JUDGMENT : M.G.UMA, J. The legal representatives of deceased plaintiff No.1 and plaintiff Nos.2 to 8 in OS No.46 of 1992 on the file of the learned II Additional Civil Judge (Jr.Dn.), Udupi (hereinafter referred to as 'the Trial Court' for short) have preferred this appeal, impugning the judgment and decree dated 11.07.1997 passed by the Trial Court dismissing the suit of the plaintiffs filed for partition and separate possession of the schedule properties, and also the judgment dated 22.06.2009 passed in RA No.143 of 1997 on the file of Fast Track Court at Udupi, dismissing the appeal and confirming the judgment and decree passed by the Trial Court. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. Facts of the case in brief are that, plaintiff Nos.1 to 8 have filed the suit OS No.46 of 1992 before the Trial Court seeking partition and separate possession of plaint 'A' schedule property declaring that they are having 8/15 th share, and to divide the same by metes and bounds and for mesne profits. Schedule 'A' appended to the plaint describes Sy.No.83/4 bagayat measuring 44 cents situated in Shivalli village, Udupi Taluk. 4. It is the contention of the plaintiffs that one Kitta Sherigara is the propositus of the family. He had 4 children i.e., Kamala Sherigarthi, Sheena Sherigara, and Korapalu Sherigarthi. Kalyani Sherigarthi Kalyani Sherigarthi died issueless in the year 1962. Defendant No.4 to 7 are the children of Korapalu Sherigarthi, who died in the year 1969. Plaintiff Nos.1 to 8 are the children of Sheena Sherigara who died in the year 1972. Defendant Nos.1 to 3 are the children of Kamala Sherigarthi, who died in the year 1976. After the death of Kitta Sherigara, Sheena Sherigara, the father of plaintiffs along with his uncle Mutha Sherigara got executed a chalugeni chit dated 12.04.1951 from Shri Puttige Mutt, Udupi in respect of plaint 'A' schedule property. Mutha Sherigara had never in possession and enjoyment of the plaint 'A' schedule property, but Sheena Sherigara was in possession and cultivating the same. Mutha Sherigara died in the year 1962. Later Sheena Sherigara got executed another chalugeni chit on 20.09.1965 from the Mutt. Thus, Sheena Sherigara was the tenant in respect of the schedule 'A' property. 5. Mutha Sherigara had never in possession and enjoyment of the plaint 'A' schedule property, but Sheena Sherigara was in possession and cultivating the same. Mutha Sherigara died in the year 1962. Later Sheena Sherigara got executed another chalugeni chit on 20.09.1965 from the Mutt. Thus, Sheena Sherigara was the tenant in respect of the schedule 'A' property. 5. After coming into force of Karnataka Land Reforms Act, 1961., Kalyani Sherigarthi filed Form No.7 suppressing the exclusive chalugeni tenancy of Sheena Sherigara. The Land Tribunal, Udupi granted occupancy rights in her favour for and on behalf of her family. Plaintiff No.1 had also claimed occupancy rights, but the same was rejected by the Land Tribunal, since the occupancy rights in respect of the same property was already granted in favour of Kalyani Sherigarthi on behalf of her family. 6. It is contended that Korapalu Sherigarthi filed HRC No.47 of 1984 before the Trial Court against plaintiff No.1, seeking his eviction from the schedule 'A' property, contending that, he was a monthly tenant in respect of the premises in question. The said HRC came to be dismissed, thereby rejecting the claim of Korapalu Sherigarthi that she is the absolute owner and plaintiff No.1 was the tenant in respect of the schedule property. Thus it is contended that the plaintiffs are having equal rights over the schedule property along with the defendants and accordingly, prayed for granting 8/15 th share in favour for the plaintiffs. 7. Defendant No.7 filed the written statement denying the contentions taken by the plaintiffs. It is contented that the suit came to be filed only upon dismissal of HRC.No.47/1984 filed by defendant Nos.4 to 7 against plaintiff No.1 and that the judgment in HRC.No.47/1984 is challenged by defendant Nos.4 to 7 in HRRP.No.93/1992 before the District Court at Dakshina Kannada. 