JUDGMENT : ASHOK S. KINAGI, J. 1. This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 07.08.2014 passed in Regular Appeal No.93 of 2009 on the file of the learned Senior Civil Judge and JMFC, Harapanahalli. 2. For convenience, the parties are referred to based on their rankings before the Trial Court, viz., the appellants herein were defendant Nos.3 to 5 and 7; respondent No.1 herein was the plaintiff and respondent Nos.2 to 4 herein were defendant Nos.1, 2 and 6. 3. Brief facts, leading rise to the filing of this appeal are as follows. 4. The plaintiff filed the suit against the defendants for partition and separate possession of his one-eighth share in the suit schedule “A” and “B” properties. It is the case of the plaintiff that defendant No.1 is the father of the plaintiff; defendant Nos.2, 4, 5 and 6 are the sisters; and defendant Nos.3 and 7 are the brothers of the plaintiff. The plaintiff and the defendants are the members of the Hindu Undivided Family constituted by the Hindu Mitakshara law. The suit schedule “A” and “B” properties are the ancestral and joint family properties of the plaintiff and the defendants. The suit schedule “A” properties stand in the name of defendant No.1 and the suit schedule “B” properties are situated at Kammathahalli village. All the suit schedule properties were managed by defendant No.1 as the Karta of the joint family. 5. When things stood thus, the plaintiff demanded a partition and separate possession, however, defendant No.1 refused to effect the partition. Hence, the cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 6. Defendant No.1 filed a written statement admitting the relationship between the parties to the suit and denying the existence of a joint family and that the suit schedule properties are ancestral and joint family properties. It is contended that defendant No.1 is not managing the affairs of the joint family. Defendant No.1 is originally a resident of Hoskote, Harapanahalli Taluk. His brothers got divided the properties long back i.e., about 42 years ago. The entire suit schedule properties were kept under mortgage, for the repayment of loan. It is contended that defendant No.1 is not managing the affairs of the joint family. Defendant No.1 is originally a resident of Hoskote, Harapanahalli Taluk. His brothers got divided the properties long back i.e., about 42 years ago. The entire suit schedule properties were kept under mortgage, for the repayment of loan. Defendant No.1 came out of his father’s family and started residing at Kammathahalli Village by doing coolie work and out of his earnings, he had purchased the entire suit schedule properties except suit Item No. 8. All other properties are the self-acquired properties of defendant No.1. He submits that the plaintiff has no right to claim a share in these properties, except suit item No.8. Hence, pray to dismiss the suit in respect of the suit schedule properties except suit item No.8 property. 7. Defendant Nos.3 to 5 and 7 filed their separate written statements admitting the relationship between the parties to the suit. It is contended that the plaintiff was convicted in the JMFC Court, Harappanahalli and he has taken a certain amount from the joint family and started living with defendant No.2. It is contended that a suit in O.S. No.386 of 2002 is pending between the plaintiff and the defendants before the Civil Judge (Sr. Dvn.), Harihara. Hence, pray to dismiss the suit. 8. Defendant No.6 filed her written statement admitting the relationship between the parties to the suit and claimed an one-eighth share in the suit schedule properties, and prays to decree the suit. 9. The Trial Court, based on the pleadings of the parties, framed the following issues and additional issues: Issues: “1) Whether plaintiff proves that the defendant No.1 acting as kartha of the undivided family of plaintiff and defendants? 2) Whether plaintiff proves that himself and all the defendants are the members of the alleged undivided joint family? 3) Whether plaintiff proves that he has got 1/8 th share in the suit property and entitled for the separate possession of his share by effecting the partition in the suit property? 4) Whether plaintiff proves that defendants No.4 marriage was performed by plaintiff and defendants together? 5) The defendants No.3 to 5 & 7 prove that defendant No.2 marriage was performed about 12 to 13 years back? 4) Whether plaintiff proves that defendants No.4 marriage was performed by plaintiff and defendants together? 5) The defendants No.3 to 5 & 7 prove that defendant No.2 marriage was performed about 12 to 13 years back? 6) Whether defendants No.3 to 5 and 7 prove that plaintiff and defendant No.1 took away the cash of Rs.8 lakhs and Rs.10 lakhs respectively and left the house and started residing with defendant No.2 as alleged in their written statement? 