Telangana High Court
Kudali Laxmaiah, Ranga Reddy District ... vs Kudali Pentaiah, Ranga Reddy District on 18 June, 2025
THE HONOURABLE SMT. JUSTICE K. SUJANA
APPEAL SUIT No.463 of 2010
JUDGMENT:
Challenging the order dated 17.12.2009 passed in
O.S.No.8 of 2006 by the VI Additional Senior Civil Judge, Fast
Track Court, Medchal, Ranga Reddy District, the present
appeal suit is filed.
2. The brief facts of the case are that the plaintiffs filed a
suit against the defendant seeking partition and separate
possession of their half share in the suit schedule properties,
claiming that the ancestral joint family consisting of Shivaiah
and his three sons, Pochaiah, Papaiah, and Hanumaiah,
continued without partition. They argued that after the deaths
of Pochaiah (without heirs) and Papaiah, the defendant
(Papaiah's son) became the pattedar of the properties and
refused their demand for partition. The defendant contended
that the properties were already partitioned in the year 1949
among Shivaiah's sons, making further partition untenable.
He claimed exclusive ownership of "A schedule property,"
inherited from Pochaiah and supported by documentary
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evidence, including revenue records, title deeds, and judicial
decrees.
3. Basing on the above pleadings, the trial Court framed
five issues and on behalf of the plaintiffs i.e., PWs.1 to 3 were
examined and Ex.A1 to A15 are marked. DWs.1 to 3 are
examined and Exs.B1 to B45 were marked on behalf of the
defendants.
4. After examining the evidence, the trial Court, vide order
dated 17.12.2009, dismissed the suit, holding that partition
had already occurred in the year 1949 and the defendant was
the absolute owner of the "A schedule property," while the
plaintiffs failed to substantiate their claims. Aggrieved
thereby, the present appeal suit is filed.
5. Heard Sri Vadeendra Joshi, learned counsel appearing
on behalf of the appellants as well as Sri K. V. Mallikarjuna
Rao, learned counsel appearing on behalf of the respondents.
6. Learned counsel for the appellants submitted that the
judgment and decree of the trial court are contrary to law, the
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weight of evidence, and the preponderance of probabilities and
that the trial Court erred in dismissing the suit for partition
and separate possession of the half share of the appellants in
the plaint schedule property. The trial Court incorrectly held,
without substantial evidence, that the properties were divided
in a prior partition in the year 1949, and that the respondent
is in exclusive ownership of "A" schedule property following
the death of Pochaiah in the year 1964. He further submitted
that Sivaiah and his three sons, Pochaiah, Papaiah, and
Hanumaiah, constituted a Hindu joint family with "A"
schedule property, which remained undivided until the filing
of the present suit. He contended that Pochaiah, as the eldest
male member, held the properties in his name, and after his
intestate death without heirs, the properties devolved jointly
on the appellants and the respondent. The appellants refute
the claim of the Court that the respondent is the foster son of
Pochaiah and, as such, entitled to the entire property.
7. Learned counsel for the appellants further contended
that the absence of evidence of adoption or a will executed by
Pochaiah, underscoring their entitlement to half share in the
properties. He also challenged the reliance on documentary
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evidence of the trial Court submitted by the respondent,
arguing that certain key exhibits were improperly disregarded
or misinterpreted, such as Ex.A1 (Khasra Pahani for the year
1954-55). The appellants maintain that the presumption of
joint ownership of "A" schedule property persists in their favor
and that the suit for partition is valid despite the respondent's
possession of the property. He further contended that the
respondent's fostering by Pochaiah does not legally confer
rights to Pochaiah's property. Learned counsel for the
appellants further criticized the trial court for holding that the
appellants approached the trial Court with unclean hands,
asserting that the evidence does not support such a
conclusion. Therefore, he prayed the Court to set aside the
judgment of the trial Court by allowing this appeal suit.
8. In support of his submissions, learned counsel for the
appellant relied upon the judgment of the Hon'ble Supreme
Court in Arshnoor Singh v. Harpal Kaur and Others 1 ,
wherein in paragraph No.7 to 7.7, it is held as follows:
"7. With respect to the first issue, it is the admitted
position that Inder Singh had inherited the entire
(2020) 14 SSC 436
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suit property from his father Lal Singh upon his
death. As per the mutation entry dated 16-1-1956
produced by Respondent 1, Lal Singh's death took
place in 1951. Therefore, the succession in this case
opened in 1951 prior to the commencement of the
Hindu Succession Act, 1956 when Inder Singh
succeeded to his father Lal's Singh's property in
accordance with the old Hindu Mitakshara law.
7.1. Mulla in his Commentary on Hindu Law (22nd
Edn.) has stated the position with respect to
succession under Mitakshara law as follows:
"A son, a grandson whose father is dead, and a
great-grandson whose father and grandfather are
both dead, succeed simultaneously as single heir to
the separate or self-acquired property of the
deceased with rights of survivorship."
