Vadla Balaswamy vs V. Suvarna
2022 Latest Caselaw 1580 Tel

              HON'BLE SMT. JUSTICE P.SREE SUDHA

                 SECOND APPEAL No.1026 of 2011

                           JUDGMENT

This Second Appeal is filed by Vadla Balaswamy against the

orders of the Additional District Judge, Mahabubnagar in A.S. No.

87 of 2008, dated 09-02-2011 confirming the Judgement of the

trial court in O.S. No. 80 of 2007 (O.S. No. 175 of 2005), dated 01-

09-2008.

02. Learned counsel for appellant mainly contended that the

trial court failed to ascertain that the properties are ancestral and

they belong to the appellant's father and he also submitted that

the "B" schedule properties exclusively belong to "Mangali" people,

but it was not considered by both the courts. The schedule

properties do not belong to joint family. Plaintiff failed to establish

that the suit schedule properties are ancestral properties. Suit

filed by the plaintiff in O.S. No. 27 of 1999 for declaration of suit

"C" schedule property was dismissed on 25-12-2004 and thus

present suit for "C" schedule property is not maintainable. Plaintiff

has not stated the correct Survey Numbers in the pleadings and

she has strained relationship with her father and thus she is not

entitled for the share in the schedule property. At the time of her

marriage, she was given gold and dowry and she also constructed

a house with the said funds. Moreover, their father died in the

year 2001 as such, the amendment of Section 6 of the Hindu

Succession Act, 2005 is not applicable as the succession opened

on the death of her father in the year 2001 even before filing of the

suit and thus notional partition has to be affected and he is

entitled for half share in the property but not 1/3rd share as

decided by both the courts. Plaintiff was married much prior to the

amendment of the Hindu Succession Act and therefore, she is not

entitled for any share.

03. The facts before the trial court are that one V. Suvarna filed

suit for partition against her brother and sister after the death of

their father Vadla Krishnaiah and claimed 1/3rd share as per

Hindu Succession Act, 1956, 1986 and 2005. Vadla Krishnaiah

died intestate. The properties are his self-acquired properties.

Though she issued notice to the defendants they did not affect

partition.

04. Defendants No. 1 and 2 filed separate written statements.

Defendant No. 1 contended that the plaintiff and defendant No. 2

are not coparceners and the properties are not joint family

properties. Vadla Krishnaiah was the owner and pattedar of the

"B" schedule property and he got issued reply notice the plaintiff.

Plaintiff and her husband squeezed entire earnings of his father

and purchased a house adjacent to his house. Even during the life

time of his father, she filed O.S. No. 27 of 1999 for declaration of

title and recovery of possession of the suit schedule property

alleging that her father gifted the same as pasupu kunkuma, but

the suit was dismissed. Due to the filing of the cases his father

contacted debts for defending the civil suits and he was forced to

repay the same. Defendant No. 2 also claimed 1/3rd share along

with plaintiff.

05. Plaintiff examined himself as Pw-1 and two other

independent witnesses as Pws.2 and 3 and marked Exs.A1 to

Ex.A10. Defendant examined himself as DW-1 and also examined

other witnesses up to DW-7, but, DW-6 could not turn up for

cross-examination as such, his evidence was eschewed. The trial

court after hearing both the parties and also considering the

evidence on record, decreed the suit and held that plaintiff is

entitled for 1/3rd share in plaint "A" schedule and also "B"

schedule properties except Ac.2-22 gts. in Survey No.422/E and

she is also entitled for 1/3rd share in the plaint "C" schedule

residential house and the defendants are directed to put in

possession of her share within two months from the date of

judgment and plaintiff is at liberty to approach the court for

division of properties and possession of properties by due process

of law.

06. Aggrieved by the said order, the first defendant preferred an

appeal in A.S. 87 of 2008, but the appeal was dismissed on 09-02-

2011 by confirming the judgment of the trial court. Aggrieved by

the said judgment, he preferred this second appeal. Admittedly,

plaintiff is the first daughter and defendant No. 2 is the second

daughter and defendant No. 1 is the only son of Vadla Krishanaiah

and he died intestate. Plaintiff contended that all the properties

are self-acquired properties of Vadla Krishnaiah. Whereas the

defendant stated that "B" schedule property pertains to "Mangali"

people and they are in possession and enjoyment of the same. He

also contended that at the time of marriage gold and dowry were

given to her and with the funds given by them she also purchased

a house, but considering the evidence on record, it was held that

there are certain variations in the extents of the land mentioned in

Ex.A1 and also in the plaint "B" schedule property as detailed

herein :-

                 Plaint "B" Schedule (Wet) lands           Ex.A1 lands

          2.   419/AA. 0-16 ½ gts                  419/AA 0-33 gts
          3.   420/AA 0-10 ½ gts                   420/AA 0-21 gts
          4.   421/1 extent 4 ½ gts                421/1 0-38 gts
          5.   422/E, 0-02 gts

