2. The facts of the case in brief are that the plaintiffs, who were minors,
Mandal, Nalgonda District. The parties to the suit were Hindus by religion and
were governed by Mitakshara School of Law. It was averred that the plaintiffs
1 to 3 were the sons of defendant No.1. The suit properties were ancestral
properties of plaintiffs 1 to 3 and defendant No.1. The defendant No.1 was
plaintiffs and was trying to dispose of the suit A and B schedule properties. The
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properties to others. Hence, the plaintiffs demanded for partition and separate
possession of their respective shares on 28.08.1990 and 03.09.1991. But the
defendant No.1 paid deaf ear. The plaintiffs also stated that they filed a suit for
defendant No.1. But due to the intervention of elders, on the promise of
defendant No.1 to provide a peaceful life to the plaintiffs and their mother Itha
13.11.1990. But the defendant No.1 failed to keep up his promise and again
started to ill-treat the plaintiffs and their mother. Hence, having no other
3. The suit schedule "A" properties were shown as items 1 and 2, the
"A" schedule properties. The suit schedule "B" properties were a house plot
4. The defendant No.1 filed written statement admitting the relationship
with the plaintiffs. However, contended that the suit schedule properties were
not ancestral or joint family properties. Items 1 and 2 of plaint "A" schedule in
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from one Kanala Venkat Ram Narsaiah. As Narayana died intestate without
having class-I legal heirs, the said land devolved upon the defendant's father, as
the sole heir of Narayana. Consequent upon the death of the defendant's father
1956. Thus, the half share got by the defendant No.1 in the said land constitutes
his self-acquisition and the plaintiffs had no right what so ever in the said land.
common. Item No.1 of plaint "B" schedule namely the house plot of 182 square
property of the defendant's mother Sathemma having been purchased by her.
She sold the same to one B.Chakraiah in May, 1991. Neither the plaintiffs nor
the defendant No.1 had got any right over the said house plot. Item No.2 of
occupation of the defendant No.1 originally. The same belonged to the
funds and therefore it was his self acquisition. Consequent upon his death, the
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tenants in common. The defendant No.1 got half share and the same was his
self-acquisition. Item No.3 of plaint "B" schedule i.e. huller was purchased by
in the year 1989 itself to one T.Ilaiah of Pothireddypally Village. The current
acquisition. The defendant No.1's father did not inherit any property from his
father and therefore there was no ancestral and joint family property. The
plaintiffs had no share in the suit schedule property, as it was not a joint family
property of the defendant No.1 or his father. The suit for partition was
5. Basing on the said pleadings, the trial court framed the issues as follows:
(iv) To what relief?
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6. The mother and natural guardian of the plaintiffs was examined as PW.1.
She also got examined two other witnesses as PWs.2 and 3 and got marked
Exs.A1 to A13. The defendant No.1 was examined as DW.1 and got examined
one more witness as DW.2 and got marked Exs.B1 to B9.
7. On considering the oral and documentary evidence on record, the learned
Junior Civil Judge, Bhongir observed that defendant No.1 inherited the items 1
and 2 of "A" schedule land in Survey No.417 directly from Itha Narayana, his
senior paternal uncle without being first mutated in the name of Somaiah, the
father of defendant No.1, as such considered the same as the self-acquired
property of defendant No.1 and that the same could not be subjected for
partition. However, with regard to the item 3 of "A" schedule land in Survey
No.420 admeasuring Ac.2-33 guntas, as admittedly the same belonged to
Somaiah, the father of defendant No.1 and grandfather of plaintiffs, considered
the same as coparcenary and joint family property and that the same was liable
for partition. With regard to items 1, 3 and 4 of plaint "B" schedule properties,
it was held that, as no documentary evidence was filed by either parties about
the existence or non-existence of the said properties or that the same was
acquired from the funds of the nucleus of the joint family, excluded the same
from partition. With regard to item 2 of "B" schedule property, basing upon
Ex.B1 certificate issued by the Sarpanch, Gram Panchayat, Pothireddypally,
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wherein it was shown that the house bearing No.3-72 in Pothireddypally village
stood in the name of defendant No.1 and as no document was filed by defendant
No.1 to show that the said item belonged to his senior paternal uncle,
considered the same as coparcenary property and that the same was liable for
partition. As such, the trial court held that item 3 of "A" schedule i.e. Ac.2-33
guntas in Survey No.420 and the house bearing No.3-72 situated at
Pothireddypally village were only liable for partition and granted one-eighth
share each to the plaintiffs 1 to 3 and 9/40th share to defendant No.1 and one-
tenth share each in item No.3 of "A" schedule property and item No.2 of "B"
schedule property to defendants 2 to 5 and rejected the claim for partition with
regard to items 1 and 2 of "A" schedule and items 1, 3 and 4 of "B" schedule.
