JUDGMENT : RFA No.1972/2011 is filed by defendant Nos.2, 3, 4 and 5 and RFA No.1993/2011 is filed by defendant No.1 in O.S.No.8636/2006 on the file of the V Additional City Civil Judge, Bangalore, challenging the judgment and decree dated 20.08.2011 wherein the Trial Court has decreed the suit of the plaintiffs holding that plaintiffs are entitled for 1/5th share each in the suit schedule property. 2. The case of the plaintiffs in brief is that plaintiffs are sisters. Defendant No.1 and one Shiva Prasad are the brothers of the plaintiffs. Plaintiffs’ father Narasimhaiah purchased the suit property under the registered sale deed dated 19.01.1950. He died intestate in the year 1967 leaving behind his wife Channamma, plaintiffs, defendant No.1 and Shiva Prasad (husband of defendant No.2 and father of defendant Nos.3 to 5). Plaintiffs’ mother Channamma died on 31.08.2001. Shiva Prasad (husband of defendant No.2 and father of defendant Nos.3 to 5) died on 18.05.2006. This being the state of affairs, the plaintiffs approached defendant No.1 on 05.08.2006 to give their shares in the suit schedule property. Defendant No.1 flatly refused to give their shares. Now, the defendants are enjoying the suit schedule property and its fruits by way of getting heavy rents from the tenants. Therefore, cause of action has arisen for the plaintiffs to file this suit for partition. 3. Defendant No.1 filed separate written statement. Defendant Nos.3, 4 and 5 filed their common written statement and defendant No.2 has adopted the written statement filed by them. Defendants have admitted the relationship between the parties. They admitted that father of the plaintiffs, defendant No.1 purchased the suit property and he died intestate. They admitted that mother of the plaintiffs and defendant No.1 also died leaving behind the plaintiffs and defendants as her legal heirs. They contended that as Narasimhaiah (father of plaintiffs and defendant No.1) was the eldest male member of the family and he was looking after the affairs of the family, suit property was purchased in his name. Defendant No.1 and father of defendant Nos.3 to 5 had partitioned the suit schedule property way back in the year 1982 and partition deed was registered in the year 2000. It is well within the knowledge of the plaintiffs. The suit property was divided into two equal shares. Defendant No.1 and father of defendant Nos.3 to 5 had partitioned the suit schedule property way back in the year 1982 and partition deed was registered in the year 2000. It is well within the knowledge of the plaintiffs. The suit property was divided into two equal shares. Western portion was allotted to defendant No.1 and eastern portion of the suit property was allotted to the share of husband of defendant No.2 and father of defendant Nos.3 to 5. Defendant No.1 has rented the house property which had fallen to his share. Father of defendant Nos.3 to 5 and after his death, defendant Nos.2 to 5 have been paying the house tax to the government. Defendant Nos.2 to 5 have contended that they have demolished the eastern portion of the suit schedule property and put up new construction. After the death of Shiva Prasad, they have planned to put up construction on the suit property that has fallen to his share. At this stage, plaintiffs interfered with the construction. The right claimed by the plaintiffs is imaginary and they cannot claim partition at this stage. The suit is barred by limitation. The suit property is purchased from the ancestral joint family nucleus. Therefore, the plaintiffs have no right to seek partition either under the Karnataka amendment of Hindu Succession Act or under the Central enactment. Defendants have strongly contended that the suit property was already partitioned under the registered document. Therefore, the plaintiffs have no right to seek any partition and they are not in possession of the suit property. Hence, they sought for dismissal of the suit. 4. The Trial Court on the basis of the pleadings of the parties has framed the following issues for its consideration; (i) Whether the plaintiffs prove that on the death of their father the plaintiffs and defendants have succeeded to the suit property? (ii) Whether the first defendant proves that himself and his brother late Shivaprasad partitioned the suit schedule property in the year 1982 itself and only for the purpose of document the said partition was registered in the year 2000? (iii) whether the suit is barred by limitation for the reasons prayed in para 9 of written statement? (iv) Whether plaintiffs are entitled for the relief claimed in the suit? (v) What order or decree? 5. (iii) whether the suit is barred by limitation for the reasons prayed in para 9 of written statement? (iv) Whether plaintiffs are entitled for the relief claimed in the suit? (v) What order or decree? 5. Plaintiffs in order to prove their case have examined plaintiff No.3 as PW.1 and documents produced by the plaintiffs were marked as Exs.P1 to P7. On behalf of defendants, defendant No.2 was examined as DW.1 and another witness was examined as DW.2 and documents produced by the defendants were marked as Exs.D1 to D9. 