JUDGMENT This regular first appeal is under Section 96 of the Civil Procedure Code, 1908 by the defendants in O.S. No. 121 of 2000 on the file of Court of Civil Judge (Senior Division), Chikmagalur, who were aggrieved by the judgment and decree passed by the Trial Court awarding each of the plaintiffs in the suit, being four in number, 8/35th share in the joint family properties belonging to the family of the parties as described in schedule to the plaint. 2. Appeal is for the reason that the defendants are not liable to yield the share as decreed by the Trial Court for the reason that the propositus of the joint family of late Lakshmegowda, the husband of the first plaintiff and also claiming to be the husband of the 1st defendant and the father of rest of the parties; that plaintiffs 2, 3 and 4 are the children through the 1st plaintiff-wife and defendants 2, 3 and 4 are the children of Lakshmegowda through the 1st defendant/second wife. The said Lakshmegowda had left behind a Will under which the plaintiffs' entitlement was restricted to about 19 acres of agricultural land which he had bequeathed in favour of the 1st wife. The properties being the self-acquired properties of late Lakshmegowda the contents of the Will left behind by late Lakshmegowda would operate after the death of the said Lakshmegowda. 3. Appellants have also urged many other grounds to impugn the judgment and decree of Trial Court, which are neither available to them nor can be made good before the Appellate Court. 4. Be that as it may, the appeal being seriously pursued by the appellants, the impugned judgment and decree requires to be examined by this Court. 5. The appeal having been admitted, the respondents-plaintiffs have entered appearance through Counsel Sri Krishnamurthy Hasyagar. 6. We have heard Sri Bhaskaraiah, learned Counsel for the appellants and Sri Krishnamurthy Hasyagar, learned Counsel for the respondents. 7. 5. The appeal having been admitted, the respondents-plaintiffs have entered appearance through Counsel Sri Krishnamurthy Hasyagar. 6. We have heard Sri Bhaskaraiah, learned Counsel for the appellants and Sri Krishnamurthy Hasyagar, learned Counsel for the respondents. 7. Sri Bhaskaraiah, learned Counsel for the appellants-defendants, in the course of his arguments has while not seriously disputed that the defendants, who had set up the special defence of the Will having not proved the Will before the Trial Court and the Trial Court had no option except to discard the Will has nevertheless urged that the sharing ratio as determined by the Trial Court is erroneous particularly the entitlement of the defendants 2, 3 and 4 to an extent of 3/35th share of the properties, that these defendants, who are in appeal have a better entitlement, that what is now determined by the learned Judge of the Trial Court. 8. In support of his submission learned Counsel for the appellants (in this appeal) and defendants (in the suit) has placed reliance on the decision of the Supreme Court in the case of Rameshwari Devi v State of Bihar and Others, particularly, to make us wise about the provisions of Section 16 of the Hindu Marriage Act, 1955 to understand, appreciate and to determine the correct entitlement of the appellants in the joint family properties. 9. Sri Bhaskaraiah, learned Counsel for the appellants would submit that in terms of the ratio laid down in this judgment, the illegitimate children of a male Hindu dying intestate would also get a share in the properties held by the father along with his other children, however such rights do not extend to the coparcenary interest held by the father. 10. Appearing on behalf of the respondents-plaintiffs Sri Krishnamurthy Hasyagar, learned Counsel would vehemently urge that while the Trial Court has committed an error in allowing any share to the defendants 2, 3 and 4 even on the basis of the provisions of Section 16 of the Hindu Marriage Act; that such finding is contrary to the law laid down by this Court in the case of Patel Chandrappa and Another v Hanumanthappa and Others1. The learned Counsel would submit that the judgment and the decree passed by the Trial Court cannot be varied or altered to the advantage of appellants-defendants by enhancing their share any further and in support of his submission has placed strong reliance on the judgment of the Supreme Court in the case of Gurupad Khandappa Magdum v Hirabai Khandappa Magdum and Other2 and has contended that on the authority of law as laid down by the Supreme Court in this case, the entitlement of the defendants 2, 3 and 4 cannot go up from 3/35th share to anything higher and at any rate not 1/7th share as contended by Sri Bhaskaraiah, learned Counsel for the appellants-defendants. 11. The brief facts, many of which, are not in dispute are as under: First plaintiff and the plaintiffs 2, 3 and 4 being the wife and children respectively of late Lakshmegowda is not in dispute. 12. It is also not in dispute that the defendants 2, 3 and 4 are children born to late Lakshmegowda through the 1st defendant. 13. However, the parties were at issue on the claim of the 1st defendant, that she is the legally wedded 2nd wife of late Lakshmegowda. 