K. Veera Reddy vs K. Rajitha
2023 Latest Caselaw 2522 Tel

            THE HON'BLE SRI JUSTICE M. LAXMAN

                 APPEAL SUIT No.3745 of 2000

JUDGMENT:

1. The present appeal is directed against the judgment and

decree dated 21.07.2000 in O.S.No.160 of 1996 on the file of the II

Additional Senior Civil Judge, Warangal, (hereinafter referred to

as 'trial Court'), wherein and whereby the suit filed by respondent

No.1 herein for partition and separate possession has been

decreed granting 1/2nd share to plaintiff and 1/2nd share to

defendant No.1 therein. Aggrieved by the same, the present

appeal is at the instance of defendant Nos.1 to 3 therein.

2. The appellants herein are defendant Nos.1 to 3, respondent

No.1 herein is plaintiff and respondent No.2 herein is defendant

No.4 before the trial Court. For the sake of convenience, the

parties are referred herein as they were arrayed in the suit.

3. The sum and substance of the case of the plaintiff is that

defendant Nos.1 and 2 are her grandparents and defendant No.3

is her maternal aunt. Defendant No.4 is the purchaser of the part

of the suit schedule properties. The father of plaintiff one Venkat

Ram Reddy died leaving her as sole legal heir and successor.

Defendant No.1 and father of the plaintiff constitute coparcenary

and the coparcenary owns the suit schedule properties. Such

properties are ancestral properties and after death of father of the

plaintiff, the plaintiff is entitled for the share of deceased

coparcener. Hence, she filed the present suit.

4. It is the case of defendant Nos.1 to 3 that the plaintiff has

no rights over the suit schedule properties. The father of plaintiff

divorced her mother and at the time of divorce monetary

settlements were done and maintenance was granted. Hence, she

is not entitled for any share in the suit schedule properties. It is

also claimed that defendant No.1 has gifted part of the suit

schedule properties to defendant No.3 towards 'pasupu

kumkuma' at the time of her marriage. Therefore, prayed to

dismiss the suit.

5. On the basis of the above pleadings, the following issues

were framed by the trial Court:

"1. Whether the plaintiff's father died as undivided member of Hindu Joint Family. If so whether himself and D1 constituted Hindu Undivided family?

2. Whether the suit properties are the ancestral properties of the alleged joint family?

3. Whether as contended in the written statement of D1, the plaintiff was paid maintenance till the attainment of majority and an amount of Rs.12,000/- towards her marriage expenses?

4. Whether the suit properties are liable for partition?

5. Whether D1 is liable to render accounts?

6. Whether the Court Fee paid is sufficient?

7. To what relief?"

6. The plaintiff in support of her case got examined herself as

P.W.1 and also examined P.W.2 and got marked Exs.A-1 to A-9.

In support of their case, defendants got examined D.Ws.1 and 2

and got marked Exs.B-1 to B-20.

7. The trial Court accepting the case of the plaintiff decreed the

suit granting 1/2nd share to the plaintiff. Aggrieved by the same,

the present appeal is filed at the instance of defendant Nos.1 to 3.

8. Heard.

9. In view of the above, the following point emerges for

consideration in the present appeal:

" Whether the suit schedule properties are ancestral properties/coparcenary properties of defendant No.1 and his deceased son and whether such properties are available for partition?"

Point:-

10. A reading of the pleadings of defendant Nos.1 to 3 shows

that there is no specific pleadings claiming that the suit schedule

properties are self-acquisitions of defendant No.1. When the suit

schedule properties are not self-acquisition inference is that the

case set up by plaintiff must be true. The plaintiff set up the case

that the suit schedule properties are ancestral properties of

defendant No.1 and his deceased son, who constitute

coparcenary.

11. Learned counsel for the appellants/defendant Nos.1 to 3

contended that the pleadings of the plaint are vague. At one

stage, the plaintiff pleaded that the suit schedule properties are

ancestral properties. At other stage, she pleaded that the suit

schedule properties are ancestral joint family properties.

According to him, such a pleading connotes two distinctive

properties. Therefore, plaintiff is not clear whether the properties

are joint family properties or ancestral properties. In the light of

such pleadings, the trial Court has wrongly held that suit

schedule properties are available for partition.

