Telangana High Court
Hanumanth Reddy Died And 6 Others vs Smt.Kalamma on 17 February, 2025
Author: N. Tukaramji
Bench: N. Tukaramji
THE HONOURABLE SRI JUSTICE N. TUKARAMJI
SECOND APPEAL No.121 OF 2018
AND
CROSS-OBJECTIONS (SR) No.39322 of 2018
JUDGMENT:
1. This appeal has been filed aggrieved by the decree and
judgment dated 24.08.2017 in AS No.47 of 2015 passed by the
Judge, Family Court -cum- VIII Additional District and Sessions
Judge, Mahabubnagar.
2. The appellants are the defendant Nos.3 to 7 in the suit filed
by the respondent/plaintiff seeking partition of schedule property
i.e., Ac.37.09 situated at Urkonda village, Midjil Mandal,
Mahabubnagar District (hereinafter referred to as 'suit schedule
property').
3. Pending the second appeal, the respondent/plaintiff filed
objections vide Cross-Objections (SR) No.39322 of 2018.
4. Heard Sri B.Bhavani Sankar, learned counsel for the
appellants/defendant Nos.3 to 7 and Sri K.Muralidhar Reddy,
learned counsel for the respondent/plaintiff.
5.(a) Briefly stated the respondent's/plaintiff's case is that one
Gajjal Reddy @ M.Gajjalaiah was the absolute owner of the suit
schedule property and after his death, the property devolved on his
son C.Ram Reddy, after his death, the property ceded on to his
wife/Smt.Laxmamma (defendant No.2), son/Hanmanth Reddy
(defendant No.1) and daughter/Kalamma (plaintiff).
5.(b) The plaintiff's case is that without her knowledge, her
brother/defendant No.1 got mutated his name in the revenue
records and refused to share the property, hence, filed the suit for
partition vide OS No.60 of 2008 seeking 1/3rd part in the suit
schedule property. During pendency of the suit, their mother
Laxmamma/defendant No.2 passed away and the legal heirs i.e.,
wife and children of defendant No.1 were brought on record as
defendant Nos.3 to 7.
5.(c) The trial Court, after considering the materials, passed
preliminary decree holding that the plaintiff and her deceased
brother are entitled equal share in the suit schedule property.
Challenging the judgment, defendant Nos.3 to 7 i.e, wife and
children of Hanmanth Reddy filed appeal vide A.S No.47 of 2015.
The Appellate Court having reconsidered the case facts and by
referring to the Hindu Succession (Amendment) Act, 2005 and the
propositions laid down by the Hon'ble Supreme Court in Prakash
and others v. Phulavati and others 1, held that upon the death of
her father, succession opens and the daughter/plaintiff is entitled to
a share along with the defendant No.1/father of defendant Nos.3 to
7 and also equal half on the notional share of their father.
Therefore, the plaintiff is entitled to 1/4th share in the property of
her father. Whereby held that the plaintiff would be entitled to 1/4th
share and defendant No.1 would be entitled to 3/4th share upon
survivorship. Challenging this judgment, defendant Nos.3 to 7
preferred the Second Appeal.
6. Per contra, respondent/plaintiff submits that the Appellate
Court had erred in properly accounting her share, filed Cross-
objections.
7. Learned counsel for the appellants/defendant Nos.3 to 7
would contend that the Appellate Court had erred in granting 1/4th
share to the plaintiff and she is not entitled for any part in the suit
schedule property for the reason that after the death of their
grandfather, partition took place in the year 2003 and accordingly,
the name of defendant No.1 was mutated in the revenue records.
After five years, without any right, the plaintiff came up with the
claim for partition. The plaintiff's right for seeking partition was
1 AIR 2016 SUPREME COURT 769
exhausted as she was married way back in the year 1975 and she
is not part of the joint family and has no right to claim share in the
property.
8. In regard to contentions in Cross-objections filed by the
respondent/plaintiff, in addition to the pleadings in their appeal, the
appellants pleaded that even if their claim in the appeal is rejected,
granting 1/4th share to the plaintiff is reasonable as it was granted
on proper consideration of facts and re-allotment of the shares
among the plaintiff and her brother including the appellants. As
such, the insistence for half share in the property is not
sustainable. Furthermore, pleaded that the appellate Court had
rightly considered the authorities and the settled propositions in
accounting the shares of the parties. However, as the right of the
respondent/plaintiff over the suit schedule property is under
dispute prayed for allowing the appeal by dismissing the Cross-
objections.
9. Learned counsel for the respondent/plaintiff would submit
that after demise of their father, the property has been devolved on
the plaintiff and her brother/defendant No.1. Considering this fact,
the plaintiff had filed a suit claiming 1/3rd of the share along with
her brother and mother. He contested that the appellate Court had
erred in considering the Amendment Act, 2005 in the light of the
authority of the Prakash and others (cited supra). Further, he
referred to subsequent judgment of the Hon'ble Supreme Court of
the three Judge Bench between Vineeta Sharma v. Rakesh
Sharma and others 2, wherein it has been clarified that the
daughters' rights would be accrue from the date of birth as
coparcener in the light of the Amendment Act, 2005. Therefore,
laid claim for 1/3rd share and half share from the property of their
mother, in effect, half share in the property. The appellate Court
erred in considering these aspects in determining the right of the
parties and the trial Court was proper in dealing with the factual
position. As the plaintiff/respondent is entitled for half of the share
in the suit schedule property, prayed for allowing the Cross-
objections.
