JUDGMENT/ORDER SURAJ GOVINDRAJ, J. - Appellant in RFA No.100224/2015 who was defendant No.1 and appellant in RFA No.100135/2014 who was defendant No.3 in OS No.32/2012 on the file of the Principal Senior Civil Judge and JMFC, Hubballi, are before this Court impugning the judgment and decree dtd. 5/7/2014 passed in the said matter. 2. The suit in OS No.32/2012 had been filed seeking for the following reliefs: 2.a) The Hon'ble Court be pleased to pass a decree for partition and separate possession to the extent of 1/3rd share to the each of the plaintiffs in the suit property; 2.b) It be declared that the sale deeds dtd. 29/11/2010 registered under document No.HBL-1-10473-2010-11 dtd. 30/11/2010 under CD No.HBLD181 is null, void, illegal and not binding on the plaintiffs to the extent of their 1/3rd shares each; 2.c) The Hon'ble Court be pleased to pass an order of permanent injunction against the defendants from alienating the suit property to the extent of 1/3rd share each to the plaintiffs; 2.d) Cost of the suit be awarded. 2.e) Such other reliefs as the court deems fit on awarded. 3. The facts of the case are: 3.1. Plaintiff No.1 claims to be the son of defendant No.1 and plaintiff No.2 claims to be the wife of defendant No.1. It was alleged that the property along with open space consisting of ground floor and first floor bearing R.S.No.135/1, bearing House No.MIG.91/1, measuring East-West 50 feet and North-South 80+82/2 feet total area of 4050 sq.ft. in which a house has been constructed in an area of 2648 sq.ft and in first floor the constructed area is 1784 sq.ft., RCC house bearing Municipal Ward No.39 which is situated within the KHB Colony, Channapeth, Old Hubli, which is bounded by East: House No.MIG-90, West: H.No.MIG-92, North: Road, South: total area 3292 Sq.Ft., belongs to the joint family and as such, the plaintiffs have right over the same. 3.2. It is alleged that, at the time of marriage of plaintiff No.2 and defendant No.1, defendant No.1 was doing steel business at Rajajinagar, Bengaluru. After the marriage, they resided at Bengaluru for six months. Since defendant No.1 was not looking after the plaintiffs, they returned back to the maternal home at Tumkur. 3.3. After some time, defendant No.1 closed the steel business at Bengaluru and shifted to Hubballi. Defendant No.1 had neglected and deserted the plaintiffs completely. After the marriage, they resided at Bengaluru for six months. Since defendant No.1 was not looking after the plaintiffs, they returned back to the maternal home at Tumkur. 3.3. After some time, defendant No.1 closed the steel business at Bengaluru and shifted to Hubballi. Defendant No.1 had neglected and deserted the plaintiffs completely. It is in that background, plaintiffs filed Crl.Misc.No.495/2008 under Sec. 125 Cr.P.C. on the file of JMFC, Tumkur, seeking for maintenance. The said Court granted maintenance of Rs.5, 000.00 per month to the plaintiffs. The said order has not been complied with by defendant No.1 there being huge balance. 3.4. It is alleged that the suit property was purchased by the father of the defendant No.1, namely Sri. Venkatesh Kelagade. This property was inherited by defendant No.1 after the death of his father. A partition was effected between defendant No.1 and his brothers and sisters on 7/7/2004 in pursuance of which the northern portion of the property was allotted to defendant No.1 and southern portion was allotted to one Sri. Devanand V. Kelagade, the brother of defendant No.1. 3.5. Defendant No.1 sold his portion of the property to Sri.Charantayya Shanmukhayya Chikkmath and Smt.Neelamma W/o.Charantayya Chikkmath, on 11/11/2005. Later, defendant No.1 and defendant No.2, who is stated to be the 2nd wife of defendant No.1, have repurchased the property on 17/9/2008 and subsequent thereto, defendants No.1 and 2 sold their share in the property along with the brother Devanand Venkatesh Kelagade, who was allotted the southern portion, in favour of defendant No.3 on 29/11/2010. 3.6. It is claimed that the sale made in favour of defendant No.3 on 29/11/2010 was in violation of the orders dtd. 18/3/2006 passed in O.S.No.476/2005 by the III Addl. Civil Judge (Jr.Dn.), Hubballi, wherein an order of permanent injunction was granted in favour of the plaintiffs restraining defendant No.1 from alienating the property perpetually. 3.7. It is alleged that, the sale deed executed in favour of defendant No.3 is bogus and illegal and not binding on the plaintiffs and it is in that background that the aforesaid suit was filed seeking for the aforesaid reliefs. 4. Defendants No.1 and 2 filed their written statement so also the written statement was filed by defendant No.3. Defendants No.1 and 2 in their written statement contended that: 4.1. There is an incorrect description of the suit property. 