JUDGMENT : Appeal is directed against the Judgment and decree dated 16.04.2004 passed by the Additional Civil Judge (Sr.Dn), Srirangapatna, wherein appeal was dismissed and Judgment and decree dated 25.01.1994 passed by the Munsiff, Srirangapatna, in O.S.No.326/89 came to be confirmed. 2. In order to avoid confusion and overlapping, the parties are referred in accordance with the rankings and status held by them before the trial court. 3. Originally suit in O.S.No.326/89 came to be filed by one B.Jayamma, w/o late Bheemaiah against Dhakshayini, Smitha and others seeking partition of suit schedule property claiming that she is the wife of late Bheemaiah and daughter of late Chikkabasavaiah. 4. Learned trial Judge was accommodated with oral evidence of PW-1 to PW3 and documentary evidence Exhibits P-1 to P-18 on behalf of plaintiff and oral of evidence of DW-1 to DW-3 and documentary evidence Exhibits D-1 to D-18 on behalf of defendants. Learned trial Judge on conclusion of trial disposed of the case by dismissing the suit, and same result was affirmed by the appellate Judge as well. Thus the present appeal is against the concurrent findings. 5. Appeal was admitted for considering the following substantial questions of law: “i). Whether the Courts below were justified in acting on the Will under which even before acquiring the property by way of grant order the testator had bequeathed the property excluding the plaintiff? (ii) When the land was granted to the family, whether the testator had the absolute right to bequeath the said property?” 6. In addition to said substantial questions of law the following additional substantial questions of law arise for consideration: 1. Whether it is open to propositus/eldest member of the family to bequeath or dispose of the properties irrespective of the preexisting rights of the legatees and others? 2. Whether with the concurrence of all the members or on the entitlement of members of the joint family could there be mutation independently made but unequally, prevail over the shares of other members? 3. Whether a female member who stands at par with the plaintiff and defendant and not made party to a partition suit regard being had to the fact she neither contests by getting impleaded nor has filed a separate suit on her behalf, is entitled for a share that too when her relationship is admitted in addition to that no disqualification is attributed against her? 7. 7. Learned counsel for appellant Sri K.N.Nitish would submit that item No.1 of the property is agricultural land in Sy.No.91/1 to the extent of 2 acres 29 guntas and Sy.No.94/2 to the extent of 3 acres 22 guntas of Bommur Agrahara Village situated at Srirangapatna that was granted to plaintiff-Jayamma and her brother –Ramachandra and the Land Tribunal identified ½ share for each of them i.e., Jayamma and her brother –Ramachandra. Learned counsel would further submit that item No.2 of the schedule property is 24 ankana house and she seeks 1/4th share in it (6 ankana) and item No.3 -1/4th share. 8. Learned counsel would further submit that thus this being the fact and principles of law, calculations and arrangements were disrupted by the defendants by laying their hands over the legitimate share of the plaintiff. 9. Learned counsel would further submit that mutation entries of the properties were done contrary to well known principles of revenue laws. 10. It was further submitted that the Will marked as Ex.D-1 if to be presumed as genuine a major question requires to be answered as to why it was not produced before the Land Reforms Authorities who were considering the matter. 11. Learned counsel Sri M.R.Rajagopal for respondents 1 and 2 would submit that no illegality was effected by executing a Will by deceased Chikkabasavaiah nor shares were demarcated by effecting undue favours in favour of one member and to the prejudice of the other. The effecting of mutation is exactly done in accordance with recognized revenue principles. It is also submitted by learned counsel that joint family properties are available for partition in order to consider the necessity of partition in accordance with law. Nature of item No.1 of the property has to be analyzed as it was granted by the Land Revenue Authorities, Srirangapatna in LRT No.237/7879 with two equal shares to Jayamma –plaintiff and her brother-Ramachandra. 12. Learned counsel would further submit that it is the property that was granted in recognition of tenancy rights over item No.1 of the schedule property in favour of Chikkabasavaiah who was cultivating the same as a tenant. 12. Learned counsel would further submit that it is the property that was granted in recognition of tenancy rights over item No.1 of the schedule property in favour of Chikkabasavaiah who was cultivating the same as a tenant. Learned counsel would further submit that the said Chikkabasavaiah died during the pendency of the proceedings before the Land Tribunal and subsequent to his death, plaintiff-Jayamma and her brother Ramachandra appeared before the Tribunal and occupancy rights of the schedule property was made in favour of the plaintiff-Jayamma and her brother –Ramachandra. 