"All property inherited by a male Hindu from his
father, father's father or father's father's father, is
ancestral property. The essential feature of
ancestral property according to Mitakshara law is
that the sons, grandsons and great-grandsons of
the person who inherits it, acquire an interest, and
the rights attached to such property at the moment
of their birth.
A person inheriting property from his three
immediate paternal ancestors holds it, and must
hold it, in coparcenary with his sons, son's sons,
and son's son's sons, but as regards other relations,
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he holds it, and is entitled to hold it as his absolute
property."
(emphasis supplied)
7.2. In Shyam Narayan Prasad v. Krishna Prasad
[Shyam Narayan Prasad v. Krishna Prasad, (2018) 7
SCC 646 : (2018) 3 SCC (Civ) 702] , this Court has
recently held that: (SCC p. 651, para 12)
"12. It is settled that the property inherited by a
male Hindu from his father, father's father or
father's father's father is an ancestral property. The
essential feature of ancestral property, according to
Mitakshara law, is that the sons, grandsons, and
great grandsons of the person who inherits it,
acquire an interest and the rights attached to such
property at the moment of their birth. The share
which a coparcener obtains on partition of ancestral
property is ancestral property as regards his male
issue. After partition, the property in the hands of
the son will continue to be the ancestral property
and the natural or adopted son of that son will take
interest in it and is entitled to it by survivorship."
(emphasis supplied)
7.3. Under Mitakshara law, whenever a male
ancestor inherits any property from any of his
paternal ancestors up to three degrees above him,
then his male legal heirs up to three degrees below
him, would get an equal right as coparceners in that
property.
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7.4. In Yudhishter v. Ashok Kumar [Yudhishter v.
Ashok Kumar, (1987) 1 SCC 204] , this Court held
that: (SCC p. 210, para 10)
"10. This question has been considered by this
Court in CWT v. Chander Sen [CWT v. Chander Sen,
(1986) 3 SCC 567 : 1986 SCC (Tax) 641] where one
of us (Sabyasachi Mukharji, J.) observed that under
the Hindu law, the moment a son is born, he gets a
share in father's property and becomes part of the
coparcenary. His right accrues to him not on the
death of the father or inheritance from the father
but with the very fact of his birth. Normally,
therefore whenever the father gets a property from
whatever source, from the grandfather or from any
other source, be it separated property or not, his
son should have a share in that and it will become
part of the joint Hindu family of his son and
grandson and other members who form joint Hindu
family with him. This Court observed that this
position has been affected by Section 8 of the Hindu
Succession Act, 1956 and, therefore, after the Act,
when the son inherited the property in the situation
contemplated by Section 8, he does not take it as
Karta of his own undivided family but takes it in his
individual capacity."
(emphasis supplied)
7.5. After the Hindu Succession Act, 1956 came into
force, this position has undergone a change. Post
1956, if a person inherits a self-acquired property
from his paternal ancestors, the said property
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becomes his self-acquired property, and does not
remain coparcenary property.
7.6. If succession opened under the old Hindu law
i.e. prior to the commencement of the Hindu
Succession Act, 1956, the parties would be
governed by Mitakshara law. The property inherited
by a male Hindu from his paternal male ancestor
shall be coparcenary property in his hands vis-à-vis
his male descendants up to three degrees below
him. The nature of property will remain as
coparcenary property even after the commencement
of the Hindu Succession Act, 1956.
7.7. In the present case, the succession opened in
1951 on the death of Lal Singh. The nature of the
property inherited by his son Inder Singh was
coparcenary in nature. Even though Inder Singh
had effected a partition of the coparcenary property
amongst his sons in 1964, the nature of the
property inherited by Inder Singh's sons would
remain as coparcenary property qua their male
descendants up to three degrees below them.
7.8. The judgment in Uttam v. Saubhag Singh
[Uttam v. Saubhag Singh, (2016) 4 SCC 68 : (2016)
2 SCC (Civ) 545] relied upon by the respondents is
not applicable to the facts of the present case. In
Uttam [Uttam v. Saubhag Singh, (2016) 4 SCC 68 :
(2016) 2 SCC (Civ) 545] , the appellant therein was
claiming a share in the coparcenary property of his
grandfather, who had died in 1973 before the
appellant was born. The succession opened in 1973
after the Hindu Succession Act, 1956 came into
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force. The Court was concerned with the share of
the appellant's grandfather in the ancestral
property, and the impact of Section 8 of the Hindu
Succession Act, 1956. In light of these facts, this
Court held that after property is distributed in
accordance with Section 8 of the Hindu Succession
Act, 1956, such property ceases to be joint family
property in the hands of the various persons who
have succeeded to it. It was therefore held that the
appellant was not a coparcener vis-à-vis the share
of his grandfather."