4. Defendants No.1 and 2 filed their written statement so also the written statement was filed by defendant No.3. Defendants No.1 and 2 in their written statement contended that: 4.1. There is an incorrect description of the suit property. It is further contended that the plaintiffs have no right title or interest. 4.2. Defendant No.1, having acquired the suit property in a partition, which has taken place between him and his brothers and sisters, the suit property constituted his individual property, there being no right for the plaintiffs and it is pursuant thereof that he had sold the property to Mr. and Mrs. Chikkamath on 18/11/2005. 4.3. It is further contended that the construction on the said property has been put up by defendant No.1 by borrowing monies which has been repaid from his own earnings. Defendant No.1 also raised a loan of a sum of Rs.22, 00, 000.00 from State Bank of India, Rajnagar, Hubballi by mortgaging the property. Since defendant No.1 suffered from heart disease and could not carry on his business, the loan to State Bank of India could not be repaid and it is in that background that defendant No.1 and his brother Devanand sold the property in favour of defendant No.3 for a sum of Rs.22, 00, 000.00 out of which loan of State Bank of India amounting to Rs.20, 13, 876.00 was repaid. Defendant No.3 is a bona fide purchaser for value. 4.4. The plaintiffs have no right, title or interest over the property. The suit is required to be dismissed. It is further contended that plaintiff No.2 had deserted defendant No.1. Various proceedings which have been filed including the criminal proceedings under Sec. 498A of IPC, have ended in acquittal. The plaintiff No.2 has filed the said suit only to harass defendant No.1 knowing fully well that they have no right, title or interest in the property. Defendant No.1 further contended that he and his family members have paid the amounts to the Karnataka Housing Board in respect of the arrears due on the said property. Hence the property is not the ancestral property for the plaintiffs to claim any right therein. 5. Defendant No.3 filed separate written statement adopting the contentions raised by defendant No.1 in his written statement. Defendant No.3 stated that she is not aware of any of the dispute between the plaintiffs and defendants No.1 and 2. Hence the property is not the ancestral property for the plaintiffs to claim any right therein. 5. Defendant No.3 filed separate written statement adopting the contentions raised by defendant No.1 in his written statement. Defendant No.3 stated that she is not aware of any of the dispute between the plaintiffs and defendants No.1 and 2. Defendant No.3 is a bona fide purchaser for value and her interest is required to be protected. 6. Based on the aforesaid pleadings, the trial Court framed the following issues and additional issues: ISSUES 1. Whether the plaintiffs are entitled for 1/3rd shares in the suit property? 2. Whether the plaintiffs prove that sale deed executed by the defendant no.1 and 2 in favour of defendant No.3 dtd. 30/11/2010 is null and void and binding on them? 3. Whether the plaintiffs are entitled for permanent injunction as sought? 4. Whether the defendants No.3 proves that she is a bonafide purchaser for value? 5. Whether defendant No.1 is entitled for the protection? 6. What decree or order? ADDITIONAL ISSUES 1. Whether the defendant No.1 proves that he sold the suit property for legal and family necessity? 2. Whether the defendants No.1 and 2 proves that property repurchased by them from Smt. and Sri Chikkmath is their self acquired property? 3. Whether the suit is bad for non-joinder of necessary parties? 7. After evidence being led and hearing the parties, the trial Court partly decreed the suit holding that plaintiff No.1 is entitled for 1/3rd share in the suit property in the share of defendant No.1, plaintiff No.2 is not entitled for partition and separate possession during the life time of defendant No.1; the sale deed dtd. 30/11/2010 executed by defendant No.1 in favour of defendant No.3 was declared as null and void and not binding on the plaintiffs to the extent of 1/2 share of defendant No.1 in the property sold under the sale deed dtd. 30/11/2010 and restraining defendant No.1 from alienating his 1/2 share as mentioned in the said sale deed dtd. 30/11/2010 till partition and separate possession of 1/3rd share of plaintiff No.1 is effected by metes and bounds. 8. It is aggrieved by the said judgment and decree that the defendants No.1 and 3 are before this Court as aforesaid. 9. The plaintiff No.2 examined herself as PW1, defendant No.1 has examined himself and another witness Shrikant Odanavar as DW2. 30/11/2010 till partition and separate possession of 1/3rd share of plaintiff No.1 is effected by metes and bounds. 