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2009 DIGILAW 308 (KAR)

Kumara Swamy v. Dharme Gowda

2009-04-22

K.N.KESHAVANARAYANA

body2009
Judgment :- K.N. Keshavanarayana, J The appellant in this second appeal who was defendant No.5 in O.S.No.7/90 on the file of the Civil Judge, Chikmagalur has questioned the legality and correctness of the judgment dated 24.9.2002 passed by the Principal District Judge, Chikmagalur in R.A.No. 15/98 allowing the said appeal and setting aside the judgment and decree of the trial Court dismissing the said suit and decreasing the suit of the plaintiffs holding that the plaintiffs are entitled for equal share in the suit schedule properties. 2. Respondent Nos. 1 to 9 were the plaintiffs in the Trial Court. Respondent Nos. 10(a) to (d) and 11 to 14 were the defendants 1 (a) to (d), 2, 3, 4 and 6 in the said suit. The plaintiffs filed the suit for partition and separate possession of the properties described in schedule to the plaint. The properties described in the schedule are agricultural lands. There are three items of the properties. Item – (a) land bearing Sy.No.52/1 measuring 20 guntas, Item (b) – land bearing Sy.No.72/7 measuring 1 acre 34 guntas and item – (c) land bearing Sy.No. 138/2 measuring 1 acre 10 guntas situated in Kabbigere Village,Amba Hobli,Marle Post,Chikmagalur Taluk. 3. The undisputed facts are that one Shanthamallegowda was the propositus of the family. He had five sons viz., Doddabasavegowda – father of defendants 2 and 3, Dharme Gowda – plaintiff No.1, Sannabasavegowda-plaintiff No.3, Rudregowda – plaintiff No.4 and one another Rudregowda – husband of plaintiff No.2. Defendant No.1 Smt. Channamma was the wife of said Shanthamallegowda. The plaint schedule properties along with other properties were the joint family properties of late Shanthamallegowda and his sons. 4. It is the case of the plaintiffs that under a partition deed or Tahanama dated 20.7.1964, all the joint family properties were portioned between late Shanthamallegowda and his five sons. As per the said partition deed, the plaint schedule properties fell to the share of late Shanthamallegowda with a condition that he should enjoy the same during his lifetime and thereafter the properties should be equally divided among his five sons. The said Shanthamallegowda died on 9.2.1972. Thereafter, the plaint schedule properties ought to have been divided equally among all his five sons. But that was not done and therefore, each of plaintiffs 1 to 4 are entitled for 1/5th share in all the plaint schedule properties. The said Shanthamallegowda died on 9.2.1972. Thereafter, the plaint schedule properties ought to have been divided equally among all his five sons. But that was not done and therefore, each of plaintiffs 1 to 4 are entitled for 1/5th share in all the plaint schedule properties. They also contended that plaintiff No.4 sold item (b) of the plaint schedule to defendant No.4 without the consent of other sharers and therefore, the said sale does not bind other sharers. Subsequently, the children of plaintiff No.2 were also impleaded as plaintiffs 5 to 9. During the pendency of the suit, defendant No. 1 Smt. Channamma died and her legal representatives have been brought on record. 5. The original defendant No. 1 – Smt. Channamma filed written statement which was adopted by defendants 2 and 3. Defendant No.4 filed separate written statement. Defendant No. 1 in her written statement denied the case of the plaintiffs that the plaint schedule properties were the joint family properties of late Shanthamallegowda. She also denied the family partition dated 20.7.1964 between the late Shanthamallegowda and his sons. She also denied the allegation that plaint schedule properties fell to the share of late Shanthamallegowda. She contended there was a oral partition between late Shanthamallegowda on one side and his sons on the other side some time during 1960 and that the plaint schedule properties fell to the share of late Shanthamallegowda. She contended that ever since the date of the said partition, late Shanthamallegowda was enjoying all the plaint schedule properties as absolute owner as such, the sons of late Shanthamallegowda had no right whatsoever over the said properties. She further contended that her husband late Shanthamallegowda gave the plaint schedule properties to her during his lifetime and thus she is in possession of the said properties and is enjoying the same. According to her, the plaintiffs have no right whatsoever over the plaint schedule properties. She denied the allegation that the plaintiffs are