Andhra Pradesh High Court - Amravati
Parnasala Kasivisala vs Nanduri Padmavathmma on 17 June, 2025
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
APPEAL SUIT No.852 of 2012
and
I.A.No.12 of 2012 (CROSS OBJECTIONS No.16690 of 2012)
COMMON JUDGMENT:
1. O.S.No.33 of 2007 was a suit for partition among siblings and some of their legal heirs. After due trial, by a judgment dated 05.06.2012, learned Additional District Judge - cum - Family Court, Ongole decreed the suit in part. That left both sides not satisfied. D2 and D3 preferred A.S.No. 852 of 2012 in terms of section 96 read with Order 41 Rule 1 CPC. The five plaintiffs before the trial court preferred their cross appeal in terms of Order 41 Rule 1 CPC.
2. Heard arguments of Sri Y. Ramatirtha, the learned counsel for appellants in the appeal and Sri Y.V.Ravi Prasad, the learned senior counsel being assisted by Sri Y.V.Anil Kumar for respondents in the appeal. Written arguments are filed and precedents are cited on both sides.
3. The emanation of dispute is in the context of following facts.
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Dr.VRKS,J A.S.No.852 of 2012 & Batch Sri P. Veeraraghavacharyulu and Smt. P. Rajya Lakshmamma are spouses. During their marital life, they were blessed with two sons and six daughters. The sons are Sri P.Mohana Krishnamacharyulu and Sri Kesavacharyulu. The daughters are Smt. N.Padmavathamma, Smt. Suseela Devi, Smt. D.Vijayalakshmi, Smt. N.Radha Devi and Smt. V.Seetha Devi and Kumari Vani Kumari. The last of the children Kumari Vani Kumari died unmarried long time before the suit was laid and nothing concerning her is involved in the suit. Smt. Suseela Devi also died prior to the institution of the suit. The surviving four daughters and the son of late Suseela Devi joined together and filed O.S.NO.33 of 2007 praying for partition of the plaint schedule property into seven equal shares and allot one share to each of the plaintiffs and grant separate possession after considering good and bad qualities of the properties mentioned in the plaint schedule. They also prayed for mesne profits to be determined by a separate application and for costs and such other reliefs.
4. Seven items of immovable properties were shown in the plaint schedule. It is about all those properties, the suit was laid. Initially, the suit was filed as against the eldest son of the Hindu 3 Dr.VRKS,J A.S.No.852 of 2012 & Batch spouses/ Sri P. Mohana krishnamacharyulu/ D1. By the time of the suit, the other son/ Sri P.Kesavacharyulu died. His wife and his daughter were shown as D2 and D3. The plaint was presented on 28.03.2007 and was registered on 11.04.2007. During the pendency of the suit, Sri N.Ramarao and Sri U. Venkataramireddy were impleaded as D4 and D5 by the trial court on 02.06.2008.
5. Sri P.Veera Raghavacharyulu died on 26.02.1986. His wife/ Smt. P. Rajya Lakshmamma died on 08.12.1995. Thus, it was after the death of parents, the suit had come to be filed.
6. In the plaint, it was stated that the marriages of all the daughters of the Hindu spouses were solemnized earlier to 1976. That all the plaint schedule properties are the joint family properties. It is further stated that the eldest son of the Hindu spouses/ D1 has been living in Chennai eking out his livelihood. Even after the death of the parents, the property remained joint family properties. Despite demands for partition, there was no positive move from the defendants. Sri Kesavacharyulu who is husband of D2 and father of D3 was managing the properties and was utilizing their profits. For sometime, plaintiffs were given their 4 Dr.VRKS,J A.S.No.852 of 2012 & Batch portions of revenue from the joint family properties. Plaintiffs and defendants are in joint possession and enjoyment of the properties in the eyes of the law. Since the Hindu spouses had five daughters and two sons, the prayer in the suit is for equal distribution of assets among them. In other words, the property was prayed to be divided into seven equal parts and allot one part to each of the children of the Hindu spouses.
7. D1 who was the eldest son of the Hindu spouses filed a written statement wherein he admitted the relationship among the parties and showed his willingness to have the division of properties into seven parts and asserted that the plaint schedule properties were ancestral joint family properties and by his written statement, he prayed the court to decree the suit as prayed for.
8. D2 and D3 who were successors of late Kesavacharyulu who the other son of the Hindu spouses put up their contest. D2 filed a written statement and D3 filed a memo adopting it. They admitted the relationship among the parties. They asserted that D1 left the family in or about 1970 and went to Madras and he has been living there. D1 took huge amounts in cash which are over and above his share in the joint family properties and he 5 Dr.VRKS,J A.S.No.852 of 2012 & Batch utilized them for purchasing the house at Madras and for the other expenses of his livelihood. It is on that assertion they claimed in the written statement that D1 got divided from the joint family.