8. It is aggrieved by the said judgment and decree that the defendants No.1 and 3 are before this Court as aforesaid. 9. The plaintiff No.2 examined herself as PW1, defendant No.1 has examined himself and another witness Shrikant Odanavar as DW2. The plaintiff produced and marked four documents at Exs.P1 to P4 namely, Record of Rights, Certified copy of sale deed and certified copy of judgment and decree in OS No.476/2005. The defendants produced and marked 8 documents at Exs.D1 to D8 namely, the sale deed dtd. 26/12/2003, partition deed dtd. 7/7/2004, another sale deed dtd. 11/11/2005, GPA dtd. 28/5/2012, Paper publication in Vijaya Karnataka, SBI clearance certificate dtd. 8/12/2010, sale deed dtd. 29/11/2010 and certified copy of sale deed. 10. PW1 in her examination has reiterated the contents of the plaint and additionally averred as regards the criminal proceedings filed in CC No.608/2012 for the offence of bigamy against defendants No.1 and 2. In the cross-examination, she has admitted that she does not know who had made payment to the Housing Board. She does not know if there were any other properties belonging to the joint family apart from the suit schedule property. She does not know if her father-in-law had any other property. She admits that the Housing Board had executed the sale deed after the expiry of her father-in-law. She admits that defendant No.1 had good income from steel business which is conducted in Rajajinagar, Bengaluru. She stated that, after the expiry of her father-in-law, the 1st defendant purchased the property. She admits that the purchase is not out of any ancestral property. She also admits that at the time of purchase, only the ground floor was constructed. She denies any knowledge of the loans raised by defendant No.1 as regards the construction of the first floor and of the repayment thereof. She states that the sale made by defendant No.1 in favour of Mr. and Mrs. Chikkamath, is only to deprive her of her right. She and plaintiff No.1 denied that she does not have any right title or interest in the property. She denied knowledge of any partition between the brothers and sisters of defendant No.1. Apart from that, there is nothing much elicited during her cross-examination. 11. and Mrs. Chikkamath, is only to deprive her of her right. She and plaintiff No.1 denied that she does not have any right title or interest in the property. She denied knowledge of any partition between the brothers and sisters of defendant No.1. Apart from that, there is nothing much elicited during her cross-examination. 11. Defendant No.1 examined himself as DW1 and reiterated the contents of his written statement by stating that 11.1.he had acquired the property in terms of partition deed executed between himself, his brothers and sisters. He had borrowed loan from State Bank of India which was repaid from and out of the sale consideration received from defendant No.3. 11.2.In the cross-examination, he admits that 2nd plaintiff is his wife. He alleges that 2nd plaintiff is of lose character having illicit relationship. He stated that the suit property had been allotted to his father. That before the sale deed could be executed, his father had expired and thereafter, himself, his brothers and sisters made payments due to the Housing Board and pursuant thereto, the Housing Board executed the sale deed as regards the property in their favour. 11.3.On partition being effected, he was allotted northern portion and his brother Devanand was allotted southern portion of suit schedule property. 11.4.He admits the marriage and the business being carried on in Bengaluru and he shifting to Hubballi in the year 1995. His attempts to get plaintiff No.2 to the house at Hubballi and his visits to Tumkur. He has admitted that there are certain maintenance amount which are due. He denies any knowledge of the judgment dtd. 18/3/2006 in O.S.No.476/2005, but he admits the sale made in favour of defendant No.3. 12. Sri. Shrikant Odanavar was examined as DW2. He is the Power of Attorney Holder of defendant No.3. He has reiterated the contents of the written statement and deposed that, 12.1.defendant No.3 is a bona fide purchaser for value. 12.2. In the cross-examination, though he has stated that there is nothing physically preventing defendants No.3 to appear in the Court to depose, he has stated that he has personal knowledge of the transaction and as such, he is able to and authorized to depose. 12.2. In the cross-examination, though he has stated that there is nothing physically preventing defendants No.3 to appear in the Court to depose, he has stated that he has personal knowledge of the transaction and as such, he is able to and authorized to depose. 12.3.He has stated that defendant No.3 being involved in religious activities, she stays at home and does not go out and it is in that background, that she has requested DW2 to lead evidence on her behalf. 