in joint possession of the plaint schedule properties. She contended that she executed a will in favour of her great grandson Kumara Swamy out of love and affection towards Kumara Swamy. She also admitted that she has sold item 1 to 3 of the plaint schedule properties to the defendant and that she was not required to take the consent of the plaintiffs for such sale. She contended that she executed a will in favour of her great grandson Kumara Swamy out of love and affection towards Kumara Swamy. She also admitted that she has sold item 1 to 3 of the plaint schedule properties to the defendant and that she was not required to take the consent of the plaintiffs for such sale. She contended that the alleged partition/tahanama dated 20.7.1964 is a concocted document and therefore it is not binding on her. With these contentions, she sought for dismissal of the suit. 6. Defendant No.4 who is stated to be the purchaser of item – (b) of plaint schedule properties admitted that there was a family partition followed by writing dated 20.7.1964. However, he further contended that in a subsequent partition, suit item – (b) properties fell to the share of 4th plaintiff and pursuant to such partition khatha of the said property was changed and subsequently the fourth plaintiff has sold the said property to him under a registered sale deed as such he has become absolute owner of the said property and therefore, it is not available for partition. 7. Upon the death of defendant No.1 – Smt. Channamma, the present appellant filed application to come on record as legatee under the Will and he was impleaded as defendant No.5. Thereafter, he filed his written statement reiterating the contentions urged by original defendant No.1. He contended that defendant No. 1 was the absolute owner of the plaint item (a) and (c) and that she while in sound disposing state of mind executed the Will dated 24.7.1989 bequeathing item (a) and (c) of the plaint schedule properties in his favour and therefore, he has become the absolute owner of those properties by virtue of the said Will and the plaintiffs are not entitled for any share in those items of the properties. In the light of the pleadings of the parties, the trial Court framed 12 issues and also additional issues as follows: 1. Whether the plaintiffs prove that there was a family partition – tahanama on 20.7.1964 and that suit schedule properties were allotted to share of Shanthamallegowda as his life estate and that according to the said partition the suit properties were to be equally divided among all his Sons after his death? 2. Whether the plaintiffs prove that he is entitled for 4/5th share in the suit schedule properties? 3. 2. Whether the plaintiffs prove that he is entitled for 4/5th share in the suit schedule properties? 3. Whether the plaintiffs are entitled for partition and possession of 4/5th share in suit schedule properties? 4. Whether the plaintiffs prove that Shanthamallegowda died on 9.2.1972? 5. Whether the defendant Nos. 1 to 3 prove that there was a partition between Shanthamallegowda and his sons during 1960 and that suit properties fell to the share of Shanthamallegowda? 6. Whether the 4th defendant proves that there was a partition in the year 1982 among the heirs of Shanthamallegowda and that in the said partition, suit item No.(b) had also fallen to the share of 4th plaintiff? 7. Whether the 4th defendant proves that he has purchased suit item (b) from 4th plaintiff under sale deed dated 4.5.1987? 8. Whether the suit is bad for non-joinder of parties? 9. Whether the suit is bad for non-inclusion of all joint family assets? 10. Whether the 4th defendant proves that he has improved suit item (b) by spending more than Rs.3,000/-? 11. Whether the 4th defendant is entitled for equitable partition? 12. What order? Additional Issues: 1. Whether the defendant No.5 proves that defendant No. 1 Channamma w/o Shanthamallegowda was the absolute owner in possession of plaint schedule items 1(a) and 1(c) properties after the death of Shanthamallegowda? 2. Whether defendant No.5 proves that on 24.7.1989 defendant No.1 executed Will in his favour bequeathing schedule items 1(1) and 1(c)? 8. The parties led evidence. Plaintiff Nos. 1 and 4 were examined as P.Ws. 1 and 2. Exs.P. 1 to P.12 were marked. Defendant Nos.4 and were examined as D.Ws. 1 and 2 respectively. One Kalegowda stated to be the attestor to the Will stated to have been executed by the first defendant was examined as D.W.3. One Sridevi, Advocate who said to have drafted the Will was examined as D.W.4. A xerox copy of the sale deed executed in respect of item No.3 of the plaint schedule in favour of 4th defendant was marked as Ex.D. 1. The registered Will executed by defendant No. 1 and the death certificate in respect of defendant No. 1 were marked as Exs.D.2 and 3 respectively. 