JUDGMENT B.V. PINTO, J.—This appeal is filed challenging the Judgment dated 8.4.2005 passed by the Addl. Civil Judge [Sr. Dn], Tumkur in O.S. No. 26/1998 dismissing the suit of the plaintiff seeking for a partition and separate possession of the suit schedule properties. 2. The plaintiff has filed the suit against the defendants alleging that the plaint schedule property belonged to one Venkatappa, who is the propositus. The said Venkatappa had three sons by name Rangappa-first defendant, Mudlaiah, who has died unmarried and Shivanna the second defendant. The sons of late Venkatappa constituted Hindu undivided joint family and they are in joint possession of the suit properties. The first defendant is none other than the father of the plaintiff and according to the plaintiff, the first defendant has got half share in the schedule property and the second defendant has also got half share in the schedule property. It is further submitted by him that the first defendant has two sons by name Chandrashekaraiah-the plaintiff and late Rudraiah through the first wife-Rangamma. Defendants No. 3 & 4 are also the sons of defendant No. 1 through the second wife-Gowramma, who is now arrayed as respondent No. 5. It is submitted by the plaintiff that the suit schedule properties are ancestral properties and joint family properties of plaintiff and defendant Nos. 1 and 2. It is further submitted that the first defendant has managing the joint family properties and affairs of the joint family as being the eldest son of the family. The first defendant has deserted his first wife without any reasonable cause and had taken second wife about 29 years back. During the lifetime of first wife, the second marriage had been entered into and defendants No. 3 & 4 are born to them. Since the marriage is illegal, the plaintiff submits that they are not entitled to any share in the suit schedule properties. Hence, they have sought for partition in the suit schedule properties since defendant No. 1 when demanded, did not allot the share of the plaintiff in the suit schedule properties. 3. The defendants filed the written statement contending that it is false to say that the first defendant had two sons namely., the plaintiff and late Rudrappa through the first wife and further admitting that defendants No. 3 & 4 are the sons of first defendant through his second wife-Gowramma. 3. The defendants filed the written statement contending that it is false to say that the first defendant had two sons namely., the plaintiff and late Rudrappa through the first wife and further admitting that defendants No. 3 & 4 are the sons of first defendant through his second wife-Gowramma. The defendants have also denied that the suit schedule properties are ancestral joint family properties of the plaintiff and defendants No. 1 & 2. It is also denied that the first defendant was managing the joint family properties and affairs of the joint family being the eldest member of the family. It is also denied that the first defendant has deserted the first wife without any reasonable cause and had taken the second wife about 29 years back during the lifetime of the first wife. It is also contended in the written statement that the averment in the plaint that the second marriage is illegal is false and that the claim of the plaintiff that defendants No. 3 & 4 are not entitled to any share has been denied by the defendants. It is further contended by the defendants that the suit in the present form is not maintainable and that there is no cause of action to the suit. It is also the case of the defendants that the suit schedule properties are joint family properties of defendants No. 1 and 2 and that they have admitted that the joint family properties were divided about 6 years back under Panchayath Palu Patti and accordingly katha and pahani have been transferred in their respective names and they are in exclusive possession of their respective shares. It is the case of the defendants that the mother of plaintiff and wife of the first defendant had deserted the first defendant as she was having some illicit connection with another person. It is only after such desertion that the first defendant has taken the 5th respondent as his wife and through such relationship defendants No. 3 & 4 are born. It is also the case of the defendants that the mother of the plaintiff had filed a suit for maintenance on behalf of herself and her son, which suit has been numbered as O.S. No. 791/1962 and in view of the fact that the said suit was dismissed; the plaintiff is barred from filing a fresh suit for partition. It is also the case of the defendants that the mother of the plaintiff had filed a suit for maintenance on behalf of herself and her son, which suit has been numbered as O.S. No. 791/1962 and in view of the fact that the said suit was dismissed; the plaintiff is barred from filing a fresh suit for partition. Hence, the defendants have sought for dismissal of the suit. 4. The trial Court after perusing the plaint and written statement had framed the following issues:- (1) Whether plaintiff proves that he is son of D1-Rangappa through his first wife? (2) Whether plaintiff proves that suit schedule properties are ancestral joint family properties between him and D1 & D2? (3) Whether plaintiff is entitled to any share in suit schedule properties? (4) Whether defendants prove the severance of joint family status about six years back? (5) Is the suit not maintainable? (6) Is there no cause of action? (7) To what order of decree? During the trial, the plaintiff has examined himself as PW.1 and one Rangappa has been examined as PW.2 and documents Exs.P1 to P9 are marked. The defendants have examined one Rangappa as DW.1 and got marked Exs.D1 to D29. After hearing the parties, the trial Court has held issue Nos. 1, 2, 5 & 6 in the affirmative. However, it has held issue Nos. 3 and 4 in the negative and has dismissed the suit. Being aggrieved by such dismissal, the plaintiff has filed this appeal. 5. Heard Sri S.K. Venkata Reddy, learned Senior Counsel appearing for the appellant and Sri B.S. Murali, learned Counsel appearing for the Respondents. 