9. The pleaded case of D2 and D3, further, is that late Veeraraghavacharyulu and his second son/ Kesavacharyulu alone constituted joint Hindu family. On 16.12.1985 in sound and disposing state of mind, Sri Veeraraghavacharyulu executed a will consisting of A schedule and B schedule. A schedule therein is a house which is item No.6 of the plaint schedule. He bequeathed it to his own wife/ P. Rajya Lakshmamma. All the remaining properties were bequeathed to Kesavacharyulu and they are shown in B schedule in the will, and they consist of item Nos. 1 to 5 and 7 of the plaint schedule. On death of Sri Veeraraghavacharyulu on 26.02.1986, the will came into operation and the will was acted upon. The beneficiaries under the will obtained possession of the properties and have been enjoying them in their own right.
10. The further pleaded case of D2 and D3 is that Smt.Rajya Lakshmamma who is mother of late Kesavacharyulu executed a 6 Dr.VRKS,J A.S.No.852 of 2012 & Batch will dated 26.11.1995 in a sound and disposing state of mind and bequeathed the house she got from her husband through the will and the benefit was conferred to Sri Kesavacharyulu. Smt. Rajya Lakshmamma died on 08.12.1995 and the will came into operation and Kesavacharyulu being the legatee under the will, took possession of the house/ item No.6 of the plaint schedule and has been in possession and enjoyment in his own right. After the death of Sri Kesavacharyulu, his wife/D2 and his daughter/D3 being his legal heirs have been in possession and enjoyment of these properties. It is further stated that the properties ceased to be joint Hindu family properties and the properties have been in possession and enjoyment of Sri P.Kesavacharyulu and thereafter, his successors in their own right. Even otherwise, they perfected their title by adverse possession. That the suit is not maintainable. Since the time of death of Sri P.V.Raghavacharyulu on 26.02.1986, there was no joint family at all. The suit for partition is not maintainable as it is misconceived. Daughters of Sri Veeraraghavacharyulu having been married earlier to 1976, do not possess any rights over these properties. The court fee paid is incorrect and they prayed for the dismissal of the suit. 7
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11. D4 and D5 who are stated to be purchasers of some properties belonging to the family did not choose to appear contest.
12. The learned trial court settled the following issues for trial: -
1. Whether plaintiffs are entitled for partition of plaint schedule property and separate possession of 5/7th share therein as prayed for?
2. Whether plaintiff is entitled to future profits from date of suit, If so for what sum or with what observations / directions and against whom and with what interest and for what period?
3. To what result?
To sustain their respective cases, 5th plaintiff testified as PW.1 and 4th plaintiff testified as PW.2. No documents were exhibited on their behalf. On the other side, D1 testified as DW.1 and got marked Ex.B1 to B3. D2 who was the wife of late Kesavacharyulu testified as DW.2 and got marked Ex. B4 to B10. In Proof of Ex. B9 and B10 wills, the attesters and scribe of the said wills were examined as DW.3 to 9.
13. After considering the arguments advanced on both sides and the evidence placed on record, the learned trial court took the view that late Veeraraghavacharyulu died on 26.02.1986 and by 8 Dr.VRKS,J A.S.No.852 of 2012 & Batch virtue of Section 6 of the Hindu Succession Act, 1956 as existing by then there was notional partition. In the said notional partition, the sharers were late P.Veeraraghavacharyulu and his two sons. Since Sri Veeraraghavacharyulu died his 1/3rd share in the properties were to be divided among his five daughters and two sons who are all class I legal heirs. It is further held that daughters became coparceners by virtue of Hindu Succession Amendment Act, 2005. That amending Act applies only prospectively. However, since Sri Veeraraghavacharyulu died long prior to the commencement of the said amendment of Hindu Succession Act, 2005, the principle of notional partition was to be applied. It concluded saying that the plaintiffs/daughters of late Raghavacharyulu were only entitled for their share in the share that fell to their father/ late Veeraraghavacharyulu in the notional partition and they share it along with their sibling brothers; Whereas the sibling brothers by virtue of the notional partition got their respective 1/3rd share in addition to what they got from the share of their deceased father. It considered the two sale deeds such as Ex.B2 and B3 executed by D1 and his brother/ Kesavacharyulu in favour of D4 and D5 and ordered for adjustment of equities. After recording its reasons, the learned 9 Dr.VRKS,J A.S.No.852 of 2012 & Batch trial court stated that there have been serious suspicious circumstances surrounding Ex. B9 and B10 Wills and therefore discarded the wills from its consideration. It decreed the suit in the following terms:
In the result, this suit is decreed in part, accordingly preliminary decree is passed directing the division of plaint schedule properties into 21 shares and to allot plaintiffs together five such shares, eight such shares to D1 and remaining eight such shares to D2 and D3. As D1 and late Kesavacharyulu sold the property to D4 and D5 under Ex.B2 and B3, D4 and D5 are entitled to equities if the extents sold to them is part and parcel of any of the plaint schedule items and said extent shall be adjusted from out of the share of D1 and share of late Kesavacharyulu, which is to be allotted to D2 and D3. Parties are at liberty to make a separate application to pass final decree in terms of this preliminary decree for allotment of property as per their aforesaid shares by metes and bounds. Considering the facts and circumstances, there is no order as to costs. Each party shall bear their own costs in this suit.