9. A xerox copy of the sale deed executed in respect of item No.3 of the plaint schedule in favour of 4th defendant was marked as Ex.D. 1. The registered Will executed by defendant No. 1 and the death certificate in respect of defendant No. 1 were marked as Exs.D.2 and 3 respectively. 9. The trial Court after hearing the parties and on appreciation of the oral as well as documentary evidence rejected the contentions of the original first defendant and also of 5th defendant that there was no partition of the joint family properties as set up by the plaintiffs on 20.7.1964 as per documents which had been marked as Ex.P. 1 during the trial. The trial Court held that the plaintiffs have proved the family partition of all the joint family properties of late Shanthamallegowda and his sons as evidenced by document dated 20.7.1964 – Ex.P. 12 and that under the said partition the plaint schedule properties fell to the share of late Shanthamallegowda. The Trial Court also recorded a finding that item – (b) of the plaint schedule was sold by the fourth plaintiff under Ex.D. 1 in favour of the fourth defendant and therefore, the said sale is not binding on the other sharers of the property. However, the Trial Court held that since the plaint schedule properties fell to the share of late Shanthamallegowda under the partition it became his separate property and subsequent to the partition late Shanthamallegowda and his wife Smt. Channamma were enjoying the said properties together as absolute owners and upon the death of Shanthamallegowda, the plaint schedule properties became separate sthridana properties of Smt. Channamma and therefore, she had absolute right deal with the same. The Trial Court further held that defendant No.5 has proved the execution of the Will – Ex. D.2 and that there was no suspicious circumstances surrounding the said Will. In that view of the matter, the Trial Court held that Smt. Channamma – the original defendant as absolute owner of items (a) and (c) of the – plaint schedule properties has bequeathed those properties in respect of fifth defendant and upon her death the fifth defendant has become the owner of the said properties as such the plaintiffs are not entitled for any share in the properties. In that view of the matter, the trial Court dismissed the suit of the plaintiffs. 10. In that view of the matter, the trial Court dismissed the suit of the plaintiffs. 10. Aggrieved by the said judgment and decree, the plaintiffs filed appeal before the District Judge, Chikmagalur in R.A.No. 15/98. The main contentions urged before the Lower Appellate Court was that the trial Court has committed a serious error in holding that the plaint schedule properties became separate properties of defendant No. 1 and that she had absolute right to bequeath the same under the Will – Wx.D.2; that the Trial Court has committed an error in holding that defendant No.5 has succeeded to the items (a) and (c) of the plaint schedule properties by virtue of Will – Ex.D.2 executed by defendant No.1; that the Trial Court ought to have held that since the plaint schedule properties fell to the share of late Shanthamallegowda under a partition, it became his separate property and upon his death by virtue of Section 8 of the Hindu Succession Act, the plaint schedule properties ought to have been divided among all his Class – 1 heirs in equal shares and in that view of the matter, the Trial Court ought to have decreed the suit of the plaintiffs declaring their equal share in all the plaint schedule properties. The Lower Appellate Court during the course of the judgment framed the following points for consideration: 1. Whether the Trial Court was right in holding that after the death of Shanthamallegowda, defendant 1 became the absolute owner and upholding the Will deed Ex.D2 and further in view of the sale deed (original of Ex.D 1) plaintiff – 4 had conveyed plaint schedule item (b) to defendant – 4 and as such, the suit of the plaintiffs had to be dismissed? 2. What order? 11. The Lower Appellate Court on reassessment of the oral and documentary evidence held that the Trial Court has committed error in holding that original defendant No. 1 had right to execute the Will in respect of items (a) and (c) of the plaint schedule properties. 2. What order? 