The Judgment of the Court was delivered by
Ajit J. Gunjal, J.:— This appeal is by the defendant Nos. 6 and 7 who are aggrieved by the judgment and decree passed by the learned trial Judge wherein their share has been denied.
2. We have heard Mr. Mruthyunjaya Tata Bangi, learned counsel for the appellants who are defendant Nos. 6 and 7 before the trial Court. The respondents are served but however have not chosen to enter appearance.
3. During the course of judgment, parties would be referred to their rank before the trial Court,
4. The joint family consisting of plaintiff and defendant Nos. 1. 2, 5 and 8 owns immovable properties at schedule B to E and they are in joint possession as coparceners and the landed properties described in B Schedule are acquired out of the joint family nucleus in the name of the propositus Gurulingappa Savadi who died about a year’ back living behind defendant Nos. 6 and 7 who are daughters and defendant Nos. 1 and 5 who are the sons. Since there was no division, after the death of propositus, the present suit is filed for partition and separate possession by the plaintiff as against his father, uncle and siblings.
5. The defendants entered appearance and filed written statement inter alia contending that they are entitled to a share in suit schedule properties. The specific averment made by defendant No. 5 is that even assuming if the division has to lake place, defendant Nos. 6 and 7 are entitled for share in the properties. The learned trial Judge having regard to the status of family was of the view that the plaintiff is entitled for partition and separate possession to an extent of 1/8 share in the suit ‘B’, ‘C’ and ‘D’ schedule properties, except CTS No. 7/4 and also in respect of machineries as disclosed in the report of the Commissioner. The defendant Nos. 2 to 4 cash entitled for 1/8 share and defendant No. 5 is entities to 4/8 share in the above said properties. Since the defendant Nos. 6 and 7 are denied their shares, they are in appeal.
6. Apparently, it is to be noticed that defendant Nos. 6 and 7 are born prior to coming into force of the Hindu Succession Act. Indeed, the question is, whether they are entitled for share in the suit schedule properties, as per the amended Act. This question is no longer res integra inasmuch as a coordinate bench of this Court in the case of Pushpalatha N.V v. V. Padma reported in ILR 2010 KAR 1484 has observed that the status of the daughter who claims to be a Co-parcener born prior to 1956 is not entitled for the benefit of the amended Act inasmuch as she cannot be considered as Co-parcener. We respectfully agree with the decision rendered by the coordinate bench. Having said so, we are of the view that, the question of upsetting the judgment and decree passed by the learned trial Judge denying the share to defendant Nos. 6 and 7 does not arise. It is submitted that learned counsel for defendant Nos. 6 and 7 in the trial Court has must have filed a memo adopting the written statement filed by defendant No. 5. But, however having regard to the position of law. the question of granting, any share to defendant Nos. 6 and 7 does not arise.
7. Appeal stands dismissed. No costs.