12. The above said contention of the learned counsel for the

appellants/defendant Nos.1 to 3 has no merit. The joint family

properties or coparcenary properties or ancestral properties are all

one and the same, such words are synonyms of each other. There

is no distinctiveness among them. In this regard, it is apt to refer

to the decision of the Bombay High Court in the case of Uday

Narendra Shah Vs. Narendra Amritlal Shah 1, the relevant paras

are para Nos.7 to 10, which read as under:

"7. The deceased was the wife of the defendant. She was not a member of his joint Hindu family except as his wife. It is only when the defendant would constitute HUF for the purpose of his succession that his wife may be shown as the member of the HUF. The wife of a Hindu Coparcener in a HUF is not a Coparcener. She does not get any interest by virtue of her birth in her marital family. Only a person who would derive an interest by virtue of his/her birth in a family would become a Coparcener, a Coparcenary being a much narrower body than a Hindu Joint Family.

8. Counsel on behalf of the defendant has also produced the Law Lexicon page 416 showing the definition of coparceners thus:

Coparceners. Otherwise called Parceners, are such as have equal portion in the inheritance of an ancestor, or who come in equality to the lands of their ancestors.

Coparcener. One who shares (equally) with others in inheritance in the estate of a common ancestor [S. 6, expln. 1, Hindu Succession Act]".

It further shows coparcenary property thus:

Coparcenary property. The expression 'Coparcenary property' includes property in which the deceased husband had an interest as a joint owner during his life time and, therefore, ancestral property.

Coparcenary property means the property which consists of ancestral property, or of joint acquisitions, or of property thrown into the common stock and accretions to such property.

9. The rules and existence of coparcenary or joint family properties enumerated in the case of State Bank of India Vs. Ghamandi Ram MANU/SC/0297/1969 : AIR 1969 SC 1330 have been considered by this Court in the case Shalini Sumant Rauth Vs. Milind Sumant Rauth by this Court in Chamber Summons No. 492 of 2012 in Suit No. 143 of 2010 which sets out in para 7 thereof the interest of a coparcener

AIR 2014 Bom 119

in a joint family property and the distinction between the coparcenary and a joint family property. The interest in a coparcenary is only by virtue of the birth. However some of the various rules of joint Hindu family and coparcenary property enunciated in Mulla's Hindu Law, Twentieth Edition, Volume-I, Chapter XII set out in that judgment require enunciation:

1. Male issues acquire an interest in coparcenary property from the moment of their birth [page 357].

2. A Hindu coparcenary is a narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. (Hence joint property and coparcenary property or joint Hindu family property or coparcenary property are synonymous) [page 359].

3. The persons who acquire an interest by birth in a joint family property or coparcenary property are sons, grandsons and great-grand sons of the holder of the joint property. They become entitled to joint property upon their birth [Page 359].

4. A joint Hindu family has a common male ancestor with his lineal descendants in the male line [pages 361 & 362].

5. A female cannot be a coparcener although she may be a member of a Joint Hindu Family (the position in law has changed upon the amendment to Section 6 of the Hindu Successions Act, 1956 by the amendment of 2005. That amendment applies to daughters of a coparcener and not to a wife of a coparcener) [page 362].

6. The ownership of a joint family property is with the coparceners consisting of the Karta and his sons. They are the co-owners or coparceners (Hence the expression co-owners and coparceners are synonymous) [page 364].

7. The ownership of a coparcenary is in the whole body of coparceners. (Hence it would exclude their wives. Wives cannot be coparceners in a coparcenary. Only the coparceners would be co-owners. Hence a wife would not co-own a share along with her husband in the HUF of the husband [page 366].

8. Coparcenary interest is fluctuating. It is enlarged by the deaths in the family; it is diminished by the births in the family. Such interest is called undivided coparcenary interest (The death of a wife of a coparcener cannot augment or diminish the share of the other coparceners or co-owners) [page 366].

9. On the death of a coparcener the others take by survivorship the share which he had in common earlier. Such share cannot entirely devolve upon the wife. Otherwise the very concept of coparcenary would be destroyed. It would tantamount to the wife succeeding to the estate of the husband in the coparcenary absolutely [page 366].

10. The interest of the deceased member passes on his death to the surviving coparcener(and not to the wife) [page 366].

11. A coparcener has joint interest or joint possession in joint family property or coparcenary property (his wife cannot have interest jointly with the other coparceners) [page 370].

12. On the death of a coparcener his interest in the coparcenary property does not pass by succession to his heirs; it passes by survivorship to the other coparceners (This was the position in old uncodified Hindu law. There was a departure therefrom under Section 6 of the Hindu Succession Act, 1956 under which a male Hindu dying intestate leaving behind female heirs or male heirs claiming other female heirs would have their share in the coparcenary property devolved by succession and not by survivorship).