10. I have carefully considered the submissions of learned
counsel and perused the materials on record.
11. The appellants/defendant Nos.3 to 7 and respondent/
plaintiff are in agreement as to the facts that the suit schedule
property originally belong to one Gajjal Reddy @ M.Gajjalaiah and
after his death, devolution of property on their father/C.Ram
Reddy. The core contest of the respondent/plaintiff is that after the
2020 (5) ALD 49 (SC)
death of their father in 2001, she is equally entitled to the property
along with her brother/defendant No.1 and her mother/defendant
No.2.
12. On this point, the Courts below have considered the
Amendment Act, 2005 and its implication.
13. In this context, it is pertinent to note that the State of Andhra
Pradesh the coparcener status of the girl child over the joint family
property has been recognized by introducing Section 29-A in the
Hindu Succession (Andhra Pradesh Amendment) Act, 1986, which
reads as follows:
Section 29-A: Equal rights of daughter in coparcenery
property: Notwithstanding anything contained in section
6 of this Act-
(i) In a Joint Hindu Family governed by Mitakshara
Law, the daughter of a coparcener shall by birth become
a coparcener in her own right in the same manner as the
son and have the same rights in the coparcenary
property as she would have had if she had been a son,
inclusive of the right to claim by survivorship; and shall
be subject to the same liabilities and disabilities in
respect thereto as the son;
(ii) At a partition in such a Joint Hindu Family the
coparcenary property shall be so divided as to allot to a
daughter the same share as is allotable to as son:
Provided that the share which a pre-deceased son or a
pre-deceased daughter would have got at the partition if
he or she had been alive at the time of the partition shall
be allotted to the surviving child of such pre-deceased
son or of such pre-deceased daughter;
Provided further that the share allotable to the pre-
deceased child of a pre-deceased son or of a pre-
deceased daughter, if such child had 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 of the
pre-deceased daughter as the case may be:
(iii) Any property to which a female Hindu becomes
entitled by virtue of the provisions of clause (i) 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 by her
by will or other testamentary disposition;
(iv) Nothing in clause (ii) shall apply to a daughter
married prior to or to a partition which had been effected
before the commencement of the Hindu Succession
(Andhra Pradesh Amendment) Act, 1986.
14. Therefore, by 1986, the State of Andhra Pradesh had
recognized coparcenary status of the daughter from her birth in the
joint family. Further, in the authority cited by respondent/defendant
in Vineeta Sharma (cited supra), the propositions that of
coparcenary status of the daughter has been fortified that the
rights will approved over the joint family property as coparcenery
from the date of her birth even the birth is before or after the
Amendment Act, 2005.
15. By the above read statutory positions, by 2001, the plaintiff is
coparcener having equal right over the suit schedule property
along with her brother/defendant No.1. It is admitted fact that the
father of the plaintiff and defendant No.1 died intestate. Therefore,
if partition is opened, as per Section 8(a) the property shall equally
devolve upon the plaintiff, her brother and mother being the heirs
specified in Class-I of the Schedule. This position sustains even if
the contention of the defendant Nos.3 to 7 is taken as it is that
partition was effected in the year 2003. Consequently, the
contention as to the plaintiff was ousted from the joint family, she
has no right to claim interest over the suit schedule property and
the mutation in revenue records in favour of defendant No.1 stands
legally unsustainable. To put it differently, mutations or entries in
revenue records will not absolve the plaintiff's stance of
coparcenery and her right in the suit schedule property. In that
position, the disposition of the suit schedule property should have
gone between the plaintiff and defendant Nos.1 and 2, whereby,
each of them are entitled for 1/3rd share of the suit schedule
property.
16. It is also clear by the record that the mother of the plaintiff
passed away during pendency of the suit. In such situation, the
portion of the suit schedule property of their mother shall be
opened for distribution among the legal heirs. Section 15(1)(a) of
the Hindu Succession Act, 1956 specifies that the succession of
property shall be firstly upon sons and daughters and the husband.
Accordingly, the share of defendant No.2/mother equally devolves
on the plaintiff and defendant No.1. In this position, the plaintiff
and defendant No.1 would be entitled for equal share in the suit
schedule property. The entitlement of appellant/defendant Nos.3
to 7 would be within the share allotted to their predecessor in
interest i.e., defendant No.1.
17. Thus, the accounting of the appellate Court by way of
survivorship, which is clearly excluded by Section 6(3) of the Hindu
Succession Act, 1956 would stand improper and liable to be set
aside. In effect, the view of the trial Court is found sustainable as
the same is within the statutory contemplations.
18. For the aforesaid, no merit is found in the contest of the
appellant/defendant Nos.3 to 7. As such, their Second Appeal fails
on merit. Simultaneously, the claim of the respondent/plaintiff in
the Cross-objections deserves affirmation. Accordingly, the
impugned decree calls for modification.
19. In the result, the judgment of the appellate Court vide A.S.
No.47 of 2015 is set-aside and the judgment passed by the trial
Court in OS No.60 of 2008 is restored. Correspondingly, the
Second Appeal is dismissed and the Cross-Objections are
allowed.
As a sequel, miscellaneous applications if any, stands
closed.
_____________________
JUSTICE N. TUKARAMJI
Date: 30.12.2024
pld