11. The Lower Appellate Court on reassessment of the oral and documentary evidence held that the Trial Court has committed error in holding that original defendant No. 1 had right to execute the Will in respect of items (a) and (c) of the plaint schedule properties. According to the Lower Appellate Court in the light of the partition effected between late Shanthamallegtowda and his sons, the plaint schedule properties became separate properties of late Shanthamallegowda as those properties fell to his share in the said partition and since Shanthamallegowda died intestate leaving behind the widow, 5 sons and one daughter who has been brought on record as one of the legal representatives of defendant No. 1, the properties left behind by him should be divided among all his class – 1 heirs as per Section 8 of the Hindu Succession Act. The Lower Appellate Court held that the Trial Court has committed serious error in applying provision of Section 14 of Hindu Succession Act. The Lower Appellate Court concurred with the finding of the trial Court with regard to sale of item (b) of the plaint schedule to the fourth defendant and held that it binds only the share of the fourth plaintiff who was the vendor under the sale deed Ex. D. 1. The Lower Appellate Court further held that when defendant No. 1 was not the absolute owner of the properties, she could not have bequeathed the properties under a Will. In that view of the matter, the Lower Appellate Court allowed the appeal, set aside the judgment and decree of the trial Court dismissing the suit and declared that each of the plaintiffs 1, 3 and 4 are entitled for 1/5th share and the plaintiffs 2 and 5 to 9 are together entitled for 1/5th share in all the plaint schedule properties. However, the Lower Appellate Court observed that at the time of the partition equities shall be worked out to allot suit item (b) to defendant No.4 as far as possible. 12. Being aggrieved by the judgment and decree of the Lower Appellate Court, the fifth defendant who claims as legatee under the Will – Ex.D.2 hs filed this second appeal. 13. While admitting the second appeal on 4.3.2003 this Court has framed the following substantial questions of law; 1. 12. Being aggrieved by the judgment and decree of the Lower Appellate Court, the fifth defendant who claims as legatee under the Will – Ex.D.2 hs filed this second appeal. 13. While admitting the second appeal on 4.3.2003 this Court has framed the following substantial questions of law; 1. Whether the Lower Appellate Court was justified in law in reversing the judgment and decree of the Trial Court without meeting the reasoning given by the Trial Court? 2. Whether on facts and circumstances of the case, the judgment and decree of the Court below is vitiated for not properly appreciating the scope of Section 14 of the Hindu Succession Act, under which the defendant No. 1 had become the absolute owner of the suit property? 3. Whether the judgment and decree of the Lower Appellate Court is vitiated in not noticing that the defendant No. 1 was competent to bequeath her 1/6th share in favour of the appellant after the death of her husband? 14. Upon service of notice of this appeal, respondents 1, 2, 5, 8, legal representatives of respondent No.3, respondent No.4 and respondent No.13 are represented by their learned Counsel. Others though served have remained unrepresented. 15. I have heard Smt. Namitha Mahesh, learned Counsel for the appellant and Sri. R.C. Nagaraj, learned Counsel for respondents 1, 2, 4 to 8 and legal representatives of respondent No.3. Learned Counsel appearing for respondent No.13 has remained absent. 16. With regard to substantial question of law No.1 raised by this Court is concerned, perusal of the judgment of the Lower Appellate Court clearly indicates that the Appellate Court has not un-settled the findings of the trial Court on all issues. The Appellate Court only found fault with the findings of the trial Court with regard to the application of Section – 14 of the Hindu Succession Act and the finding of the trial Court that after the family partition as per Ex.P.12, Shanthamallegowda and Defendant No. 1 together enjoyed the plaint schedule properties and upon the death of Shanthamallegowda, she became the absolute owner of the same and by virtue of Section 14 of the Hindu Succession Act, her rights got enlarged as absolute owner and therefore, she ws entitled to bequeath the schedule properties under a Will. It is only the above finding of the trial Court which has been held to be contrary to law by the Lower Appellate Court. The findings of the trial Court on all other issues have been substantially affirmed by the Lower Appellaate Court. Therefore, it cannot be said that the Lower Appellate Court has reversed the judgment of the trial Court without meeting the reasoning given by the trial Court. The Lower Appellate Court in its judgment has assigned reasons for reversing the judgment of the trial Court. The question whether the reasonings of the Lower Appellate Court are just and proper, has to be considered by this Court. 