Andhra HC (Pre-Telangana)
Kolluru Sambasiva Rao vs Kolluru Nagabhushanam Alias Nageswara ... on 27 August, 1993
Equivalent citations: 1993(3)ALT256
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
JUDGMENT B. Subhashan Reddy, J.
1. These four appeals, three regular and one miscellaneous, arise out of three suits and one original petition. While A.S.Nos. 1499 of 1985, 1569 of 1985 and Tr.A.S.No. 299 of 1986 arise out of civil proceedings in O.S.Nos. 123 of 1977, 62 of 1976 and 3 of 1981 on the file of the Court of the Additional Subordinate Judge, Guntur, C.M.A.No. 832 of 1984 arises out of divorce O.P.No. 160 of 1976. The above three suits and O.P.No. 80 of 1982, which was filed for the custody of minor boy, were tried together and were disposed of by a common judgment dated 24th December, 1984 by the Court of the Additional Subordinate Judge, Guntur. While appeals have been preferred as against the judgments and decrees rendered in O.S.No. 123 of 1977, 62 of 1977 and 3 of 1981, no appeal has been preferred against the judgment rendered in O.P.No. 80 of 1982 relating to the custody of the minor child Kolluru Nagabhushanam who was allowed to remain with his mother. O.P.No. 160 of 1976 instituted by Kolluru Sambasiva Rao for grant of divorce has been decreed, against which the above Civil Miscellaneous Appeal No. 832 of 1984 was filed by the wife. O.S.No. 123 of 1977 relates to the claim of partition and separate possession filed by the minor son, Kolluru Nagabhushanam, through his mother and next friend Kolluru Pramila Rani against his father Kolluru Sambasiva Rao, as also some other defendants. The relief prayed for in O.S.No. 62 of 1976 was for maintenance for the wife, Kolluru Pramila Devi and her minor son Kolluru Nagabhushanam against Kolluru Sambasiva Rao. Earlier to the civil proceedings, Kolluru Pramila Rani, the wife, was granted maintenance under Section 125 of Code of Criminal Procedure and to annul the same, her husband has filed O.S.No. 3 of 1981. Due to multiplicity of proceedings and change in order of parties, the parties are referred to as arrayed in O.S.No. 123 of 1977.
Kolluru Pramila Rani, wife - 1st plaintiff Kolluru Nagabhushanam, son - 2nd plaintiff Kolluru Sambasiva Rao, husband - Defendant
2. The defendant is a much married man. Firstly, he had married Lalita Kumari during the year 1966 and an year later, there was strain in their relationship which culminated into several legal proceedings. Because of the said friction, his first wife, Lalita Kumari, was staying apart and the defendant had instituted legal proceedings seeking restitution of conjugal rights against Lalita Kumari and the latter had filed a counter case for divorce. While the case of the defendant was that Lalita Kumari without any valid reason or cause deserted him, the complaint of the first wife was to the contra. Her case was that the defendant had not only misappropriated her monies including the dowry amount, but was indulging in extra-marital activities. She has specifically pleaded that the defendant was having extra-marital relationship with one Ms. Avula Bharathi and the latter was also made party in the divorce petition as a co-respondent along with the defendant. While the decree for restitution of conjugal rights was not granted to the defendant against his first wife, the divorce O.P. filed by the first wife was allowed resulting in termination of her marriage with the defendent.
3. On 14-6-1975, the defendant married the first plaintiff and this marital bliss also did not long last. Trouble ensued between the couple even within an year of their marriage. The second plaintiff was born to them during the month of March, 1975. The defendant had initiated criminal proceedings against the first plaintiff, her sister and mother and there was counter criminal proceedings too instituted by the latter against the defendant. There were also other civil cases instituted. After lot of unhappy incidents, the first plaintiff along with the second plaintiff had to go out of the house of defendant finally on 27-10-1975.
4. The first plaintiff had instituted proceedings under Section 125 Cr.P.C. for maintenance in M.C.No. 87 of 1976 and the same was allowed granting maintenance at the rate of Rs. 100/- per month. The plaintiffs had instituted regular civil suit in O.S.No. 190 of 1975 which was later re-numbered as O.S. No. 62 of 1976 claiming the maintenance at the rate of Rs. 750/- per month to the first plaintiff and Rs. 450/- per month for the second plaintiff. The second plaintiff represented by his mother and next guardian, viz. the first plaintiff, had instituted a suit for partition in forma paupers which was allowed to be filed as such and later was numbered as O.S.No. 123 of 1977. The relief claimed was partition of the suit schedule properties claiming half share therein. O.P.No. 160 of 1976 was filed by the defendant against the first plaintiff seeking divorce on the ground that he was ill-treated by herself and her mother and sister and the same amounted to cruelty. He had also instituted O.S.No. 3 of 1981 seeking for declaration that the maintenance order passed against him in M.C.No. 87 of 1976 was unsustainable. As already stated above, Rs. 100/- more per month in addition to the maintenance granted in M.C.No. 87 of 1976 was granted to the first plaintiff in O.S.No. 62 of 1976. A decree for partition and separate possession allotting half share to the second plaintiff in items 1 to 15 of 'A' schedule properties was granted in favour of the second plaintiff in O.S. No. 123 of 1977. O.S. No. 3 of 1981 filed by the defendant to annul the order of maintenance in M.C.No. 87 of 1976 was dismissed. But, however, his divorce plea sustained thereby terminating his marriage with the first plaintiff by order dated 7-3-1984.