14. It is that judgment that has been criticized by both sides in this appeal and cross appeal. In the appeal preferred by D2 and D3 various grounds are urged in the memorandum I. The judgment is contrary to facts, evidence and law. II. Ex. B9 and B10 wills were validly proved and the assessment of the trial court is invalid III. Since the properties were obtained by Kesavacharyulu under Ex. B9 and B10 wills, they were no more available 10 Dr.VRKS,J A.S.No.852 of 2012 & Batch for partition and the suit for partition itself was not maintainable IV. The letters addressed by D1 contain clear admissions of relinquishment of his rights over the schedule properties but the trial court erred in granting a share V. Hindu Succession Act, 1956 as well as amendment to the Hindu Succession Act in the year 2005 have no application to the property involved in the suit, but the trial court committed error in applying the provisions of the said enactments VI. All the properties have been in exclusive possession of late Kesavacharyulu and they were not held jointly by the other family members VII. The court fee paid in the suit was incorrect VIII. Item Nos.1 and 2 of the plaint schedule were sold out by late Kesavacharyulu under registered sale deeds. IX. Part of item Nos.3 and 5 were also alienated under an agreement for sale - cum - GPA to the third parties by the present appellants 11 Dr.VRKS,J A.S.No.852 of 2012 & Batch X. Subsequent purchasers were not impleaded by plaintiffs in the suit and such non-joinder should have resulted in dismissal of the suit
15. Learned counsel for appellants had drawn the attention of this court to the various parts of the evidence so as to demonstrate that Ex. B9 and B10 wills were validly executed and due regard should be given to those testaments. Reliance is placed on HV Nirmala Vs R Sharmila1 and Mallamma Vs N.Gangamma2
16. Learned counsel for appellants argued that since Sri Veeraraghavacharyulu died on 26.02.1986 survived by two of his sons and five of his daughters and widow of the deceased Veeraraghavacharyulu, the Hindu Succession Act (Amendment Act 39 of 2005) is not retrospective in its operation and the rights, if any, of the daughters come into effect only from the commencement of the Amendment Act 2005. As on 09.09.2005/ date of commencement of Amendment Act, 2005, there was no Coparcenery existing in the present case. By virtue of the wills executed by Veeraraghavacharyulu/Ex. B9 and thereafter, late 1 2018 (2) ALT (SC) 41 (DB) 2 2018 (1) ALT 98 (DB) 12 Dr.VRKS,J A.S.No.852 of 2012 & Batch Rajya Lakshmamma/Ex.B10, the property vested in late Kesavacharyulu. The un-amended Section 6 of the Hindu Succession Act, 1956 alone need be applied. The impugned judgment is erroneous in the light of the above principles. In support of these contentions, the following rulings are cited. • Uttam Vs Soubhag Singh3 • Prasanta Kumar Sahoo Vs Charulata Sahu4 • Revanasiddappa Vs Mallikarjun5 • Vineeta Sharma Vs Rakesh Sharma6 • Karunanidhi Vs Seetharama Naidu7 • Smt.Raja Rani Vs The Chief Settlement Commissioner8 • Anar Devi Vs Parmeshwari Devi9 • Appropriate Authority (IT DEPTT) Vs M.Arifulla10 • P .Govinda Reddy Vs Golla Obulamma11 • Ganta Appalnaidu Vs Ganta Narayanamma12 3 AIR 2016 SC 1169 4 (2023) 9 SCC 641 5 (2023) 10 SCC 1 6 (2020) 9 SCC 1 7 AIR 2017 SC 1632 8 AIR 1984 SC 1234 9 AIR 2006 SC 3332 10 (2002) 10 SCC 342 11 AIR 1971 AP 363 12 AIR 1972 AP 258 13 Dr.VRKS,J A.S.No.852 of 2012 & Batch • Gurupad Khandappa Magdum Vs Hirabai Khandappa Magdum13
17. The plaintiffs in their cross appeal took the stand that the trial court committed error in applying the principle laid down in Anar Devi's case14. Since the said ruling was under un-amended Section 6 of the Hindu Succession Act, by virtue of amending Act, 2005, the daughters became coparceners by birth and the notional partition that arose on the death of late Veeraraghavacharyulu is confined only to determine the share of the deceased coparcener by name late Veeraraghavacharyulu and nothing beyond that and that the property continued to be joint Hindu coparcenery and since there was no partition of the same, it remained joint. The trial court committed grave error in not granting equal share to the daughters along with the sons. Disallowing mesne profits was another error on part of the trial court. In support of these contentions, learned counsel cited • Vineeta Sharma Vs Rakesh Sharma15 • Prasanta Kumar Sahoo Vs Charulata Sahu16 13 AIR 1978 SC 1239 14 Supra 9 15 (2020) 9 SCC 1 16 2023 SCC Online SC 360 14 Dr.VRKS,J A.S.No.852 of 2012 & Batch • Murthy Vs C.Saradambal17 • Kavita Kanwar Vs Pamela Mehta18 • Aman Sharma Vs Umesh19 • Achutuni Sitharavamma Vs Turaga Ananda20