17. The fact that plaint schedule properties along with other properties were the properties of the joint family of Shanthamallegowda and his 5 sons has been established. While recording such finding, the trial Court as well as the Lower Appellate Court have rejected the contention of the original 1st defendant as well as the 5th defendant that there was no partition as evidenced by Ex.P12. Both the Courts below have recorded a finding that as per the terms of the partition –Ex.P12 plaint schedule properties fell to the share of Shanthamallegowda. The Courts below also have recorded a finding that the case of the Original Defendant No.1 and 5th defendant that there was a partition in the year 1960 and that later the said shanthamallegowda gave the properties to the 1st defendant during his lifetime and those plaint schedule properties became her Streedhana properties has not been proved. It is pertinent to note that the defendants did not file any cross-objections before the Lower Appellate Court against the finding on this aspect of the matter recorded by the trial Court. Even in this appeal, the appellant has not seriously questioned the findings recorded by the Courts below with regard to contention of the original Defendant No. 1 that the late Shanthamallegowda gave these properties to her during his lifetime and thus plaint schedule properties became her Streedhana properties. Thus, even from the contention raised by Defendant No.1 it is clear that the plaint schedule properties were allotted to the share of Shanthamallegowda. The case of original Defendant No. 1 that these properties were given to her subsequently by her husband is not evidenced by any documentary evidence. Thus, even from the contention raised by Defendant No.1 it is clear that the plaint schedule properties were allotted to the share of Shanthamallegowda. The case of original Defendant No. 1 that these properties were given to her subsequently by her husband is not evidenced by any documentary evidence. Therefore, her contention that plaint schedule properties became her Streedhana properties, has been rightly rejected by the Courts below. Thus, from the above undisputed facts, it is clear that the plaint schedule properties became the separate properties of Shanthamallegowda, as these properties fell to his share in the partition between himself and his sons and he was entitled to deal ith them in the manner he liked. However, there is no dispute that Shanthamallegowda died intestate leaving behind his widow, five sons and one daughter. Since the plaint schedule properties were the separate and exclusive properties of Shanthamallegowda, upon his intestate death, his properties are inherited by all his Class-I heirs as per Section 8 of the Hindu Succession Act. Even if the original defendant No.1 had enjoyed the plaint schedule properties along with her husband after the partition, she did not acquire any exclusive right over the properties. At best she was entitled to enjoy the same till her lifetime. To a case of this nature, as rightly held by the learned Appellate Court, Section 14 of the Hindu Succession Act has no application. No doubt, as per sub-section (1) of Section 14 of the Hindu Succession Act, any property possessed by a female Hindu, acquired either before or after commencement of the Act, should be held by her as full owner thereof and not as a limited owner. Explanation to Sub-section (1) explains the term ‘property’. According to this Section, ‘property’ includes moveable and immovable properties acquired by female Hindu by inheritance, or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatrsoever, and also any such property held by her as streedhana immediately before the commencement of this Act. As noticed above, the plaint schedule properties were not inherited by Defendant No. 1 nor it was transferred to her by any modes known to law. As noticed above, the plaint schedule properties were not inherited by Defendant No. 1 nor it was transferred to her by any modes known to law. Admittedly, it was allotted to the share of her husband at a partition and her husband died intestate. Soon after the death of her husband, the estate left behind by him will have to be shared equally by his Class-I heirs as directed by Section 8 Therefore, the trial Court is in error in applying the provisions of Section 14 of the Hindu Succession Act to the present case. Under these circumstances, the Lower Appellate Court is justified in reversing the judgment of the trial Court in this regard. 