Andhra Pradesh High Court - Amravati
Poodiparthi Munemma vs Parvatha Reddi Thejovathamma on 5 May, 2022
Bench: B S Bhanumathi
HIGH COURT OF ANDHRA PRADESH
MAIN CASE NO: S.A.No.28 of 2022
PROCEEDING SHEET
Sl.N Date ORDER OFFICE
o. NOTE
05.05.2022 BSB, J
Heard the learned counsel for the
appellant/defendant.
The suit is filed for partition and the same
was decreed granting 2/3rd share to plaintiff
nos.2 and 3 and 1/3rd share to the defendant.
The aggrieved defendant preferred the appeal.
The appellate court modified the order granting
½ share to the defendant and ½ share to the
plaintiff nos.2 and 3 but dismissed the appeal.
The aggrieved defendant filed the second
appeal on the following substantial questions of
law.
1. Whether in the facts and
circumstances of the case, the interest
of a co-parceners who died in 1991
without marriage and without having any
female relative specified in Class-I of the
schedule or a male relative specified in
that class through such female relative
devolve upon all the surviving members
of the co-parcener or on his father only
who is Class-II heirs?
2. Whether in the facts and
circumstances of the case the interest of
the co-parcener shall be succeeded
equally by the daughter, the widow of
the predeceased son and daughters of
predeceased son or one share shall be
succeeded by the daughter and the heirs
in the branch of predeceased son of the
intestate shall take between them one
share as contemplated under Sub-section
(3) of Section 10 of the Hindu Succession
Act, 1954.
3. Whether in the facts and
circumstances of the case the
disbelieving of the execution of B1 & B2
which are Certified copy of registered
documents in view of presumption under
Section 79 of the Evidence Act and even
in the absence of any evidence adduced
by plaintiff to disprove the execution of
B1 & B2 is sustainable under law?
4. Whether in the facts and
circumstances of the case, non-framing
of an issue by the trial court or non-
framing a point for a consideration on
the aspect whether any share was given
to the plaintiffs towards their share in
the property of the family is against to
the provisions of C.P.C?
5. Whether in the facts and
circumstances of the case, the judgment
of trial Court and 1st appellate court
granting half share only to the defendant
and granting remaining half share to the
plaintiffs is against to Section-6 of the
Hindu Succession Act (prior to
amendment), since one of the
coparceners by name Bhaskar Reddy died
while living jointly with other
coparceners i.e., father and sister and
without having any Class-I heirs as
mentioned in the Class-I of Schedule?
6. Whether in the facts and
circumstances of the case, the finding of
the trial court that the share of one of
coparceners by name Bhaskar Reddy on
his death devolved on his father under
Section-8 of the Hindu Succession Act is
against to law, since he died as a
coparcener by living jointly with other
coparceners without any Class-I heirs as
mentioned in Section-6 of the Hindu
Succession Act, 1957 (prior to 2005
Amendment)?
7. Whether in the facts and
circumstances of the case, the
observation of the trial court (paragraph
47) that as per Section 8(a) of Hindu
Succession Act if the plaint schedule
property is notionally partitioned is
against to the section 8(a) because
notional partition is not at all
contemplated under section-8(a) of
Hindu Succession Act?
8. Whether in the facts and
circumstances of the case is it
permissible for the courts below to
observe that as if the defendant has
taken a plea that the properties of the
family have been partitioned even
though no such plea has been taken by
the defendant?
9. Whether in the facts and
circumstances of the case, the fixing of
the burden of proof on the defendant to
prove that the plaintiffs have got the
property covered under Ex.B1 and B2 is
contrary to section 107 of the Hindu
Succession Act?
10. Whether in the facts and
circumstances of the observation of trial
court in (Paragraph 48) that as per
Section 8(a) of the Hindu Succession Act
the Class-1 heirs of Chenchu Reddy gets
equal share in the share of Chenchu
Reddy by way of survivorship is not
correct because section 10(a) does not
contemplate the principles of survivor
ship and more over section 10(3) says
that the heirs in the branch of each pre-
deceased son of the intestate shall take
between them one share only?
11. Whether in the facts and
circumstances of the case, the trial court
went wrong in holding that the land
covered under Ex.B1 and B2 might not
have been sold by the plaintiffs is
contrary to section 79 of the Indian
Evidence Act.
12. Whether in the facts and
circumstances of the case the
observation of the trial court in
paragraph No.47 that the share of
Chenchu Reddy was increased as 2/4th
share (1/4th of Chenchu Reddy + 1/4th
share of Bhaskara Reddy = 2/4th and the
defendant will get 1/4 share is contrary
to Section -6 of the Hindu Succession
Act?
In view thereof, it is a fit case to admit
the appeal.
ADMIT.
Notice to respondent nos.1 to 3.
Post on 29.04.2022.
Learned counsel for the appellant is
permitted to take out personal service of notice
to the respondent nos.1 to 3 through RPAD and
file proof thereof.
_________________
B.S.BHANUMATHI,J
I.A.No.1 of 2022
This petition is filed to grant stay of all
further proceedings including execution of the
confirming the judgment and decree dated
25.04.2013 in O.S.No.9 of 2009 on the file of the
Senior Civil Judge, Srikalahasti.
Notice to respondent nos.1 to 3.
Post on 30.06.2022.
Learned counsel for the appellant is
permitted to take out personal service of notice
to the respondent nos.1 to 3 through RPAD and
file proof thereof.
Till then, interim stay is granted to the
extent of passing final decree and it is made
clear that the rest of the proceeding may go on,
if petition for passing final decree is filed.
_________________
B.S.BHANUMATHI,J
PNV