12.4.He has stated that defendant No.3 was not aware of the existence of the plaintiffs and her relationship with defendant No.1. He is not aware of any order passed in any suit restraining alienation. He admits the sale consideration of Rs.22, 00, 000.00 and the sale deed having been executed, the defendant No.3 is in possession of the property. He denies any right on the part of either plaintiff No.1 or plaintiff No.2 in his cross-examination. 13. The trial Court considering the above evidence came to the conclusion that the relationship between the plaintiffs and defendant No.1 being established, plaintiff No.1 has a right in the share of defendant No.1 in the property, defendant No.1 being entitled to 1/2 share in the property, plaintiff No.1 is entitled to 1/3 share in the said 1/2 share of defendant No.1 and the other 1/2 share being that of the other brother of defendant No.1 - Devanand. The trial Court held that the loan which had been obtained by defendant No.1 was not for family or legal necessities, since the plaintiffs were residing in Tumkur and not in the said property along with defendant No.1. The alienation made was held to be bad in law and as such, the aforesaid judgment. 14. Sri. A. P. Hegde, learned counsel for the appellant in RFA No.100224/2015 submitted that: 14.1.The trial Court completely misapplied itself to the facts of the case inasmuch as the trial Court did not take into consideration that the title derived by defendant No.1 was on account of partition deed executed by defendant No.1 and his brothers and sisters. 14. Sri. A. P. Hegde, learned counsel for the appellant in RFA No.100224/2015 submitted that: 14.1.The trial Court completely misapplied itself to the facts of the case inasmuch as the trial Court did not take into consideration that the title derived by defendant No.1 was on account of partition deed executed by defendant No.1 and his brothers and sisters. 14.2.On account of the said partition, the property having came to the share of defendant No.1, his interest is that, which is derived under and protected under Sec. 8 of the Hindu Succession Act, 1956 (hereinafter referred to as the 'HSA' for short), and as such, the property constituted his individual property and is neither the ancestral nor joint family property of defendant No.1. 14.3.Sec. 8 of the HSA is reproduced hereunder for easy reference: 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. 14.4.That when the title of defendant No.1 is derived under Sec. 8 of the HSA, the plaintiff No.1 cannot claim right under Sec. 6 of the HAS, insofar as plaintiff No.2 is concerned, the trial Court has rightly rejected the claim of the alleged wife, since the husband is still alive. 14.5.That the claim of the plaintiffs is contrary to the partition deed itself inasmuch as a right has been sought to be asserted over the entire property when even as per the partition deed, the defendant No.1 was entitled to only 1/2 share in the property and the 1/2 share has been sold in favour of defendant No.3 in order to repay the debts incurred on the property. The property not constituting joint family property let alone ancestral property, the same being the individual property of defendant No.1, the plaintiffs have no interest in the said property. 14.6.He relies upon the decision of the following decisions in support of his arguments: 14.6.1. The property not constituting joint family property let alone ancestral property, the same being the individual property of defendant No.1, the plaintiffs have no interest in the said property. 14.6.He relies upon the decision of the following decisions in support of his arguments: 14.6.1. Jehal Tanti and Others Vs. Nageshwar Singh (Dead) Through LRs. Reported in (2013) 14 SCC 689 Paragraphs 11, 13, 14 of the said decision are reproduced below for easy reference: 11. The same issue was considered in Vidur Impex and Traders (P) Ltd. and others v. Tosh Apartments (P) Ltd., and others (2012) 8 SCC 384 , and it was held : "42.........At the cost of repetition, we consider it necessary to mention that Respondent 1 had filed suit for specific performance of agreement dtd. 13/9/1988 executed by Respondent 2. The appellants and Bhagwati Developers are total strangers to that agreement. They came into the picture only when Respondent 2 entered into a clandestine transaction with the appellants for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the appellants executed agreement for sale in favour of Bhagwati Developers. These transactions were in clear violation of the order of injunction passed by the Delhi High Court which had restrained Respondent 2 from alienating the suit property or creating third-party interest. To put it differently, the agreements for sale and the sale deeds executed by Respondent 2 in favour of the appellants did not have any legal sanctity." (emphasis supplied) 13. We may also notice Sec. 23 of the Indian Contract Act, 1872, which lays down that: "23. What consideration and objects are lawful, and what not.