7) Whether defendants No.3 to 5 and 7 prove that this court has no pecuniary jurisdiction to try this case? 8) Whether defendants No.3 to 5 and 7 proves that defendant No.6 is mentally unsound and she cannot be represented independently? 9) Whether plaintiff proves that he is entitled for the reliefs sought? 10) What order or decree? Additional issues: (Framed after remand by the First Appellate Court) 1) Whether the plaintiff, defendant No.3 to 5 proves that suit schedule properties are joint family properties? 2) Whether defendant No.1 proves that the suit schedule properties are his self- acquired properties? 10. The plaintiff, to substantiate his case, examined himself as PW-1 and marked nine documents as Exhibits P-1 to P-9. In rebuttal, defendant No.1 examined himself as DW-1, and examined three more witnesses as DWs-2 to 4, and marked twenty- seven documents as Exhibits D-1 to D-27. 11. The Trial Court, after recording the evidence, hearing both sides, after assessing the verbal and documentary evidence, answered issue Nos.1, 4, 6 to 8 and additional issue No.2 in the negative; issue Nos.2, 3, 5 and additional issue No.1 in the affirmative, issue No.9 as per the final order. Ultimately, the suit of the plaintiff was partly decreed and it was ordered and declared that the plaintiff is entitled to one-eighth share in the “A” schedule properties by metes and bounds and separate possession; and one-eighth share in the moveable properties as shown in the Commissioner's report by metes and bounds. The defendants were also held entitled to one-eighth share in the suit schedule “A” properties by metes and bounds and separate possession; and one-eighth share in the moveable properties as shown in the Commissioner's report by metes and bounds. 12. The defendants were also held entitled to one-eighth share in the suit schedule “A” properties by metes and bounds and separate possession; and one-eighth share in the moveable properties as shown in the Commissioner's report by metes and bounds. 12. Defendant No.1 aggrieved by the said judgment and preliminary decree passed in O.S. No.143 of 2002, preferred an appeal in Regular Appeal No.93 of 2009 on the file of the learned Senior Civil Judge, Harapanahalli. 13. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for its consideration: “1. Whether the Trial Court Judge is right in partly decreeing the suit? 2. Whether the appellant has made out sufficient ground to allow the I.A. No.IV filed U/o 41 Rule 27 of CPC? 3. Whether the interference of this court is necessary? 4. What order? ” 14. The First Appellate Court, after re-assessing the verbal and documentary evidence, answered point Nos.1 and 2 partly in the affirmative; point No.3 in the negative and point No.4 as per the final order. 15. The Regular Appeal was allowed in part and consequently, the judgment and decree dated 27.08.2009 passed in Original Suit No.143 of 2002, on file of the learned Principal Civil Judge (Jr.Dn.), Harappanahalli, was partly set aside. The suit filed by the plaintiff for partition and separate possession in respect of suit item Nos.1 to 7 and 9 to 11 was dismissed; however, the said judgment and decree was confirmed in respect of item No.8 of the suit schedule properties. 16. Defendant Nos.3 to 5 and 7, aggrieved by the impugned judgment and decree passed in Regular Appeal No.93 of 2009, filed this Regular Second Appeal. 17. Heard the arguments of the learned counsel for the parties and perused the records. 18. The learned counsel for defendant Nos.3 to 5 and 7 submits that during the pendency of this appeal, defendant No.1 died on 23.09.2017. In view of the death of defendant No.1, the properties owned and possessed by defendant No.1 shall be divided between the plaintiff and the defendants in equal proportion. The parties to the suit are equally entitled to one-seventh shares each in the suit schedule properties. Hence, he prays to allow the appeal and set aside the judgment and decree passed by the First Appellate Court and restore the judgment and decree passed by the Trial Court. 19. The parties to the suit are equally entitled to one-seventh shares each in the suit schedule properties. Hence, he prays to allow the appeal and set aside the judgment and decree passed by the First Appellate Court and restore the judgment and decree passed by the Trial Court. 19. Per contra, the learned counsel for respondent Nos.2 to 4 submits that in view of the death of defendant No.1, the properties of defendant No.1 i.e., item Nos.1 to 7 and 9 to 11 of the suit schedule properties devolve upon the plaintiff and defendant Nos.2 to 7, who are the legal representatives of defendant No.1, and hence, he also submits that the judgment and decree passed by the First Appellate Court may be set aside and the judgment and decree passed by the Trial Court may be restored. 