8. Aggrieved by the said judgment and decree passed by the learned Junior
Civil Judge, Bhongir, the plaintiffs preferred A.S.No.28 of 1999 against the
dismissal of their suit in respect of items 1 and 2 of plaint "A" schedule and
items 1, 3 and 4 of plaint "B" schedule properties. The defendants - respondents
did not prefer any appeal against the passing of preliminary decree for partition
of item 3 of plaint "A" schedule and item 2 of plaint "B" schedule, as such the
same attained finality. The appeal was heard by the learned Senior Civil Judge,
Bhongir and vide judgment and decree dated 19.03.2004, dismissed the appeal
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confirming the judgment and decree passed by the learned Junior Civil Judge,
Bhongir in O.S.No.23 of 1997.
9. Aggrieved further, the plaintiffs preferred this Second Appeal by raising
the following substantial questions of law in ground No.11:
11(a) Whether the judgment of the lower court was valid and was in consonance
with the provisions of Order XLI Rule 31 of CPC?
(b) Whether the provisions of Section 8 of the Hindu Succession Act, 1956 were
applicable to the case on hand?
(c) Whether the judgment of the lower court was vitiated by non-consideration
of relevant evidence, consideration of irrelevant documents and by perverse
reasoning?
10. This Court admitted the Second Appeal on 18.08.2004 on the ground
No.11 [(a) and (b)] in the memorandum of appeal.
11. Heard Sri Y.Srinivasa Murthy, learned Senior Counsel for the appellants -
plaintiffs and Sri J.Kanakaiah, learned Senior Counsel for the respondents-
defendants.
12. Learned Senior Counsel for the appellants contended that both the courts
below materially erred in misconstruing the provisions of the Hindu Succession
Act, 1956, which resulted in miscarriage of justice. The courts below failed to
see that the properties of Narayana were devolved upon Somaiah, the father of
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defendant No.1 as class-II legal heir. As such, the same would become
coparcenary property to the plaintiffs and the plaintiffs were entitled to a share
by survivorship. The defendant No.1 admitted in his written statement that
items 1 and 2 of plaint "A" schedule properties were devolved upon his father as
sole heir of Narayana and consequent upon the death of his father, Somaiah, the
said land devolved upon him and his mother Sathemma. The evidence of DW.2
also would disclose that Somaiah lived after the death of Narayana and
Narayana left behind him Ac.20-00 guntas of land and house and the wife and
son of Narayana predeceased Narayana 30 years ago. The said pleadings and
evidence of the witnesses was ignored by the courts below. Mutation could not
be the basis to determine title. The trial court excluded the entire Ac.18-35
guntas of land from partition. The distribution of shares in Survey No.420
made by the trial court was also incorrect. No share could be allotted to a dead
person. No written statement was filed by defendant No.2 nor she entered into
the witness box, but the trial court made presumptions in her favor. Two of the
sisters of defendant No.1, defendants 3 and 4 were married prior to 1985 and
those sisters were also not entitled for any share. The courts below relied upon
the revenue entries to hold that items 1 and 2 of plaint "A" schedule properties
directly devolved upon defendant No.1, but not upon Somaiah. As per the Law
of Succession, only through Somaiah, the said properties could be devolved
upon defendant No.1. As such, the same should be considered as coparcenary
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property and defendant No.1 and his sons alone could have a share in it, but not
defendants 2 to 5. The reasoning given by the trial court was erroneous, un-
sound and un-sustainable. The lower appellate court failed to re-appreciate the
evidence and only certified the findings of the trial court. Hence, prayed to
allow the Second Appeal.
13. Learned Senior Counsel for the respondents - defendants on the other
hand contended that items 1 and 2 of plaint "A" schedule properties and item
No.2 of plaint "B" schedule properties were the self-acquired properties of
Narayana and after his death, the same were devolved upon Somaiah as his self-
acquired properties. After the death of Somaiah, the same would be devolved
upon his wife (defendant No.2) and son (defendant No.1) as his self-acquired
properties. The item No.1 of "B" schedule property was purchased by
defendant No.2 from her sthreedhana and the same was sold to one
B.Chakraiah. As such, the same was not available for partition. Somaiah, the
father of defendant No.1 did not acquire any property from his father so as to
constitute coparcenary property. The trial court as well as the lower appellate
court discussed the law, evidence and documents, no substantial questions of
law would arise and prayed to dismiss the Second Appeal.