5. The defendant had then contracted third marriage with Ms. Leelakumari and through her begot three female children, namely, (1) Padmasri, (2) Chandrakala and (3) Divya. C.M.P.No. 3707 of 1988 was filed to implead the above three minor daughters as parries in A.S.No. 1499 of 1985 and the same was ordered to be posted for hearing along with the said appeal. Meanwhile, the eldest of the above minors, namely, Padmasri died on 8-8-1988 and C.M.P.No. 18928 of 1989 was filed to bring her mother, i.e., K. Leela Rani, the third wife of the defendant, as the legal representative.
6. The first plaintiff pleaded that the defendant was given dowry by her parents; that she was also gifted with ornaments and other articles; that the defendant was jointly living along with his unmarried and handicapped elder brother, Anjaneyulu and under the influence of the latter, the defendant indulged in torturing the first plaintiff both physically and mentally. Several facts were alleged including mat of the defendant's perverse amorous desires to submit the first plaintiff to this perverse sexual acts and when protested, she was beaten mercilessly. Several other allegations were also made against the defendant regarding his ill-treatment towards her. It is also alleged that when the second plaintiff was born, Anjaneyulu fell ill and that the birth of the second plaintiff was treated as a bad omen and on that ground and more so, after the death of Anjaneyulu, the defendant attempted to kill the second plaintiff with the help of his henchmen and that ultimately the plaintiffs were beaten mercilessly and were sent out by the defendant on 27-10-1975 resulting in their desertion and uncaring. The first plaintiff pleaded that the defendant was a person with substantial means possessing not only immovable properties, but also cash apart from being a government servant drawing substantial salary. She claimed maintenance at the rate of Rs. 750/- per month for her and Rs. 450/- per month for her son, the second plaintiff. In support of the claim for partition and separate possession of half share in both 'A' and 'B' schedule properties, the case of the first plaintiff is mat the second plaintiff being the only son and a co-parcener along with the defendant was entitled to 50% share in the suit schedule properties and that in view of the strained relationship between the plaintiffs and the defendant, it was in the interests of the minor second plaintiff to have his share in the above properties partitioned with delivery of separate possession. It was pleaded by the plaintiffs that some properties were ancestral, some properties were acquired by the father of the defendant through the nucleus of the said ancestral property and that some were acquired by the defendant himself through the income and nucleus of the above ancestral properties and as such, all the 'A' schedule and 'B' schedule properties were coparcenery and joint family properties and were liable for partition as claimed. The first plaintiff resisted O.S.No. 3 of 1981 on the ground that there are absolutely no grounds for annulling the order of maintenance passed under Section 125 Cr.P.C. in view of the facts mentioned above. The cruelty alleged by the defendant against her was denied as false.
7. The defendant has contested the claim for maintenance contending inter alia that he had never ill-treated the plaintiffs as alleged; that he maintained them properly; that he was not under the influence of his brother and that his brother was a good and innocent person and treated the plaintiffs properly and that in fact the first plaintiff misbehaved with his brother and other family members under the evil influence of her elder sister, Vijayalakshmi and instigated by the said Vijaya Lakshmi and also' her mother, she deserted him by taking the second plaintiff along with her and she had been living with her sister and mother voluntarily depriving his marital rights. He also alleges that the plaintiff, her sister and mother had criminally assaulted him and also fled by stealing moveables belonging to him. His further plea was that his income was very meagre and after meeting expenditure, be it for cultivation, farm servants or his household expenses, he can save not more than Rs. 25/- per month. He had flatly denied his obligation to pay maintenance on the ground that no case was made out by the plaintiffs to fasten him with such liability as he was not at all at fault and it was the first plaintiff who has deserted him. He also alleged that the first plaintiff was in possession of sufficient means of maintaining herself and that imposing maintenance on him was uncalled for and unwarranted. He has also set up a plea that the acts of cruelty and defamation on the part of the first plaintiff disentitles her of maintenance. Answering the plea for partition and separate possession, the defence set up by him was that 'A' and 'B' schedule properties were not partible, that they were not ancestral or coparcenery properties; that either they were self-acquisitions of his father, his mother, his junior paternal grand-mother or himself. According to the defendant, the maintenance order passed under Section 125 Cr.P.C was unsustainable on the ground that there was no desertion or negligence on his part to maintain the plaintiffs and that the first plaintiff had without reasonable cause deserted him. On the basis of the allegations relating to cruelty, he pleaded for divorce from the first plaintiff.
8. On behalf of the plaintiffs, oral evidence was adduced by examining the first plaintiff as D.W.1 and other witnesses as D.Ws. 2 to 4. The defendant had examined himself as P.W. 1, Advocate-Commissioner as P.W. 2 and other two witnesses as P.Ws. 3 and 4 (the scribe and the attestor of Ex. A 105-Will) while no documentary avidence was adduced by the plaintiffs, the defendant has marked as many as 280 documents under Exs. A-1 to A.280. According to him, excepting 10 3/4 cents, 25 cents, 18 cents, 6 cents and 14 1/2 cents in D.Nos. 180/A1, 181/4, 181/5, 675/1A and 675/1, mere was no ancestral property in the hands of his father and that his father had acquired 3 3/4 cents, 1 cent, 26 cents and Ac.1.76 3/4 cents in Survey Nos. 183/B-1a, 180/B-1c, 181/3 and 182/3-B1 respectively with the money belonging to his mother and that even other properties under some of the items of 'A' schedule were purchased by his father with the income of the lands belonging to his mother. Ac.00.61/4 cents in D.No. 180/ A1,A.00.24 cents in D.No. 675 /1 were claimed as belonging to his junior paternal mother. The defendant claims 91 3/4 cents in D.No. 182/3-B1, Ac.00.10 1/2 cents in D.No. 193 and the properties covered by items 16 to 20 and all 'B' schedule items as his self-acquisitions.