18. Before adverting to the material on record and the rival submissions, one has to keep in mind the principles laid down by the Hon'ble Supreme Court of India in Shashidhar Vs Smt. Ashwini21. Adverting to the suit for partition and separate possession filed by co-sharer, coparcener, co-owner or joint owner seeking an individual share qua others, the courts have to consider settled principles of law governing the adjudication of issues such as • family tree • inter-se relation of family members • relevant law applicable for owning succession of such properties • nature and character of the suit property 17 (2022) 3 SCC 209 18 (2021) 11 SCC 209 19 (2022) 8 SCC 798 20 CRP.No.1364 of 2010 of Hon'ble High Court of AP 21 2015 (11) SCC 269 15 Dr.VRKS,J A.S.No.852 of 2012 & Batch • mode and source of acquisition of the said property, whether self acquired property or ancestral property • whether the interest in the property was acquired by succession or devolvement /Sections 6 and 8 of the Hindu Succession Act, 1956 • if the property is not self acquired property, who are the joint owners or coparceners • consequent upon death of a person having interest in the property, how the property devolved on the living members, and in what proportion • whether the person having interest in the property died intestate or left behind any testamentary succession in favour of family member or outsider in respect of inheritance of his share in the property • whether the suit properties are capable of being partitioned
19. Keeping focus on the above principles and based on the contentious facts, the necessary points have to be settled for adjudication.
20. The following points fall for consideration in these appeals. 16
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1. Whether the plaint schedule properties are ancestral properties held by the joint family during the lifetime of late P. Veeraraghavacharyulu?
2. On assuming that the plaint schedule properties were ancestral joint family properties, whether they ceased to be joint family properties, and if so, when and how that transformation took place?
3. What was the legal effect of death of late P Veeraraghavacharyulu on 26.02.1986?
4. Whether Ex. B9, B10 wills shall be given affect to?
5. Whether the impugned judgment of the trial court is required to be modified?
Point Nos. 1, 2, 3 and 4: -
21. The facts that are not in dispute are that Sri P.Veeraraghavacharyulu and Smt. Rajyalakshmamma and their five daughters and two sons were together at one point of time.
All the daughters were married prior to 1976 and the sons were also married. Each of these family members has been living at different places. For quite some time, late Veeraraghavacharyulu and his wife were with their younger son/ late Kesavacharyulu. It is in the evidence of DW.2 who is the wife of late Kesavacharyulu 17 Dr.VRKS,J A.S.No.852 of 2012 & Batch that a month prior to his death late Veeraraghavacharyulu went to Eluru and lived with his daughters and he died there and his daughters performed all obsequious. The plaint schedule consists of agricultural lands as well as a house. The oral evidence on both sides clearly indicated that for the education and marriages of the children, the family was dependent on properties and a few of the properties were sold out to meet such expenses. The remaining properties are mentioned in the plaint schedule.
22. The plaintiffs in the suit/ daughters pleaded and deposed as PWs.1 and 2 that all the plaint schedule properties of their family were ancestral properties. The pleaded case of their elder brother/D1 in the suit is the same. However, the pleaded case of legal heirs of late Kesavacharyulu is that at one time, they were joint Hindu family properties and they ceased to be so. Thus, even according to them, the suit schedule properties were ancestral properties at one time. In such circumstances, it shall be recorded that the suit schedule properties were ancestral joint family properties.
23. There is neither pleadings nor evidence on both sides to show acquisition of any of the plaint schedule properties by late 18 Dr.VRKS,J A.S.No.852 of 2012 & Batch Veeraraghavacharyulu or his children. Thus, plaint schedule properties were not the self acquired properties of late Veeraraghavacharyulu. D1 deposing as DW.1 stated that his father late Veeraraghavacharyulu and his two brothers got properties from their ancestors and they got them divided in the year 1981. Thus, he was indicating that the plaint schedule properties were ancestral properties and in division among brothers, they came to the share of late Veeraraghavacharyulu. That legal event took place in the year 1981. It is undisputed that by then, his five daughters and two sons were all grown up and they lived together. This further makes it clear that during the life time of Veeraraghavacharyulu and his wife, these properties were ancestral joint family properties. Therefore, the observations of the trial court in paragraph No.10 of its judgment that the plaint schedule properties are the ancestral joint family properties must be approved as correct.