18. Having regard to the fact that the plaint schedule properties were separate and exclusive properties of Shanthamallegowda and upon his death intestate, the properties were inherited by all his Class-I heirs, defendant No. 1 being the widow of Shanthamallegowda alone did not acquire the absolute right over the properties so as to bequeath the same in favour of the 5th defendant under the Will. No doubt, the trial Court recorded a finding that the 5th defendant has proved due execution and attestation of Ex.D2 and that there is no suspicious circumstances around execution of the Will. The Lower Appellate Court in its judgment has not reversed the said finding. However, merely because the 5th defendant has successfully established the execution and attestation of the Will as per Ex.D2, it does not ipso-facto establish that he has succeeded to all the properties. The testatrix should have right over the properties bequeathed so that the beneficiary under the Will succeeds to the properties. Having regard to the fact that the original Defendant No. 1 was not the absolute owner of the properties mentioned under the Will-Ex.D2, she could not have bequeathed the entire extent of the properties in favour of the 5th defendant under Ex. D2. 19. Learned Counsel appearing for the appellant contended that even if defendant No. 1 who is the executant of the Will (Ex.D2) had no right to bequeath the entire properties prescribed therein, bequeath could be restricted to her undivided 1/6th share in the properties left behind by her husband and she was entitled to bequeath her 1/6th undivided interest in the property as per Section 30 of the Hindu Succession Act. There is no dispute that upon the death of Shanthamallegowda, Defendant No.1 being the widow was entitled to succeed to the properties of her husband along with her sons and daughter. Therefore, she succeeded to 1/6th share in the properties left behind by her husband. The question is as to whether she could bequeath her undivided 1/6th share in the plaint schedule properties under a Will? Section 30 of the Hindu Succession Act, no doubt, empowers an Hindu to dispose of the properties by Will or other testamentary disposition of any property, which is capable of being so disposed of by him or by her in accordance with the provisions of the Indian Succession Act, 1925. Explanation to Section 30 explains as to what is the interest of a Hindu which can be disposed of by Will or other testamentary disposition. According to this explanation , only the interest of a Hindu in a Mitakshara co-parcenary property which can be disposed of by him or her by way of Will or other testamentary dispositions. In the case on hand, it is clear that the plaint schedule properties were not Mitakshara Co-parcenary properties, as according to the contentions of the contesting parties, the plaint schedule properties were the exclusive and separate properties of Shanthamallegowda having been allotted to him towards his share, under the partition. Therefore, Section 30 of the Hindu Succession Act has no application to the facts of the case. 20. Section 59 of the Indian Succession Act states as to the person who is capable of making the Will. According to this section, every person of sound mind not being a minor may dispose of his property by Will. Learned Counsel for the appellant sought to interpret expression ‘his property by Will’ found in Section 59 to include the undivided interest of a person when a property held jointly with other sharers. Upon the death of Shanthamallegowda, original defendant No. 1 became entitled to 1/6th share in the plaint schedule properties and each of her children were entitled to similar shares. Thus, she became the co-owner along with her children in respect of the plaint schedule properties. Her share was definite and only the division by meets and bounds had been postponed. Upon the death of Shanthamallegowda, original defendant No. 1 became entitled to 1/6th share in the plaint schedule properties and each of her children were entitled to similar shares. Thus, she became the co-owner along with her children in respect of the plaint schedule properties. Her share was definite and only the division by meets and bounds had been postponed. Under these