Sri Eslavath Chandu vs Smt.N.Sangeetha
2021 Latest Caselaw 1647 Tel

     HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
                                 AND
        HONOURABLE SRI JUSTICE T.VINOD KUMAR

              Interlocutory Application No.1 of 2020
                                 in
             Civil Miscellaneous Appeal No.434 of 2020
                                and
             Civil Miscellaneous Appeal No.434 of 2020


COMMON JUDGMENT: (Per Hon'ble Sri Justice M.S. Ramachandra Rao)

       This Civil Miscellaneous Appeal is filed challenging the order

dt.03.03.2020 passed in Interlocutory Application No.425 of 2019 in

Original Suit No.113 of 2019 on the file of the Principal District

Judge, at Mahabubnagar.


2.     The appellants herein are defendant nos.3 to 5 and 7 and 8.


3.     The respondents 1 &2/plaintiffs and the respondent no.3

/Defendant no.1 are children of Seetya.

4. Late Sakru is the father of Seetya. Seetya had 6 brothers, one of

whom is Late Lachiram. The respondent no.4/Defendant no.2 is the

wife of Lachiram and appellants/Defendant no.s 3 to 5, 7 and 8 and

the respondent no.5/Defendant no.6 are the sons of Lachiram and

respondent no.4.

5. The respondents / plaintiffs filed the said suit for preliminary

decree declaring that they are entitled to 2/3rd equal undivided share of

the suit schedule property and for partition of the same by metes and

bounds and for separate possession. They have also sought a ::2::

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declaration that Ex.P.1 = Ex.R.2 a registered Sale Deed bearing

Document No.11324 of 2006 dt.13.10.2006 under which the suit

schedule property consisting of Acs.3.2 gts. in various survey

numbers situate in Kadthal Village and Mandal, Ranga Reddy District

was sold by respondent no.3 to respondent no.4, is null and void and

not binding on them.

The case of the respondent no.s 1 and 2 /plaintiffs

6. It is the contention of respondent nos.1 and 2 / plaintiffs in the

above suit that Sakru owned Acs.57.16 gts. in various survey numbers

situate in Kadthal Village and Mandal, Ranga Reddy District; on the

death of Sakru, there was a partition among the sons of Sakru and an

extent of Acs.8.2 gts. fell to the share of Seetya.

7. It is the further contention of respondent nos.1 and 2 that in the

month of April, 2019 they approached respondent no.3 for partition of

the suit schedule of Acs.8.2 gts., but the respondent no.3 was dragging

on the matter, and so they checked with the Sub-Registrar and

Revenue Department and came to know about the execution of Ex.P.1

Sale Deed dt.13.10.2006 by the respondent no.3 in favour of

respondent no.4.

8. The respondent nos.1 and 2 further contended that that they

inherited the suit schedule property under the provisions of the Hindu

Succession Act, 1956, but the appellants and respondent nos.4 and 5

are in illegal possession of the suit schedule property and are

contemplating to dispose of the property to third parties.

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9. They contended that respondent no.3 had no authority to

execute the sale deed in favour of respondent no.4 and such a sale

deed does not confer any rights on the respondent no.4 because the

respondent no.3 had no exclusive right, title or interest over the

property which is an undivided, coparcenery and joint family property

inherited jointly by him with respondent nos.1 and 2. So he cannot

dispose of the same without the consent of respondent nos.1 and 2.

10. Therefore they contended that the sale deed executed by

respondent no.3 in favour of respondent no.4 is null and void and not

binding on respondent nos.1 and 2 and is non est in law.

11. The respondent no.3 remained ex parte.

12. The respondent no.4/defendant no.2 died pending suit.

The stand of the appellants /defendant no.s 3,4,5,7 and 8 in the suit

13. Written Statement was filed by the appellants and respondent

no.4 admitting that respondent nos.1 and 2 and respondent no.3 are

brothers and sisters, and are children of Seetya.

14. They also admitted that Late Sakru owned Acs.57.2 gts., that

he had seven sons including Seetya (father of respondent nos.1 to 3),

and that after the death of Sakru, all his 7 sons partitioned the property

among themselves and demarcated and took share of their land, but

they denied that each son of Late Sakru got Acs.8.2 gts. to their share.

15. They also admitted that appellants and respondent no.4 are

legal heirs of Late Lachiram.

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16. They denied that respondent nos.1 and 2 and respondent no.3

were in joint possession of the suit schedule property. According to

them, there was a private sale of Acs.6.00 of land by Seetya for family

necessity in favour of appellants and respondent no.4 for a sum of

Rs.8,000/-, and the said private sale deed was executed on 11.04.1990.

17. They alleged that possession of the suit schedule property was

delivered to appellants and respondent no.4, and after the death of

Seetya, the respondent no.3 executed in favour of respondent no.4 a

registered sale deed Ex.P1 dt.13.10.2006 after receiving a further sum

of Rs.98,000/- from the respondent no.4 and the appellants; and that

the respondent no.3 had also received a further sum of Rs.34,000/-

and executed another registered sale deed Ex.R.1 on 16.12.2006 in

favour of respondent no.4.