14. The plaintiffs while claimed share in the properties pleaded, that the defendants, who are in possession and enjoyment of the entire suit schedule properties were not yielding proper share to plaintiffs and therefore, it became necessary for the plaintiffs to file the suit. 15. The defendants on their part pleaded that the suit was not tenable for more than one reason that the plaintiffs had once earlier tried their hands in getting a share in the properties by filing O.S. No. 197 of 1998 but that suit was dismissed for non-prosecution, the plaintiffs cannot keep coming up with one suit after the other, that in fact the suit had been the subject-matter referred to Lok Adalath and thereafter settled out of the Court. Defendants also contended that the properties were the self-acquired properties of late Lakshmegowda and therefore, had set up the same as the main defence. It is in the background of such pleadings the learned Judge of the Trial Court framed the following issues.- "1. Whether the plaintiffs prove that the plaintiffs 2 to 4 are the children of late R. Lakshmegowda? 2. It is in the background of such pleadings the learned Judge of the Trial Court framed the following issues.- "1. Whether the plaintiffs prove that the plaintiffs 2 to 4 are the children of late R. Lakshmegowda? 2. Whether the plaintiffs prove that late R. Lakshmegowda was died intestate at Mysore on 13-9-1994, leaving behind the plaintiffs as his legal heir? 3. Whether the plaintiffs prove that the plaintiffs 2 to 4 each have 8/27 and defendants 2 to 4 each have only 1/27 shares in the suit scheduled property? 4. Whether the plaintiffs prove that the defendant has acquired the entire suit schedule property and deriving the annual income of Rs., 3,10,000/- and inspite of the demand the defendant did not hand over the same to the plaintiff? 5. Whether the plaintiffs prove that the schedule 'C' property has been purchased out of the income derived from schedule 'A' property? 6. Whether the plaintiffs prove the alleged cause of action? 7. Whether the plaintiffs prove that the above suit is not hit by the principle of res judicata and they are not estopped from filing the suit in view of the dismissal of O.S. No. 171 of 1998? 8. Whether the plaintiffs are entitled for a judgment and decree as prayed for including mesne profit? 9. Whether the plaintiffs prove that the suit is properly valued and the Court fee paid is sufficient? 10. Whether the defendants prove the descriptions given in the schedule is not correct? 11. What order or decree?" 16. Parties went to trial on these issues. On behalf of the plaintiffs', father of 1st plaintiff was examined as P.W. 1 and first plaintiff herself deposed as P.W. 2. The plaintiffs got marked Exs. P. 1 to P. 6 being the Revenue extracts of the RTC Register, Ex. P. 7 the Patta Book, Exs. P. 8 to P. 10 are the mutation extracts, Exs. P. 11 to P. 20 are the record of rights, in respect of the agricultural land Ex. P. 21 the other endorsements of earlier proceedings as Exs. P. 21 and P. 22. 17. The defendants on their part blissfully forgot the suit once they filed the written statement before the Court and did not choose to take part in any further proceedings before the Court. P. 21 the other endorsements of earlier proceedings as Exs. P. 21 and P. 22. 17. The defendants on their part blissfully forgot the suit once they filed the written statement before the Court and did not choose to take part in any further proceedings before the Court. Though Sri Bhaskaraiah, the learned Counsel for the defendants-appellants in this appeal would submit that this happened due to the sheer negligence of the Counsel for the defendants, this submission cannot make any difference to the legal position as the Trial Court has proceeded on the basis of the material available before the Court. The learned Judge of the Trial Court on appreciation of the oral and documentary evidence placed before the Court by the plaintiffs came to the conclusion that the properties in question were in the nature of joint family properties, particularly late Lakshmegowda and his elder brother Raghupathy having partitioned the properties as belonging to their ancestors and the defendants having not proved the defence of the testamentary succession to the share of late Lakshmegowda proceeded to determine the entitlement of the partition in accordance with the Hindu Succession Act read with provisions of Section 16 of the Hindu Marriage Act. The learned Judge of the Trial Court found that the defendants, who had set up the defence of the plaintiffs having filed and having withdrawn a prior suit as a bar to the instant suit etc., having not taken part in the further proceedings, that again was not made good for the defendants and remained a plea and nothing beyond and therefore, would fall to ground. 18. The learned Judge of the Trial Court applying the relevant law as referred to above and having regard to the pleadings and the evidence on record, passed the impugned judgment indicating that the plaintiffs put together are entitled to 32/35th share and the defendants put together are entitled for 3/35th share and decreed the suit accordingly. It is against such judgment and decree the defendants are in appeal, and the contentions urged by the learned Counsel for the parties have been referred to supra. 19. The only question that arise for our consideration is as to whether the learned Judge of the Trial Court is right in determining the entitlement of the parties in accordance with law as it prevailed on the date of the judgment and decree. 20. 19. The only question that arise for our consideration is as to whether the learned Judge of the Trial Court is right in determining the entitlement of the parties in accordance with law as it prevailed on the date of the judgment and decree. 20. We have bestowed our attention to the submissions made by the learned Counsel for the parties and also the authorities relied upon by Sri Bhaskaraiah, learned Counsel for the appellants-defendants and Sri Krishnamurthy G. Hasyagar, learned Counsel appearing on behalf of the respondents-plaintiffs. 