6. The learned Senior Counsel appearing for the appellant submits that in this case, the relationship of the parties has been admitted. It is further admitted that defendants No. 3 & 4 are the sons of defendant No. 1, so also the plaintiff is the son of defendant No. 1. It is his submission that in view of the fact that the properties are ancestral in nature, the plaintiff ought to have been granted his share in the properties. It is further submitted by him that the finding of the trial Court that the suit is hit by res judicata is not a good law and the trial Court has erred on this aspect. It is further submitted by him that the finding of the trial Court that the suit is hit by res judicata is not a good law and the trial Court has erred on this aspect. It is submitted by him that the plaintiff was a minor when O.S. No. 791/1962 was filed and that it was filed on his behalf by his mother. It is further submitted by him that the dismissal of the suit in O.S. No. 791/1962 does not bar the plaintiff from filing a fresh suit for partition. Since the said suit was dismissed on the ground that the plaintiff’s next friend is not entitled to claim a share on behalf of the minor and that the plaintiff is not entitled to partition as prayed for. Further, suit has been dismissed on the ground that the defendants have not proved that the suit schedule properties are their self acquired properties. In view of the aforesaid findings, the plaintiff is not barred from filing a fresh suit having regard to the filing of O.S. No. 791/1962. It is further submitted by the learned Senior Counsel that in view of the amendment to the cause-title after impleading Smt. Gowramma as 5th respondent, these shares allotable to the plaintiff is 1/8th and that the said share may be allotted to the plaintiff by allowing the appeal. 7. Sri B.S. Murali, learned Counsel appearing for the Respondents on the other hand submits that the trial Court has rightly dismissed the suit on the ground that the plaintiff had earlier filed a suit through his mother and that the said suit having been dismissed, the second suit on the same cause of action does not arise in view of the principles of res judicata. He, therefore, submits that the appeal may be dismissed by confirming the Judgment of the trial Court. 8. Having regard to the arguments advanced by the Counsel appearing for both the parties, the following points arise for consideration in this appeal:- (i) Whether the trial Court is right in dismissing the suit of the plaintiff? (ii) Whether the plaintiff has made out a case for a share in the suit schedule properties? (iii) What order? 9. The case of the plaintiff is that the suit schedule properties which are mentioned in the plaint namely., item Nos. (ii) Whether the plaintiff has made out a case for a share in the suit schedule properties? (iii) What order? 9. The case of the plaintiff is that the suit schedule properties which are mentioned in the plaint namely., item Nos. 1 to 8 are the ancestral properties belonging to one Venkatappa, who is the propositus. It is averred in the plaint that Venkatappa had three sons namely., Rangappa-first defendant; Mudlaiah, who died unmarried and Shivanna, the second defendant. Sons of late Venkatappa have constituted Hindu undivided joint family as co-parceners and they are in joint possession of the suit properties. It is further averred in the plaint that the first defendant has got half share out of the joint family properties and the second defendant has also got half share in the joint family properties. It is also averred that the first defendant has got two sons by name Chandrashekaraiah-the plaintiff and late Rudraiah through the first wife-Rangamma and defendants No. 3 & 4 are also the sons of defendant No. 1 through the second wife-Gowramma. It is the case of the plaintiff that the first defendant has deserted the first wife without any reason from the family and he has entered into second marriage about 29 years prior to the date of filing of the suit and during the lifetime of first wife, defendants No. 3 & 4 have been born to Gowramma and the first defendant. However, it is the case of the plaintiff that defendants No. 3 & 4 are not entitled to any share in the suit schedule properties since the marriage of their parents is illegal. It is further submitted that the plaintiff and their mother are residing separately in Mallasandra village after being deserted from defendant No. 1 and were eking their livelihood by running some petty business shop. It is further averred in the plaint that the defendant No. 1, when demanded did not allot the share of the plaintiff in the suit schedule properties. Hence, he has filed the suit. The defendants have resisted the said suit on the ground that the property is not a Hindu undivided family property and they are not in possession and enjoyment of the suit schedule properties. However, they have admitted that defendants No. 3 & 4 are the sons of first defendant through Smt. Gowramma-second wife. Hence, he has filed the suit. The defendants have resisted the said suit on the ground that the property is not a Hindu undivided family property and they are not in possession and enjoyment of the suit schedule properties. However, they have admitted that defendants No. 3 & 4 are the sons of first defendant through Smt. Gowramma-second wife. It is further contended by the defendants in the written statement that the properties mentioned in the suit are self-acquired properties and were acquired by the first defendant and that the marriage of the first defendant with the 5th respondent took place only after the desertion of the first wife, who had deserted her husband without any reasonable cause. It is also further submitted that the averment regarding non entitlement of any share to defendants No. 3 and 4 is denied by the defendants. It is also contended in the written statement that since the properties were in continuous possession of the defendants for more than 30 years, the plaintiff is not entitled to any share in the property of the first defendant. 