- The consideration or object of an agreement is lawful, unless - it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is unlawful and every agreement executed with such an object or consideration which is unlawful is void. Since the sale deed was executed in favour of respondent No.1 in the teeth of the order of injunction passed by the trial Court, the same appears to be unlawful. 14. In each of these cases, the consideration or object of an agreement is unlawful and every agreement executed with such an object or consideration which is unlawful is void. Since the sale deed was executed in favour of respondent No.1 in the teeth of the order of injunction passed by the trial Court, the same appears to be unlawful. 14. As a sequel to the above conclusion, the appeal is allowed, the impugned order is set aside and the second appeal is remitted to the High Court for fresh disposal. The High Court shall frame appropriate substantial question(s) of law in the light of the observations made in this order and decide the appeal after giving opportunity of hearing to the parties with reference to the substantial question of law. If, during the course of hearing, the High Court finds that any other substantial question of law arises for its consideration then it shall be free to frame that question and decide the same after hearing the parties. 14.6.2. Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others) reported in (1986) 3 SCC 567 . Paragraphs 15 and 22 of the said decision are reproduced below for easy reference: 15. It is clear that under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. But the question is; is the position affected by Sec. 8 of the Succession Act, 1956 and if so, how? The basic argument is that, Sec. 8 indicates the heirs in respect of certain property and class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. But the question is; is the position affected by Sec. 8 of the Succession Act, 1956 and if so, how? The basic argument is that, Sec. 8 indicates the heirs in respect of certain property and class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced the Allahabad High Court in the two judgments, we have noticed, to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under Sec. 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view. 22. In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Sec. 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Sec. 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Sec. 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Sec. 4 that one should look to the Act in case of doubt and not to the preexisting Hindu law. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Sec. 4 that one should look to the Act in case of doubt and not to the preexisting Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Sec. 8 of the Hindu Succession Act would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Sec. 8 of the Act included widow, mother, daughter of predeceased son etc. 14.6.3. Bhanwar Singh Vs. Puran and Ors. reported in (2008) 3 SCC 87 . Paragraphs 14 and 15 of the said decision are reproduced below for easy reference: 14. Interpretation of Sec. 8 of the Hindu Succession Act came up for consideration before this Court in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. [ (1986) 3 SCR 254 ]. Mukherjee, J. (as the learned Chief Justice then was) upon considering the changes effected by the Hindu Succession Act as also the implication thereof and upon taking into consideration the decisions of Calcutta High Court, Madhya Pradesh High Court, Andhra Pradesh High Court as also Madras High Court on the one hand and the Gujarat High Court on the other, opined : "In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Sec. 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Sec. 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Sec. 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Sec. 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Sec. 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Sec. 8 of the Act included widow, mother, daughter of predeceased son etc. Before we conclude we may state that we have noted the obervations of Mulla's Commentary on Hindu law 15th Edn. dealing with Sec. 6 of the Hindu Succession Act at page 924-26 as well as Mayne's on Hindu Law, 12th Edition pages 918- 919. The express words of Sec. 8 of The Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law, with that background the express language which excludes son's son but included son of a predeceased son cannot be ignored." 