18. They also claimed that other transactions were done by

respondent no.3 in favour of third parties of other extents of land, but

these facts have been suppressed by respondent nos.1 and 2 and they

had not impleaded the said purchasers.

19. They contended that respondent nos.1 and 2 kept quiet from

2006 onwards without raising any objections and gave consent to the

sales, and after 13 years, with bad motive and intention, and to extract

money from appellants and respondent no.4, they filed the said suit.

20. They denied that respondent no.3 did not have complete right,

title or interest over the property and contended that respondent nos.1 ::5::

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to 3 are not joint family members because the respondent nos.1 and 2

are residents of Hyderabad.

21. They also stated that the appellants are the legal heirs of

Lachiram, and that the respondent no.4 had died leaving behind the

appellants as legal heirs.

22. They also contended that there is another property, a house at

Falaknuma, Hyderabad which was not included in the suit for

partition, and so, the suit was defective.

Interlocutory Application No.425 of 2019 in Original Suit No.113 of 2019 :

23. Along with the plaint, the respondent nos.1 and 2 filed

Interlocutory Application No.425 of 2019 in Original Suit No.113 of

2019 under Order XXXIX Rules 1 and 2 of Civil Procedure Code,

1908 to restrain the appellants from alienating the property to third-

parties pending disposal of the suit by reiterating contents of the

plaint.

24. They also contended that they are legal heirs of Late Seetya,

and as per provisions of the Hindu Succession Act they have equal

share in the property along with respondent no.3, and so, the sale

deeds executed by respondent no.3 in favour of respondent no.4 are

liable to be cancelled.

25. Counter-affidavit was filed by appellants reiterating the

contents of Written Statement filed by them.

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26. Before the Court below, the respondents marked Exs.P.1 to P.7,

while the appellants marked Exs.R.1 to R.13.

Order dt.03.03.2020 passed in Interlocutory Application No.425 of 2019 in Original Suit No.113 of 2019 :

27. By order dt.03.03.2020, the Court below allowed Interlocutory

Application No.425 of 2019 in Original Suit No.113 of 2019.

28. After referring to the contentions of parties, the Court below

held that appellants were not disputing the status of respondent nos.1

and 2 as legal heirs of Seetya and that Seetya had got the share in the

lands of his father Sakru in the partition effected among his other

brothers who are sons of Late Sakru.

29. It then observed that respondent nos.1 and 2 are not parties to

Exs.R.1 and R.2 Sale Deeds and so the share of respondent nos.1 and

2 has not been transferred to appellants under those documents, and

being shareholders, they are entitled to seek partition.

30. It also observed that question of non joinder of parties is a

question of fact which needs to be decided later, and if temporary

injunction as sought for by respondent nos.1 and 2 is not granted,

there is every possibility of further alienation of the suit schedule

property which would create multiple litigation and it would become

necessary to include all the remaining purchasers as parties to the suit.

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The present CMA

31. Assailing the same, the present Civil Miscellaneous Appeal is

filed.

32. Interlocutory Application No.1 of 2020 in Civil Miscellaneous

Appeal No.434 of 2020, which was filed to dispense with filing of the

certified copy of decree including Xerox copies of exhibits marked

before the Lower Court as Exs.P.1 to P.7 and Exs.R.1 to R.13, is

allowed.

33. Heard Sri P. Ramachandran, counsel for appellants; and Sri

Thomas Joseph Lloyd, counsel for respondents / plaintiffs.

34. The counsel for appellants contended that the Court below erred

in granting temporary injunction as sought by respondent nos.1 and 2

since appellants were absolute owners of the suit schedule property

and were in possession and enjoyment of the same since 2006 after

purchasing the same from brother of respondent nos.1 and 2, i.e.,

respondent no.3 and got mutated their names in the Revenue Records.

It is also alleged that respondent nos.1 and 2 did not come to the

Court with clean hands and they had suppressed other properties

which are also liable to be partitioned. According to them, respondent

nos.1 and 2 were given share in a house property at Hyderabad and so

they cannot claim any right in the suit schedule property and that

respondent nos.1 and 2 were aware of the sale in favour of respondent

no.4 in 2006 itself.

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35. On the other hand, the counsel for respondent nos.1 and 2

refuted the said contentions.

The counsel for respondent nos.1 and 2 pointed out that

respondent no.3, who is the brother of respondent nos.1 and 2, was

fully aware that respondent nos.1 and 2 have equal share in the suit

schedule property, but still executed the Sale Deed in favour of

respondent no.4 for the entire suit schedule property in order to

deprive respondent nos.1 and 2 of their legitimate share therein. He

also denied that there are any other ancestral properties which are

liable to be partitioned among respondent nos.1 to 3 or that there was

a house property at Hyderabad belonging to respondent nos.1 to 3 and

that the same was sold and they had received any share therein.