14. The Amendment Act of 1976 to the Code of Civil Procedure, 1908
introduced drastic changes in the scope and ambit of Section 100 of CPC. A
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Second Appeal under Section 100 of CPC is now confined to cases where a
question of law is involved and such question must be a substantial one.
15. The Hon'ble Apex Court in Chandrabhan (deceased) through LRs.
and others v. Saraswati and Others 1 dated 22.09.2022, observed that:
"Right of appeal is not automatic. Right of appeal is conferred
by statute. When statute confers a limited right of appeal
restricted only to cases which involve substantial questions of
law, it is not open to this Court to sit in appeal over the factual
findings arrived at by the First Appellate Court."
16. The Hon'ble Apex Court also summarized the following principles
relating to Section 100 of CPC:
"(i) An inference of fact from the recitals or contents of a
document is a question of fact. But the legal effect of the terms
of a document is a question of law. Construction of a document
involving the application of any principle of law is also a
question of law. Therefore, when there is misconstruction of a
document or wrong application of a principle of law in
construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a
substantial question of law, and not a mere question of law. A
question of law having a material bearing on the decision of the
case (that is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of law, if it is
not covered by any specific provisions of law or settled legal
principle emerging from binding precedents and involves a
2022 SCC OnLine SC 1273
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debatable legal issue. A substantial question of law will also
arise in a contrary situation, where the legal position is clear,
either on account of express provisions of law or binding
precedents, but the court below has decided the matter, either
ignoring or acting contrary to such legal principle. In the
second type of cases, the substantial question of law arises not
because the law is still debatable, but because the decision
rendered on a material question, violates the settled position of
law.
(iii) The general rule is that the High Court will not interfere
with findings of facts arrived at by the courts below. But it is
not an absolute rule. Some of the well-recognized exceptions
are where:
(i) The courts below have ignored material
evidence or acted on no evidence;
(ii) The courts have drawn wrong inferences
from proved facts by applying the law
erroneously; or
(iii) The courts have wrongly cast the burden
of proof. When the Court refers to a
decision based on no evidence, it not
only refers to cases where there is a total
dearth of evidence, but also refers to any
case, where the evidence, taken as a
whole, is not reasonably capable of
supporting the finding."
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17. In Suresh Lataruji Ramteke v. Sau. Sumanbai Pandurang Petkar
and others 2, the Hon'ble Apex Court held that:
"After all, a second appeal is not a third trial on facts, and so
for re-appreciation of evidence to be justified, and for the same
to be required as well as being demonstrably, at a different
threshold from merely, a possible different view, perversity or
the other conditions of no evidence or inadmissible evidence
ought to be urged. Accepting the argument of perversity
merely on the submissions made and not having appreciated the
record, would be unfair to the court of Second Appeal."
18. This Second Appeal is filed against the concurrent judgments of the
courts below. The findings on facts cannot be disturbed in the Second Appeal.
Keeping in view the above principle, the judgments of the courts below need to
be looked into.
19. As seen from the pleadings and admitted facts, the relationship between
the parties is not in dispute. It was also admitted that the parties were Hindus
and they were bound by Mitakshara School of Law. It was also admitted that
Somaiah has got three brothers by name Chandraiah, Ramaiah and Narayana
and that all the three brothers died without leaving any issues. It was also
admitted that items 1 and 2 of plaint "A" schedule properties and item No.2 of
the plaint "B" schedule property were the self-acquired properties of Narayana
and that the same were devolved upon defendant No.1 from Narayana, who was
2023 Live Law SC 821
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his senior paternal uncle. Item 3 of plaint "A" schedule property was the self-
acquired property of Somaiah, the father of defendant No.1 and the same was
devolved upon defendant No.1 from his father. It is also to be remembered the
difference between a coparcenary property and a self-acquired property.
20. The coparcenary property is a property inherited by a male Hindu from
his three immediate lineal male ascendants i.e. his father, grandfather and great
grandfather. In the case of death of a member of coparcener under Mitakshara
Law, his right would devolve upon the other members by survivorship. An
important element of coparcenary under Mitakshara Law is unity of ownership.