13. Before analyzing the matter, it is necessary to arrange the admitted facts of the matter. 14. Chikkabasavaiah is the admitted common ancestor or senior member of the family or kartha of the family as the case may be. He was cultivating the property as a tenant but died during the proceedings before the Land Tribunal. Thereafter it was represented by plaintiff and her brother Ramachandra, the husband of defendant No.1 –Dhakshayini. The order of Land Tribunal is marked as Ex.P4 it is dated 28.02.1977 wherein the Tribunal has passed the order granting equal share to plaintiff and her brother said Ramachandra. Item Nos.2 and 3 of the schedule properties are residential houses at Srirangapatna. The plaintiff is reported dead and represented by her children. Similarly Ramachandra is also reported dead and represented by defendant No.1Dhakshayini and children. Ningegowda is defendant No.3 and Mahadevu is defendant No.4, children of Chikkabasavaiah. Justification demonstrated by plaintiff is that admittedly father Chikkabasavaiah was cultivating item No.1 of the schedule property as a tenant. However before the conclusion of the proceedings before the Land Tribunal, he was dead. 15. Learned counsel Sri K.N.Nitish for appellants would submit that consciously item No.1 of the schedule property was granted by the Land Tribunal in two equal proportions to plaintiff and Ramachandra. Thus, it is claimed that granting of the property concludes the share of the plaintiff and Ramachandra and it cannot be subject for reopening as the quasi judicial authority after hearing the parties, ordered mutation entry MR No.70/79-80 that was effected. Further it is also submitted that without quashing or deleting the mutation entry as per Ex.P-6 the next entry was incorporated by revenue authorities in next available number as MR No.71 and mutation was effected in accordance with the Will said to have been executed by Chikkabasavaiah as per Ex.D-9. 16. Further it is also submitted that without quashing or deleting the mutation entry as per Ex.P-6 the next entry was incorporated by revenue authorities in next available number as MR No.71 and mutation was effected in accordance with the Will said to have been executed by Chikkabasavaiah as per Ex.D-9. 16. By this time it is clear that it is to the advantage of plaintiff to consider the division of properties in accordance with the grant order of the Land Tribunal wherein plaintiff gets ½ share in item No.1 and 1/4th share in remaining properties. 17. Per contra, adherence to the terms of Will is advantage to the defendants wherein plaintiff-Jayamma would get 1 acre from item No.1 of the schedule property and remaining properties flow into the basket of Ramachandra. The head of the family has no right either to deny or discriminate in the matter of rights of the members in respect of the undivided share of the members. The vested rights of the members cannot be defeated by either the calculated or self centric approach of the head of the family. Further, mere mentioning of unequal share on the representation of few members to their convenience and exclude other qualified members does not cause impact. Thus mere representation of Jayamma, plaintiff and Ramachandra (both are siblings dead) before the Land Tribunal in connection with the tenancy rights over item No.1 of the schedule property that was in connection with their fatherChikkabasavaiah do not cause deformity to other members. 18. Learned counsel Sri K.N.Nitish would submit insofar as item No.1 is concerned plaintiff is entitled for ½ share and insofar as item Nos.2 and 3 are concerned 1/4th share. Insofar as defendant is concerned learned counsel Sri M.R.Rajagopal would submit that Chikkabasavaiah had unfettered decision making power to bequeath item No.1 of the schedule property and it was his wish that plaintiff gets 1 acre out of 6 acres and Ramachandra gets the remaining 5 acres. Thus, it is a matter wherein there is conflict between regular succession and succession according to plaintiff and defendants and succession according to the Will. 19. The moot question would be whether it is open to divide item No.1 of the property to the volition of the plaintiff. Thus, it is a matter wherein there is conflict between regular succession and succession according to plaintiff and defendants and succession according to the Will. 19. The moot question would be whether it is open to divide item No.1 of the property to the volition of the plaintiff. Nodoubt understandably there is no difference between the legal representatives of Jayamma and legal representatives of Ramachandra and that they are entitled for ½ share in item No.1 of the property. It is necessary to make a mention that the grant of item No.1 of the property was considering tenancy rights as available for Chikkabasavaiah. However, by virtue of his death it was Jayamma and her brother Ramachandra who appeared before the Tribunal and pleaded for confirmation of first item of property and that was accepted without dissecting the terms of the Land Tribunal in accordance with law was mutated in two equal proportions. 