9. He further relied upon the Judgment of the Madras
High Court in Jayaraman v. Rajendran and another 2 ,
wherein in paragraph No.9, it is held as follows:
"9. From a reading of the judgment, it is well
established that the plaintiff cannot be considered
as a cultivating tenant in the eyes of law. The very
basis of getting the cultivating tenancy right stand
shattered on this aspect. Further, it is contended by
the parties that the defendant was adopted by the
said Pounammal on the contrary the plaintiff
himself claims that he is the foster son of the said
Pounammal. This Court is unable to understand as
to how the foster son was given legal heir certificate.
It is well settled in law that a foster son cannot
inherit the property rights, but it is only the natural
legal heirs or the adopted son can inherit the
property. The defendant claims that he was the
adopted son. Even though no evidence was
S.A.No.391 of 2014 and M.P.No.1 of 2014, dated 09.09.2021
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produced, it is incumbent on the Tahsildar to
enquire into the matter by issuing notice to all the
parties concerned. It is also relevant to note that the
plaintiff is not the only son but hehas brothers and
their maternal aunt Pounammal was mostly living
with her sister mother of the parties. In that event,
the Tahsildar ought to have issued notice to all the
parties interested enquired and the same could have
issued the legal heir certificate. It appears that the
plaintiff with the influence of his post had obtained
legal heir certificate without following the proper
procedure. Ex.A5 is the transfer of patta in respect
of S.No.475/16 in Patta No.281 whereas the date of
death of Pounammal was mentioned as 14.03.2004.
Ex.A6, the death certificate specifies the date of
death as 14.03.2002. Hence, it is very clear that the
date of death mentioned in Ex.A5 is incorrect.
Besides this in the evidence it is categorically
admitted that item No.3, the house property in
S.No.475/16 is not at all existing as it was
dilapidated one. He would further depose that no
body is in possession of the property. In that event,
the claim of injunction without possession is also
not sustainable."
10. On the other hand, learned counsel for the respondents
submitted that there is no illegality in the judgment of the trial
Court. He stated that when the respondent was about five
years old, his father passed away, and as a result, Pochaiah
took care of the respondent, nurtured him, and even arranged
his marriage. The respondent, in turn, took care of Pochaiah.
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Therefore, he argued that the respondent is entitled to
Pochaiah's share. He further submitted that the properties
were already partitioned long ago, and as such, there is no
question of a partition again. Hence, he prayed for the court
to dismiss the appeal suit.
11. In support of his submissions, learned counsel for the
respondents relied upon the judgment of the Hon'ble Supreme
Court in K.V. Muthu v. Angamuthu Ammal 3 , wherein in
paragraph No.4, it is held as follows:
"4. The appellant contested the application and
raised the plea that Arunachala Bakthar was not
the natural son of the petitioner and consequently
he would not be a "member of the family" within the
meaning of Section 2(6-A) of the Act. The petition, it
was contended, was not maintainable and he was
not liable to be evicted particularly as he had not
committed wilful default in the payment of rent.
5. It was found by the Rent Controller that
Arunachala Bakthar was the son of deceased
Thiruvannamalai Bakthar and, therefore, the
petition was maintainable for the eviction of the
appellant from the premises in question on the
ground of bona fide need of the respondent herself
and that of Arunachala Bakthar. He consequently
(1997) 2 SSC 53
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allowed the petition on the ground of bona fide
need, though it was found by him that the appellant
had not committed wilful default in payment of rent.
7. The respondent challenged this decision in the
High Court where a learned Single Judge (S. Mohan,
J., as he then was) doubted the decision in
Hathibudi Anandar v. Govindan [(1981) 1 MLJ 250]
, and referred the matter to a Division Bench for
decision on the question whether a foster son would
be a member of the family of the landlord within the
meaning of Section 2(6-A) of the Act. The Division
Bench reversed the decision of the Single Judge and
held that a "foster son" would be a member of the
family and, therefore, the petition filed by the
respondent for the eviction of the appellant from the
premises in question for bona fide need of herself
and that of her "foster son" Arunachala Bakthar
was maintainable. It is against this decision that the
appellant has come up in appeal before this Court.
8. The learned counsel for the appellant has
contended that "family" has to be given the meaning
which is commonly understood by an ordinary man
and, therefore, "family" would include only natural
sons and not "foster son". The learned counsel for
the respondent, on the contrary, contends that
since the definition of "family" as set out in the Act
is an artificial definition, its natural or common
meaning cannot be adopted. "Family", it is
contended, is a word of great flexibility and has to
be interpreted in the context of the Act with the
result that not only those who are related by blood
or marriage, but others also would be included in it.
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9. Section 2(6-A) provides as under:
"2. (6-A) 'member of his family' in relation to a
landlord means his spouse, son, daughter,
grandchild or dependant parent."