A coparcenary property is considered as held by all the coparceners in collective
ownership. The incidents of coparcenary are firstly, the lineal male descendants
of a person upto the third generation, acquire on birth ownership in the ancestral
property of such person, secondly, that such descendants can at any time work
out their rights by asking for partition, thirdly, that till partition each member
has got ownership extending over the entire property conjointly with the rest,
fourthly, that as a result of such co-ownership the possession and enjoyment of
the property is common, fifthly, that no alienation of the property is possible
unless it is for legal necessity, without the concurrence of the coparceners and
lastly that the interest of a deceased member passes on his death to the surviving
members of the coparcenary.
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21. In the case of self-acquired property, the rules of Succession as laid down
under Section 8 of Hindu Succession Act, 1956 would follow. Under Section 8
of the Hindu Succession Act, 1956, the property a male Hindu, who dies
intestate would devolve upon his class-I legal heirs as their absolute property.
In the absence of class-I legal heirs, it would devolve upon class-II legal heirs,
and if there is no heir of any of the two classes, then upon the agnates of the
deceased and lastly, if there is no agnate, then upon the cognates of the
deceased.
22. When a property is inherited by a male Hindu from his three immediate
lineal male ascendants, then only it can be considered as coparcenary. The
property inherited by a Hindu from other relations such as his brother and uncle
is his separate property.
23. In Mulla's principles of Hindu Law (15th Edition), it is stated at page
No.289 that:
"... if A inherits property, whether movable or immovable,
from his father, or father's father, or father's father's father, it
is ancestral property as regards his male issue. If A has no son,
son's son or son's son's son in existence at the time when he
inherits the property, he holds the property as absolute owner
thereof, and he can deal with it as he pleases .... A person
inheriting property from his three immediate paternal ancestors
holds it, and must hold it, in coparcenary with his sons, sons'
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sons and sons' sons' sons but as regards other relations he
holds it and is entitled to hold it, as his absolute property."
24. As seen from the facts of the case, the trial court in its judgment observed
that:
"It is also not a disputed fact that Itha Narayana died intestate
without any wife, sons and daughters. So as can be seen from
Exs.A13 and B4, the certified copy of faisal patti for the year
1976-77, the suit lands in Survey Nos.417 and 420 have been
mutated in the name of defendant No.1 consequent upon the
death of Itha Narayana. Thus, the property belonging to
defendant No.1 was belonged to Itha Narayana, who was his
senior paternal uncle and was mutated in the name of defendant
No.1. Where a person has inherited a property from a collateral
relation as for instance from a brother, nephew, cousin or uncle,
it is not an ancestral property in his hands in relation to his
male issue and consequently his male issues have no equal
rights as coparceners.
The trial court also further observed that:
"In the instant case, the defendant No.1 inherited the land in
Survey No.417 after the death of Itha Narayana, his senior
paternal uncle, who died issue less and other class-I heir,
neither party led evidence as to when Narayana died, whether
he predeceased Somaiah, the father of defendant No.1.
Though, PW.2 deposed in the cross-examination that Somaiah
succeded to the suit lands consequent upon the death of
Ramaiah and Narayana issueless but a perusal of Exs.A13 and
B4 faisal patti would reveal that suit lands were mutated in the
name of defendant No.1 directly from Itha Narayana. No
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document was filed to show that the land in Survey No.417 was
first mutated in the name of Somaiah, the father of defendant
No.1 and subsequent to his death upon defendant No.1 himself.
So, since defendant No.1 inherited the land in Survey No.417
from Itha Narayana directly, who died issueless, hence, I hold
that item No.1 i.e. survey No.417 inherited by defendant No.1
from Itha Narayana, his senior paternal uncle, who is a
collateral and not a male ancestral, the said item is self-
acquired property of defendant No.1. So the said item cannot
be subjected for partition."
25. These observations of the trial court are found fault with by the learned
counsel for the appellants contending that the defendant No.1 in his written
statement itself stated that as Narayana died intestate and he had no wife /
children at the time of his death, the said land was devolved upon the
defendant's father as the sole heir of Itha Narayana and consequent upon the
death of defendant's father Somaiah, the said land was devolved upon him and
his mother Sathemma as tenants in common under the provisions of Hindu
Succession Act, 1956.