20. Now the point for consideration is that there are other three children of Chikkabasavaiah. Because of the follow up and acquaintance plaintiff-Jayamma and her brother Ramachandra appeared before the Land Tribunal and got the property. In the circumstances, whether the exercise of representations before the Land Tribunal by Jayamma and Ramachandra would prevail over the extent or entitlement of the schedule property which had the power of vetoing against the rights of other children of Chikkabasavaiah. 21. Learned counsel Sri M.R.Rajagopal would submit that item No.1 of the property is not an ancestral property. 22. The unique feature of Hindu law is the recognition of partition of ancestral property/joint family property. It is necessary that ancestral property spreads over recognized relationship and joint family property represents the property earned through the exertion of joint family and also the separate properties blended to the hotch pot of joint family in addition to ancestral property. 23. No doubt properties earned by joint family by income generated through ancestral property also are joint family properties. Insofar as present case is concerned, whether item No.1 of the property is ancestral or not, does not cause any impact. However it is a grant that was made to the family considering the rights of tenancy by Chikkabasavaiah over the schedule property. 24. The property of a joint family cannot be a subject matter for declaration to get entitlement ignoring other members. However it is a grant that was made to the family considering the rights of tenancy by Chikkabasavaiah over the schedule property. 24. The property of a joint family cannot be a subject matter for declaration to get entitlement ignoring other members. Item No.1 of suit schedule property identified member to represent the joint family before Land Tribunal in the tenancy related proceedings and cannot become self acquired property of a person who just appears before the Land Tribunal. At the end of the day he gets property as a trustee of the entire family. Thus, individually is called a member and collectively joint family. 25. It is not a mandate that in order to be a member of joint Hindu family, such member should be an earning member equally earning to an extent of other earning member of the joint Hindu Family. Therefore members of the joint family invariably contain those who work at the root level and lay a platform to other members to acquire properties for joint family. Joint family is a creature of status unlike partnership business which is created by agreement. 26. In this connection claiming under the declaration of plaintiff-Jayamma and her brother Ramachandra before the Land Tribunal cannot have binding effect on the entire joint family. At the same time the demand or justification of the Will Ex.D1 wherein more than 80% of the land out of item No.1 as claimed by Ramachandra and 1 acre of property to the plaintiff-Jayamma is bequeathed. The other members no doubt are entitled for item No.1. Thus, the claim of said plaintiff and Ramachandra is nothing but the assessment made by them judging themselves in their own case cannot prevail over established principles of law. 27. Basically joint family property is not available for bequeathing by the kartha much less a junior member. Further selected members cannot share the joint family property in the manner detrimental to the collective interest of joint family. 28. The plaintiff and defendants claim against the recognized principles and insofar as other members are concerned whether they claim separately or otherwise they are left for nothing. 29. More particularly the primary factor is the suit for partition is dismissed and affirmed in appeal as well. Learned trial Judge and first appellate Judge have held that there is no joint family property for partition. 29. More particularly the primary factor is the suit for partition is dismissed and affirmed in appeal as well. Learned trial Judge and first appellate Judge have held that there is no joint family property for partition. Item No.2 of the schedule property is stated to be 24 ankana house at Srirangapatna. Item No.3 is also residential house. It is an agreed principle that the parties can agree for anything and there is no limit so long as they are legal. 