A NATARAJ; SNEHA Vs. MAHESH N; A VASANTHA KUMAR; A JAGDEESH PRASAD; A VISHWANATH; A KALAPANA UDAYA SHANKER AND OTHERS

JUDGEMENT

(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:-

(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.

(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.