6. The Trial Court after hearing the arguments advanced by the learned counsel for the parties and after considering the oral and documentary evidence on record has answered issue No.1 in the affirmative, issue Nos.2 and 3 in the negative and issue No.4 partly in the affirmative and decreed the suit holding that plaintiffs are entitled for 1/5th share each in the suit property. Defendant No.1 aggrieved by the said judgment and decree of the Trial Court has challenged the same by preferring RFA No.1993/2011 and similarly defendant Nos.2 to 5 wife and children of Shiva Prasad have preferred RFA No.1972/2011. 7. With the consent of the learned counsel appearing for both the parties, both the appeals were heard together and disposed of by this common judgment. 8. Heard Sri. P.V. Mahale, learned Senior Counsel for Sri. Keshav Murthy H.B., learned counsel appearing for appellants in RFA No.1972/2011, Sri. G.N. Ramanujam, learned counsel appearing for appellant in RFA No.1993/2011, Smt. M. Parvathy, learned counsel appearing for respondent Nos.1 to 3 in both the appeals, Sri. Shivakumar, learned counsel for respondent No.4(d) in RFA No.1972/2011 and Sri. Vijay Shetty, learned counsel for respondent Nos.4 to 7 in RFA No.1993/2011. Perused the judgment and decree passed by the Trial Court including the records of the Trial Court. 9. Sri. G.N. Ramanujam, learned counsel appearing for appellant in RFA No.1993/2011 submits that finding of the Courts below on the points considered by it are contrary to law and evidence. Learned counsel submits that the Courts below ought to have held that the plaintiffs are not entitled to 1/5th share in the suit schedule property. Learned counsel submits that as per the then existing Hindu Law, plaintiffs could not claim any partition on the death of their father. Learned counsel submits that the Courts below ought to have held that the plaintiffs are not entitled to 1/5th share in the suit schedule property. Learned counsel submits that as per the then existing Hindu Law, plaintiffs could not claim any partition on the death of their father. He submits that plaintiffs are ceased to be the members of joint family on their marriage and they never formed members of the joint family. He submits that admittedly the suit property was partitioned long back between defendant No.1 and husband of defendant No.2 and regular registered deed of partition was made on 31.03.2000. The plaintiffs were not coparceners when the partition deed was registered. As such, there was no necessity to join them to the partition deed. The Court below grossly erred in holding that partition deed dated 31.03.2000 is not binding on the plaintiffs. Learned counsel submits that under Section 6(5) of the amended Hindu Succession Act 2005 (Act 39 of 2005 with effect from 09.09.2005), the plaintiffs were not entitled to any share as partition was effected before 20.12.2004. Learned counsel submits that Court below erred in holding that plaintiffs being Class-I heirs, suit property devolved upon them. Learned counsel submits that the extent of share of the plaintiffs cannot be 1/5th as the father of the plaintiffs, defendant No.1 and husband of defendant No.2 died in 1967 itself and under the then existing law, the daughters were not entitled to equal share as they were not coparceners. Learned counsel submits that right to seek partition under the Hindu Succession Act 2005 is not permissible for the plaintiffs as succession opened on the death of the father of the plaintiffs, defendant No.1 and husband of defendant No.2 in the year 1967. Learned counsel submits that plaintiffs have not claimed their right to partition in respect of their father’s share since 1967 and hence the suit is barred by limitation. 10. Sri. P.V. Mahale, learned Senior Counsel for Sri. Keshav Murthy H.B., learned counsel appearing for appellants in RFA No.1972/2011, in addition to the submission made by the learned counsel for the appellant in RFA No.1993/2011 submits that the Trial Court failed to appreciate that defendant No.1 has taken the contention in his written statement as well as in his evidence that the suit property was purchased in the name of their father Sri. Narasimhaiah, since he was the eldest male member of the family and was looking after the affairs of the family. Learned counsel submits that the Trial Court failed to appreciate that defendant No.1 and father of appellant Nos.2 to 4 namely Shivaprasad are brothers and they have jointly earned and out of their earnings, they have put up the houses in the schedule property. After the death of father of respondent Nos.1 to 4, all the responsibilities were put on defendant No.1 who was a government employee and he had performed the marriages of plaintiffs with the financial help of the husband of appellant No.1. Learned counsel submits that The Trial Court failed to appreciate that marriage of plaintiff Nos.1, 2 and 3 was performed by defendant No.1 and husband of defendant No.2 in the year 1964, 1969 and 1980 respectively and the loan was taken on the property and it was cleared by defendant No.1 and husband of defendant No.2. Learned counsel submits that the Trial Court failed to appreciate that daughters of defendant No.1 was given in marriage to the son of plaintiff No.1 and from the beginning of the marriage