8. It is contented that plaintiff No.1 is residing in the building bearing Door No.8-3-2 in the plaint schedule property, as a tenant under the mother of defendant No.7 i.e., late Korapalu Sherigarthi. During life time of Kalyani Sherigarthi, she was in possession and enjoyment of the same. The monthly rent payable to the premises was Rs.6.00. Therefore, it is contented that none of the plaintiffs are having any right over the plaint schedule property. 9. It is contented that even if the propositor Kitta Sherigara had taken the property on chalugeni, it was only temporary in nature. The monthly rent payable to the premises was Rs.6.00. Therefore, it is contented that none of the plaintiffs are having any right over the plaint schedule property. 9. It is contented that even if the propositor Kitta Sherigara had taken the property on chalugeni, it was only temporary in nature. After the death of said Kitta Sherigara, it was Kalyani Sherigarthi who became the tenant, and was having the lease hold right. After her death, her sister Korapalu Sherigarthi, being the sole legal heir succeeded to the property as per Section 15 of Hindu Succession Act, 1956. The other legal heirs of Kitta Sherigara including Sheena Sherigara, were not having any title over the schedule property. It is only defendant Nos.4 to 7, who are the legal heirs of Korapalu Sherigarthi, are entitled for the schedule property. 10. It is denied that Kalyani Sherigarthi was in occupation of the schedule property as tenant for and on behalf of the family or that the order of Land Tribunal granting occupancy right is for the benefit of the family. It is contented that the family referred by the plaintiffs can only be a Aliyasantana family and even if the contention of the plaintiffs is to be accepted, they are entitled only for the fractional share in the plaint schedule property. Therefore, it is contented that the share claimed by the plaintiffs is imaginary and it is against the provisions of Aliyasantana law, as well as Hindu Succession Act, 1956. The plaintiffs are not entitled either for the share or for the mesne-profits and therefore, pray for dismissal of the suit. 11. Defendant Nos.4 to 6 filed a memo and adopted the written statement filed by defendant No.7. 12. Defendant No.7 has filed additional written statement contending that without prejudice to the contentions already raised in the written statement, alternatively, defendant No.7 contends that the father of the plaintiff late Sheena Sherigara, was the Nissanthathi Kavaru in the Aliyasantana family, and therefore, they have only life interest in the schedule property. After the death of Sheena Sherigara, the life interest also came to an end. No right, title or interest has devolved on the plaintiffs on the death of their father. The life interest of Sheena Sherigara never enlarged into an absolute estate as he was the Nissanthathi Kavaru, as per Section 36(3) of Aliyasantana Act, 1949. After the death of Sheena Sherigara, the life interest also came to an end. No right, title or interest has devolved on the plaintiffs on the death of their father. The life interest of Sheena Sherigara never enlarged into an absolute estate as he was the Nissanthathi Kavaru, as per Section 36(3) of Aliyasantana Act, 1949. However, it is contented that, even after the death of Sheena Sherigara, plaintiff No.1 continued to occupy the house in question. It is also contented that, even if there was a lease deed dated 16.11.1919 executed by Kitta Sherigara and subsequently, lease deed dated 12.04.1951 was executed by Muthayya Sherigara and Sheena Sherigara and there was execution of another lease deed dated 20.09.1965 alleged to have been executed by Sheena Sherigara alone, even if it is to be admitted, execution of such lease deeds was on behalf of their Aliyasantana family and not in their individual capacity. Therefore, defendant No. 7 prayed for dismissal of the suit. 13. Defendant Nos.4 to 6 have adopted the additional written statement filed by defendant No.7. 