07. The trial court observed that name of Vadla Krishnaiah was

shown as pattedar in column No. 1 apart from other persons, as

such Exs.A9 and A10 were filed. As per Ex.A9 Vadla Krishnaiah

was shown as pattedar in column No. 12 and the name of

defendant No. 1 was shown as enjoyer in column No. 13 in Exs.A9

and A10 and thus as per Ex.A9 and A10, Vadla Krishnaiah died

leaving behind plaint "B" schedule properties except 2 gts in

Survey No. 422/E. Defendant No. 1 has not filed any document to

show that the land in "B" schedule pertains to "Mangali" people.

As per Ex.A2 Vadla Krishnaiah was pattedar for Ac.4-00 of land in

Survey No. 455/AA. As per Ex.A8 defendant No. 1 is the pattedar

and possessor of the said land and as per Ex.A1 and A8 Vadla

Krishnaiah died leaving behind "A" schedule property. There is no

dispute regarding the residential house mentioned in "C" schedule

property. Ex.A5 is the legal notice issued by the plaintiff with

postal acknowledgement under Ex.A6 and Ex.A7 is the reply

notice given by defendant No. 1. Defendant No. 1 contended that

the marriage of the plaintiff was performed in the year 1975 and

she has no share in the ancestral properties. Ex.A2 is the

ownership certificate of the plaint "C" schedule property in the

name of his father till 10.08.2005 and later mutated in the name

of defendant No. 1. Ex.A3 and A4 are the house valuation

certificates. Defendant No. 1 relied upon Ex.B3 caveat petition

filed by the plaintiff and stated that the relationship between

plaintiff and their father was strained as such she is not entitled

for any share. Whereas Pw1 submitted that in the year 1989 her

father assured to give a share in the land and executed a

document on 19.01.1989 and she filed O.S. No. 27 of 1999 basing

on Ex.B1, but it was dismissed. The trial court observed that the

said suit is filed only for open place situated between her house

and the house of her father. It was also observed that the father of

the plaintiff, during his life time, gave some property on her

demand and she demanded some more property. PW1 stated that

the marriage of defendant No. 2 was performed about 20 years

back and it was brought on record that she has not attended the

death ceremony of her father. But the trial court held that the

strained relationship between daughter and father does not

disentitle her to claim any share. So also payments made to her at

the time of her marriage, does not amount relinquishing her rights

in the properties of her parents. As per the evidence, properties

were not divided among the plaintiff and the defendants

subsequent to the death of his father. Though defendant No. 1

stated that he cleared the debts incurred by his father and also

examined DW3 and DW4 and marked Ex.X1 to X3, considering

the variation in the dates, trial court held that he failed to

establish the debts left behind by Vadla Krishnaiah and also

undertaking by defendant No. 1 to discharge such debts. It was

further held that as per evidence of PWs 2 and 3 who supported

PW1, Vadla Krishnaiah had title for plaint "B" schedule properties.

As plaintiff has not sought for any share in certain properties, the

same were not decided by the court and finally decreed the suit in

favour of plaintiff as mentioned above. In the lower Appellate

Court, the appellant herein contended that the plaintiff is not

coparcener as her marriage was performed long back and "B"

schedule properties does not pertain to his father. Suit schedule

property consists of schedule "A", schedule "B" and schedule "C"

properties as follows :-

Schedule-A is dry land in Sy.No. 555/AA extent Ac. 4-00 situated in the limits of Kothur Village and Mandal.

Schedule-B of suit schedule properties are wet lands total admeasuring Ac. 1-04 ½ guntas situated in Sy.No. 1418/9 extent Ac. 0-12 gts, Sy.No. 4919/AA extent Ac. 0-17 ½ guntas, Sy.No. 420/AA extent Ac.0-10 ½ guntas Sy.No. 421/1 extent Ac. 0-04 ½ guntas and Sy.No. 422/E extent Ac.0-02 guntas.

Schedule-C is house property bearing door No. 6-74, situated in the limits of Kothur Village and Mandal.