plaintiff No.1 started to harass the daughter of defendant No.1 for dowry and other things and defendant No.1 had to give a complaint against plaintiff No.1 and because of that his daughter was driven out from the matrimonial home and because of the said reason this false suit came to be filed by the plaintiffs against defendant No.1 and wife and children of his brother Shivaprasad. Learned counsel submits that the Trial Court failed to appreciate that defendant No.1 and his brother Shiva Prasad had partitioned the suit schedule property in the year 1982 by dividing the suit property into two shares and since then they have been living separately and status of the joint family was severed long back. Learned counsel submits that the Trial Court failed to appreciate that in the crossexamination dated 08.02.2011 of the plaintiff No.3, she has specifically admitted that after their marriage they are residing in their matrimonial home and she is not in possession of the suit property and this admission is sufficient to hold that the suit is barred by limitation. She has further admitted in her crossexamination dated 25.05.2011 that during the time of her marriage her father was dead. She has further admitted in her crossexamination dated 25.05.2011 that during the time of her marriage her father was dead. Learned counsel submits that the Trial Court failed to appreciate that the plaintiffs have filed the suit after delay of more than 26 years from the date of partition and suit is barred by time. Learned counsel for the appellants submits that marriage of all the plaintiffs having taken place prior to 1994 and their father having not been alive on 09.09.2005 the date on which the Hindu Succession (Amendment) Act, 2005 has come into force, plaintiffs are not entitled to claim partition. Learned counsel submits that since the suit schedule property was divided equally between the defendant No.1 and his brother Shivaprasad (husband of defendant No.2 and father of defendant Nos.3 to 5) through registered partition deed dated 31.03.2000 which was prior to the cut off date mentioned in the Hindu Succession (Amendment) Act, 2005, the same is saved. With the above and other grounds urged in the memorandum of appeals, learned counsel pray for allowing the appeals by setting aside the impugned judgment and decree passed by the Trial Court in O.S.No.8626/2006. 11. Sri. Shivakumar, learned counsel appearing for respondent No.4(d) in RFA No.1972/2011 and Sri. Vijay Shetty, learned counsel appearing for respondent Nos.4 to 7 in RFA No.1993/2011 supported the arguments advanced by the learned counsel for the appellants and pray for allowing the appeals. 12. Smt. M. Parvathy, learned counsel appearing for respondent Nos.1 to 3 in both the appeals submits that the suit property was the selfacquired property of the father of the plaintiffs and it was not divided during the life time of the father of the plaintiffs and required to be divided as per Section 8 of the Hindu Succession Act. The alleged partition deed effected in the year 1982 or 1987 was created. The alleged registered partition deed of the year 2001 is not partition incorporating either the partition of the year 1982 or 1987. Suit filed by the plaintiffs in the year 2006 is within 12 years from the date of registered partition deed dated 31.03.2000 and it is in time. Learned counsel submits that the trial court considering the above aspect of the matter was justified in decreeing the suit of the plaintiffs holding that plaintiffs are entitled for 1/5th share each in the suit property. Learned counsel submits that the trial court considering the above aspect of the matter was justified in decreeing the suit of the plaintiffs holding that plaintiffs are entitled for 1/5th share each in the suit property. Learned counsel submits that judgment and decree passed by the Trial Court is based on proper appreciation of oral and documentary evidence on record and there is no illegality or infirmity or any error in the judgment of the trial court warranting interference of this court and therefore, she prays for dismissal of both the appeals. 13. The points that arise for consideration in the above appeals is: “(i) Whether the findings of the Trial Court on issue Nos.1, 2, 3 and 4 are based on proper appreciation of oral and documentary evidence on record and are sustainable in law? (ii) What order or decree?”” 14. The relationship between the parties that plaintiff No.1 N. Bhagyalakshmi, plaintiff No.2-N. Subhadra, plaintiff No.3-N. Manjula, defendant No.1-N. Krishnappa and Shiva Prasad (husband of defendant No.2 and father of defendant Nos.3 to 5) are children of Narasimhaiah and Channamma is not in dispute. The facts that Narasimhaiah died on 07.10.1967, his wife Chennamma died on 31.08.2001 and their second son Shivaprasad died on 18.05.2006 and the marriages of plaintiff Nos.1, 2 and 3 were taken place in the year 1963, 1969 and 1980 respectively were also not in dispute. 