14. On the basis of these pleadings the following issues came to be framed. i). Whether the plaintiffs prove tat the plaintiff 'A' schedule property is the exclusive chalugeni holding of kitta Sherigara and after his death, that of Sheena Sherigara? ii). Whether the plaintiffs prove that they are in joint and constructive possession of the plaint 'A' schedule property? iii). Whether the plaintiffs prove that they are entitled to 8/15 th share in the plaint 'A' schedule property? iv). Whether the plaintiffs prove that net income from the plaint 'A' schedule property is not less than Rs.2,000/- and they are entitled to share of income from the plaint 'A' schedule property? v). Whether there is cause of action to file this suit? vi). Whether this suit has been properly valued for the purpose of Court fee and jurisdiction? vii). Whether defendant Nos.4 to 7 prove the improvements as alleged in para 10 of the written statement? viii). Whether the suit framed is bad and not sustainable under law? ix). To what relief are the parties entitled? ADDITIONAL ISSUE: i). Whether 7 th defendant proves that the lease deeds dated 165.11.2019, 12.04.1951 and 20.09.1965 have been executed on behalf of their Aliyasantana family and not for their personal benefit? 15. viii). Whether the suit framed is bad and not sustainable under law? ix). To what relief are the parties entitled? ADDITIONAL ISSUE: i). Whether 7 th defendant proves that the lease deeds dated 165.11.2019, 12.04.1951 and 20.09.1965 have been executed on behalf of their Aliyasantana family and not for their personal benefit? 15. The plaintiffs have examined PWs.1 and 2 and got marked EXs.P1 to 9 in support of their contention. Defendant No.7 examined himself as DW.1 in support of his defence. The Trial Court, after taking into consideration all these materials on record answered issue Nos.1 to 4 and 8 in the negative, issue Nos.5, 6 and 7 and Additional Issue No.1 in the affirmative, and accordingly dismissed the suit of the plaintiffs. 16. Being aggrieved by the same, the plaintiffs have preferred RA.143/1997. The First Appellate Court on re-appreciation of the materials on record came to the conclusion that the Trial Court was right in dismissing the suit of the plaintiffs and accordingly dismissed the appeal. Being aggrieved by the same, the plaintiffs are before this Court. 17. As per order dated 13.08.2010, the following substantial question of law was framed: "Whether the Courts below were justified in rejecting the claim of the appellants for partition and plaintiffs share in the suit property when the occupancy rights were granted in favour of Kalyani, one of the members of the joint family in view of the decision of this Court reported in ILR 2002 KAR 3417?" 18. As per the order dated 30.10.2025, the following substantial question of law was framed. "Whether the Trial Court and the First Appellate Court have erred in applying the provisions of Aliyasantana Law to the facts of the present case, ignoring Section 7(2) of the Hindu Succession Act?" 19. Heard Sri. Santhosh R Nelkudri, learned counsel for Sri. Gururaj R, learned counsel for the appellant Nos.1, 3, 4, 5, 6, 7(A to D), 8(A to D), 9, 10, 11 and Sri. Imran Pasha, learned counsel for respondent Nos.5 and 7. Perused the materials including the Trial Court records. 20. Learned counsel for the appellants/plaintiffs contended that, initially there was Aliyasantana family, of which, Kitta Sherigara was the propositus and Kalyani Sherigarthi, who is one of the daughter of Kitta Sherigara claimed occupancy right by filing Form No.7. Imran Pasha, learned counsel for respondent Nos.5 and 7. Perused the materials including the Trial Court records. 20. Learned counsel for the appellants/plaintiffs contended that, initially there was Aliyasantana family, of which, Kitta Sherigara was the propositus and Kalyani Sherigarthi, who is one of the daughter of Kitta Sherigara claimed occupancy right by filing Form No.7. Her deposition before the Land Tribunal is marked as Ex.P3, where she states that the land in question was being cultivated since from the time of her ancestors and the occupancy right may be granted in her favour. 