9. It is manifest from the conduct of the defendant in changing three wives and having illicit relationship with Ms. Avula Bharathi that he is no less than a casanova. While his first marriage with Lalitha Kumari was subsisting, he was having extra-marital relationship with Ms. Avula Bharathi and that led to divorce of his first marriage. While the second marriage with the 1st plaintiff was subsisting, he had cast his eyes on his cousin sister's daughter Leela Kumari and actually that was the prime factor for the rift between the spouses, which ultimately ended in divorce and immediately after the divorce, the defendant married his cousin sister's daughter. In the notice issued by the 1st plaintiff, the said lady's name was specifically mentioned and that is proved beyond any doubt as he married the same lady Leela Kumari mentioned in the said notice issued by the 1st plaintiff before the initiation of legal proceedings. He was in such a great hurry that while the divorce with the 1st plaintiff was granted on 7-3-1984, he contracted the third marriage with his said cousin sister's daughter viz., Leela Kumari, the 5th respondent in A.S.No. 1499 of 1985 on 8-4-1984. From this, it is clear that he ran after women and changed wives very frequently apart from extra-marital relationship with the woman named above. But, there is no reason for the 1st plaintiff to exaggerate the version beyond all probabilities and cast aspersions on him that he was regularly visiting brothels and was having other vices and that he was forcing the 1st plaintiff to have sexual intercourse with him by keeping the doors of the room open at nights even to the gaze of his elder brother Anjaneyulu and that too forcing the 1st plaintiff to submit to several perverse sexual acts on the basis of the sex books. That apart, she alleged that Anjaneyulu, was watching all the intimate acts and discussions between the defendant and the 1st plaintiff and was confronting the 1st plaintiff with the said matters the next day. There is also further allegation that when the defendant fell down from scooter and was injured, Anjaneyulu had asked him as to whether the 1st plaintiff has embraced and kissed him so hard resulting in those injuries including the rupture to his lips. These are all so exaggerated and absolutely there is no basis for making such allegations. There is no evidence adduced in that regard. That apart, the 1st plaintiff along with her sister and mother had abused the defendant in front of the Advocate-Commissioner, P.W.2, when he caused an inventory in a suit instituted by the defendant and there was no reason for the 1st plaintiff and her relatives to utter such words and behave in that fashion before a stranger like the Advocate-Commissioner. The internal and domestic differences between the couple need not be made a tom-tom to the entire world maligning either spouse. If there is a legal ground, that has to be fought-out in the Courts of law or the matter can be put forth before some mediators comprising the respectable elders, before any Court litigation is initiated. The 1st plaintiff had also sent several petitions to the Banks, other financial institutions and others making the above allegations. Even if the defendant had indulged in contracting two marriages and also extra-marital relationship with Ms. Avula Bharathi, there was no reason for the 1st plaintiff to make the above wild allegations and certainly those wild allegations amount to cruelty on the part of the 1st plaintiff against the defendant. In that view of the matter, we hold that the judgment of the lower Court in granting divorce to the defendant from the 1st plaintiff is sustainable and we affirm the same. Further, it will be disastrous, at this juncture, if the divorce is set - at - naught which will in no way facilitate the separated couple for re-union, as the same is absolutely impossible, but, on the other hand, it makes the third wife and the children born to her, illicit and illegitimate.
10. The conjugal relationship between the defendant and his first wife Lalitha Kumari did not last even an year and there were spate of litigations even involving her parents. Ultimately, the matter ended in divorce after prolonged litigations. The defendant has repeated the same thing with the 1st plaintiff. Within months of marriage, there was a friction between the couple even while the 1st plaintiff was pregnant and she was subjected to lot of harassment by the defendant. The counter allegation by the defendant against the 1st plaintiff that she was the aggressor and mat she with the assistance of her sister and mother has injured him and his brother Anjaneyulu and that he and his brother were treated as servants, is unbelievable. He tried to cast several aspersions on the character of the 1st plaintiff's two sisters and other relatives; but absolutely there is no basis for such allegations. They are not proved. A serious attempt to project that the 1st plaintiff has substantial properties and income of her own to maintain herself has failed as he had utterly failed to prove the same. The fact that the defendant had harassed and assaulted the 1st plaintiff which forced her to leave his place along with the second plaintiff is proved beyond doubt. It was not a voluntary desertion on the part of the 1st plaintiff; but the defendant forced her desertion. As she was not having any independent income of her own to maintain herself and her minor son the 2nd plaintiff, there was no other alternative to her excepting to sue for maintenance. As the civil proceedings would take a longer time and for meeting the urgent necessity, the 1st plaintiff had chosen to invoke the provisions contained under Section 125 of Criminal Procedure Code and in the same she was granted maintenance at the rate of Rs. 100/- per month. It is not the case of the defendant that he will take back the plaintiffs into his fold and maintain them. Infact, he has categorically stated in his evidence as P.W.1 that he was not at all prepared to take them into his fold and that he will not live with the 1st plaintiff at all. That is evident from his conduct of contracting third marriage, which he was proposing during the subsistence of the second marriage. Now that divorce was granted and immediately third marriage contracted, three children are begotten out of the said third marriage. Therefore, the 1st plaintiff is entitled for maintenance and the defendant has to be non-suited in O.S.No. 3 of 1981 and that is what was done by the lower Court by dismissing his suit and we affirm the same.