According to respondent nos.1 and 2, there was no house at

Hyderabad belonging to their father which was sold away, and no sale

consideration was given to them. He placed, and relied on Section 6 of

the Hindu Succession Act, 1956 as amended by the Hindu Succession

(Amendment) Act, 2005, and also the decision in Vineetha Sharma

vs. Rakesh Sharma1.

36. We have noted the contentions of both sides.

(2020) 9 S.C.C. Pg.1 ::9::

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Consideration by this Court :

There is no dispute that Late Sakru had seven sons including

Seetya (father of respondent nos.1 to 3) and Lachiram (father of

appellants and husband of respondent no.4).

37. It is also not disputed that Sakru owned Acs.52.26 gts. in survey

numbers 405/7/A, 406/A, 407/A, 408/A, 409/A and 411/A at Kadthal

Village and Mandal, Ranga Reddy District, and after his death, his

seven sons divided the same by metes and bounds.

38. But there is a dispute as to how much share fell to Seetya in the

said partition since respondent nos.1 and 2 contend that Acs.8.2 gts.

which is the suit schedule property located in Sy.Nos.405/7/A, 406/A,

407/A, 408/A, 409/A and 411/A, fell to the share of Seetya, but the

appellants dispute the same.

39. Be that as it may, since appellants are contending that Ex.P1-

Sale Deed was executed in favour of respondent no.4 by respondent

no.3 on 13.10.2006 and the suit schedule property was transferred to

them, at least, prima facie, they cannot dispute that what was sold to

them was the property which Seetya got under the partition with his

brothers after the death of Late Sakru, and that the sale was executed

by respondent no.3 in favour of respondent no.4 of the said property.

40. It is the admitted case of respondent nos.1 and 2 and appellants

that the property was ancestral property. If so, in the hands of Seetya

after the partition, the property obtained by him on partition with his ::10::

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brothers, will continue to be joint family property [see N.V.

Narendranath vs. CWT2].

41. Since respondent nos.1 and 2 and respondent no.3 are all

children of Sakru, on his death, by virtue of Sec.6 of Hindu

Succession Act,1956 as amended by the Hindu Succession

(Amendment) Act, 2005 the respondent nos.1 and 2, who are

daughters, would also have to be treated as coparceners and they

would get a share therein along with respondent no.3 equally, prima

facie.

42. In Vineeta Sharma v. Rakesh Sharma3, the Supreme Court

held :

"68. Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in Section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of Sections 6(1)(a) and 6(1)(b). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in Section 6(1), it is not necessary that there should be a living coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim

(1969) 1 S.C.C. 748

(2020) 9 SCC 1, at page 56 ::11::

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these rights only with effect from the date of the amendment i.e. 9-9- 2005 with saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5).

69. The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9-9-2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9-9-2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3)."

43. Thus the respondent no.3 cannot sell the entire joint property of

himself and respondents 1 and 2 unless there is specific authority

conferred on him by them to make such a sale prima facie; and the

respondent no.3 was competent, if at all, to execute any sale to the

extent of only his undivided share and not the shares of respondent

nos.1 and 2. [See Shanmughasundaram and others vs. Diravia

Nadar (Dead) By LRS. and another4]

44. There is also no evidence to show that any consent was given

by respondent nos.1 and 2 for sale by the respondent no.3 in favour of

respondent no.4.

45. Though appellants sought to contend that the sale under Ex.P.1

in 2006 was preceded by a private Sale Deed on 11.04.1990, no such

document is produced before the Court below in IA No.425 of 2019.

(2005) 10 SCC 728 ::12::

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So this plea may have to be considered during trial if such a document

is produced at that time.

46. Therefore, prima facie, we agree with the contention of

respondent nos.1 and 2 that respondent no.3 would not have sold their

share in the suit schedule property to respondent no.4 without their

consent, and under Ex.P.1 - Sale Deed executed by respondent no.3 in

favour of respondent no.4 on 13.10.2006 the title to the undivided

shares of the respondent no.s 1 and 2 did not pass to respondent

no.4/appellants.

47. There is no evidence adduced of existence of any other

property or it being given to respondent nos.1 and 2 though there is a

plea raised to that effect by the appellants.

48. In this view of the matter, we do not find any merit in the Civil

Miscellaneous appeal, and is accordingly dismissed at the stage of

admission.

49. It is made clear that whatever findings or observations are

recorded in this order are only for the purpose of deciding this appeal

and the Trial Court should decide the suit uninfluenced by any of

these observations, or the observations or findings in its order

dt.03.02.2020 in Interlocutory Application No.425 of 2019 in Original

Suit No.113 of 2019.

50. No costs.

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51. As a sequel, miscellaneous applications pending if any in this

Civil Miscellaneous Appeal, shall stand closed.

____________________________ M.S.RAMACHANDRA RAO, J

___________________ T. VINOD KUMAR, J

Date: 16.06.2020 Ndr