Telangana High Court

Smt B. Anuradha vs Moriya Ram Narayan Prasad Died on 21 April, 2025

Author: Abhinand Kumar Shavili

Bench: Abhinand Kumar Shavili

     THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
                           AND
      THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA

                    APPEAL SUIT No.612 OF 2005

JUDGMENT:

(Per Hon'ble Smt. Justice Tirumala Devi Eada)

This is an appeal filed by the appellant - plaintiff, being

aggrieved by the judgment and decree, dated 22.03.2005 passed in

O.S.No.126 of 1999 by the learned Senior Civil Judge at

Khammam (for short "the trial Court").

2. The parties are addressed herein as they were arrayed in the

suit before the trial Court for the sake of convenience and clarity.

3. The case of the plaintiff before the trial Court is that the 1st

defendant is her father, 2nd defendant is her junior paternal uncle,

defendant Nos.3 and 4 are the younger brothers, defendant No.5 is

the younger sister of the plaintiff and defendant No.6 is the mother

of the plaintiff. Defendant Nos.1 and 2 are the sons of one Narsing

Prasad. The said Narsing Prasad died long ago leaving behind him,

defendant Nos.1 and 2 as his sole legal heirs. Thus, defendant

Nos.1 and 2 are entitled to half share each in the entire joint family

properties. The marriage of the plaintiff was performed on

30.03.1986. Thus, as per the provisions of Hindu Succession Act,

1956 (for short 'the Act, 1956'), the plaintiff is entitled for 1/10th AKS,J & ETD,J AS No.612_2005

share out of the undivided half of the 1st defendant in the entire

plaint schedule property as a coparcener. Hence, the plaintiff

demanded the defendants for partition of the plaint schedule

properties but the defendants have not come forward for partition.

Hence, the suit.

4. The defendants filed written statement stating that the

defendant Nos.1 and 2 have already partitioned the properties in

1986 after the death of their father and that item No.3 of the suit

schedule property was sold by defendant No.1 in the year 1986 for

performing the marriage of the plaintiff and item No.4 was sold by

defendant Nos.1 and 2 and that the plaintiff is aware about these

facts. It is their contention that prior to filing the suit, the plaintiff

got issued a legal notice, wherein it was mentioned that the

partition between defendant Nos.1 and 2 has already taken place.

It is further contended that the plaintiff has been separated after

marriage and has been living in Hyderabad and that there are no

properties available for partition. Thus, the plaintiff is not entitled

for partition.

5. Based on the above pleadings, the trial court has framed the

following issues for trial.

"1. Whether all the plaint schedule properties are the un-divided joint family properties of plaintiff and defendant?

AKS,J & ETD,J AS No.612_2005

2. Whether D1 and D2 partitioned their properties on 1-2-1986 except the vacant site located behind the house bearing D.No.3-2-14 to 3-1-16 i.e., Item No.3 of the plaint schedule?

3. Whether D1 and D2 sold the houses bearing D.No.3-2-15 and 3-2-16 in 1986 itself?

4. Whether Court fee paid is correct?

5. Whether Plaintiff is entitled for partition and separate possession of her 1/10th share in the Plaint schedule property?"

6. At the time of trial, the plaintiffs got examined PWs 1 and 2

but no documents were marked. On behalf of the defendants, DWs

1 and 2 were examined and Exs.B1 to B5 were marked.

7. Considering the evidence on record, the trial Court has

dismissed the suit. Aggrieved by the said judgment and decree,

the present appeal is filed by the plaintiff.

8. Heard the submissions of Sri E.Ajay Reddy, learned counsel

for the appellant and Sri V.Satyam Reddy, learned counsel for the

respondents.

9. The learned appellant counsel has submitted that the trial

Court failed to consider the evidence on record in a proper

perspective and has dismissed the suit. He further argued that the

trial Court failed to observe that the plaint schedule properties are

ancestral properties and by virtue of the amendment to the Act, AKS,J & ETD,J AS No.612_2005

1956, the plaintiff is entitled to 1/10th share in the properties. He

further argued that defendant Nos.1 and 2 sold part of item No.4 of

the suit schedule property by taking permission of the Court, thus,

the conduct of defendant Nos.1 and 2 shows that there was no

prior partition as pleaded by them. He further argued that as per

the averments made by the defendants, H.No.3-2-16 was sold by

defendant Nos.1 and 2 in the year 1992 jointly and this shows that

there was no prior partition between defendant Nos.1 and 2. He

further argued that the property sold under Ex.B2 is not for the

sake of marriage expenses of the plaintiff as the date of the said

sale is 25.08.1986 while the marriage of plaintiff took place in

March, 1986. He further contended that there are properties

available at Grain Market area, Khammam which are still in joint

possession and need to be partitioned. Therefore, he prayed to set

aside the judgment and decree by allowing this appeal.