11. It is pertinent to mention that the very purpose and intendment of Section 125 of Cr.P.C. Is to meet the emergent needs of the derelicts. Irrespective of the status and income, the said legal provision itself fixes the maximum. As such, by instituting O.S.No. 62 of 1976, the 1st plaintiff has claimed a further maintenance at the rate of Rs. 750/- per month to her and Rs. 450/- per month to the 2nd plaintiff. The facts leading to the separation of the couple and failure of proof on the part of the defendant that the 1st plaintiff was possessed of her independent means for livelihood fastens him with liability of providing maintenance to the 1st plaintiff. The family has got middle class status having substantial immovable properties in the shape of agricultural lands and the defendant is an Officer in the Industries Department, Government of Andhra Pradesh, drawing a salary of not less than Rs. 5,000/- per month which includes his pay, Dearness Allowance and other amounts. That apart, he has got income from agricultural lands and substantial investments in the shape of chits and savings in the Bank and other financial concerns. His statement that the savings will not be more than Rs. 25/- per month is a blatant lie and cannot be accepted at all. That is only a distorted version to avoid maintenance. His plea in the written statement and his evidence that he was rich and the 1st plaintiff was poor and as such the latter was given in marriage to him even though he was a divorcee and aged man belies his theory that he was poor and not capable of paying any maintenance to the 1st plaintiff. Admittedly, he has been in possession of Acs.9.00 of fertile agricultural land apart from other properties and savings and securities and a good salary. Further, cost of living increased by leaps and bounds due to inflation and in tine circumstances of this case, it cannot be said that the sum of Rs. 500/- per month is unreasonable. As such, we hold that the 1st plaintiff shall be entitled to maintenance amount of Rs. 500/- per month and excluding Rs. 100/- per month already awarded in M.C.No. 87 of 1976, she shall be entitled to Rs. 400/- per month towards her maintenance payable by the defendant from the date of the suit. We are of the considered view that the 1st plaintiff did not commit any such acts so as to disentitle her of claim of maintenance and the suit O.S.No. 62 of 1976 is decreed to the above extent. We are not awarding any maintenance to the 2nd plaintiff for the reasons mentioned infra.
12. The defendant and the 2nd plaintiff were the coparceners. They constituted a Hindu joint family of which the defendant was the 'Kartha'. Their shares in the joint family properties was one-half each. But the defendant raises a factual dispute with regard to the nature of the properties and their availability for partition. According to him, there was neither joint family nor any property belonging to the alleged joint family. His plea was that some entents of items 11 and 12 of plaint-A schedule, all the items under 15 to 20 of plaint-A schedule and all the plaint-B schedule properties are his self-acquisitions and that the rest of plaint-A schedule properties were either the self-acquisitions of his father, or his mother or his junior paternal grand-mother or his sister. It is his further case that the properties belonging to his father were bequeathed to his mother under a Will Ex.A 105, dated 9-7-1967. The defendant's father was an agriculturist, but he was also serving as a Compounder. His first salary was Rs. 20/- and when he retired in 1962, his salary was Rs. 200/- per month. It is in the evidence of the defendant that his father spent the entire salary for maintaining them. His father had to maintain himself, his wife and two sons including the defendant and a daughter, even though married, but was deserted by her husband. The only other source of income was. that on agricultural property. Even according to the defendant, his father did not acquire any lands out of his salary, as already stated above. The salary was hardly sufficient for meeting their household expenses. It is in evidence and also admitted by the defendant that even by the year 1932 there was substantial extents of double crop wet agricultural lands owned and possessed by the defendant's father. The defendant's father also realised amounts from his ancestral properties and then purchased the lands covered by Ex.A 271, dated 3-12-1932. The same is manifest from the recitals of the said document. The land given under Ex. A-272 by way of settlement to defendant's father's sister-in-law for life has reverted back on her death to the defendant's father. According to P.W.3, the yield per acre for the lands concerned would not be less than 27 bags of paddy per crop. The defendant has admitted in his evidence that he was not prepared to lease-out the lands even at the rate of 16 bags of paddy per acre. That reveals how the fertile the lands were and as such the produce from the said lands was sufficient for future acquisitions by defendant's father under Exs. A 41 to A 48. Further, the dates of the said purchases make it abundantly clear that the said subsequent acquisitions were made not at a time, but after sufficient gaps, proving beyond doubt that they were acquired with ancestral coparcenary nucleus. The first purchase in addition to ancestral property made by the defendant's father was in 1940 and then in 1948, 1948, 1949, 1953, 1953, 1955 and 1957. The exchange of properties under Exs. A 49 and A 50. also partake the character of the joint family properties as they were obtained in exchange by parting the joint family properties mentioned under the said documents. The theory set-up by the defendant that his father had acquired most of the properties with the amount belonging to his mother, stands unproved. Ex.A 38, dated 30-6-1934 said to be the hand letter of the defendant's maternal grand-mother styling it as a gift in favour of the defendant's mother and his maternal aunt, is not only inadmissible in evidence as gift is a compulsorily registrable document and is not registered; but also is not proved. Ex. A140 is an exchange deed between the defendant's mother Seetharatnamma and Raghavamma. By the said document, no presumption can be raised that the property exchanged with Raghavamma exclusively belonged to her; as the said land exchanged and the land got in exchange was in possession of the defendant's father along with the other joint family properties. It was never treated as separate property of the defendant's mother. The plea set up by the defendant that the lands were purchased by his mother by sale of her jewellery is not at all substantiated. In fact, in his evidence, he categorically admits that he has got absolutely no evidence in that regard and that he has got no personal knowledge of the said sale, exchange and other transactions, be it is his father or his mother or others. The further plea of the defendant that his mother got money out of sale