26. He also further contended that DW.2 in his evidence stated that the father
of defendant No.1 Somaiah died of paralysis about 15 years back, Narayana
died 20 years back and the wife and son of Narayana predeceased Narayana
about 30 years back. As such, the trial court committed an error in making its
observations contrary to the admissions made by the defendants and the
evidence adduced by the defendants. He further contended that mutation is not
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criteria for deciding the title. As Somaiah is the brother of Narayana and was
alive by the time of death of Narayana, the said properties items 1 and 2 of
plaint "A" schedule and item No.2 of plaint "B" schedule were devolved upon
Somaiah and on his death, upon defendant No.1, and the plaintiffs being the
sons of defendant No.1 and grand sons of Somaiah were entitled for partition in
the said properties.
27. In Madhavan Nair v. Bhaskar Pillai3, the Hon'ble Apex Court observed
that it is well settled that even if the first appellate court commits an error in
recording a finding of fact, that itself will not be a ground for the High Court to
upset the same.
28. In H.P.Pyarejan v. Dasappa (dead) by LRs. and others 4, the Hon'ble
Apex Court found serious infirmity in the judgment of the High Court and
observed that it suffers from the vice of exercise of jurisdiction which did not
vest in the High Court. Under Section 100 of the Code (as amended in 1976),
the jurisdiction of the High Court to interfere with the judgments of the courts
below is confined to hearing on substantial questions of law. Interference with
the finding of fact by the High Court is not warranted if it invokes re-
appreciation of evidence. The Court found that the impugned judgment of the
High Court was vulnerable and needed to be set aside.
(2005) 10 SCC 553
(2006) 2 SCC 496
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29. As such, even if the property was devolved upon Somaiah from
Narayana, who was his brother, the same amounts to his separate property and
would devolve upon defendant No.1 as per Section 8 of the Hindu Succession
Act, 1956. The defendant No.1 would not acquire any interest in it by birth and
it would pass on to him by succession and not by survivorship. The personal
property inherited for at least four generations without division can only be
classified as ancestral property. But the plaintiffs belonged to only third
generation from Somaiah. As such, it cannot be considered as a coparcenary
property of the plaintiffs. Thus, even if the property was devolved upon
Somaiah, this Court considers that there would be no change in law and the
same cannot be considered as a coparcenary property to the plaintiffs.
30. The Hon'ble Apex Court in Commissioner of Wealth Tax, Kanpur
and Others v. Chander Sen and Others 5 on the question, whether the income
or asset, which a son inherits from his father when separated by partition, the
same should be assessed as income of the Hindu Un-divided Family (for short
"HUF") of son or in his individual capacity and considering the effect of
Section 8 of the Hindu Succession Act, 1956, held that:
"The Hindu Succession Act, 1956 lays down the general rules
of succession in the case of males. The first rule is that the
property of a male Hindu dying intestate shall devolve
(1986) 3 SCC 567
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according to the provisions of Chapter II. Class I of the
Schedule provides that if there is a male heir of Class I then
upon the heirs mentioned in Class I of the Schedule. The heirs
in Class I includes the son but not the grandson. Under Section
8 of the Hindu Succession Act, 1956, the property of the father
who dies intestate devolves on his son in his individual capacity
and not as kartha of his family.
On considering the divergent views expressed on the said
aspect by the Allahabad High Court, Full Bench of the Madras
High Court, Madhya Pradesh and Andhra Pradesh High Courts
on one side and the Gujarat High Court on the other, it was held
that:
"It is necessary to bear in mind the Preamble to
the Hindu Succession Act, 1956. The Preamble
states that it was an Act to amend and codify the
law relating to intestate succession among
Hindus.
In view of the preamble to the Act, i.e., that to
modify where necessary and to codify the law,
in our opinion it is not possible when Schedule
indicates heirs in class I and only includes son
and does not include son's son but does include
son of a predeceased son, to say that when son
inherits the property in the situation
contemplated by section 8 he takes it as karta of
his own undivided family. The Gujarat High
Court's view noted above, if accepted, would
mean that though the son of a predeceased son
and not the son of a son who is intended to be
excluded under section 8 to inherit, the latter
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would by applying the old Hindu law get a right
by birth of the said property contrary to the
scheme outlined in section 8. Furthermore as
noted by the Andhra Pradesh High Court that the
Act makes it clear by section 4 that one should
look to the Act in case of doubt and not to the
pre-existing Hindu law. It would be difficult to
hold today the property which devolved on a
Hindu under section 8 of the Hindu Succession
would be HUF in his hand vis-a-vis his own son;
that would amount to creating two classes
among the heirs mentioned in class I, the male
heirs in whose hands it will be joint Hindu
family property and vis-a-vis son and female
heirs with respect to whom no such concept
could be applied or contemplated. It may be
mentioned that heirs in class I of Schedule under
section 8 of the Act included widow, mother,
daughter of predeceased son etc. Before we
conclude we may state that we have noted the
observations of Mulla's Commentary on Hindu
law 15th Edition dealing with section 6 of the
Hindu Succession Act at page 924-26 as well as
Mayne's on Hindu Law, 12th Edition pages 918-
919."