24. Ownership over the property refers to the exclusive rights and interest that an individual or entity has over particular properties. There is right to possess, right to use, right to enjoy, right to dispose and right to exclude. They are manifestations of ownership. Such ownership when held by the joint family 19 Dr.VRKS,J A.S.No.852 of 2012 & Batch members, there is joint ownership which in other words, there is ownership shared by multiple individuals. Coparcenery property refers to ancestral property that is jointly owned and inherited by members of Hindu undivided family through generations. In a coparcenery, the ownership rights are not defined by specific shares but are held collectively by all coparceners. All the coparceners have their right to reside in the coparcenery property. Coparceners may have right to alienate to the extent of their interest in the coparcenery property. The concept of coparcenery property is governed by Hindu law, particularly the Hindu Succession Act, 1956. As noticed earlier, the suit schedule properties were ancestral joint Hindu family properties. The suit for partition was instituted in the year 2007. By Virtue of the amendment to section 6 Hindu Succession Amendment Act in the year 2005, along with sons, the daughters as well are recognized as coparceners in Hindu Mitakshara Law.
25. It is relevant to notice Section 6 of the Hindu Succession Act, 1956 and thereafter amended section 6 of the Hindu Succession Act which occurred in the year, 2005.
Sec. 6 of unamended Hindu Succession Act is as follows:
S.6 Devolution of interest in coparcenary property:-20
Dr.VRKS,J A.S.No.852 of 2012 & Batch When a male Hindu dies after commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.
Provided that, if the deceased had left him surviving a female relative in Class-1 of the Schedule on a male relative specified in the class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be under this Act and not by survivorship.
Explanation 1:-For the purposes of this section the interest of a Hindu Mitakshara coparcener shall be deemed to 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.
Explanation 2:- Nothing contained in this proviso to this section shall be construed as enabling a personwho has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
Sec. 6 of Amended Act is as follows:
The Hindu Succession (Amendment Act 39 of 2005) The amended Section 6 of the Hindu Succession Act, 1956, which came in effect vide Act 39 of 2005 w.e.f from 09-09-2005 reads as under: -
S.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, -21
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(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights 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 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 in, as property capable of being disposed of by 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 survivorship, 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;
(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.
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Dr.VRKS,J A.S.No.852 of 2012 & Batch 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, of 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 affect-
(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 Hind 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.
26. Sri P.Veeraraghavacharyulu lived a long life of about 75 years and died on 26.02.1986. By then, it was the un-amended 23 Dr.VRKS,J A.S.No.852 of 2012 & Batch Section 6 of the Hindu Succession Act, 1956 that was in statute book. The said un-amended section 6 provides that when a male Hindu died after commencement of this Act, having at the time of his death an interest in Mitakshara coparcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery. By the time of his death in the joint family, there were only three males which include Veeraraghavacharyulu and his two sons and they alone constituted coparcenery. If no other fact is there on death of Veeraragavacharyulu, his interest in the coparcenery shall devolve on his two sons who are the other coparceners and this devolution was by application of the principle of survivorship. However, there is proviso in the un-amended Section 6 of the Hindu Succession Act, 1956 which states that if the deceased had left surviving a female relative in class 1 of the schedule, the interest of the deceased in the Mitakshara coparcenery property shall devolve by testamentary or intestate succession as the case may be under the Act and not by survivorship. As a fact, Veeraraghavacharyulu had his wife and five daughters and all of them are class 1 relatives mentioned in the schedule. Therefore, the interest of Veeraraghavacharyulu in the coparcenary would 24 Dr.VRKS,J A.S.No.852 of 2012 & Batch not devolve by survivorship on his two sons. His interest in the coparcenery property should be shared by his class 1 legal heirs. In other words, his wife and two sons and five daughters were entitled to take the share of the interest of late Veeraraghavacharyulu in the coparcenary property. Death of late Raghavacharyulu is a fact. Such death is a legal incident in the context of devolution of interest in coparcenery property. Such legal consequences cannot be discarded. The statutory legal consequence arising on the death of Veeraraghavacharyulu shall always be kept in mind. Since by that date of his death on 26.02.1986, the law as applicable by then alone had to be applied. This is to be done by way of notional partition. Thus, the share of late Veeraraghavacharyulu needed to be determined so as to distribute it in accordance with the proviso contained in the un-amended section 6 of the Hindu Succession act. By doing so, the 1/3rd share of late Veeraraghavacharyulu was succeeded by his wife, two sons and five daughters which means it must be shared by eight persons. However, the crucial aspect to be observed is whether this notional partition has brought disruption of the entire coparcenery or not. In the Treatise of Mullah, Principles of Hindu law, Seventh Edition, page 250, referring to 25 Dr.VRKS,J A.S.No.852 of 2012 & Batch the notional partition, the great jurist had stated that the notional partition is for the purpose of enabling succession to and computation of an interest, which was otherwise liable to devolve by survivorship and for the ascertainment of the shares in that interest of the relatives mentioned in class I of the schedule. Subject to such carving out of the interest of the deceased coparcenar, the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption. The statutory fiction which treats an imaginary state of affairs as real requires that the consequences and incidents of the putative state of affairs must flow from or accompany it as if the putative state of affairs had in fact existed and effect must be given to the inevitable corollaries of the state of affairs. It is further mentioned the operation of the notional partition and its inevitable corollaries and incidents is to be only for the purpose of section 6, namely, devolution of interest of the deceased in the coparcenary property and would not bring about total disruption of the coparcenary as if there had in fact been a regular partition and severance of status among all the surviving coparceners.