under Ex. A 270, dated 12-6-1948, that with the said amount his father purchased lands and that, as such, the said lands belong to his mother, is baseless. A reading of Ex.A 270 makes it abundantly clear that the said land did not even devolve upon the defendant's mother and in anticipation of the said devolution from her mother, she purportedly sold her future rights in favour of her sister for meeting her urgent family necessities. In this connection, the statement made by the defendant that his father obtained leave of one year to pursue the litigation between his daughter (defendant's sister) and her husband and that lot of amounts have been spent for the said litigation is very pertinent and relevant. It cannot be ruled-out that the said domestic expenses were meant for the same. In any event, there is no proof that the said amount was utilised for the purchase of any of the items of plaint-A schedule properties. The account book said to have been maintained by the defendant's father and several other receipts and bills projected by the defendant including that of the acknowledgment of Money Orders and promissory notes and the discharged promissory notes are not at all proved by the defendant. The defendant having had no personal knowledge of the acquisitions of his father, be it in his name or anybody else and having regard to the fact that the father of the defendant had sufficient ancestral nucleus of the subsequent acquisitions, have got to be presumed as the joint family property comprising the defendant's father, the defendant and Anjaneyulu. It is totally false on the part of the defendant to say that there was no joint family at all. There was a joint family consisting of Nagabhushanam, Anjaneyulu and the defendant with Nagabhushanam as the 'Kartha'. The facts which are established beyond doubt are that Nagabhushanam along with his two sons were the coparceners and they owned and possessed joint family property having 1/3 share each. The defendant's father, at the time of his death, was in possession of Acs. 7.00 of fertile double crop wet land. He was in possession of the houses and he was paying all the taxes relating to the lands and houses. There is absolutely no evidence that other than defendant's father, any other person/s was in possession and enjoyment or management of the above properties. After the death of his father, the defendant entered possession of the above properties and thereafter acquired further properties mentioned in items 11, 12 and also items 16 to 20 of plaint A schedule. With the said income, it was not difficult for the defendant to acquire the extents of lands in items 11 and 12 of plant-A schedule and other properties under items 16 to 20 of plaint A schedule. The quantum of income from the produce of the lands, even as admitted by the defendant and his witness P.W.3, amply testifies the same. It is also pertinent to mention that acquisition of the properties in the name of either 'kartha' or oilier member of joint family does not indicate the nature of the property and does not raise any presumption that they belong to the said member of joint family exclusively. It is a settled law that though joint family need not necessarily own any property, but once ancestral nucleus is proved, all the subsequent acquisitions irrespective of the fact as to whether they stand in the name of either 'kartha' or other member of joint family, even female members, are deemed to be joint family properties, unless the same is rebutted by clinching evidence by the person setting-up the said properties as his self-acquisitions. But, in the instant case, the defendant has utterly failed to discharge the said burden of disproving that the later acquisitions have not been acquired with the aid of ancestral nucleus. In view of the same, all the plaint A schedule properties are treated as joint family properties of the defendant and his son-the 2nd plaintiff. The will Ex.A-105 set up by the defendant, purported to have been executed by his father, bequeathing the properties mentioned therein to his mother was held to be forged and fabricated by the lower court. This will, for more than one reason, can easily be said that it is forged and fabricated by the defendant to use it as a shield to the claim of partition made on behalf of the 2nd plaintiff. The will is neither stamped nor registered. It is on a plain paper. May be, the registration is optional but having regard to the fact that sons and daughters of the testator were being deprived for specific reasons and wife was preferred to succeed to the entire estate, it was expected of a literate person like Nagabhushanam the testator-to effect the registration of the will. Further, the defendant admitted that his father thought of executing the will five days before and also thought of registering the same. But the registration was avoided to avoid the expenditure. But this reason cannot be accepted as the registration charges for a Will are very minimal and that at that point of time that is on 9-7-1967 it would not have been more than even Rs. 10/- or Rs. 15/-. What is more, the office of the Sub-registrar was just away by four furlongs from the house of the defendant, and P.W.4 is a document writer himself who sits in the office of the Sub-Registrar all the time writing the documents as his profession. Further, there are material discrepancies in the proof of the said will. P.W.3 is the scribe and P.W.4 is the attestor. According to P.W.3, he was acquainted and was friendly with the testator for years before the execution of the will; but he did not even know how many sons the testator had. He has stated that there were three sons to the testator. Even P.W.4 states that there were three sons to the testator. But the testator had only two sons viz., the defendant and his brother Anjaneyulu. Further, the place of execution of the will, according to P.W.3, was Pattabhipuram colony of Guntur town, while the place of the execution of the will as stated by P.W.4 is 2nd line, Brodipet of Guntur town. While P.W.3 states that he went to P.W.4 and brought him, P.W.4 contradicts the same by saying that by the time he went to the house of the testator on his own, P.W.3 was already present. While P.W.3 states that the testator has given him 30 or 40 title deeds for reading the same for the purpose of drafting the Will, the same is not spoken to by P.W.4. In fact, the statement of P.W.3 that a list of properties was given by the testator for drafting the Will, was not corroborated by P.W.4. The statement of P.W.4 that a draft was prepared by P.W.3 before the execution of Ex. A. 105 is not supported by P.W.3. Even with regard to the attestors, the evidence is highly discrepant and self-contradictory. The Will said to have been executed on 9-7-1967, was not produced before any authority, be it Municipal or Revenue, for mutation in the name of defendant's mother. All along, the same was stated to have been in the custody of the defendant and he admits the same. The reasons