JUDGMENT : 1. The second plaintiff in OS No. 293/1999 on the file of Civil Judge (Jr. Dn), Sagar, has come up in this second appeal impugning the divergent finding rendered in RA Nos. 158 and 162 of 2001 on the file of Civil Judge (Sr. Dn), Sagar. 2. Brief facts leading to this second appeal are as under:- The plaintiffs in original suit are one Gidda Manjappa S/o Manjappa Gali and Gidda Manajappa’s adopted son Subramanya. It is stated that plaintiff-Gidda Manjappa is one of the 7 sons of Manjappa Gali and he and his other brothers constituted a Hindu Joint Family, which in all had 6 agricultural properties referred to in schedule ‘A’ and one residential property referred to in schedule ‘B’ to the plaint. 3. The sum and substance of the plaint is that Gidda Manjappa is unmarried. Hence, he had adopted his younger brother Rangappa’s son Subramanya as his son and is residing along with his adopted son Subramanya. The plaint averments would indicate that in the family of Manjappa Gali as propositus he had in all 7 sons; first of them is Bangarappa; second one is Rangappa, third one is first plaintiff-Gidda Manjappa; fourth one is Dasappa, who died as a bachelor and intestate, fifth son is Janakappa; sixth son is Govindappa and seventh son is Krishnappa. In addition to 7 sons, the propositus had one daughter by name Saraswathi. 4. In the plaint it was contended that there was no severance in the joint family status of first plaintiff and his brothers with reference to suit schedule properties. According to plaintiffs, each of the sons of propositus were given a portion in suit schedule properties for their cultivation and livelihood and in the house they were permitted to stay in a portion thereof, which measured 8 feet x 35 feet for occupation of each of the 7 sons. It was also contended that all the properties of joint family continued in the name of propositus- Manjappa Gali as the owner and in cultivator’s column the names of persons, who were permitted to carry out agricultural activity in respect of some of the properties referred to in suit schedule item No. 1, was registered. 5. It was also contended that all the properties of joint family continued in the name of propositus- Manjappa Gali as the owner and in cultivator’s column the names of persons, who were permitted to carry out agricultural activity in respect of some of the properties referred to in suit schedule item No. 1, was registered. 5. In the said proceedings, on service of summons only two persons contested the suit i.e. seventh son of propositus, namely Krishnappa, who was the 11th defendant in court below and the only daughter of propositus, namely Smt. Saraswathi, who was the 12th defendant in court below. It is only these two persons, who have filed the written statement, wherein in the written statement of 11th defendant, he would state that there was partition in the family of Manjappa Gali propositus, wherein all the suit schedule properties were divided among the sons and daughter of propositus, during his lifetime. Based on that, each one of them are in possession, cultivation and enjoyment of the same as absolute owners with their names being registered in revenue records and tax being paid by them exclusively in respect of the portions which are under their cultivation. Similar is the defence taken by the propositus’s daughter - Saraswathi, 12th defendant in the court below. However, the only difference in the defence is to the effect that partition had taken place in the year 1981 according to 12th defendant - Saraswathi. This is the inconsistency with reference to the alleged partition in the joint family. However, one thing which all the parties accept is that all the joint family properties continued in the name of Manjappa Gali as owner in column No. 12 of RTC of each of the suit ‘A’ schedule and also suit ‘B’ schedule properties and it is only with reference to occupation and cultivation, the names of sons of Manjappa Gali are shown. 6. In the proceedings before court below, except the written statement filed by defendant Nos. 11 and 12, there was no opposition by the other family members of propositus - Manjappa Gali with reference to partition sought for by the plaintiffs. Therefore, on the aforesaid pleadings, the court below proceeded to frame the following issues, which read as under: xxx xxx xxx 7. Thereafter, the parties were called upon to adduce evidence. 11 and 12, there was no opposition by the other family members of propositus - Manjappa Gali with reference to partition sought for by the plaintiffs. Therefore, on the aforesaid pleadings, the court below proceeded to frame the following issues, which read as under: xxx xxx xxx 7. Thereafter, the parties were called upon to adduce evidence. On behalf of plaintiffs, second plaintiff – Subramanya adduced evidence as PW.1 and in support of their case they produced and marked in all 14 documents as Exs.P1 to P14. On behalf of defendants, it is defendant Nos. 11 and 12 who adduced evidence as DWs. 1 and 2. In addition to that they have also examined another person by name Ramappa as DW-3, who is the resident of same village, who tried to support the case of defendants that there was partition in the family of Manjappa Gali in the year 1961 itself. 8. After completion of evidence, the court below on appreciation of oral and documentary evidence on record proceeded to answer issue Nos. 1 and 2 in the affirmative holding that the plaintiffs and defendants constitute members of Hindu Joint Family and the suit schedule properties are the joint family properties. So far as the issues regarding whether suit was in time; whether it is maintainable and whether the plaintiffs have paid proper court fee are concerned, the said issues were answered in affirmative. Coming to the issue regarding entitlement of plaintiffs and defendants in suit ‘A’ and ‘B’ schedule properties is concerned, by answering said issue also in affirmative the court below proceeded to hold that the plaintiffs are entitled to 7 out of 49 shares along with possession thereof. While doing so, an equal share was recognized to defendant No. 12, the daughter of propositus, who was admittedly married as on that date. 9. Defendant Nos. 11 and 12 being aggrieved by the judgment and decree passed by the court below preferred two separate appeals before the Court of Civil Judge (Sr. Dn), Sagar. RA No. 158/2001 is by defendant No. 12 and RA No. 162/2001 is by defendant No. 11. The lower appellate court clubbed both the appeals and after going through the pleadings and evidence available on record proceeded to frame the following points for consideration, which read as under: “1. Dn), Sagar. RA No. 158/2001 is by defendant No. 12 and RA No. 162/2001 is by defendant No. 11. The lower appellate court clubbed both the appeals and after going through the pleadings and evidence available on record proceeded to frame the following points for consideration, which read as under: “1. Whether the appellant in RA No. 158/01 proves that the judgment is not sustainable, perverse and needs to be interfered? 