15. It is the specific case of the plaintiffs that their father Narasimhaiah had purchased the suit schedule property through the registered sale deed dated 19.01.1950 and he died as intestate on 28.09.1967 leaving behind his wife Channamma, plaintiffs, defendant No.1 and Shivaprasad (husband of defendant No.2 and father of defendant Nos.3 to 5). It was their further case that their mother Channamma also died on 31.08.2001 and their brother Shiva Prasad (husband of defendant No.2 and father of defendant Nos.3 to 5) was died on 18.05.2006 and after his death when plaintiffs approached defendant No.1 on 05.08.2006 and requested him to give their share in the suit property he flatly refused to give their share and therefore cause of action was arisen for them on 05.08.2006 and therefore they have filed the suit for partition and separate possession of their 1/5th share each in the suit property. 16. Plaintiffs by examining plaintiff No.3 as PW.1 have reiterated the averments made in their plaint. 16. Plaintiffs by examining plaintiff No.3 as PW.1 have reiterated the averments made in their plaint. They have produced certified copy of the sale deed dated 19.01.1950 through which their father purchased the suit property, Assessment Register Extract relating to suit property, Death Certificates of their parents and their brother Shiva Prasad, encumbrance certificate relating to the suit property and deposit of title deeds which were marked as Exs.P1 to P7 respectively. 17. Although defendant Nos.3 to 5 have contended in their written statement that suit property was purchased jointly by defendant No.1, their father-Shivaprasad and their grand father-Narasimhaiah out of the amount put by all the three, have not substantiated the said contention by adducing any evidence. On the other hand, to the suggestion made to PW.1 during her crossexamination on behalf of defendant Nos.2 to 5, PW.1 has deposed that “it is true that the suit property is the selfacquired property of her father”. 18. Defendants opposed the claim of the plaintiffs for partition and separate possession of their 1/5th share each in the suit schedule property on the ground that defendant No.1N. Krishnappa and Shivaprasad (husband of defendant No.2 and father of defendant Nos.3 to 5) got the suit property divided equally between them in the year 1982/1987 and for the purpose of document and for availing loan on the suit property, they got the said partition registered on 31.03.2000 as per Ex.D1 and therefore suit filed by the plaintiffs in the year 2006 is 24 years after the partition effected in the year 1982 and is barred by limitation. 19. Firstly defendants have not adduced any evidence substantiating their contention that suit property was divided equally between defendant No.1 and Shiva Prasad. Defendant No.1 in his written statement had contended that the said partition was taken place in the year 1982; whereas DW1 in her evidence has stated that it was taken place in the year 1987. Be that as it may, there is no whisper about the alleged partition either of the year 1982 or 1987 in the registered partition deed Ex.D1. Further, right from the date of purchase of the suit property by Narasimhaiah (father of the plaintiffs, and defendant No.1), the suit property was standing in the name of Narasimhaiah. Be that as it may, there is no whisper about the alleged partition either of the year 1982 or 1987 in the registered partition deed Ex.D1. Further, right from the date of purchase of the suit property by Narasimhaiah (father of the plaintiffs, and defendant No.1), the suit property was standing in the name of Narasimhaiah. After his death in the year 1967, it was transferred from his name into the name of his wife Channamma and it was continued in the name of Channamma till the year 2001. Thus, defendants have failed to substantiate their contention that they got the suit property divided equally between the defendant No.1(N. Krishnappa) and Shivaprasad (husband of defendant No.2 and father of defendant Nos.3 to 5) either in the year 1982 or in the year 1987. Therefore, the alleged partition deed dated 31.03.2000 is a created one and not binding on the plaintiffs as rightly held by the Trial Court. 20. The another ground on which defendants opposed the claim of the plaintiffs is that marriages of the plaintiffs were taken place prior to 1994 before the Hindu Succession (Karnataka Amendment) Act, 1994 came into force and therefore, plaintiffs are not entitled for share in the suit property. 21. That one more ground on which the defendants denied the share of the plaintiffs in the suit property is that as father of the plaintiffs namely Narasimhaiah died prior to 09.09.2005 and he was not alive as on 09.09.2005, the date on which the Hindu Succession (Amendment) Act, 2005 has come into force and therefore the plaintiffs are not entitled for share in the suit property. 