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27. In Anar Devi's case22, the Hon'ble Supreme Court of India after noticing the above statement of law contained in the Treatise of Mulla, and after considering the facts of the case concluded saying that notional partition on the death of Sri Nemi Chand had also brought with the entitlement of his son to take up half share in the coparcenery in addition to 1/3rd share of the deceased father as one of his successors. It is this ruling that was considered by the trial court and accordingly, it disposed of the suit for partition. It is this principle which has now fallen for debate in the present appeal and cross appeal.
28. It is at this juncture, one is required to notice the law laid down by the three Judges Bench of the Hon'ble Supreme Court of India in Vineeta Sharma's case23. The reference before their lordships raised the questions concerning the interpretation of section 6 of the Hindu Succession Act as it stood prior to the amendment and after the amendment in the year 2005 in view of the conflicting decisions of the Division Bench of the Hon'ble Supreme Court of India in Prakash Vs Phulavati24 and 22 Supra 9 23 Supra 6 24 (2016) 2 SCC 36 27 Dr.VRKS,J A.S.No.852 of 2012 & Batch Danamma Vs Amar25. After elaborate consideration of the statute and the precedent, their Lordships answered the reference at paragraph No.137 and the same reads as below.
137. Resultantly, we answer the reference as under:
137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.
137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.
137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.
137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the 25 (2018) 3 SCC 343 28 Dr.VRKS,J A.S.No.852 of 2012 & Batch same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."
Thus, it is to be noted that this statutory fiction of the partition created by the proviso to Section 6 of the Hindu Succession Act, 1956, as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcenar when he was survived by a female. The provisions of the substituted Section 6 are required to be given full effect. At paragraph No.71, their Lordships have stated that no coparcener has any fixed share. It keeps on fluctuating by birth or by death. It is the said principle of administration of Mithakshara coparcenery carried forward in statutory provisions of section 6. Even if a coparcener had left behind female heir of class I or a male claiming through such female class I heir, there is no disruption of the coparcenery by statutory fiction of partition/ notional partition. Fiction is only for ascertaining the share of the deceased coparcenar, which would be allotted to them as and when an actual partition takes place. The deemed fiction of partition is for that limited purpose. The classic Shastric Hindu law excluded the 29 Dr.VRKS,J A.S.No.852 of 2012 & Batch daughter from the coparcenery, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution. At Paragraph No.74, their Lordships stated that the death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of section 6(1). Survivorship as a mode of succession of property of a Mitakshara coparcenery, has been abrogated with effect from 09.09.2005 by Section 6(3). At Paragraph No. 69 and 76, their Lordships stated that a daughter can assert the right on and from 09.09.2005 and seek for partition, provided as on 09.09.2005, there shall be a coparcenery in existence. At paragraph No.80, their Lordships stated that it is not necessary to form a coparcenery or to become a coparcenar that a predecessor coparcener should be alive. Relevant is birth within degrees of coparcenary to which it extends. Any reference to the coparcener shall include a reference to the daughter of a coparcenar. At paragraph No.107, their Lordships have further stated that the statutory fiction of partition is far short of actual partition, it does not bring about disruption of the joint family or that of coparcenary is the settled proposition of law. 30
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29. One is required to notice the ratio in Shub Karan Bubna Vs Sitha Saran Bubna26. Their Lordships stated that partition is a redistribution or adjustment of pre-existing rights among co- owners/ coparceners, resulting in a division of lands or other properties jointly held by them into different plots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. "separation of share"
is a species of partition. When all co-owners get separated, it is a partition. Separation of share refers to a division where only one or only a few among several co-owners/coparceners gets separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds.
For example, where four brothers owning property divided among themselves by metes and bounds, it is a partition, but if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only separation of the share of one brother.
30. In the light of the above principles, the facts on record are to be considered.
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31. It is undisputed that the plaint schedule properties were not subjected to any partition under a registered partition deed. By the time of institution of the suit, as per the pleadings, all the plaint schedule properties were in existence and were held by the joint family. There was no earlier suit for partition, and there was no final decree dividing the properties by metes and bounds. Thus, by the time the suit was filed, the suit schedule properties were intact and were held by the joint family. Thus, they were joint family coparcenery properties as on the date of filing of the suit. If that be the case, the daughters who have become coparceners from the time of their birth by virtue of the amendment in the year 2005 to the Hindu Succession Act, they are entitled to sue for partition. The contention of the appellants/ D2 and D3 that they are not entitled to sue for partition is against the law.