2. Whether the appellant in RA No. 162/01 proves that the judgment is not sustainable, perverse and needs to be interfered? 3. What order?” 10. On re-appreciation of the material available on record, the lower appellate court proceeded to answer both the points for consideration in affirmative in holding that the judgment rendered by the court below is perverse, unsustainable and calls for interference. While coming to said conclusion, it has heavily relied upon the revenue documents which were produced by the parties, wherein it was shown that each of the parties are said to be in possession of certain extent of land in several survey numbers; that they are cultivating the same in their individual capacity with their names being shown as cultivators of said lands and tax in respect of said lands being collected and paid by the cultivators, whose name is shown in Column No. 12 of RTC. Besides that, two documents which have come into existence in the year 1961 with reference to alleged partition deed 5.6.1961 are also looked in to and examined by the lower appellate court. 11. Now coming to said two documents, namely Exs.D35 and D36 relied upon by defendants, if said documents are looked into which are with reference to alleged family arrangement said to have taken place in the family of Manjappa Gali, they would clearly show that certain properties are given for cultivation to the children of Manjappa Gali. However, the said documents do not refer to partition and severance of status among the propositus and his 7 sons and do not bear the signature of any person other than Manjappa Gali. Admittedly, the suit schedule properties are the properties of Manjappa Gali as its propositus. However, the said documents do not refer to partition and severance of status among the propositus and his 7 sons and do not bear the signature of any person other than Manjappa Gali. Admittedly, the suit schedule properties are the properties of Manjappa Gali as its propositus. If there is any severance in status and if any share is given to any of his sons with reference to their entitlement to get a share in said properties, they should have been made as parties to said documents in accepting the properties allotted to them in lieu of their share. Such an averment is neither seen in grounds of appeal nor acceptance of the properties as the exclusive share of first plaintiff and defendants is seen in Exs.D35 and D36. In spite of aforesaid recital not being there in Exs.D35 and D36, the lower appellate court proceeded to accept said two documents as documents of partition and proceeded to hold that there is severance of status with reference to title of suit schedule properties when revenue documents, which were produced by the parties as it stood from 1961 till the date of death of Manjappa Gali and thereafter also having stood in the name of Manjappa Gali and cultivation being carried out by his children with reference to some of the properties having stood in their name as cultivators of said lands, speak otherwise. 12. With reference to another document, namely Ex.D63 which is also styled as partition deed is an unregistered arrangement of properties in the name of some of the parties. Admittedly, all the children of Manajappa Gali are not parties to Ex.D63. It is only defendant Nos. 11 and 12 are the parties to said document, wherein the date of document itself is tampered in such a way that it is highly doubtful to accept the date on which said document has come into existence as contended by the learned counsel for plaintiffs. Even assuming that said document is partition deed, it is seen that some of the parties have stayed away from partition and the same is subject to several conditions referred to therein, which have not been established while adducing evidence in support of said document. Even assuming that said document is partition deed, it is seen that some of the parties have stayed away from partition and the same is subject to several conditions referred to therein, which have not been established while adducing evidence in support of said document. Therefore, it is clearly seen that the lower appellate court has not properly appreciated said document though it is an unregistered document said to have entered into between some of the children of propositus Manjappa Gali and accepted that there is partition of all the suit schedule properties. 13. It is also necessary to state that in Ex.D63 what is referred to is only 3 items of the properties as against 6 items referred to in suit ‘A’ schedule and there is no reference to suit ‘B’ schedule property and also right, if any, created with reference to said properties. Therefore, by any stretch of imagination the document at Ex.D63 also could not have been accepted as a document establishing the severance of status between the children of propositus Manjappa Gali. However, the lower appellate court has proceeded to accept the same and consequently, allowed the appeal, thereby set aside the judgment and decree passed by the court below in holding that plaintiffs are entitled to 7 out of 49 shares. Being aggrieved by the same, the second plaintiff has come up in this appeal. 14. After hearing the learned counsel for the parties regarding admission, this appeal is admitted to consider the following substantial questions of law: 1. Whether the lower appellate court has rightly re-appreciated the pleadings and evidence available on record to accept the severance of status basing its finding on Exs.D35, D36 and D63? 