanjundaswamy, the

eldest son of propositus Subraya. The said suit is

compromised and Varadaraj and Salamma have taken half

share admitting that properties are ancestral properties.

If there is no dispute that these properties were acquired

by Mohanswamy during his lifetime, merely because there

is an averment referring the properties as ancestral

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properties in the earlier round of litigation, would not give

right to the present plaintiffs to seek share in the property.

As per Schedule, in absence of class-I heirs of

Mohanswamy, it is only the siblings of Mohanswamy, who

are entitled to inherit under Section 8 of the Hindu

Succession Act at the exclusion of sons and daughters of

predeceased brother and sister. If unfortunately Salamma

was wrongly advised and she gave up half share in the

properties to her nephew Varadaraj, the plaintiffs, by

placing reliance on the averments in the earlier suit,

cannot