21. Learned counsel contended that, PW.1 in her evidence states that the family of Kalyani consists of her sister Korapalu Sherigarthi and her children. However, the statement of Kalyani Sherigarthi produced as per Ex.P3 discloses that the property in question was being enjoyed as the family property. Sub Section (2) of Section 7 of Hindu Succession Act refers to a Hindu to whom the Aliyasantana Law would have applied if the Act of 1956 had not been passed, dies after the commencement of this Act, their undivided interest in the family property of Kutumba as the case may be, his or her interest shall devolve by testamentary or intestate succession as the case may be under this Act and not according to Aliyasantana Law. 22. According to the plaintiffs and defendants, they were governed by Aliyasantana Law. Kalyani Sherigarthi, the daughter of propositus-Kitta Sherigara in Ex.P3 states that the property in question was the family property being cultivated since time immemorial assumes the form of family property in the hands of Kalyani Sherigarthi. Admittedly, plaintiff No.1 had filed Form No.7 and sought for grant of occupancy right. However, the same was rejected by the Land Tribunal only on the ground that occupancy right is already granted in favour of Kalyani Sherigarthi i.e. one of the family members of plaintiff No.1. 23. Learned counsel for the appellants, while addressing the arguments on substantial question of law that was framed on 31.10.2025 contended that, in view of Section 7(2) of Hindu Succession Act (for short 'the H.S Act), the provisions of the Aliyasantana Law cannot be made applicable from the date on which the H.S. Act came into force. Hence, he prays for allowing the appeal. 24. Hence, he prays for allowing the appeal. 24. Learned counsel for the contesting respondents, while admitting the said position of law, however, contended that all the requirements mentioned in Sub-Section (2) of Section 7 of H.S. Act i.e. a person must be a Hindu, Aliyasantana Law was being applied to him if the H.S. Act had not been passed, such a person dies after commencement of the Act and at the time of his death, he was having undivided interest in the family property of "Kutumba" or "Kavaru", if satisfied, then only Section 7(2) of H.S.Act will have the application and not otherwise. However, he admits that, Kitta Sherigara-the propositus was the Chalugeni Tenant and on his death, Sheena Sherigara, the father of plaintiffs No.1 to 7 along with Mutha Sherigara, the brother of Kitta Sherigara started cultivating the land as Chalugeni tenant as per Ex.P7. He also admits that, after the death of Mutha Sherigara, Sheena Sherigara, the father of plaintiffs No.1 to 8 continued to cultivate the land as Chalugeni tenant as per Ex.P8. However, he contends that, upon the death of Sheena Sherigara, Chalugeni tenancy comes to an end. 25. Learned counsel submits that, it was Kalyani Sherigarthi who filed Form No.7 as per Ex.P2, claming the land in question to be the land that was being cultivated by her and her sister or in their family. Accordingly, the Land Tribunal granted occupancy right in favour of Kalyani Sherigarthi and hence, it is only for Kalyani Sherigarthi and her sister Korapalu Sherigarthi who constitute a family for which the provisions of Aliyasantana Law Act was being applied. Hence, the right of the plaintiffs was rightly denied by the Land Tribunal by rejecting the Form No.7 filed by plaintiff No.1. He also contended that, even though the Tribunal rejected the claim of plaintiff No.1 and granted occupancy right in favour of Kalyani Sherigarthi, the said order was never challenged by the plaintiffs at any point of time. Hence, the said finding has reached finality. After lapse of several decades, the plaintiffs approached the Civil Court seeking share in the property which they have lost if at all long back. Hence, the Trial Court as well as the First Appellate Court are right in dismissing the suit of the plaintiffs. Accordingly, he prays for dismissal of the appeal. 26. After lapse of several decades, the plaintiffs approached the Civil Court seeking share in the property which they have lost if at all long back. Hence, the Trial Court as well as the First Appellate Court are right in dismissing the suit of the plaintiffs. Accordingly, he prays for dismissal of the appeal. 