2. What is the share the plaintiffs and other defendants in the original suit are entitled to, if the partition is not held to be proved? 15. Since the lower court records are already received, at the request of learned counsel appearing for both the parties, this matter is taken up for final disposal while framing the substantial questions of law by dispensing with the filing of paper book. It is seen that during the pendency of this appeal, 11th defendant - Krishnappa, the contesting respondent has died and in his place his legal representatives are brought on record to contest this proceedings. 16. It is seen that during the pendency of this appeal, 11th defendant - Krishnappa, the contesting respondent has died and in his place his legal representatives are brought on record to contest this proceedings. 16. On going through the lower court record along with the grounds urged in this second appeal this Court find that in the light of pleadings, oral and documentary evidence available on record and also on appreciation of the submissions of both the learned counsel, the first substantial question of law is required to be answered in the negative for the following reasons: When admittedly, Exs.D35 and D36 as well as D63 not being the documents with reference to partition of all the suit schedule properties among all the children of Manjappa Gali subsequent to his death, said documents cannot be accepted as documents which have created severance of status between the plaintiffs and defendants either at the time when Manjappa Gali was alive in the year 1961 or subsequent to 1993-94, after his death. The documents at Exs.D35 and D36, as discussed supra, are with reference to certain arrangement said to have made by Manjappa Gali, the propositus during his lifetime, which bears only his signature, where the shares which were given to his children are not shown as their exclusive shares in the joint family properties. At best, it can be accepted as a family arrangement for them to cultivate the lands pending full fledged partition among the family members with reference to all the properties of joint family. In fact, neither in Ex.D35 nor Ex.D36 or Ex.D63 all the suit schedule properties are referred to as the properties which are divided and in none of the documents there is recital to severance of joint family status. Further, in none of the documents there is reference to allotment of share to any of the members of the family to their exclusive share, except stating that they are permitted to live in a portion of residential property and carryout cultivation of land given to them during the pendency of partition to be effected at a later stage. In that view of the matter, the lower appellate court has committed an error while re-appreciating the pleadings and evidence available on the record of trial court in OS No. 293/1999 (323/96). In that view of the matter, the lower appellate court has committed an error while re-appreciating the pleadings and evidence available on the record of trial court in OS No. 293/1999 (323/96). Therefore, the finding rendered by the lower appellate court on the point for consideration framed separately in RA Nos. 158 and 162 of 2001 is required to be set aside. Accordingly, the first substantial question of law is answered in the negative. 17. Now coming to the second substantial question of law, admittedly, the suit schedule properties are the joint family properties of Manjappa Gali, the propositus, which were held by him along with his 7 sons during his lifetime. The records would indicate that 12th defendant - Saraswathi was already married and she was out of the joint family. Though she was residing in Kanle village, she could not have been accepted as a member of the joint family of Manjappa Gali in view of her status as a married daughter in said family. Therefore, when partition is required to be considered, what was required to be allotted to the member of joint family is 1 share each to the co-parceners i.e. Manjappa Gali and his 7 sons. As on the date when Manjappa Gali died, there was no partition. Therefore, the court below ought to have considered deemed severance in the joint family and considered notional share of Manjappa Gali as on the date of his death. Besides this, it is also seen that during the lifetime of Manjappa Gali, one of his sons, namely Dasappa had died earlier to his death. Therefore, what is required to be seen is with reference to right of a separate share to Dasappa as on the date of his death, which has notionally taken place. In this behalf, the court below should have looked into intestate succession under Section 8 of the Hindu Succession Act, where the right to succeed to that share would enure to the benefit of Manjappa Gali as he being heir to him under class II, sub-class I and he would be taking that in exclusion of his other children, who would be heirs under class II, sub-class II (3). Therefore, as on the date when Manjappa Gali died, he had 2 shares available to his estate out of 8 shares in the joint family. Therefore, as on the date when Manjappa Gali died, he had 2 shares available to his estate out of 8 shares in the joint family. That means, the share of 6 brothers would come to 75% and so far as deceased Manjappa Gali is concerned, his undivided share would be to an extent of 25%. Out of that, the share of 12th defendant - Saraswathi would be 1/7th, in other words, the same is calculated at 3.58%. So far as the other children of Manjappa Gali, who are the members of his joint family are concerned, they would be getting their share at 12.5% or 1/8th share and in addition to that 1/7th share due to death of their father, which would take their share to 12.5% + 3.57% in other words, it would be 16.07%. Accordingly, the second substantial question of law is answered with reference to share of each of the members of the joint family of Manjappa Gali. 18. In the result, the appeal filed by second plaintiff in the OS No. 293/1999 is allowed. The judgment and decree dated 24.11.2007 in RA Nos. 158 and 162 of 2001 on the file of Civil Judge (Sr. Dn), Sagar, is set aside and the judgment and decree dated 10.8.2001 in OS No. 293/1999 on the file of Civil Judge (Jr. Dn), Sagar, is modified, in aforesaid terms.