mentioned in the Will that because the testator doubts the bona fides of his children, he was bequeathing the properties to his wife is belied and falsified by the very evidence of the defendant. From the evidence of the defendant, it is crystal clear that himself and his brother and his sister were having very cordial relationship with his parents and his father was staying with him at Brodipet, Guntur during his last days. As such, absolutely, there was no reason to deny the natural line of succession to the heirs of Nagabhushanam. More so to Anjaneyulu, who was handicapped and was incapable of doing any work and divorce daughter, who was dependent on his father. When the testator did not give the property to his children, it is highly improbable that the Will would have been in the custody of the defendant. It would have been kept in the custody of either the legatee or some other respectable elder, a confident of the testator. Further, the will said to have been executed on 9-7-1967 and even though the testator died within 10 days after the same, has not seen the light of the day till it was produced in the year 1982 before the Court. Before production of the same into the court, nobody has even seen the said will. The above are the vital factors pointing definitely that the Will Ex. A. 105 propounded by the defendant is false and that it has been forged and fabricated by him to use as evidence in his favour in the suit for partition. One admission of the defendant in his evidence clinches that the will is forged and fabricated by him. Ex.A-181 is a list said to have been prepared and given by the testator to P.W.3 for drafting the will, and on which basis the said Will Ex.A 105 was drafted. Found among the items of properties in the said will-Ex.A 105 are the properties purchased by the defendant under Ex.A 123, dated 12-4-1973 and Ex.A 124, dated 7-7-1976. If really the will was executed on 9-7-1967, it is ununderstandable as to how the said properties purchased in the year 1973 and 1976 after 7 years of death of the defendant's father could find a place in the Will. This circumstance itself is sufficient to discredit the Will and to hold the same as a rank forgery. What is more, the defendant himself accepts in his cross-examination as follows:
"The last two items under Ex.A 181 was Written by me in my hand writing after the death of my father after 1 have purchased the same".
If this is the situation, there is nothing left even to argue that the Will was executed by late Nagabhushanam. Actually, this is the glaring case of admitted forgery and the lower court ought to have initiated criminal proceedings. Be that as it may, the irresistable conclusion is that the finding of the lower court that the will was forged and fabricated is perfectly correct and valid and we affirm the said finding.
13. In view of what is stated supra, while we affirm the finding of the lower court that items 1 to 15 of plaint-A schedule are joint family properties available for partition, we reverse its finding and hold that items 16 to 20 of plaint-A schedule are also joint family properties and are available for partition.
14. Coming to plaint-B schedule properties which are all moveables, the case is altogether different. The chit fund transactions, the cash investment in the Banks and also other financial concerns can clearly be treaceable to the savings made by the defendant out of his salary and the same is the case with regard to other articles like scooter, cycle, gas stove, transistor, fan etc., excepting some items i.e., bullock cart, he-buffaloes, sarees, hand bag etc. But due to this long lapse of time, it is highly doubtful whether the said moveables are existing so as to be available for partition. Even several other articles like utensils, clothes etc., cannot be expected to be available for partition after this length of time. In the circumstances, we hold that all the plaint-B schedule properties are either self-acquired properties of the defendant and or as not available for partition to the 2nd plaintiff. As such, the finding of the lower court with regard to plaint-B schedule properties is confirmed.
15. There is yet another question, which is purely legal; but very important as it touches upon the quantum of shares of the coparceners. As per the law prevalent on the date of the institution of the suit in 1975, there were only two coparceners to share the properties. In view of our finding mentioned supra, the 2nd plaintiff and the defendant were entitled to share equally one half-each in plaint-A schedule properties. But the impleaded respondents put up a plea that in view of the Hindu Succession Act (A.P. Amendment) Act, 1986 (A.P. Act 13/86) the three daughters born out of the wedlock of the third marriage have become coparceners and as such they were entitled to 1/5th share each in the properties and the share of the 2nd plaintiff would be 1/5 even assuming that plaint-A schedule properties are joint family properties. The above Act is operative in the State of Andhra Pradesh. It is given retrospective operation from 5th September, 1985. Daughters are treated as coparceners on par with the sons entitling for shares by survivorship, in view of the above amended Act. So far as the application of the Act on and after 22-5-1986 (when it was gazetted) is concerned, there cannot be any dispute or doubt. But the question as to its applicability to the instant case involves interpretation. The said Act even though given retrospective operation from5-9-1985 makes two exceptions viz., (1) By that date the partition ought not to be effected and (2) the daughters remained unmarried.
16. In view of the controversy, it is necessary to dwell upon the date of severance of a member from joint family. There were conflicting judicial pronouncements on this aspect. While in some decisions it was held that severance is not effected merely because a suit for partition was filed, other decisions took a view that the moment a suit was filed, there would be a severance in status and disruption of joint family. But this conflict is no more res integra in view of the authoritative prompuncement of the Supreme Court in K. Peda Subbayya v. K. Akkamma and Ors., . Repelling the argument that an adult can bring about a division in status as he will be in a position to express his opinion clearly and unambiguously but a minor cannot express the same, the Supreme Court held that a suit filed by a next friend on behalf of minor would bring about a severance as effectively as it is done by a suit instituted by an adult plaintiff. The Supreme Court held as follows:
"In our judgment, when the law permits a person interested in a minor to act on his behalf, any declaration to become divided made by him on behalf of the minor must be held to result in severance in status, subject only to the court deciding whether it is beneficial to the minor, and a suit instituted on his behalf if found to be beneficial must be held to bring about a division in status."
