- (1.) Heard the learned counsel for the appellants and the respondents. Appellant no.1 was defendant no.1 and Appellant no.2 was defendant no.7 in a suit filed by the respondent, who was the son of the appellant no.1. The suit was filed for partition, and separate possession of two items of property. Item no.1 was said to be the property of Appajappa, the father of appellant no.1 herein, who had died intestate leaving behind the suit schedule property in favour of appellant no.1 and his brothers. The widow of Appajappa had also died during the pendnecy of the suit. Item no.2 was said to be the ancestral property. The plaintiff having claimed partition in the suit schedule properties, the suit was contested and it was urged that item no.1 was the self acquired property of late Appajappa and that he had died intestate. However, the court below proceeded to frame the following issues:- "1. Whether the plaintiff proves that suit schedule properties are the ancestral properties 2. Whether the defendants prove that Smt.H.K.Channamma was the absolute owner of schedule II property and that she has executed a registered gift deed in favour of defendants 4 and 8 and that the defendants 4 and 8 are the absolute owners of schedule II property 3. Whether the plaintiff proves that he si entitled for a share in schedule properties If so, to what extent - ADDITIONAL ISSUES: "1. Whether 1st defendant proves that the 3rd defendant was adopted by Smt.Gangamma and K.H.Mallappa and as such is not entitled for a share in the schedule property 2. Whether the plaintiff's suit is bad for non-joinder of necessary party as contended by defendants - The court below has come to the conclusion that the suit items were available for partition as between the plaintiff and the defendants and his brothers and sisters and that the plaintiff was entitled to a share in the share belonging to the share of appellant no.1 apart from the brothers and sisters of appellant no.1, also being entitled to their respective shares. Insofar as defendant no.2 is concerned, the court below has dismissed the suit. It is on that limited ground that the present appeal is filed.
(2.) It is pointed out that there is no dispute as to the suit item no.1 was the self acquired property of Appajappa, the father of the appellant no.1 and he having died intestate is also not in dispute. As per Section 8 of the Hindu Succession Act, 1956 (hereinafter referred to as the 'HS Act', for brevity) and the Schedule thereto, it is apparent that suit item no.1 would fall to the share of appellant no.1, his brothers and sisters, as Class-I heirs and that the plaintiff, who was the son of plaintiff no.1 would not have any right over the property unless the appellant should die and the property remaining in tact. The learned counsel would submit that the court was in error in proceeding to treat the property as ancestral and being available for partition and the plaintiff being entitled to a share. Therefore, the learned counsel seeks that the suit be dismissed insofar as item no.1 as well.
(3.) The learned counsel for the respondents seeks to place reliance on a decision of the Supreme Court in Yudhishter vs. Ashok Kumar, 1987 AIR(SC) 558 as well as a Division Bench decision of this court in the case of Devagya Tuklya Marathe and others vs. Shivgya Igya Marathe and others,1972 2 MysLJ 340, to contend that the son would be entitled to claim a share in the ancestral property without the consent of his father as against his uncles. By the same token of reasoning, the plaintiff being the son of appellant no.1 was entitled to claim a share and he has been so granted which cannot be faulted. However, the said decision would not be applicable to the facts of the present case, as it was the case therein that the plaintiffs who were the children of defendant no.3 had sought for partition and the defendants 1 and 2 having raised objection that defendant no.3 was no longer a member of the family and since he had been given in adoption to another family and secondly, the plaintiffs, were the children of defendant no.3 could not have brought a suit without the consent of their father. This having been negatived and the division bench of this court having held that the suit was maintainable would be totally out of place and is not relevant. However, from a plain reading of section 8 of the HS Act, with the schedule thereto, it is evident that having regard to the admitted circumstance that item no.1 of the suit schedule property being the self acquired property of Appajappa, the father of appellant no.1 and he having died intestate, the appellant no.1, along with his brothers, would inherit the property in terms of Section 8 and the plaintiff would not figure as one of the beneficiaries as a class-I heir under the schedule to the Act. Therefore, the court below was not justified in decreeing the suit in favour of the plaintiff. The plaintiff had no right in the suit schedule property during the life time of his farther. And even thereafter, it is only when the father died interstate and if the property was in tact, he would get any right to claim a share. Consequently, the appeal is allowed and the suit is dismissed even in respect of item no.1 of the suit schedule properties is concerned.;