The present regular second appeal by the legal

representatives of the original defendant No.1 assailing

the judgment and decree in R.A.No.12/2014 dated

09.12.2016 on the file of the Civil Judge (Sr. Dn.),

Honnavar sitting at Batkal, confirming and modifying the

shares in O.S.No.83/2011 dated 23.4.2011 on the file of

Prl. Civil Judge, Batkal.

The parties herein are referred to as per their

ranking before the trial Court.

This Court, while admitting the appeal on

15.09.2022, has framed the following substantial question

of law:

“Whether both Courts justified in holding that

even daughters who were married before 1967

would be entitled to claim equal share upon death

of their father after grant of occupancy rights?”

Heard Smt. Hemavati P.Mataguppi appearing

for Sri Laxmesh Putta Mataguppi learned counsel for the

- 4 -

appellants and Sri Venkatesh M.Kharvi, learned counsel

appearing for the respondents.

5.

Brief facts of the case are that, the suit

schedule properties are the landed properties which were

held by the father of the plaintiff and defendant Nos.1 and

2–Badka, son of Naga Naik and on the death of their

father, name of defendant No.1 was entered in respect of

the suit

schedule

properties,

subsequent

to

which

defendant No.1 filed an application for grant of occupancy

rights before the Land Tribunal and the Land Tribunal on

considering the application granted occupancy rights in the

name of defendant No.1 and accordingly, the mutation

entries were effected. The plaint avers that when the

plaintiff

sought

for

partition

of

the

suit

schedule

properties, defendant No.1 refused to give share and later,

defendant No.1 sold “B” schedule property in favour of

defendant No.3 in October 2010 and defendant No.1,

though promised to give share to the plaintiff, is trying to

alienate the other suit schedule properties and the cause

of action to file the suit arose on refusal of defendant No.1

- 5 -

to effect partition and hence sought for partition and

separate possession to allot 1/3^rd share and for the relief

of permanent injunction in respect of the suit schedule

properties.

Pursuant

to

the

issuance

of

summons,

defendant Nos.1 and 3 appeared and filed their written

statement.

7.

Defendant

No.1

contended

that

the

suit

schedule properties were granted in his individual capacity

and as such, the plaintiff does not have any share in the

suit schedule properties. It is stated that, at the time of

marriage of the plaintiff, defendant No.1 had spent

substantial amount and the plaintiff is not entitled for any

share. It is stated that the grant is exclusively in the

name of defendant No.1 and the plaintiff is not the joint

family member and she does not have any right over the

suit schedule properties.

8.

Defendant No.3 filed his written statement

contending that the suit schedule properties are not the

- 6 -

tenanted properties of deceased Badka Naga Naik the

father of plaintiff and defendant Nos.1 and 2. It is

contended that defendant No.1 is the exclusive owner of

the suit schedule properties as the Land Tribunal granted

occupancy rights in his individual capacity. According to

defendant No.3, at the time of purchase of “B” schedule

property the records were verified, and finding the name

of defendant No.1 being entered in the revenue records,

has purchased the “B” schedule property under registered

sale deed dated 29.06.2010 for a valuable consideration

and that defendant No.3 is a bona fide purchaser of “B”

schedule property. It is stated that on purchase of the “B”

schedule property, defendant No.3 has constructed a

residential house by obtaining loan from bank and

defendant No.3 would be put to greater hardship if the

plaintiff is allotted share in the suit “B” schedule property.

It is further stated that without seeking cancellation of the

sale deed, the suit of the plaintiff is not maintainable.

9.

The trial Court based on the pleadings and

documents on record, famed the following:

- 7 -

ISSUES

1. Whether the plaintiff pr