This appeal is by the third defendant in O.S.

No.197/2013 on the file of the I Additional Senior Civil

Judge, Gokak [for short, ‘the civil Court’]. The civil Court, by

the impugned judgment and decree dated 01.03.2016, has

decreed the suit declaring the first to third respondents [the

plaintiffs] would be entitled to 1/6^th share each in the suit

schedule properties along with the appellant, and the fourth

and the fifth respondents.

Smt.P.G.Naik and Sri.Vitthal S. Teli, the learned

counsel for the contesting parties, are heard for final

disposal with their consent. The parties, for convenience,

are referred to as they are arrayed before the civil Court.

The plaintiffs have filed the suit for partition of

agricultural land in Sy. No.233/3-P1 measuring 4 acres of

Talakatnal Village and another land in this village

measuring 5 acres 8 guntas in Sy. No.234/2-P1 as also a

residential property bearing Village Municipal No.461 [for

short, ‘the subject properties’]. The plaintiffs and the

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defendants are the children of Sri.Laxmappa Bannur, who

has died in the year 2013. The plaintiffs are the sisters and

the defendants are their brothers. The plaintiffs’ case is that

these subject properties are ancestral properties and they

are coparceners, which status cannot be denied with the

Hindu Succession (Amendment) Act, 2004. They assert that

they would individually be entitled to 1/6^th equal share with

the defendants. On the other hand, the third defendant has

resisted the suit contending that the subject properties are

partitioned during the father’s lifetime on 30.04.2002 and as

such, the plaintiffs would not be entitled for a share.

The civil Court has framed Issues which requires

the plaintiffs to prove that they have a share in the suit

schedule properties and the contesting defendant [the third

defendant] to prove that the subject properties are

partitioned

on

30^th

April

2002.

The

first

plaintiff,

Smt.Uddawwa, has examined herself as P.W.1 and another

witness, Sri.Shidram Halappa Agneppagol, is examined as

P.W.2. She has marked Exs.P.1 to P.9. The third

defendant’s wife is examined as D.W.1 and in fact, the third

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defendant has executed Power of Attorney in favour of this

witness. Sri.Rangappa Revappa Belagali, an acquaintance, is

examined as D.W.2. The defendants have also marked

Exs.D.1 to D.7 which includes a copy of memorandum of

partition dated 30.04.2002 [Aapsaat Watni Patra – a

memorandum of partition]. This memorandum of partition,

is unregistered, but the defendants have paid stamp duty in

terms of stamp duty receipt [Ex.D6].

The civil Court has found that given the third

defendant’s tentative defense as regards the nature of the

subject properties, it must necessarily conclude that the

subject properties are ancestral properties and the partition

deed dated 30.04.2002 would not bind the plaintiffs because

there is nothing on record to show that such partition is

with their concurrence. The civil Court has also referred to

the impact of the amendment of Section 6 by the Hindu

Succession (Amendment) Act, 2004 in concluding that

because the partition is under an unregistered document,

the plaintiffs, who would be coparceners in terms of the

Amendment Act, can avoid such partition.

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6.

The appellant’s grievance is essentially on the

ground that the plaintiffs’ witness [Sri.Shidram Halappa

Agneppagol] has admitted that the family owned land in Sy.

No.322 of Talkatnal Village and the plaintiffs cannot succeed

in this suit without this property being included in the

partition. The learned counsel for the appellant, drawing the

attention of this Court to the evidence in this regard, relies

upon the settled proposition that if all properties which have

to be included are not included, the suit for partition must

be dismissed. She emphasizes that the plaintiffs’ witness

[P.W.1] has categorically admitted this land in Sy. No.322 of

Talkatnal Village measuring 1 acre is allotted to the third

defendant [the appellan