32. The legal status of D1/ Sri Mohan Krishnamacharyulu / eldest son of late P. Veeraraghavacharyulu has been contested. According to D2 and D3, this D1 got separated from the joint family. This was denied by plaintiffs as well as D1. Whatever D1 may have written in his Ex.B4 letters, the question of separation or relinquishment should be only through a registered 32 Dr.VRKS,J A.S.No.852 of 2012 & Batch relinquishment deed or a registered partition deed. Neither of them is made available by those who contended that D1 was separated from the family. Therefore, there is no merit in the contention of D2 and D3 and the observations of the trial court that D1 continued to be member of the joint family and coparcenery is right on facts and law.
33. The principal contention of D2 and D3 in their appeal is that the properties ceased to be joint family properties. Their contention is based on the un-amended section 6 and notional partition bringing disruption of coparcenary. This contention has no legal merit in view of the binding precedent of their Lordships in Vinita Sharma's case. Even otherwise, the facts on record do indicate that even after the death of late P.Veeraraghavacharyulu, the joint status of his children remained undisturbed. This aspect of the matter needs consideration along with Ex. B9, B10 wills.
34. The Evidence of DW.2 to 9 is to prove Ex. B9 and B10 wills. Both are unregistered wills. Under Ex. B9, item No.6 of the plaint schedule was given to Smt.Rajya Lakshmamma, while the remaining plaint schedule properties were given to late Kesavacharyulu. Under Ex.B10, Smt.Rajya Lakshmamma gave 33 Dr.VRKS,J A.S.No.852 of 2012 & Batch item No.6 of the plaint schedule to late Kesavacharyulu. D2 and D3 put faith in Ex. B9 and B10 and contend that by virtue of these wills, late Kesavacharyulu got the properties and thus they were his self acquired properties and they ceased to be joint family properties. This court finds no merit in this contention. Assuming that Ex. B9 and B10 wills are proved and are to be acted upon, the principle to be noticed is that the testator must have legal capacity to bequeath properties in the manner they were attempted to be bequeathed under those wills. In this regard, Section 30 of the Hindu Succession Act, 1956 is required to be noticed and the same reads as below.
30. Testamentary succession.―1 Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so 2 [disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.
Explanation.―The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section.
35. Testamentary disposition can be made only to the extent of that interest the testator holds in the coparcenery. A reading of Ex.B9 will executed by Veeraraghavacharyulu shows that all the 34 Dr.VRKS,J A.S.No.852 of 2012 & Batch plaint schedule properties which are mentioned in the said will are his ancestral properties. That being the own admission of the testator, what all he could bequeath under a will is only his share. He could not bequeath the share of other coparcener, namely, his eldest son/Sri P. Mohan Krishnamacharyulu/D1. Similarly, other coparcener/ Kesavacharyulu had his own share in the coparcenery and therefore it was not within the competence of Veeraraghavacharyulu to bequeath that share also. In such view of the matter, Ex. B9 will, even if accepted as true cannot be given full effect to. If Ex.B9 fails, it follows that Ex.B10 shall fail.
36. On considering the submissions raised on behalf of D2 and D3, this court assumes for a while that by virtue of the evidence of DW.2 to 9, Ex.B9 will is proved. Still to act upon such will the mere formal evidence by itself would not come to avail and one has to see all the attendant circumstances and the conduct of the parties.
37. In this regard, the following significant aspects as available from the material on record are required to be noticed. Ex. B9 will dated 16.12.1985 is an unregistered will. It was executed by late Veeraraghavacharyulu. If really, this was a true 35 Dr.VRKS,J A.S.No.852 of 2012 & Batch will, the beneficiary under the will/ Kesavacharyulu could have acted upon the terms of the will. The suit was filed in the year 2007, which means 22 years after Ex. B9 will. During the period of more than two decades, he did not seem to have obtained mutation of entries in Revenue records. That much is clear since his wife and daughter who are parties to the suit as D2 and D3 did not file any such documents indicating mutation of entries.
38. Ex.B2 is registration extract of a sale deed dated 23.04.1993. Ex.B3 is registration extract of a sale deed dated 20.11.1998. These sale deeds were executed by the two sons of late Veeraraghavacharyulu. Under the former document, they sold 10 cents of the land in survey number 85/3 and under the latter document, they sold 18 cents of the land in survey number 85/3. Those purchasers are D4 and D5. These two sale deeds were executed long after Ex.B9 will of the year 1985. If really, there was such a will in favour of late Kesavacharyulu, he would have asserted his rights and would have sold the properties by himself. The very fact that he did not sell them by himself, and he sold them only along with his elder brother/D1 indicates that the properties continued to be joint.
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39. Ex. B2, B3 have not made any reference to Ex. B9 will. If really there was such a will, it should have found a mention in those documents.