10. In order to substantiate the claim of the plaintiff, the plaintiff got examined himself as PW.1. In his evidence, he has reiterated the submissions made by him in the plaint. He has further stated that the suit schedule properties have been inherited through their ancestors and that he has got a share in the suit schedule properties. In the cross-examination, it is suggested that the suit schedule properties have been partitioned between first defendant and his brothers, 6 years prior to filing of the suit. However, the said suggestion has been denied by the plaintiff. It is also further suggested to him that the properties which are now claimed in the suit of the plaintiff separately being enjoyed by the respective shareholders and that there is no property available for partition. It is elicited in the cross-examination that when the earlier suit was filed, he was about 6 to 7 years of age and that he is not aware as to how he was brought up by his mother. He has also categorically denied the knowledge about the earlier filing of the suit and the nature of the suit. It is elicited in the cross-examination that when the earlier suit was filed, he was about 6 to 7 years of age and that he is not aware as to how he was brought up by his mother. He has also categorically denied the knowledge about the earlier filing of the suit and the nature of the suit. He has also denied the suggestion that is the mother had filed a maintenance case against his father-defendant No. 1 and also he is not aware as to why the said application has been dismissed. 11. DW.1-Rangappa is defendant No. 1. He has denied the statement made in the written statement. It is suggested to him in the cross-examination that the properties which are in his possession are joint family properties devolved upon him through Venkatappa their father. However, he has stated that the properties under the suit are self-acquired properties. 12. The trial Court after examining the evidence on record has held issue No. 1, i.e., the question as to whether the plaintiff proves that he is the son of defendant No. 1-Rangappa through his first wife, in the affirmative. The trial Court has held that in view of production of Ex.P9-Transfer Certificate and also in view of the fact that there was no suggestion to either PW.1 or PW.2, the plaintiff is not the son of first defendant and that there is no specific denial of evidence of DW.1 regarding the fact that the plaintiff is the son of defendant No. 1. The trial Court has come to the conclusion that the plaintiff is the son of defendant No. 1 through his first wife-Rangamma. Defendant No. 1 or defendant Nos. 3 to 4 have never filed any suit challenging the said suit of the trial Court and, therefore, under the circumstances, it has to be held that the fact that the plaintiff is the son of defendant No. 1 through his first wife-Rangamma is conclusively proved. 13. The question in this appeal remains to be answered is: Whether the suit schedule properties are ancestral properties or self acquired properties of defendant No. 1? 14. On a perusal of evidence of DW.1, who is defendant No. 1 and the documents produced before the trial Court, it is seen that defendant No. 1 has not put forward any evidence to show that the properties at items Nos. 14. On a perusal of evidence of DW.1, who is defendant No. 1 and the documents produced before the trial Court, it is seen that defendant No. 1 has not put forward any evidence to show that the properties at items Nos. 1 to 8 have been acquired by him either by purchase or secured by him through any other means. The trial Court in its para Nos. 14, 15 & 16 has elaborately considered the evidence of plaintiff as well as defendants and also the documents produced by the parties. After careful consideration of the evidence on record, the trial Court has held that the suit schedule properties are ancestral properties belonging to the family of the plaintiff and defendant No. 1 and are liable to be partitioned in accordance with law. 15. On a careful re-appreciation of the entire materials on record, I do not find any reason to divert away from the findings recorded by the trial Court and, therefore, I am of the opinion that the plaintiff has made out a case that items No. 1 to 8 of the suit schedule properties are ancestral properties which are available for partition between the plaintiff and the defendants. 16. Now having answered two questions in the affirmative, what remains to be decided is as to what is the share of the plaintiff in the suit schedule properties? It is seen from materials on record that the first defendant-Rangappa is father of the plaintiff and defendants No. 3 and 4 are also the sons of defendant No. 1 and defendant No. 2 is the brother of defendant No. 1. Hence, the plaintiff, defendants No. 1, 3 and 4 together are entitled to ½ share in the property and Shivanna-defendant No. 2 is entitled to ½ share in the suit schedule properties. Out of the ½ share, the plaintiff, defendant No. 1, 3 and 4 are also entitled to equal share in the suit schedule properties. Under the circumstances, plaintiff-Chandrashekaraiah and defendants No. 1, 3 and 4 are entitled to 1/4th of ½ share in the suit schedule properties, which means each of them are entitled to 1/8th share in the suit schedule properties. During the pendency of this appeal, Rangappa has died on 26.8.2011 and prior to his death, he has gifted 2 acres of land in Sy. During the pendency of this appeal, Rangappa has died on 26.8.2011 and prior to his death, he has gifted 2 acres of land in Sy. No. 33/2 [item No. 5 of the suit schedule properties] to the 5th respondent-Gowramma. The said share of 5th respondent has to be worked out during the final decree proceedings. 17. In view of what is stated above, the following order is made:- ORDER The appeal is allowed in part. The Judgment and Decree dated 8.4.2005 passed in O.S. No. 26/1998 by the Addl. Civil Judge (Sr. Dn.), Tumkur, is set aside. The suit of the plaintiff is decreed. It is declared that the plaintiff is entitled to 1/8th share in the suit schedule properties. Draw the preliminary decree. Trial Court is directed to draw the final decree and proceed with the matter in accordance with law.