15. The Gujarat High Court in Commissioner of Income-tax, Gujarat-I v. Babubhai Manshkhbhai (Deceased) [108 ITR 417], however, it may be noticed, had taken the view that in the case of the Hindus governed by Mitakshara law, where a son inherited the self- acquired property of his father, he took it as a joint family property of himself and his son and not as his separate property. The said view, as indicated hereinbefore was not accepted by this Court. The said view, as indicated hereinbefore was not accepted by this Court. The principle evolved in Chander Sen (supra) was reiterated by this Court in Yodhishter v. Ashok Kumar [ (1987) 1 SCR 516 at 523]; Sunderdas Thackersay & Bros. v. Commissioner of Income-tax [ 1982 (137) ITR 646 ]; Commissioner of Income Tax v. P.L. Karuppan Chettiar [1993 Supp.(1) SCC 580]; and Additional Commissioner of Income-tax v. M. Karthikeyan [1994 Supp.(2) SCC 112]. In Yodhishter (supra), this Court observed: "This question has been considered by this Court In Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. [ (1987) 1 SCR 516 ] where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him." 14.6.4. The judgment of the Single Judge of this Court offered by one of us namely, SGRJ, in CRP No.121/2022 dtd. 29/11/2014 in the case of Koshy Abraham Vs. Smt. B. K. Jayalakshmi and Others, more particularly, paragraphs 11.4 to 11.9, which is extracted below for easy reference: 11.4. In the present case, the only averment made is that the property was purchased by the grandfather of the plaintiff and upon the death of the grandfather, the property was partitioned amongst his sons of whom defendantNo.1 is one. 11.5. Apart therefrom a reading of the plaint does not indicate as to how the property has become a joint family property. 11.6. In fact in paragraphs 3 of the plaint, it is clearly stated that subsequent to the death of the grandfather, the property had been partitioned between the children of plaintiff's grand father i.e., defendant No.1 and his brothers and the suit schedule property fell to the share of defendant No.1. 11.6. In fact in paragraphs 3 of the plaint, it is clearly stated that subsequent to the death of the grandfather, the property had been partitioned between the children of plaintiff's grand father i.e., defendant No.1 and his brothers and the suit schedule property fell to the share of defendant No.1. It is on that basis it is contended that there being no partition between the plaintiff and defendant Nos.1 to 3, the property continued to be joint family property. This by itself would not suffice. There is no explanation as to how the property is joint family property. 11.7. The Apex Court in Banwar Singh's case (supra) has held that once a partition has occurred and property has fallen to the share of one of the members of the family, such member of the family had the requisite right to transfer the land fallen to his share. 11.8. In the present case, property on partition in the year 1994 fell to the share of defendant No.1 and it is defendant No.1 who has sold the property. There is no embargo on defendant No.1 to sell the property falling to his share which has been recognised by the Apex Court in Banwar Singh's case (supra). Hence, on this ground also the claim of the plaintiff that she is entitled to a partition is not sustainable since it is the property belonging to defendant No.1 which has been sold. 11.9. Sri.H.R.Ananth Krishnamurthy, learned counsel for respondent No.1-plaintiff by relying on Mayar's case (supra) has contended that whether a plaint discloses a cause of action is a question of fact which has to be gathered by the averments made in the plaint and not by considering the allegations made in the written statement. There is no quarrel with the said proposition. In the present case, it is not just the existence of the cause of action, but the question of plaint itself being barred by law which is being considered. 14.7.On the above basis, he submits that the above appeal is required to be allowed. The judgment and decree passed by the trial Court is required to be set aside. 15. Per contra, Sri. Harshwardhan M. Patil, learned counsel appearing on behalf of Sri. Prakash Udikeri, learned counsel for the appellants, submits that: 15.1.Admittedly, plaintiff No.2 is the wife and plaintiff No.1 is the son of defendant No.1. The judgment and decree passed by the trial Court is required to be set aside. 15. Per contra, Sri. Harshwardhan M. Patil, learned counsel appearing on behalf of Sri. Prakash Udikeri, learned counsel for the appellants, submits that: 15.1.Admittedly, plaintiff No.2 is the wife and plaintiff No.1 is the son of defendant No.1. The property having been allotted to the father of defendant No.1, who is the grand father of plaintiff No.1 and the application being filed by the said grand father, the property is that of the grand father. The grand father not having obtained the sale deed in his name in his life time after his death and a sale deed has been executed, the said property constitute joint family property and as such, the plaintiff No.1 has a right, title, interest in the said property. 