10. Apparently, it appears that the definition is
conclusive as the word "means" has been used to
specify the members, namely, spouse, son,
daughter, grandchild or dependant parent, who
would constitute the family. Section 2 of the Act in
which various terms have been defined, opens with
the words "in this Act, unless the context otherwise
requires" which indicates that the definitions, as for
example, that of "family", which are indicated to be
conclusive may not be treated to be conclusive if it
was otherwise required by the context. This implies
that a definition, like any other word in a statute,
has to be read in the light of the context and
scheme of the Act as also the object for which the
Act was made by the legislature.
33. In view of the above facts and circumstances,
Arunachala Bakthar was clearly a member of the
family of the respondent's husband within the
meaning of Section 2(6-A) of the Act and
consequently, the respondent could well file an
application for eviction of the appellant from the
premises in question not only for her need but also
for the need of her "FOSTER SON", Arunachala
Bakthar."
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12. The points that arise for consideration in this appeal
are:
i. Whether there was any prior partition of the suit
schedule property, as contended by the defendant, in the
year 1949?
ii. Whether the plaintiff is entitled to a half share in the suit
schedule property.
iii. Whether the judgment of the trial Court warrants any
interference?
Point Nos.i and ii:
13. In the light of the submissions made by both the
learned counsel and a perusal of the material available on
record, the plaintiffs asserted that the joint family properties
had not been partitioned and sought division and separate
possession of their alleged half share. However, the defendant
countered this by producing a substantial body of
documentary evidence, including Exs.B1 to B45, to
demonstrate that partition occurred in the year 1949 and that
"A" schedule property was exclusively owned by Pochaiah,
from whom the defendant claims to have inherited it.
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14. A close scrutiny of the revenue records, particularly
Ex.B1 (sale deed in Pochaiah's name), Ex.B2 (Khasra Pahani
for 1954-55), and the subsequent pahanis up to 1999, reveals
that the land was consistently recorded in the names of
Pochaiah and later jointly with the defendant. This long-
standing documentary trail strongly suggests possession and
ownership by Pochaiah and the defendant, unchallenged for
decades. Further, the revenue records show the defendant as
the son of Pochaiah, indicating that for all practical and
administrative purposes, he was treated as such, even if no
formal adoption deed exists.
15. The judgment in Arshnoor Singh (supra) reiterates that
property inherited before the Hindu Succession Act, 1956,
would retain its coparcenary character under Mitakshara law.
However, where the property is acquired post-partition or is
self-acquired, it would not be subject to claims of other
coparceners. In the present case, the evidence points to
Pochaiah having purchased the property individually after
partition, and thus it constitutes his self-acquired property.
The plaintiffs have not produced credible evidence to rebut
this position.
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16. The plaintiffs' reliance on the presumption of joint
family property is misplaced in light of the clear demarcation
of ownership in revenue records and lack of challenge over the
years. Further, the plaintiffs failed to explain the omission of
significant facts such as Survey No.53, which supports the
inference of prior partition.
17. The argument that a foster son has no inheritance
rights is addressed by the Supreme Court in K.V. Muthu
(supra), which acknowledges that the term "family" can be
interpreted broadly depending on the statutory context.
Although fostering alone does not establish legal heirship
under succession laws, long-standing treatment of the
defendant as Pochaiah's son and the absence of any
competing heirship claims from Pochaiah's side lend credence
to the defendant's claim, particularly in light of the
uncontested documentary trail.
18. Additionally, the plaintiffs' own witnesses conceded that
the defendant was in possession and cultivation of the land
for more than a decade, weakening the plea of joint possession
and the need for partition. Their oral evidence failed to
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support their case, and key documents like Ex.A1 were shown
to be inconsistent or questionable.
19. In view thereof, there was a prior partition of the family
properties, and "A" schedule property came to be owned by
Pochaiah exclusively. Further, the defendant, having been
fostered by Pochaiah and recognized as his son in official
records, has been in continuous possession of the said
property and is entitled to claim exclusive ownership. The
plaintiffs failed to establish either joint ownership or
entitlement to a share in the "A" schedule property.
Point No.iii:
20. In view of the above discussion in point Nos.i and ii,
there is no illegality in the judgment of the trial Court. The
trial Court discussed all the issues and it is a well reasoned
judgment and there are no grounds to interfere in the
judgment.
21. In view thereof, this Appeal Suit is dismissed confirming
the judgment and decree dated 17.12.2009 passed in
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O.S.No.8 of 2006 by the VI Additional Senior Civil Judge, Fast
Track Court, Medchal, Ranga Reddy District. There shall be
no order as to costs.
Miscellaneous applications, if any pending, shall stand
closed.
_______________
K. SUJANA, J
Date: 18.06.2025
SAI