21. While there may not be any dispute with regard to the entitlement of the plaintiffs in terms of Section 16 of the Hindu Marriage Act and the situation being one to which is attracted the provisions of Sections 6 and 8 of the Hindu Succession Act, the learned Judge of the Trial Court was of the view that the entitlement of the appellants-defendants was not more than 3/35th share put together. 22. Even this entitlement is disputed, and it is sought to be made good by the learned Counsel for the appellants-defendants by contending that it should have been much higher. 23. One peculiar aspect we have noticed in this appeal is neither the plaintiffs indicate as to what exactly is their entitlement in terms of the legal provisions even in the plaint nor the learned Counsel for the defendants has indicated as to what exactly will be the entitlement of the defendants, even if the judgment and decree for partition were to sustain. 24. That in any way does not relieve us of the duty to examine as to whether the sharing ratio as indicated by the learned Judge of the Trial Court is correct in terms of the law or calls for any modification. 25. Plaintiffs had claimed 8/28th share for plaintiffs 2, 3 and 4 and 1/28th share in favour of the 1st plaintiff. 26. However, this was sought to be made good by the learned Counsel for the plaintiffs. A perusal of the judgment and decree under appeal indicates that the learned Trial Judge even without the benefit of the judgment of the Supreme Court in the decision of Gurupad Khandappa Magdum's case, allocated the shares in terms of the impugned judgment and even a little more than what the plaintiffs themselves had claimed. 27. A perusal of the judgment and decree under appeal indicates that the learned Trial Judge even without the benefit of the judgment of the Supreme Court in the decision of Gurupad Khandappa Magdum's case, allocated the shares in terms of the impugned judgment and even a little more than what the plaintiffs themselves had claimed. 27. But Sri Krishnamurthy Hasyagar, learned Counsel for the respondent-plaintiffs would submit that such entitlement determined by the learned Judge of the Trial Court is sustainable, though the plaintiffs might not have indicated as to what extent of entitlement of their share in terms of Gurupad Khandappa Magdum decision. In the alternative Sri Krishnamurthy Hasyagar, learned Counsel has relied upon the judgment of the Division Bench of this Court in the case of Patel Chandrappa, to submit that in terms of this judgment, the illegitimate children of a coparcener cannot claim any share if the partition is in respect of the coparcenary property and therefore, would submit that on the strength of this judgment while the defendants 2 to 4 are not entitled for any share at all would nevertheless not join issue on this aspect to the extent of the learned Trial Judge having decreed the suit in favour of the defendants put together for an entitlement of 3/35th share, only for the reason that the plaintiffs are not in appeal against this judgment and even otherwise in the plaint itself the claim for their share was less than what has actually been given to them as per the judgment and decree in appeal. 28. That leaves us with the only question as to whether there can be any improvement in the sharing ratio of defendants 2 to 4 in the present appeal or the share as determined and as indicated by the learned Judge of the Trial Court sustains as it is. 29. We find that the judgment of the Supreme Court in the case of Gurupad Khandappa Magdum, is not an authority in the present situation for the simple reason that the judgment is rendered in the context of practices prevailing amongst the Hindus in the State of Bombay and the learned Judges have referred to the commentary of Mulla Hindu Law, 14th Edition, Paragraph 315 reading as hereunder: "315. Wife.-(1) A wife cannot herself demand a partition (q), but if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband (r). Where at a partition between a father and his three sons, the wife was not allotted a share, it was held that she was entitled to reopen the partition, there being no waiver merely her not asking for a share but that in the partition the value of the ornaments taken by her must be taken into account(s). Where a son institutes a suit for the partition of joint family property impleading his mother and other members of the family as defendants and a preliminary decree is passed, the mother does not become owner of the share allotted to her until the preliminary decree is carried out and there is a division by metes and bounds. Therefore a mortgagee suing on a mortgage fore the property is actually divided can obtain a valid mortgage decree without pleading the mother (t). This does not mean that the sons can defeat the right of the mother merely by omission to apportion her a share and place her in its possession. So, where the sons while partitioning the property did not allot any share to the mother and the mother did not give her consent to the same it was held that the share of the mother in the property could not be attached in execution of a decree against the sons (Trial Court). In a suit by a son for partition and separate possession of his share after setting aside an alienation of the joint family property made by his father, the mother who is a party is entitled to a share if the Court comes to the conclusion that the alienation was not binding on the family. The alienation can be upheld only to the entent that if affects the father's interest (u). (2) The expression "wife" in relation to "sons" includes their stepmother (v). (3) If the wife has sthridhana given to her by husband or father-in-law, it value should be deducted from her share (w). (4) The above rules also apply when a father himself makes a partition of ancestral property among his sons". 