40. From the oral evidence on both sides, it is seen that late Veeraraghavacharyulu during his lifetime filed O.S.No.278 of 1985 praying for certain reliefs against third parties. He died pending that suit. Ex. B9 will was said to have been executed by him during his lifetime. On the death of Veeraraghavacharyulu, the legatee under Ex.B9 would have been the only legal representative to prosecute O.S.No.278 of 1985. DW.2 who is the wife of late Kesavacharyulu stated during her cross-examination that O.S.No.278 of 1985 was looked after by her husband Kesavacharyulu only and by then D1 was in Madras. It is seen from the evidence on record that in that suit on death of late Veeraraghavacharyulu, all his five daughters and two sons came on record as his legal representatives.
41. Absence of mutations in Revenue records, absence of any mention of Ex. B9 will in Ex. B2, B3 sale deeds, execution of Ex.B2, B3 Wills by the two brothers disregarding Ex.B9 will standing in favour of late Kesavacharyulu, non-disclosure of the 37 Dr.VRKS,J A.S.No.852 of 2012 & Batch will to the court in O.S.No.278 of 1985, cumulatively indicated to the mind of the trial court that Ex. B9 will was spurious. The contention of D2 and D3 that because of demand by the purchasers, D1 also joined execution of Exs.B2 and B3 and that D1 played fraud and all the children of late Veeraraghavacharyulu joined as legal representatives in O.S.No.278 of 1985 have no merit and cannot serve to say anything other than what the trial court said about the two wills.
42. The claim of D2 and D3 that the joint family properties ceased to be joint family properties by virtue of Ex. B9 will and Ex. B10 will, is devoid of any merit. As stated earlier, late Veeraraghavacharyulu was legally not competent to bequeath the entire coparcenery property and an incompetent act cannot be considered to change the legal character of the property.
43. Viewed in the above context of reasons, one has to necessarily say that as on the date of filing of the suit in the year 2007, coparcenary existed and the daughters are entitled to sue for their share. Their prayer in the suit is for division among all the seven children in equal proportion. Trial Court granted share to the daughters only in the share of the deceased coparcener, 38 Dr.VRKS,J A.S.No.852 of 2012 & Batch namely, late Veeraraghavacharyulu which is incorrect. Therefore, the cross appeal of the plaintiffs is full of merits in impugning the trial court's judgment. On considering the facts and law, it is crystal clear that the suit ought to have been decreed dividing the property into seven equal proportions granting one share to each of the children of late Veeraraghavacharyulu and Rajya Lakshmamma.
44. The properties covered under Ex.B2, B3 are not part of the plaint schedule properties. There was no contention from defendants in the suit, that the suit is bad for seeking partial partition. None of the parties to the suit have challenged Ex. B2 and B3 which indicates they all accept such alienations. In such circumstances, trial court mentioning about adjustment of equities is uncalled for. Be it noted, referring to Ex. B2 and B3 alienations, there were no pleadings on both sides. Even after impleadment of D4 and D5 who were purchasers under Ex. B2 and B3, the pleadings on both sides were not amended. There has been no whisper in the pleadings or in the evidence in challenge to Ex. B2, B3. Therefore, the findings and the operative portion of the trial court judgment referring to Ex. B2, B3 and D4 and D5 cannot be supported and are thus set aside.
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45. The grounds urged in the appeal by D2 and D3 that item Nos.1 and 2 of the plaint schedule were sold out to third parties and that item Nos.3 and 5 of the plaint schedule properties were alienated under agreement of sale - cum - GPA are not required to be considered since they were not part of the evidence.
46. For the reasons mentioned above, points are answered against D2 and D3/ appellants and in favour of plaintiffs/ appellants in the cross appeal.
Point No.5: -
In view of what is stated above, the impugned judgment requires interference.
47. In the result, the impugned judgment dated 05.06.2012 in O.S.No.33 of 2007 of learned Judge, Family Court - cum - Additional District Judge, Ongole is set aside. O.S.No.33 of 2007 stands decreed, dividing the plaint schedule property into 7 equal shares. Each of the five plaintiffs is entitled for one such share. Defendant No.1 in the suit is entitled for one such share. The one share of late Kesavacharyulu shall be given to defendant Nos.2 and 3 who represented his estate. Plaintiffs in the suit are entitled to move relevant application for assessment of mesne profits. 40
Dr.VRKS,J A.S.No.852 of 2012 & Batch Accordingly, A.S.No.852 of 2012 is dismissed and I.A.No.12 of 2012 (Cross Appeal No.16690 of 2012) is allowed. Both parties shall bear their own costs.
As a sequel, miscellaneous applications, pending, if any, shall stand closed.
________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 17.06.2025 Dvs 41 Dr.VRKS,J A.S.No.852 of 2012 & Batch THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR APPEAL SUIT No.852 of 2012 and I.A.No.12 of 2012 (CROSS OBJECTIONS No.16690 of 2012) Date: 17.06.2025 Dvs