08. Appellate Court held that Vadla Krishnaiah is the pattedar

of "B" schedule property. "Mangali" people did not made any claim

before the trial court stating that they are in possession of "B"

schedule property and defendant No. 1 did not produce any

documents to show that "Mangali" people are not owners,

possessors and enjoyers of the "B" schedule property. He

considered the admission of defendant No. 1 in para No. 3 of the

written statement as "that in replay to para No. 3 of the plaint it is

utterly wrong to say as Vadla Krishnaiah died without executing

any will. In fact, late Vadla Krishnaiah was not the owner and

pattedar over "B" schedule property and late Krishanaiah acquired

them for HIMSELF" and held that "B" schedule properties are also

available for partition. The Appellate Court held that, even if the

plaintiff failed to establish that suit "A" to "C" schedule properties

are ancestral properties as those properties were possessed by

Vadla Krishaniah by the date of death, the plaintiff and defendants

are entitled for 1/3rd share of each. Appellant filed the additional

documents in O.S. No. 216 of 2008, but they were not received as

they were subsequent to the suit and not relevant to decide the

issue in controversy. The appellant herein almost with the similar

contentions preferred the second appeal.

09. Heard the arguments of both parties and also citations filed

on behalf of both sides.

10. As per Section 6 of Hindu Succession Act, 1956, Sons and

daughters of the coparcener have been conferred the right of

becoming coparcener by birth. It is the very factum of birth in a

joint family that creates the coparcenary, therefore the sons and

daughters of a coparcener becomes coparceners by virtue of birth.

11. As per Hindu Succession (Amendment) Act, 2005, the

appellant would become coparcener by birth in her own right the

same manner the son, therefore, entitled to equal share as that of

a son.

12. Regarding the issue whether right would be conferred only

upon the daughters who are born after September 09, 2005 or

even to those daughters who were born earlier, in Badrinarayana

Shankar Bhandari v. Omprakash Shankar Bhandari1, a full

Bench of the Bombay High Court held as follows :-

"......clause (a) of sub-section (1) of Section 6 would be prospective in operation whereas clause (b) and (c) and other parts of sub-section (1) as well sub-section (2) would be retroactive in operation. It held that amended Section 6 applied to daughters born prior to June 17, 1956 (the date on which Hindu Succession Act came into force) or thereafter (between June 17, 1956 and September 8, 2005) provided they are alive on September 9, 2005 i.e. on the date when Amended Act, 2005 came into force....".

214 AIR (Bombay) 151

The said authority to pronouncement was settled in Prakash & Ors. v. Phulvati & Ors. reported in 2016 2 SCC 36.

13. In a citation reported in Vineeta Sharma v. Rakesh

Sharma & Ors..

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with the same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative as such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognized mode of partition effected by a deed of partition duly registered

under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted to be rejected out rightly.

Under Section 6(1) and 6(2), the rights of a daughter are "pari passu" with the son.

14. Coparcener would mean, a person who shares equally with

other in inheritance in the estate of common ancestor. A

coparcener has no definite share in the coparcenary property, but

he has an undivided interest in it and one has to bear in mind that

it enlarges by deaths and diminishes by births in the family, it is

not static.

The coparcener will get: -

1. Right by birth.

2. Right of survivorship.

3. Right to partition.

4. Right to joint possession and enjoyment.

5. Right to restrain unauthorized acts.

6. Right of alienation.

7. Right to accounts.

8. Right to make self-acquisition.

15. In view of the above citations, now it is for this court to

discuss the aspect raised by the appellant herein. The contention

of the appellant is that plaintiff is not entitled for coparcenary

property as her marriage was performed in the year 1975. But, it

was clearly held that daughter born earlier with effect from

09.09.2005 can claim rights. However, as per Section 6(1) she is

not entitled as to the dispossession or alienation, partition or

testamentary dispossession which had taken place before

20.12.2004. In this case there was no prior partition between the

parties after the death of Vadla Krishnaiah and the properties

devolved upon him came up for partition between the parties only

after his death, as such the argument of the appellant counsel was

already considered by the courts below and held that it is not

sustainable. He further contended that Vadla Krishnaiah died in

the year 2001 as such the Amendment Act of 2005 is not available

for the plaintiff and defendant No. 2. But, it was clearly held that

in a coparcenary the daughters are entitled for equal treatment

along with the sons as the son is entitled for right in the property

from the date of birth. It also equally applies to the daughters and

thus the argument of the appellant cannot be accepted. In view of

the legal position and the reasoning given by both the courts as

there is no substantial question of law raised by the appellant

herein, this second appeal has no merits and accordingly

dismissed.

16. Accordingly, the Second Appeal is dismissed. There shall be

no order as to costs.

17. As a sequel, pending miscellaneous applications, if any,

shall stand closed.

____________________ P.SREE SUDHA, J.

29th MARCH, 2022.

Pssk/PGS