30. (2) The expression "wife" in relation to "sons" includes their stepmother (v). (3) If the wife has sthridhana given to her by husband or father-in-law, it value should be deducted from her share (w). (4) The above rules also apply when a father himself makes a partition of ancestral property among his sons". 30. We have also perused the sources based on which the judgment is rendered by the Supreme Court and we find in the commentary of Hindu Law by Mulla that such is not the position that prevails in the Southern part of the country, particularly, the Southern States and the learned Author has very categorically indicated that in the Southern States the practice of allotting a share in favour of wife in a partition amongst the father and children has long since become obsolete and at any rate, is not a continuing custom even amongst the Hindus. In the instant case families are governed by the Mithakshara School of Hindu Law. In fact the learned Author in paragraph 71 has categorically stated that: "71. Succession in the Bombay State.-(1) The order of succession to males in the Bombay State is different from that in other parts of India where the Mitakshara law prevails. The difference arises from the fact that the Bombay School recognises as heirs certain females who are not recognised as heirs in other parts of India". 31. Therefore, the entitlement of the 1st plaintiff in a notional partition that should take place immediately prior to the death of the husband is not prevalent in that part of the country and we have to apply the law as it prevailed for effecting a notional partition, whereafter, the interest of late Lakshmegowda in the joint family properties would go by succession in terms of Section 8 of the Hindu Succession Act read with Section 16 of the Hindu Marriage Act. 32. The other judgment relied upon by Sri Hasyagar, the learned Counsel for the respondents-plaintiffs to contend that the share cannot be anything better and that the defendants are not entitled to any share in the properties for the simple reason that the properties in question were coparcenary properties of Lakshmegowda. 32. The other judgment relied upon by Sri Hasyagar, the learned Counsel for the respondents-plaintiffs to contend that the share cannot be anything better and that the defendants are not entitled to any share in the properties for the simple reason that the properties in question were coparcenary properties of Lakshmegowda. In support of this submission reliance is placed on the judgment of the Division Bench of this Court in the case of Patel Chandrappa, which in our opinion has no bearing on the facts of instant case for the simple reason that it was a case where a son born out of a void marriage in fact had sued his father for partition during the father's lifetime on the strength of the provisions and on the basis of rights conferred on such persons in terms of Section 16 of the Hindu Marriage Act. 33. The judgment if at all is an authority only for the proposition that a person of this nature cannot claim rights on par with other coparceners even if he has some right conferred in terms of Section 16 of the Act, and nothing beyond, at any rate that the judgment is not authority to hold that a right conferred under Section 16 is not in any way annulled because of the customary law. But this submission even otherwise, is not tenable in law as when once a customary law is codified and statute intervened the custom has to yield to the codified law in terms of statutory provisions and therefore, Section 16 does operate and it is not as though this Court was declaring that Section 16 has become inoperative. 34. At any rate this judgment does not help the plaintiffs to contend that the defendants 2 to 4 are not entitled for any better share than what has been granted by the learned Judge of the Trial Court. 35. 34. At any rate this judgment does not help the plaintiffs to contend that the defendants 2 to 4 are not entitled for any better share than what has been granted by the learned Judge of the Trial Court. 35. If we should apply the statutory provisions in terms of Section 6 of Hindu Succession Act read with Section 16 of Hindu Marriage Act in continuation with the customary law that would operate at the time of a notional partition, immediately prior to the death of late Lakshmegowda for the purpose of determining his interest, we find that the entitlement of the 1st plaintiff in law is 1/28th share and in favour of the plaintiffs 2 to 4 it is 8/28th share each or 24/28th share, and put together plaintiffs 1 to 4 are entitled to 1/28 + 24/28 = 25/28th share and defendants 2 to 4 would get 1/28th share each and all put together 3/28th share. In terms of the legal provisions this is the correction required to be made to the judgment and decree of the Trial Court. 36. Accordingly, the appeal is allowed in part to the limited extent modifying shares of the appellants-defendants from 1/35th share each to 1/28th share each and in all other respects the judgment and the decree of the Trial Court remains and consequently the entitlement of the plaintiffs is as indicated above. The 1st plaintiff is entitled for 1/28th share and plaintiffs 2 to 4 are entitled each for 8/28th or put together for 24/28th share. In all the plaintiffs 1 to 4 are entitled to 1/28 + 24/28 = 25/28th share. 37. The judgment and decree of the Trial Court stands modified in terms of this correction. 38. Parties to bear their own costs.