15.2.He relies upon the decision of the Hon'ble Apex Court in the case of Shiromani and Ors vs Hem Kumar and Ors reported in AIR 1960 SC 1299 to contend that, when a partition is effected between the husband and his son, the wife would be entitled to receive a share equal to that of a son and to borrow and enjoy the same separately even from her husband. This he submits is the position of law under the Bombay School, which is what applies to the Bomaby Karnataka Region and as such, the trial Court ought not to have refused the relief in favour of plaintiff No.2 and insofar as that portion of the judgment is concerned, this Court is required to intercede. 15.3.As regards the entitlement of plaintiff No.1, he submits that the moment plaintiff No.1 is born, the plaintiff No.1 has acquired interest in the property. The same being the joint family property and as such, the judgment passed by the trial Court is proper and correct and on this ground he submits that the appeals as filed are required to be dismissed. 16. Sri. Vijay Malali, learned counsel for the appellant in RFA No.100135/2014 would adopt the arguments of Sri. A. P. Hegde, learned counsel for the appellant in RFA No.100224/2015 and submits that this appellant is defendant No.3 in the suit and the said appellant having purchased the property for valuable consideration in a bona fide manner, her interest has to be protected, she not being aware of the existence or otherwise of plaintiffs No.1 and 2. A. P. Hegde, learned counsel for the appellant in RFA No.100224/2015 and submits that this appellant is defendant No.3 in the suit and the said appellant having purchased the property for valuable consideration in a bona fide manner, her interest has to be protected, she not being aware of the existence or otherwise of plaintiffs No.1 and 2. On that basis he submits that the appeal is to be allowed and the impugned judgment and decree passed by the trial Court is required to be set aside. 17. Heard the learned counsel Sri. A. P. Hegde, Sri. Harshvardhan M. Patil and Sri. Vijay M. Malali. Perused the papers. 18. The points that arise for consideration in these matters are: i. Whether the suit property is a joint family property or the separate property of defendant No.1? ii. Whether the plaintiffs jointly or severely have any right, title or interest in the suit schedule property? iii. Whether the judgment and decree passed by the trial Court suffers from any legal infirmity requiring this Court to intercede? iv. What order? 19. I answer the above points as under: 20. Answer to point No.1: Whether the suit property is a joint family property or the separate property of defendant No.1? 21. Answer to point No.2: Whether the plaintiffs jointly or severely have any right, title or interest in the suit schedule property? 21.1.Both the points being related to each other and considered together. 21.2.The facts and evidence on record are not in dispute. The issue in the present appeal is not inasmuch as dispute of fact, but the applicability of law and interpretation of law resorted to by the trial Court. 21.3.There is absolutely no dispute as regards the facts as such, except whether the property was the property of the grand father or was it purchased by defendant No.1. Even this aspect has been given up during the course of arguments and all the counsel are of the consensus that the property had been allotted to the grand father and upon his death, the sale deed came to be executed in favour of defendant No.1, his brothers and sisters on they making payment of the due amounts. Even this aspect has been given up during the course of arguments and all the counsel are of the consensus that the property had been allotted to the grand father and upon his death, the sale deed came to be executed in favour of defendant No.1, his brothers and sisters on they making payment of the due amounts. 21.4.Be that as it may, this aspect also would not be of much relevance since the partition deed, which is executed, has been entered into and executed between defendant No.1 and his brothers and sisters as regard the suit schedule property, in terms whereof the northern 1/2 of the property fell to the share of defendant No.1 and southern 1/2 portion fell to the share of his brother Devanand. 