10. The learned respondents counsel has submitted that the

appellants herein failed to prove the case before the trial Court and

that the trial Court has rightly dismissed the suit. All the

contentions of the appellant herein are proved to be wrong in the

light of the evidence that is adduced by them and hence, he

therefore, prayed to uphold the judgment and decree of the trial

court and dismiss the appeal.

AKS,J & ETD,J AS No.612_2005

11. Based on the above rival contentions, this Court frames the

following points for consideration:

1. Whether the suit schedule properties are available for partition?

2. Whether there was any prior partition between defendant Nos.1 and 2?

3. Whether the plaintiff is entitled for a decree of partition of the suit schedule properties? If so, to what share?

4. Whether the judgment and decree of the trial Court is sustainable under law and in the facts?

5. To what relief?

12. POINT NOs.1 TO 3:

a) It is the case of the plaintiff that there is no prior partition

with regard to the suit schedule properties and that they are

available for partition. She further claims that defendant Nos.1

and 2 being the heirs of Narsing Prasad, they are entitled to 50% of

the share in the entire properties and she is entitled to 1/10th

share as a legal heir of defendant No.1. While, it is the contention

of the defendants that there was prior partition, the plaintiff has

admitted the same. Ex.B1 is put forth by them to prove their

contention.

b) A perusal of Ex.B1 shows that the plaintiff has got issued the

said notice through her counsel and it is mentioned at para No.2 AKS,J & ETD,J AS No.612_2005

that defendant Nos.1 and 2 partitioned the property 15 years ago

and she has also listed the properties that fell to the share of

defendant No.1 and that as a coparcener she is entitled to 1/5th

share out of the said properties. Thus, it is clear that the plaintiff

is not firm on her stand, once in the legal notice she speaks about

the prior partition and again in the plaint she says that the

properties are still undivided and she claims 1/10th share. Thus, a

suspicion is raised with regard to her version.

c) The plaintiff got examined as PW1 and she reiterated the

contents of plaint in her chief examination and she denied the

prior partition. In her cross examination, it is admitted by her

that, her advocate issued notice under Ex.B1 under her

instructions and that she has shown only two properties as joint

family properties in the said notice. When PW1 was confronted

with Ex.B1 and its contents about the prior partition, she has just

stated that she got it mentioned by mistake. Thus, PW1 fumbled

in her evidence, though she asserted that there was no prior

partition, she could not overcome the contents of Ex.B1 issued by

her about the prior partition. Though, she mentioned about only

two properties in the legal notice, she has given four suit schedule

properties in the plaint. When she was questioned about the sale

of item Nos.3 ands 4 schedule properties, she pleaded ignorance AKS,J & ETD,J AS No.612_2005

saying that she does not know about the said sales. If at all, this

statement is found to be correct, then what made her to mention

only two properties in the legal notice has to be explained by her.

But she admitted that she has shown only two properties in the

notice. Thus, the evidence of PW1 is clouded with suspicion with

regard to the existence of properties for partition.

d) PW2 knows both the parties to the suit. It is elicited from

PW2 that the father of defendant Nos.1 and 2 by name Narsing

Prasad died in the year 1945. It is elicited that he is a resident of

Hyderabad and he does business. Nothing material could be

elicited in his evidence to aid the plaintiff's case.

e) DW1 is the 2nd defendant, who happens to be the second son

of Narsing Prasad and the brother of defendant No.1. He stated in

his chief examination and stood firm in cross examination by

saying that himself and his brother defendant No.1 got partitioned

the suit schedule properties and that two houses fell to his share

out of which one is located at Mohan Road and another is at Grain

market and that defendant No.1 who is the father of the plaintiff

got one house at Mohan Road and another at Grain market,

Khammam. He further stated that 5th house is located at Grain

Market area, Khammam and is still in joint possession and also a

vacant site is located at Grain Market area. It is further elicited AKS,J & ETD,J AS No.612_2005

through him that his name is mutated in municipal records with

regard to his share of properties. It is elicited in the evidence of

DW1 that the house bearing No.3-2-16 which is shown as item

No.4 was sold by defendant No.1 in the year 1993 and house

bearing No.2-3-280 which is shown as item No.1 fell to the share of

defendant No.2 in the partition and that at present he is residing in

it and is paying municipal tax. It is elicited through him that item

No.3 was already disposed off by himself and defendant No.1 with

the permission of the Court. It is elicited through him that

property bearing No.3-2-16 was sold to meet the expenses of the

marriage of second daughter of defendant No.1 and the marriage of

his daughter. The said sale was dated 11.03.1993 and they filed

Ex.B3 in support of his contention. A perusal of Ex.B2 reveals the

said fact of sale.