13. The coparceners have community of interest and unity of possession. Hence no coparcener can have exclusive possession of any part of the property (no coparcener can, therefore, also alienate or have a bequeathable interest in any specific part of the property) [page 409].

14. No coparcener can predicate at any given moment what his share in joint family property is. No member would be entitled to a definite share in joint family property or in its income [page 409].

15. Each coparcener is entitled to joint possession and in enjoyment of family property. (Since no

coparcener can have any exclusivity of possession or interest, no such interest can be bequeathed or succeeded) [page 410].

16. A coparcener excluded from joint possession is entitled to enforce his right by a suit. He is not bound to sue for partition. He is entitled to sue for joint possession and enjoyment. (Such a right is not available to a wife of a coparcener except for enjoyment and possession of a property which is her matrimonial home or shared residence) (See Section 17 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) [page 410]

17. The right to enforce a partition and the right of survivorship go hand in hand. "It is the right to partition which determines the right to take by survivorship" [See Anant Vs. Gopal ].

10. The aforesaid principles of law show that in a HUF only sons (vertically) and brothers (laterally) would constitute a coparcenary in a joint Hindu family; their wives may be members of the joint Hindu family but are not coparceners. The proprietary rights are of a coparcener if the joint Hindu family owns any joint property. The wives of coparceners do not get any interest in joint property owned and held by coparceners who are co-owners. The wives of the co-owners do not get any interest by virtue of their birth. It is only a Hindu widow who gets the interest of her husband in the coparcenary or joint family property upon the death of her husband. That interest enables her to claim maintenance and residence. Only a widow can demand partition of the interest which her deceased husband would have been entitled."

13. In the light of the such legal position the contention of the

learned counsel for the appellants/defendant Nos.1 to 3 is devoid

of merit.

14. Learned counsel for the appellants/defendant Nos.1 to 3

further contended that when the trial Court found that ancestral

properties inherited from father of defendant No.1 then the

plaintiff's father and all sons of common ancestor must be

coparceners then the suit must have been dismissed for not

impleading other coparceners. This contention is also unmerited.

There are no pleadings from defendant Nos.1 to 3 that the suit

schedule properties are coparcenary properties of defendant No.1

and his brothers and their children. When such is not the case of

defendant Nos.1 to 3 or plaintiff, the Court cannot venture into

issue of presence of defendant No.1 and his brothers in

coparcenary. Therefore, the contention that the suit is liable to be

dismissed for non-joinder of parties has no merit.

15. The evidence on record clearly establishes that defendant

No.1 along with his family members constitute coparcenary and

the suit schedule properties are coparcenary properties. The

coparcenary consists of defendant Nos.1 and 3, father of the

plaintiff and plaintiff herself. This means by the time of death of

father of plaintiff, there are four coparceners and each will get

1/4th share. On death of one of the coparceners, the share of

such deceased coparcener has to be divided in terms of Section 6

read with Section 8 of the Hindu Succession Act, 1956, but the

same is not done. The trial Court was not justified in granting

1/2nd share to the plaintiff, when her father died leaving behind

his daughter i.e., plaintiff and his mother i.e., defendant No.2.

The plaintiff and defendant No.2 shall get 1/2nd share each out of

1/4th share of the father of the plaintiff over the suit schedule

properties. Therefore, this Court feels that the trial Court ought

not to have decreed the suit by granting 1/2nd share each to

plaintiff and defendant No.1, instead it ought to have decreed the

suit by granting 1/4th share each to defendant Nos.1 and 3 and

plaintiff. The 1/4th share of the father of the plaintiff was to be

granted to the plaintiff and defendant No.2 equally i.e., 1/2nd

share of 1/4th share, which comes to 1/8th share each.

16. In the result, the appeal is partly allowed and the judgment

and decree dated 21.07.2000 in O.S.No.160 of 1996 on the file of

the II Additional Senior Civil Judge, Warangal, is modified

granting 1/4th share each to defendant Nos.1 and 3, 1/8th share

to defendant No.2 and 3/8th share (1/4th share + 1/8th share) to

the plaintiff. No order as to costs. Miscellaneous petitions, if any,

pending shall stand closed.

_____________________ JUSTICE M.LAXMAN Date: 20.09.2023.

GVR