21.5.Once there is a partition between the brothers and sisters and a property fell to the share of defendant No.1, as held by the Hon'ble Apex Court in a catena of decisions commencing from Chander Sen's case (supra), the property would form the individual property of the person who derives the same under the partition. One of us (Suraj Govinda Raj J) had an occasion to deal with this aspect in CRP No.121/2021, which related to a dismissal of an application under Order VII Rule 11 of the Civil Procedure Code. 21.6.While dealing with the same, most of the decisions now relied upon by the Appellants relating to the same have been referred to and analysed, namely, the case of Commr. of Wealth Tax, Kanpur v. Chander Sen reported in (1986) 3 SCC 567 ; Yudhishter Vs. Ashok Kumar reported in (1987) 1 SCC 204; Uttam Vs. Saubhag Singh and Others, reported in 2016(4) SCC 68 , judgment of this Court in the case of Shankuntala and Ors. Vs. Basavaraj and Ors. passed in RFA No.4212/2013 dtd. 19/7/2016 etc., and came to the conclusion by applying the said decision, more particularly that in Chander Sen and Uttam, that on a partition being effected amongst the brothers, property which has fallen to the share of one of the brothers would be his individual property in terms of Sec. 8 of the HSA. The relevant portion of the said judgment has been extracted hereinabove. The relevant portion of the said judgment has been extracted hereinabove. 21.7.If that be so, in the present case, whether the grand father had applied for the allotment or the brothers had purchased the property is of no consequence since there has been partition effected between the brothers and sisters, whereunder it is northern portion of suit schedule property, which fell to the share of defendant No.1. This property constituting the individual property in terms of aforesaid decisions, we are of the considered opinion that neither plaintiff No.1 nor plaintiff No.2 can claim interest in the said property. The trial Court not having appreciated and/or applied the said dicta laid down by the Hon'ble Apex Court, which is law of land under Article 142 of the Constitution of India, the judgment of the trial Court suffers from legal infirmity requiring this Court to intercede. 21.8.Sri. Harshvardhan M. Patil has contended that, in the Bombay Karnataka Region, the wife would also be entitled to a share equivalent to that of a son at the time of partition. Though such argument has been advanced, no appeal has been filed by plaintiff No.2 challenging the judgment and decree passed by the trial Court. Hence such a contention cannot be agitated by plaintiff No.2 in an appeal filed by defendants No.1 and 2 on the one hand and defendant No.3 on the other. As such, the said contention is rejected. 21.9.Hence we answer point No.1 and 2 by holding that the suit property is not a joint family property but the separate property of defendant No.1. The plaintiffs jointly or severely do not have any right, title or interest in the suit schedule property. 22. Answer to Point No.3 Whether the judgment and decree passed by the trial Court suffers from any legal infirmity requiring this Court to intercede? 22.1.In view of our answer to point No.1 and 2, it is clear that the trial court has not considered the implication and import of the decisions cited before this court. 22.2.The suit property being the individual property of Defendant No.1 in terms of the partition effected between him and his brothers, the Plaintiff cannot have any claim therein. 22.1.In view of our answer to point No.1 and 2, it is clear that the trial court has not considered the implication and import of the decisions cited before this court. 22.2.The suit property being the individual property of Defendant No.1 in terms of the partition effected between him and his brothers, the Plaintiff cannot have any claim therein. 22.3.Defendant No.1 has raised a loan on the property for construction, which is so permissible on his individual property and thereafter on account of the business suffering losses has not been able to repay the loan raised from a Scheduled bank. The said loan has been thereafter repaid from and out of the sale of the Suit Schedule Property. The loan having been disbursed by a scheduled bank and the amounts being paid to a Scheduled bank the transaction cannot be said to be suspicious. No evidence has been placed on record by the Plaintiffs to suspect the said loan transaction. There is also no evidence placed on record that the Defendant No.3 is not a bonafide purchaser for value or that the sale made by the Defendant No.1 is fraudulent. 22.4.All these aspects which have a bearing on the matter have not been considered by the Trial Court. 22.5.The above legal infirmity would require this court to intercede to set aside the judgment of the Trial Court. 23. Point No.4: What order? 23.1.In view of the above, we pass the following: ORDER i. The appeals are allowed. ii. The judgment and decree dtd. 5/7/2014 passed by the Principal Senior Civil Judge and JMFC, Hubballi, in OS No.32/2012 is set aside.