22. The other ground on which the defendants denied the share of the plaintiffs in the suit property is that since the registered partition deed dated 31.03.2000 (Ex.D1) having taken place prior to the cut off date of 20.12.2004 stipulated under the provisions of the Hindu Succession (Amendment) Act, 2005, it is saved from the application of the said Act. 23. It is not the case of the plaintiffs that they have become the coparceners by virtue of the amendment of Section 6 of the Hindu Succession Karnataka Amendment Act, 1994 and it is also not their case that their father was alive on 09.09.2005 when the Hindu Succession (Amendment) Act, 2005 has come into force and therefore they are entitled for share in the suit property. It is their case that suit property was the selfacquired property of their father Narasimaiah, having acquired by him through registered sale deed dated 19.01.1950 as per Ex.P1 and their father died intestate on 28.09.1967 and their mother Channamma died on 31.08.2001 and their second brother Shivaprasad died on 18.05.2006 and after his death, when the plaintiffs asked their elder brother N.Krishnappa (defendant No.1) to give their share in the suit property, he flatly denied to give their share in the suit property and therefore they filed the suit. As already stated above, defendants have admitted the above case of the plaintiffs. 24. Further, it is pertinent to state that Section 6 of the Hindu Succession Act, the Hindu Succession Karnataka Amendment Act, 1994 and Hindu Succession (Amendment) Act, 2005, deal with succession in respect of a coparcenary property among the coparceners. In the instant case, it is proved and established that suit property is the selfacquired property of the father of the plaintiffs, defendant No.1 and Shivaprasad (husband of defendant No.2 and father of defendant Nos.3 to 5). Division of suit property equally between defendant No.1 and Shivaprasad either in the year 1982 or in the year 1987 is not proved and established. Admittedly, plaintiffs are not parties to the registered partition deed dated 31.03.2000. Consequently, it is not binding on the plaintiffs and their share in the suit property as rightly held by the Trial Court. Defendant Nos. 2 to 5 have admitted in their statement as well as in their evidence that in the year 2006 when they were attempting to reconstruct the eastern portion of the suit property plaintiffs interfered with the said construction. Thereby, the case putforth by the plaintiffs that cause of action was arisen in the year 2006 for seeking partition and separate possession of their share in the suit property is established. Therefore, the Trial Court was justified in answering issue No.1 in the affirmative, issue Nos.2 and 3 in the negative and issue No.4 partly in the affirmative and decreeing the suit of the plaintiffs holding that plaintiffs are entitled for 1/5th share each in the suit property. 25. Therefore, the Trial Court was justified in answering issue No.1 in the affirmative, issue Nos.2 and 3 in the negative and issue No.4 partly in the affirmative and decreeing the suit of the plaintiffs holding that plaintiffs are entitled for 1/5th share each in the suit property. 25. The provisions of either unamended Section 6 or amended provision of Section 6 of the Hindu Succession Karnataka Amendment Act, 1994 or Hindu Succession (Amendment) Act, 2005 and judgments rendered by several High Courts and the Hon’ble Supreme Court on the aforesaid provisions of law have no application to the facts of the case. 26. It is established that Narasimaiah, father of the plaintiffs, defendant No.1 and Shivaprasad was died intestate on 28.09.1967 and suit property was not divided during the life time of Narasimaiah. Possession of defendant No.1 and Shivaprasad (husband of defendant No.2 and father of defendant Nos.3 to 5) over the suit property insofar as the share of plaintiffs is concerned is that of trustees. 27. Succession in respect of a property of Hindu male dying intestate shall be as per the Section 8 of the Hindu Succession Act, 1956, which reads as under: 8. General rules of succession in the case of males. The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. 28. Plaintiffs, defendant No.1 and Shivaprasad (husband of defendant No.2 and father of defendant Nos.3 to 5) being ClassI heirs of late Narasimaiah are entitled to succeed to suit property equally among them at the rate of 1/5th each. 29. At this stage, plaintiffs have made an application (I.A.No.1/2015) in RFA No.1972/2011, praying permission of the Court to produce an unregistered family partition deed dated 18.09.1987 and marriage invitation cards of 1969 and 1980. 30. 29. At this stage, plaintiffs have made an application (I.A.No.1/2015) in RFA No.1972/2011, praying permission of the Court to produce an unregistered family partition deed dated 18.09.1987 and marriage invitation cards of 1969 and 1980. 30. As already stated above, defendants have miserably failed to prove their contention that suit property was equally divided between defendant No.1 and Shivaprasad (husband of defendant No.2 and father of defendant Nos.3 to 5) either in the year 1982 or in the year 1987. Further, there is no dispute as to the year of marriage of the plaintiffs and therefore the documents sought to be produced by the plaintiffs by way of additional documents are irrelevant for the purpose of deciding the case. Hence, I.A.No.1/2015 is liable to be rejected. 31. For the reasons stated above, both the appeals as well as I.A.No.1/2015 filed in RFA No.1972/2011 are dismissed as devoid of merits. No order as to costs. In view of dismissal of main appeals, I.A.No.1/2011 for stay and I.A.No.1/2016 for direction filed in RFA No.1972/2011 and I.A.No.1/2011 for stay filed in RFA No.1993/2011 do not survive for consideration and they are rejected.