"The express words of section 8 of The Hindu Succession Act,
1956 cannot be ignored and must prevail. The preamble to the
Act reiterates that the Act is, inter alia, to 'amend' the law, with
that background the express language which excludes son's son
but included son of a predeceased son cannot be ignored."
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"In the aforesaid light the views expressed by the Allahabad
High Court, the Madras High Court, Madhya Pradesh High
Court, and the Andhra Pradesh High Court, appear to us to be
correct. With respect we are unable to agree with the views of
the Gujarat High Court noted hereinbefore."
31. The same view was also followed in Yudhister v. Ashok Kumar 6 ,
wherein it was held that the property devolved on a Hindu male under Section 8
of the Hindu Succession Act, 1956 would not be a HUF property in his hands
vis-a-vis his own sons.
32. Thus, the above judgments would disclose that once a property was
devolved upon a Hindu under Section 8 of the Hindu Succession Act, 1956, the
same cannot be considered as a HUF property or ancestral property or
coparcenary property and the same shall be considered as his absolute property.
33. As the property of Narayana was devolved upon defendant No.1 through
his father Somaiah under Section 8 of the Hindu Succession Act, 1956, the
same would become his absolute property, but cannot be considered as an
ancestral property or coparcenary property or a HUF property vis-a-vis his sons
i.e. the plaintiffs herein. As such, this Court considers that the trial court as
well as the lower appellate court had not committed any error of law in
considering items 1 and 2 of "A" schedule property as the absolute property of
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defendant No.1 and holding that the said items could not be subjected to
partition.
34. The lower appellate court on discussing the oral and documentary
evidence on record observed that:
"The crucial question is, whether items 1 and 2 of plaint "A"
schedule are the coparcenary property of plaintiffs and
defendants 1 to 5. Even assuming items 1 and 2 of plaint "A"
schedule were devolved upon Itha Somaiah from his brother
Itha Narayana and after the death of Itha Somaiah as per
Section 8 of the Hindu Succession Act, 1956, it shall devolve
upon defendants 1 to 5 only being the class-I legal heirs. The
property devolved on Itha Somaiah from his brother cannot be
treated as an ancestral coparcenary property vis-a-vis, the son
of defendant No.1 i.e. the plaintiffs. When items 1 and 2 of
plaint "A" schedule are not coparcenary properties, the
plaintiffs 1 to 3 by birth cannot claim any right over the same."
35. Thus, both the trial court as well as the lower appellate court considered
items 1 and 2 of plaint "A" schedule properties as not coparcenary properties,
for which the plaintiffs could claim any right over the same by birth and could
seek partition as of right. Thus, this Court does not find any error in the
appreciation of evidence or any error in the appreciation of law or any error in
applying the law to the facts of the case.
36. As such, this Court considers that the judgment of the lower appellate
court is valid and is in consonance with the provisions of Order XLI Rule 31 of
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CPC and not vitiated by any perverse reasoning or non-consideration of
relevant evidence or consideration of irrelevant documents. This Court is of the
view that the provisions of Section 8 of the Hindu Succession Act, 1956 is only
applicable to items 1 and 2 of plaint "A" schedule property and that the
plaintiffs were not entitled for any share in the said items of property during the
lifetime of defendant No.1.
37. As no appeal was filed by the defendants in respect of decreeing the suit
with regard to item No.3 of plaint "A" schedule and item No.2 of plaint "B"
schedule, the same attained finality.
38. As the appellants had not challenged the shares allotted to them by way
of applying notional partition of item No.1 of "A" schedule property in the First
Appeal, the same could not be a matter of challenge in this Second Appeal.
Even otherwise, this Court does not find any error in allotting a share to
Somaiah, who was not alive and granting his share to his class-I legal heirs
under Section 6 of the Hindu Succession Act, 1956 in notional partition, as the
same is only for ascertaining the share of the deceased coparcener survived by a
female heir of class-I.
39. In the result, the Second Appeal is dismissed confirming the judgments
of the courts below.
Dr.GRR, J
sa_745_2004
No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if any
shall stand closed.
____________________
Dr. G. RADHARANI, J
Date: 24th January, 2025
Nsk.