circumstances, the submission of the learned Counsel for the appellant that the original defendant No. 1 could dispose of her undivided 1/6th share in plaint schedule properties by way of a Will as provided in Section 59 of the Indian Succession Act has great force and deserves to be accepted. Therefore, there is no difficulty in holding that the 1st defendant had right to dispose of her undivided 1/6th share in the plaint schedule properties by way of a Will. 21. The next question to be considered is as to whether the Will-Ex.D2 could be construed as a bequeath of undivided 1/6th share of the testatrix in the plaint schedule properties? It is well-settled law that the Will is a solemn document by the testator and the Courts will have to respect and honour the intention and the wish of the testator. It is well-said that the dead person speaks through the Will. The intention of the testatrix will have to be gathered by reading the entire document as a whole. No doubt in Ex.D2 it is stated that the testatrix is the absolute owner of the properties described in the schedule therein. She intend to bequeath those properties to her great-grandson namely, 5th defendant and she has made her further intention clear in the penultimate paragraph of the Will stating that she is intending to gove the property which fell to her share to her great-grandson. On reading of the Will-Ex.D2 as a whole, there is no difficulty in coming to the conclusion that the testatrix intended to bequeath whatever right and interest she had in the properties described therein to her great grand son. The Lower Appellate Court has not directed itself to this aspect of the matter and has proceeded to hold that each of the sons of Shanthamallegowda are entitled for 1/5th share in the plaint schedule properties. The Lower Appellate Court has not directed itself to this aspect of the matter and has proceeded to hold that each of the sons of Shanthamallegowda are entitled for 1/5th share in the plaint schedule properties. The Lower Appellate Court has totally ignored the fact that Shanthamallegowda died leaving behind his widow also apart from sons and daughters, as such she was entitled to succeed to 1/6th share in the estate left behind by him. The Lower Appellate Court has not at all considered the question as to whether the original defendant No. 1 could have disposed of her undivided interest in the plaint schedule properties by way of Will. 22. Having regard to the discussions made above, I am of the opinion that the Lower Appellate Court was not justified in holding that each of the sons of Shanthamallegowda are entitled for 1/5th share in the plaint schedule properties ignoring the share of the widow of Shanthamallegowda. To this extent, the judgment of the Lower Appellate Court is contrary to law and fact situation of the case. In view of the above, the appellant is entitled to succeed to 1/6th share of his great grandmother in all the plaint schedule properties. To this extent, the judgment of the Lower Appellate Court required to be modified. 23. As the sale of Item ‘B’ of the plaint schedule is only by plaintiff No.4 and since the defendant No.4 has not challenged the findings of the Courts below in this regard, the sale of Item ‘B’ of the plaint schedule in favour of the 4th defendant is binding only to the extent of the share of Plaintiff No.4, and as directed by the Lower Appellate Court while effecting the partition by meets and bounds to the extent possible, the share of 4th plaintiff be identified in Item ‘B’ of the plaint schedule properties. 24. In view of the above discussion, the substantial questions of law framed are answered accordingly and the appeal deserves to be allowed in part to the extent indicated above. 25. Accordingly, the appeal is allowed in part. In modification of the judgment and decree of the Lower Appellate Court, it is declared that each of the Plaintiff Nos. 1,3 and 4 are entitled for 1/6th share, while plaintiff No.2 and 5 to 0 together are entitled for 1/6th share in the plaint schedule properties. 25. Accordingly, the appeal is allowed in part. In modification of the judgment and decree of the Lower Appellate Court, it is declared that each of the Plaintiff Nos. 1,3 and 4 are entitled for 1/6th share, while plaintiff No.2 and 5 to 0 together are entitled for 1/6th share in the plaint schedule properties. It is further ordered that Defendant No.5 is entitled to 1/6th share of Defendant No.1 in all the plaint schedule properties. Defendant Nos. 2 and 3 are together entitled for the remaining 1/6th share. Parties to bear their own costs.