The Supreme Court further held as follows:
"It is in the exercise of this jurisdiction that Courts require to be satisfied that the next friend of a minor has in instituting a suit for partition acted in his interest. When, therefore, the Court decides that the suit has been instituted for the benefit of the minor and decrees partition, it does so not by virtue of any rule, special or peculiar to Hindu law, but in the exercise of a jurisdiction which is inherent in it and which extends over all minors. The true effect of a decision of a Court that the action is beneficial to the minor is not to create in the minor proprio vigore a right which he did not possess before but to recognise the right which had accrued to him when the person acting on his behalf instituted the action. Thus, what brings about the severance in status is the action of the next friend in instituting the suit, the decree of the Court merely rendering it effective by deciding that what the next friend has done is for the benefit of the minor".
This judgment of the Supreme Court was later followed in Lakkireddy China Venkatareddy v. L. Laxmamma, AIR 1953 SC 1601. The Supreme Court has categorically held as follows:
"The effect of the decision of the Court granting a decree for partition in a suit instituted by a minor is not to create a new right which the minor did not possess, but merely to recognise the right which accrued to him when the action was commenced. It is the institution of the suit, subject to the decision of the Court, and not the decree of the Court that brings about the severance".
The same view was taken in Krishnabai v. A.T. Nimbalkar, AIR 1979 SC 1880. In the said case, it was held that even an intimation by a coparcenar of his intention to divide and separate brings about the division in status of joint family. It was held emphatically thus:
"The immediate and inexorable consequence of this intimation was . disruption or division of the joint status, which, in the eve of Hindu law. amounted to 'partition".
This proposition is further approved by a decision of the Supreme Court in Kalyani v. Narayanan, confirming the earlier views that an intimation or in the absence of the same, a suit, immediately brings about the division in status and disruption of joint family. The Supreme Court held as follows:
"Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessry to constitute partition is a definite and unequivocal indication of his intentionby a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. Such partition, irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Appovier v. Rama Subba Aiyan, (1886) 11 Moor Ind. App. 76 (PC) quoted with approval in Smt. Krishnabai Ganpatrao v. Appasaheb Tuljaramarao, . A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv) 43 Ind. App. 151: (AIR 1916 PC 104). A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense."
As such, the settled principle of law is that whether a suit Is-instituted by an adult plaintiff or a minor, they stand on the same footing and the said suit for partition brings about the severance in status, the moment the suit was filed. Even the fact that the suit is filed in forma pauperis does not alter this legal position. In the instant case, there cannot be even an iota of doubt that the suit instituted by the 1st plaintiff being mother and as the next friend of the 2nd plaintiff was in the interest of the 2nd plaintiff. If that be so, the irresistible conclusion is that there was a severnce and division in status of joint family consisting of the defendant and the 2nd plaintiff in the year 1975 when the suit was filed for partition and separate possession in forma pauperis in O.P.No. 173 of 1975. But, on behalf of respondents 3 to 5, the learned counsel appearing for them relies on a judgment of the Supreme Court in S. Sai Reddy v. S. Narayana Reddy, 1991 (2) APLJ 64 (SC) . In the said case, a question arose as to whether the unmarried daughters as on 5-9-1985 were entitled for a share in the joint family properties. In the said case, there were two unmarried daughters as on 5-9-1985; but before the said date, a civil action for partition was instituted by a coparcener-son against the father and other coparcener brothers and preliminary decree was passed even by 5-9-1985 and in fact final decree proceedings were pending. At that juncture, a petition was filed by the said daughters claiming shares on par with other coparceners in view of the said amending Act, A.P. Act 13 of 1986. Initially, the lower court rejected their contention, but on approach to this court, the said order was reversed holding that the daughters are entitled for shares in accordance with the said Act. The Supreme Court concurred with the order of this court upholding the rights of the said two unmarried daughters. While construing the provisions of A.P. Act 13 of 1986, the Supreme Court has held that the above amendment was brought-in on the touch stone of Article 14 of the Constitution of India and was a beneficial legislation in so far as women members of the joint family are concerned and as such the same has got to be liberally construed and while so construed the daughters who were unmarried as on 5-9-1985 were entitled for shares on par with other coparceners regardless of the fact that suit was instituted much before the said date and even if the preliminary decree was passed. The Supreme Court, in the circumstances of that case, held that mere passing of preliminary decree did not have the effect of conclusion of the rights of joint family. But the Supreme Court, in the said decision, did not disagree with the settled proposition that partition action brings about the severance in status the moment the suit for partition was filed. The previous Supreme Court judgments authoritatively pronouncing that a mere intimation to separate or in the absence of the same filing of the suit severs and disrupts the joint family status, were not brought to the notice of the Supreme Court in the later judgment in S. Sai Reddy v. S. Narayana Reddy, 1991 (2) APLJ 64 (SC). That apart, in the said decision what was dealt with was whether passing of the preliminary decree declaring shares brings about any irreversible situation. Due to insertion of Section 29-A into Hindu Succession Act, 1956 by virtue of A.P. Act 13 of 1986, the daughters, who were respondents 2 to 5 therein, already existing on the date of the suit for partition, were held to be entitled for shares on par with other male coparceners and that as the properties were not divided by metes and bounds and the possession was not delivered, the women coparceners cannot be deprived of their due shares conferred by virtue of the amending Act. The Supreme Court, in the said case, in fact, states as follows:
"Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas it is necessary to give a liberal effect to it. For this reason also we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation."
A close reading of all the judgments rendered earlier and the judgment in S. Sai Reddy v. S. Narayana Reddy (5 supra), and analysis of the same with regard to the date of severance in joint family status and the variation of shares of coparceners on account of the intervening events does not create any confusion or conflict.