26. In the light of the substantial question of law referred to above, learned counsel for the appellants and respondents clearly admit that, on satisfaction of the requirement of Sub Section (2) of Section 7 of H.S. Act, it is only this provision of law under H.S. Act which will be applicable, and not the provisions of Aliyasantana Law. It is also admitted that, the Trial Court as well as the First Appellate Court have applied the provisions of Aliyasantana Law and not the provisions of H.S. Act. In light of the above settled position of law, I may have to consider the materials on record and the facts and circumstances of the case. 27. Admittedly, Kitta Sherigara, the grandfather of the plaintiffs and defendants, and father of Kalyani Sherigarthi was the Chalugeni tenant in respect of the schedule property under Sri. Puttige Mutt, and he was cultivating the land in such capacity till his death. However, the date of death of Kitta Sherigara is not forthcoming from the materials on record. Ex.P7 is the chalugeni chit dated 12.04.1951 executed by Sri. Puttige Mutt in favour of Sheena Sherigara, the son and Mutha Sherigara, the brother of Kitta Sherigara. Therefore, it is clear that after the death of Kitta Sherigara, his brother-Mutha Sherigara and son-Sheena Sherigara continued to cultivate the land in question as chalugeni tenant under Ex.P7. It is also pertinent to note that, Ex.P8 is another undisputed document dated 20.09.1965. It is yet another chalugeni chit executed by Sri.Puttige Mutt in favour Sheena Sherigara alone after the death of his uncle Mutha Sherigara. Admittedly, Sheena Sherigara died in the year 1972. Till his death, i.e. till 1972, it was Sheena Sherigara, the father of the plaintiffs who was in cultivation of the land. In the meantime, the Karnataka Land Reforms Act ('KLR Act', for short) came into force on 1.4.1974 and the tenanted land vested in the Government. As per the provisions of KLR Act, the tenant who was in actual cultivation of the land was entitled for grant of occupancy right. 28. In the meantime, the Karnataka Land Reforms Act ('KLR Act', for short) came into force on 1.4.1974 and the tenanted land vested in the Government. As per the provisions of KLR Act, the tenant who was in actual cultivation of the land was entitled for grant of occupancy right. 28. It is an admitted fact that, Kalyani Sherigarthi being the daughter of Kitta Sherigara, filed Form No.7 as per Ex.P2, stating that the land in question was being in her cultivation along with her sister Korapalu Sherigarthi and her children. But strangely in Ex.P3, the statement of Kalyani Sherigarthi deposed before the Land Tribunal in which she never states that the land was in her exclusive cultivation along with her sister Korapalu Sherigarthi and her children. But on the other hand, she specifically and in clear terms states that the schedule property was being under cultivation of her elders since time immemorial. This statement-Ex.P3 supports cultivation of the land by Kitta Sherigara as chalageni tenant till his death, and after his death, cultivation of the land by Sheena Sherigara and Mutha Sherigara under Ex.P7, and thereafter by Sheena Sherigara under Ex.P8. When just before the appointed date under KLR Act the land in question was the Chalugeni land in cultivation of Sheena Sherigara, there is absolutely no reason for excluding his children from succeeding to the properties. On facts, Kalyani Sherigarthi filed Form No.7 and stated before the Land Tribunal that, the land in question was being cultivated by her elders in the family from time immemorial and the Land Tribunal granted occupancy right in her favour by recording a finding that Kalyani Sherigarthi was cultivating the land along with her sister Korapalu Sherigarthi and her children which constituted a family. Admittedly there is no chalageni chit execution by the Sri. Puthige Math in favour of either Kalyani Sherigarthi or her sister Korapalu Sherigarthi. There are no document to evidence the contention of the defendants that either Kalyani or Korapalu were cultivating the land exclusively on 1.3.1974. Therefore, this finding of the Land Tribunal remains on the paper as it is not supported by any documents, rather such finding is falsified by Exs.P1, P3, P7 and P8. There are no document to evidence the contention of the defendants that either Kalyani or Korapalu were cultivating the