20. This Regular Second Appeal is admitted on 10.06.2025, to consider the following substantial questions of law: “1. Whether the appellants prove that the First Appellate Court committed an error in passing the impugned judgment, ignoring the admission of DW.2 and DW.3, who have admitted that the suit schedule properties are the joint family properties of the plaintiff and the defendants? 2. Whether the appellants prove that the First Appellate Court committed an error in reversing the judgment and decree passed by the trial Court? 3. What order or decree?” Reg: Substantial Question No.2: 21. Admittedly, the plaintiff filed a suit for partition and separate possession claiming that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants. Defendant No.1 has taken a defence that the Item Nos.1 to 7 and 9 to 11 of the suit schedule properties are his self-acquired properties and they are not the joint family properties, as such, neither the plaintiff nor the other defendants are entitled to a share in the said properties. 22. The Trial Court held that the suit schedule properties are the joint family properties of the plaintiff and the defendants, and they are members of a Hindu Undivided Family. The plaintiff is thus entitled to a one-eighth share on the suit schedule properties . 23. Defendant No.1 has taken a defence that item Nos.1 to 7 and 9 to 11 are his self-acquired properties. Defendant No.1 during the pendency of this appeal, has passed away on 23.09.2017. 24. The plaintiff is thus entitled to a one-eighth share on the suit schedule properties . 23. Defendant No.1 has taken a defence that item Nos.1 to 7 and 9 to 11 are his self-acquired properties. Defendant No.1 during the pendency of this appeal, has passed away on 23.09.2017. 24. Even according to the case of the defendants, suit item Nos.1 to 7 and 9 to 11 are the self-acquired properties of defendant No.1. In view of the death of defendant No.1, the properties devolved upon the plaintiff and other defendants as per Section 8 of the Hindu Succession Act, 1956 and the plaintiff and defendant Nos.2 to 7 are entitled for a one-seventh share each, in the suit schedule properties. 25. In view of the subsequent development regarding the death of defendant No.1, the plaintiff and defendant Nos.2 to 7 are entitled to a share in the suit schedule properties insofar as item Nos.1 to 7 and 9 to 11 are concerned, under Section 8 of the Hindu Succession Act, as they are the legal representatives of deceased defendant No.1. 26. As far as Item No. 8 of the suit schedule properties is concerned, the perusal of documents on record and the admissions of the defendants disclose that, it is the joint family property. Hence, the plaintiff and defendants Nos.2 to 7 are entitled to a one-seventh share each in the said property. Therefore, in view of the subsequent developments, this Court moulds the relief under Order VII Rule 7 of the Civil Procedure Code, 1908, as the parties are entitled to the reliefs. 27. In view of the above discussion, I answer the substantial question of law No.2 in the affirmative; Reg: Substantial Question of Law No.1: 28. In view of the death of defendant No.1, who passed away during the dependency of this appeal, there is no question of considering “whether, Item Nos. 1 to 7 and 9 to 11 of the suit schedule properties are the self-acquired properties of defendant No.1”. Hence, substantial question of law No.1 does not arise for consideration and it is answered accordingly. Reg: Substantial Question of Law No.3: 29. In the result, I proceed to pass the following order: ORDER : (i) This Regular Second Appeal is allowed. (ii) The judgment and decree passed in Regular Appeal No.93 of 2009 dated 07.08.2014 by the learned Senior Civil Judge, Harappanahalli, is set aside. Reg: Substantial Question of Law No.3: 29. In the result, I proceed to pass the following order: ORDER : (i) This Regular Second Appeal is allowed. (ii) The judgment and decree passed in Regular Appeal No.93 of 2009 dated 07.08.2014 by the learned Senior Civil Judge, Harappanahalli, is set aside. (iii) The suit of the plaintiff in O.S. No.143 of 2002 on the file of the Civil Judge (Jr.Dn.), Harappanahalli is partly decreed and the plaintiff is entitled to one-seventh share in the suit schedule ‘A’ properties by metes and bounds and one-seventh share in the moveable properties as shown in the Commissioner’s report. (iv) Defendant Nos.2 to 7 are entitled to one-seventh share each in the suit schedule ‘A’ properties by metes and bounds and separate possession, and one-seventh share in the moveable properties as shown in the commissioner’s report. (v) The Office is directed to draw the preliminary decree accordingly. (vi) No order as to costs. (vii) In view of the disposal of the appeal, I.A. No.1 of 2014 does not survive for consideration. I.A. No.1 of 2014 is accordingly disposed of.