f) It is further elicited from DW1 that house bearing No.3-2-15

belongs to defendant No.1 and that defendant No.1 has sold the

said property on 25.08.1986 to meet the marriage expenses of the

plaintiff, while it is contended by PW1 that the property sold under

Ex.B2 is not for the sake of her marriage expenses as the date of

the said sale is 25.08.1986, while her marriage took place in

March, 1986. A perusal of Ex.B2 reveals that the property

mentioned under it is sold by defendant No.1 in favour of one AKS,J & ETD,J AS No.612_2005

Bellamkonda Srinivasa Rao and the contents reveal that it is sold

to meet the marriage expenses of his daughter and also for family

necessities. Thus, the contention of PW1 gets falsified by the

contents mentioned therein.

g) Ex.B4 is the ownership certificate issued by the Municipal

Commissioner, Khammam in favour of defendant No.2 with regard

to the house bearing No.2-3-280, which is the item No.1. Thus, it

is elicited that item No.1 fell to the share of defendant No.2 and is

not available for partition. Further, the tax receipt under Ex.B5

also proves that the receipt is issued in the name of defendant

No.2. It is further elicited that the elder son of defendant No.1

signed as attester in Ex.B2 and Ex.B2 happens to be the sale deed

dated 25.08.1996 in respect of house bearing No.3-2-15, which is

one of the properties mentioned in item No.4. Thus, a perusal of

the said Ex.B2 reveals the said fact and therefore, item No.4 is also

not available for partition. It is elicited through DW1 that item

No.2 of the suit schedule property bearing No.2-3-281 fell to the

share of defendant No.1 and that he is residing there.

h) DW2 is defendant No.5. She is the younger sister of the

plaintiff. She too has stated that the suit schedule properties were

partitioned prior to February, 1986 by their father and defendant

No.2 herein. It is also elicited through her about prior partition.

AKS,J & ETD,J AS No.612_2005

Nothing material could be elicited in her cross examination to

dislodge her evidence.

i) In Vineeta Sharma v. Rakesh Sharma 1, the Apex has held

that the daughters would hold equal coparcenary rights in Hindu

Undivided Family properties even if they were born before the 2005

amendment to the Hindu Succession Act, 1956 and regardless of

whether their father coparcener had died before the amendment.

j) Section 6 of the Hindu Succession Amendment Act, 2005 is

extracted hereunder for the sake of reference:

6. Devolution of interest in coparcenary property.--(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu Family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survisorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--

(a) the daughter is allotted the same share as is allotted to a son;

(2020) 9 SCC 1 AKS,J & ETD,J AS No.612_2005

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-

deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.--For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great grandson for the recovery of any debt due from his father, grandfather or great grandfather solely on the ground of the pious obligation under the Hindu law, or such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall effect--

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "great- grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation.--For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.

k) In the light of Section 6 of the Amendment Act, 2005, if there

is prior partition as on 20.12.2004, the same shall not be

invalidated and thus, the daughters cannot claim partition as

coparcener and in the present case, the prior partition is proved

through the evidence adduced by the defendants. Hence, it is held

that the suit schedule properties are not joint family properties and AKS,J & ETD,J AS No.612_2005

are not available for partition. The plaintiff could not prove her

case, therefore, she is not entitled to claim any share in the suit

schedule properties. Point Nos.1 to 3 are answered accordingly.

13. POINT NO.4:

In view of the reasoned findings arrived at point Nos.1 to 3, it

is held that the judgment and decree passed by the trial Court do

not need any interference and the same are held to be sustainable

under the law and in the facts and circumstances of the case.

14. POINT NO.5:

In the result, the appeal is dismissed upholding the

judgment and decree, dated 22.03.2005 passed in O.S.No.126 of

1999 by the learned Senior Civil Judge at Khammam. No costs.