30. The features of partition of a joint Hindu family cannot be disrupted either by plaintiff through her selective and beneficial claim or by defendants claiming under the WillEx.D1. It is also claimed by defendant that the suit averments are not proper and the matter was not considered in the frontline platform and it is sub-silentio before both trial and first appellate court. 31. One Puttamma is said to be daughter of Chikkabasavaiah. In such a case she stood on the same footing with that of the plaintiff-Jayamma. She is not a party to the suit. She is ignored as if there was no birth of her in the family of Chikkabasavaiah. From both the sides there is no denial of fact of daughter-ship of Puttamma with Chikkabasavaiah. When the position is to the effect that when one of the member of the joint family enters appearance or after receiving summons he neither appears nor contests the matter but on adjudication of the matter, he or she might be entitled for a share by following procedures. 32. The only sin of Puttamma is that she did not come before the court regard being had to the fact that she was not made a party. Thus, plaintiff and defendants neglected her and at the end of the day she was deprived of her legitimate share. 33. Under the circumstances the share of the plaintiff-Jayamma remains at ½ share in item No.1 and 1/4th share in other items of property. Thus, her minimum claim is 1/4th regard being had to the fact be it branch of Ramachandra or other defendants. Claim of 1/4th share as a matter of principles as applicable to personal law. I find the just and equitable action would be both parties should join in recognizing the rights of Puttamma in the same manner as that of other members. Claim of 1/4th share as a matter of principles as applicable to personal law. I find the just and equitable action would be both parties should join in recognizing the rights of Puttamma in the same manner as that of other members. Thus it cannot be 1/4th for each member on the other hand it shall be 1/5th share. In this connection neither the Will nor consolidated representation of Jayamma and Ramachandra can take away rights of other members. Regard being had to the fact that plaintiff alleges that Will came under suspicious circumstances as Chikkabasavaiah executed the Will on 03.03.76 on which day he is reported to be dead. However, defendants claim that he breathed last after executing the Will and same is enforceable. 34. In the overall circumstances of the case the act of plaintiff and defendants claiming share or ownership of the property according to their will and volition as stated above or as per their choice cannot be recognized. 35. Learned trial Judge and first appellate Judge have erred considerably in not recognizing the rights and identifying limitations in the matter of partition. 36. Learned counsel Sri M.R.Rajagopal would submit that the share of Puttamma who is stated to be daughter cannot be adjudicated in this appeal and inclusion of Puttamma is held to be fatal to the suit and suit for partition goes. 37. It is necessary to mention that both the courts have rejected the claim of partition. As could be seen from the materials and circumstances of the case there are three plaint schedule items. The first one is the agricultural land in Sy.No.91/1 to the extent of 2 acres 29 guntas and Sy.No.94/2 to the extent of 3 acres 22 guntas situated at Srirangapatna which is admitted to be property that was granted by the Land Tribunal considering the tenancy rights of Chikkabasavaiah wherein representation of the plaintiff-Jayamma and Ramachandra is considered as the sole determining factor and based on their declaration, the property was divided into two each which is allotted to plaintiff-Jayamma and Ramachandra. 38. The claim of the plaintiff regarding division of properties @ 50% each between plaintiff and defendants is liable to be rejected. 39. 38. The claim of the plaintiff regarding division of properties @ 50% each between plaintiff and defendants is liable to be rejected. 39. Defendants-legal representatives of late Ramachandra claim half portion of item No.1 of schedule property on the score that late plaintiff-Jayamma and late defendant-Ramachandra (siblings) appeared before the Land Tribunal and were allotted item No.1 in equal proportions by the Land Tribunal. 40. When categorical admission over a fact or facts is evidently intended and made by the parties which is clearly ascertainable without resorting to inference or interpretation, matter has to be adjudicated under Order XII Rule 6 of the Code of Civil Procedure. The said provision is as under: “6. Judgment on admissions – (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.” KARNATAKA HIGH COURT AMENDMENT “(2) The Court may also of its own motion make such order or give such judgment as it may consider just, having regard to the admissions made by the parties. (3) Whenever an order or judgment is pronounced under the provisions of this rule, a decree may be drawn up in accordance with such order or judgment bearing the same date as the date on which the order or judgment was pronounced.” 