As such, harmoniously read and interpreted all the above judicial precedents and Section 29-A of Hindu Succession Act incorporated by A.P. Act 13 of 1986, the legal proposition which emerges is as mentioned infra.
In view of insertion of Section 29-A into Hindu Succession Act, 1956 by virtue of A.P. Act 13 of 1986, the women members of the joint family are deemed to be the coparceners on par with male members thereof. Section 29-A of Hindu Succession Act contains a non-obstante clause and gives a go-by to the old notions of 'shastrik' Hindu law later codified that only males are coparceners in a Hindu joint family and not the women and that only male coparceners are entitled for succession by virtue of survivorship and not the female, insofar as the State of Andhra Pradesh is concerned. By reason of insertion of the said Section 29-A into Hindu Succession Act, 1956, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenery properties as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son. Even though the said Act was gazetted on 22-5-1986, the same is retrospectively operative from 5-9-1985. The retrospectivity is dependent upon two factors-(1) that the partition being not effected and (2) the daughters remaining unmarried. If the partition action was pending any time before 5-9-1985 and if the daughters were born and were existing and remained unmarried as on the date of filing of the suit, by legal fiction, the said daughters would be entitled to lay claim, later, in view of the said amending Act claiming their due shares subject to the condition that by 5-9-1985 the property is not divided by metes and bounds followed by actual and physical delivery of possession. This is so because the ladies by birth are treated as coparceners on par with the male coparceners. Concisely speaking even though the date of commencement of A.P. Act 13 of 1986 is mentioned as 5-9-1985, it has got the legal effect of making the women members as coparceners right from their birth on par with male coparceners. It is needless to mention that even the females enventre samere (in mother's womb) have got to be treated as coparceners on the same analogy as that of male coparceners. A mere intimation to separate by an adult coparcener or a minor coparcener through next friend or institution of a suit immediately disrupts the status in joint family either from the date of the said intimation or the institution of the suit, as the case may be. If the daughters are born to a coparcener after such division in status and disruption of joint family, they will not be entitled to a share out of the entire estate of coparcenery; but are entitled to share/s only out of their father's share and the share of a coparcener who laid a suit gets untouched and unaltered as his share already gets crystalised the moment there was a division and disruption in status of joint family, in view of intimation or civil action.
In view of the above legal position explained by us, the 2nd plaintiff's half share in the entire plaint-A schedule properties stood crystalised on the date of institution of suit for partition in forma pauperis in O.P.No. 173 of 1975 and is not liable to be varied or altered due to subsequent births of respondents 2 to 4. Respondents 2 to 4 are entitled for shares out of the estate of their father i.e., the defendant, whose share is one half in plaint-A schedule properties. As the 2nd respondent died intestate, after institution of suit for partition on their behalf, her mother, the 5th respondent as a heir in Class-1, will be entitled to her share. As such, we repel the argument advanced on behalf of respondents 3 to 5 that they are entitled for 1/5th share each in plaint-A schedule properties and instead hold that while the 2nd plaintiff is entitled for 4/8th share in plaint-A schedule properties; the defendant and respondents 3 to 5 are entitled for 1/8th share each. This can be the only conclusion as even when a coparcener-son born after the severance in the status of joint family is not entitled to disturb the share of a coparcener, who has instituted a suit, it is ununderstandable as to how the argument can be accepted that the daughters born years after the severance in status of joint family can be held to be entitled to shares as coparceners.
17. As such, we hold that while the 2nd plaintiff is entitled for half share in plaint-A schedule properties, the defendant along with his two daughters i.e., respondents 3 and 4 and his third wife, i.e., respondent No. 5 as legal representative of the 2nd respondent in A.S. No. 1499 of 1985 are entitled to 1/4 th each out of the one-half held by the branch of the defendant (1/8 th each) out of plaint-A schedule properties. Since plaint-B schedule properties exclusively belong to the defendant, neither the 2nd plaintiff nor respondents 3 to 5 in A.S.No. 1499 of 1985 are entitled for any share therein.
18. In view of what is stated supra, we hold as follows:
(1) The 2nd plaintiff shall be entitled to 4/8th share in plaint-A schedule properties in O.S.No. 123 of 1977 on the file of the court of Additional Subordinate Judge, Guntur, while the defendant and respondents 3 to 5 in A.S.No. 1499 of 1985 are entitled to 1 /8th each therein.
(2) Plaint-B schedule properties in O.S.No. 123 of 1977 on the file of the Additional Subordinate Judge, Guntur exclusively belong to the defendant and are not available for partition either to the 2nd plaintiff or to respondents 3 to 5 in A.S.No. 1499 of 1985.
(3) The 1st plaintiff shall be entitled to claim maintenance at the rate of Rs. 100/- per month as ordered in M.C.No. 87 of 1976 payable by the defendant.
(4) The 1st plaintiff shall also be entitled to a further sum of Rs. 400/- per month towards her maintenance in addition to the maintenance amount in M.C.No. 87 of 1976, payable by the defendant from the date of the institution of O.S.No. 62 of 1976.
(5) The marriage between 1st plaintiff and the defendant has been validly dissolved.
19. In the result, A.S.No. 1499 of 1985 is dismissed, while cross-objections therein are allowed in part. A.S.No. 1569 of 1985 is dismissed allowing the cross-objections therein in part. Transfer Appeal Suit No. 299 of 1986 is dismissed. Civil Miscellaneous Appeal No. 832 of 1984 is dismissed. In the circumstances of the case, we direct the parties to bear their own costs.