land exclusively on 1.3.1974. Therefore, this finding of the Land Tribunal remains on the paper as it is not supported by any documents, rather such finding is falsified by Exs.P1, P3, P7 and P8. When such clinching admitted documents are on record, to prove the contention of the plaintiffs, that it was Kitta Sherigara who was initially cultivating the land as tenant and upon his death, his brother Mutha Sherigara and son Sheena Sherigara were cultivating the land. Thereafter, it was Sheena Sherigara, the father of the plaintiffs who was cultivating the land under Ex.P8. These materials are sufficient to hold that there was a family, the members of which are Hindus to whom Aliyasantana Law would have applied if the HS Act had not been passed. Sheena Sherigara admittedly died after commencement of HS Act, 1956 and he was having an undivided interest in the property of a Kutumba. Under such circumstances, I am of the opinion that, Section 7(2) of H.S. Act aptly applies to the facts of the case. Therefore, the parties to the suit are governed by the provisions of H.S. Act and not by Aliyasantana Law. 29. Once it is held that the parties are governed by H.S. Act and not by Aliyasantana Law, and when admittedly Kitta Sherigara who was originally cultivating the land was having four children i.e. Kamala Sherigarthi, Sheena Sherigara, Kalyani Sherigarthi and Korapalu Sherigarthi and plaintiffs No.1 to 8 being the children and grand children of Sheena Sherigara, defendants No.1 to 3 being the children of Kamala Sherigarthi and defendants No.4 to 7 being the children of Korapalu Sherigarthi, all of them are entitled for share in accordance with H.S. Act, 1956. Therefore, plaintiffs No.1 to 8 and defendants No.1 to 7 being the class-I heirs of deceased Kitta Sherigara are entitled for equal share in the schedule property and each of them are entitled for 1/15 share in the schedule property. 30. I have gone through the impugned judgment and decree passed by the Trial Court as well as the First Appellate Court. Both these Courts committed an error in applying the provisions of Aliyasantana Law, ignoring Section 7(2) of H.S. Act. 30. I have gone through the impugned judgment and decree passed by the Trial Court as well as the First Appellate Court. Both these Courts committed an error in applying the provisions of Aliyasantana Law, ignoring Section 7(2) of H.S. Act. Both these Courts have ignored Exs.P1, 3, 7 and 8 and placed reliance only on the fact that the Land Tribunal has granted occupancy right in favour Kalyani Sherigarthi for and on behalf of her family consisting of herself and her one sister Korapalu Sherigarthi and her children. Except the finding recorded by the Land Tribunal, the same do not get support from any document, but there are sufficient materials in support of the contention that it was Kitta Sherigara and after his death, Sheena Sherigara, Mutha Sherigara and after the death of Mutha Sherigara, it is only Sheena Sherigara who was in cultivation of the land till his death. Immediately thereafter the KLR Act came into operation. Therefore, I am of the opinion that the impugned judgment and decree passed by the Trial Court as well as by the First Appellate Court even though recording concurrent findings are liable to be set aside and the suit of the plaintiffs is required to be decreed. 31. In view of the discussion held above, the substantial question of law framed on 30.10.2025 is answered in favour of the plaintiff and against the defendant and proceeded to pass the following: ORDER (i) The appeal is allowed with costs. (ii) The judgment and decree dated 11.07.1997 passed in O.S.No.46/1992 by the II Additional Civil Judge (Jr.Dn), Udupi and the judgment dated 22.06.2009 passed in R.A.No.143/1997 on the file of the Fast Track Court, Udupi, are set aside. (iii) Consequently, the suit of the plaintiffs passed in O.S.No.96/1992 by the Trial Court for partition and separate possession of the suit schedule properties is decreed, declaring that the plaintiffs are entitled 8/15 share in the plaint A schedule property by metes and bounds. (iv) The plaintiffs are also entitled for mesne profits, which is to be determined in the final decree proceedings.