41. The Hon’ble Apex Court in the case Himani Alloys Ltd. vs. Tata Steel Ltd. 2011(3)Civil Court Cases 721, has observed as under : “10. It is true that a judgment can be given on an “admission” contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear “admission” which can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. vs. United Bank of India [ 2000 (7) SCC 120 ], Karam Kapahi vs. Lal Chand Public Charitable Trust [ 2010 (4) SCC 753 ] and Jeevan Diesels and Electricals Ltd. vs. Jasbir Singh Chadha [ 2010 (6) SCC 601 ]. There is no such admission in this case.” 42. Here the status of Puttamma to be one of the daughters of Chikkabasavaiah is admitted by both the counsel. Further it is not claimed that her share is settled or she is disqualified under law. Secondly suit schedule properties are to be partitioned among the joint family members of Chikkabasavaiah. Her position is congruent with that of either Jayamma, the plaintiff or Ramachandra. However, the parties particularly legal representatives of late Ramachandradefendants oppose the same which is neither legal nor practical, rather perfectly permitted under Order XII Rule 6 of Code of Civil Procedure. Thus, remanding the matter just over a minor formality is not necessary. 43. The materials available before the court insofar as admitted facts and established materials are (1) relationship among members. (2) plaintiff and defendants admitted that the properties belonged to family of Chikkabasavaiah. Item Nos.2 and 3 belonged to Chikkabasavaiah is not disputed and insofar as item No.1 of the property was allotted to plaintiff and Ramachandra as Chikkabasavaiah died during the proceedings before the Land Tribunal and date of execution of Will is on the basis of declaration by defendants. Admittedly the fact of another daughter by name Puttamma is admitted. Item Nos.2 and 3 belonged to Chikkabasavaiah is not disputed and insofar as item No.1 of the property was allotted to plaintiff and Ramachandra as Chikkabasavaiah died during the proceedings before the Land Tribunal and date of execution of Will is on the basis of declaration by defendants. Admittedly the fact of another daughter by name Puttamma is admitted. Now the next aspect is granting her share subject to completion of formal procedure. Thus, when all the materials are available and when there is no embargo in the form of flaw, denials or part denials, there is no impediment either on its motion or the parties to own on the basis of admission. In this connection plaintiff is permitted to implead Puttamma as a party. 44. Accordingly, substantial questions of law are answered. In the result, appeal is allowed in part. Judgment and decree dated 16.04.2004 passed in R.A.No.47/94 by the Additional Civil Judge (Sr.Dn), Srirangapatna and Judgment and decree dated 25.01.1994 passed in O.S.326/89 by the Munsiff, Srirangapatna are set aside. Suit is decreed granting 1/5th share each in all the schedule properties for all the members of the joint family including Puttamma. As Puttamma is not before the court, plaintiff is permitted to implead her for reckoning her share. ORDER ON ‘BEING SPOKEN TO’ The said Puttamma is reported dead and her legal representatives are also not brought on record. During arguments the matter was not brought to the notice of the Court. However, there is a mention that said lady Puttamma is the daughter of Chikkabasavaiah. In the circumstances, as she is reported dead and also her legal representatives are not intimated to the Court, regard being had to the fact that she was not a party to the case. Thus, her share as earmarked has to be dealt with in the further proceedings. It is pertinent to note that she is not a party either in the trial Court or in the first appellate Court and this Court. While passing judgment, in respect of the said matter, a share is reserved for her. The share of Puttamma shall be treated as her heritable estate. Considering the circumstances and facts and the admissions, by virtue of death of the said Puttamma her legal heirs step into her shoes. While passing judgment, in respect of the said matter, a share is reserved for her. The share of Puttamma shall be treated as her heritable estate. Considering the circumstances and facts and the admissions, by virtue of death of the said Puttamma her legal heirs step into her shoes. The trial court shall hold an enquiry in this connection and to ascertain the legal representatives/legal heirs of the said Puttamma. Either of the parties shall furnish the details of legal representatives/legal heirs of said Puttamma. Learned Counsel Sri M.R.Rajagopal for respondents 1 and 2 would submit that by virtue of her death, the stage of the appeal almost reaches point of abatement and as such matter requires to be tried again. The question of abatement does not arise as she was not a party to the proceedings.