Andhra Pradesh High Court - Amravati
Viswanadharao Suryaprakasa Rao 2 Ors vs Viswanadharao Lakshmi Narasamma 5 Ors on 23 October, 2025
APHC010186632002
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
THURSDAY,THE TWENTY THIRD DAY OF OCTOBER
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 224 OF 2002
Between:
1. VISWANADHARAO SURYAPRAKASA RAO & 2 ORS, S/o Gopayya R/o
Lakshminarasimhapuram, Chintalapudi, West Godavari Dist.
2. Viswanadharao Venkateswara Rao, S/o Gopayya R/o
Lakshminarasimhapuram, Chintalapudi, West Godavari Dist.
3. Viswanadharao Srinivasa Rao, S/o Gopayya R/o Lakshminarasimhapuram,
Chintalapudi, West Godavari Dist.
...Appellants/Defendants 1 to 3
AND
1. VISWANADHARAO LAKSHMI NARASAMMA 5 ORS, W/o late Gopayya
R/o Lakshminarasimhapuram, Chintapudi, West Godavari Dist.
2. Ch Ammaji, W/o Chakrapani Peruru (V), Vajedu (M), Kothagudem,
Khammam Dist.
3. Y Usha Rani, W/o Nagamalleswara Rao R/o Naidupet, Krishnalanka,
Krishna Dist.
4. B Murali Krishna, S/o Ramamohana Rao Kistaram, Sattupalli, Khammam
Dist.
5. B Kishore, S/o Ramamohana Rao Kistaram, Sattupalli, Khammam Dist.
6. B Aruna Kumari, D/o Ramamohana Rao Kistaram, Sattupalli, Khammam
Dist.
7. Bathula Vijaya Kumari, W/o. Late Bathula Murali krishna, Aged about 42
years, Housewife, H.No.3-44, Kistaram Village, Sattupalli, Mandalam,
Khammam District.
8. B Rammohan Rao, S/o. Late Bathula Muralikrishna, Aged about 21 years,
H.No. 3-44, Kistaram Village, Sattupalli, Mandalam, Khammam District.
9. B Chandra Prakash, S/o. late Bathula Muralikrishna, Student, Aged 19
years, H.No. 3-44, Kistaram Village, Sattupalli, Mandalam, Khammam distrct.
Respondent Nos. 7 to 9 are brought on record as LRs of deceased
respondent No.6 vide court order dated 12.08.2024 in A.S.M.P.No. 1940 of
2017 in A.S.No. 224 of 2002.
...Respondents/Plaintiff/Defendants
Appeal against the decree and judgment in O.S.No.20/1994 on the file of
Addl. Senior Civil Judge, at Eluru dated 24-1-2001
IA NO: 1 OF 2004(ASMP 12675 OF 2004
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
stay all further proceedings including passing of final decree pursuant of the
preliminary decree dated 24-1-2001 in OS No. 20 of 199 on the file of the
Addl. Senior Civil Judge Eluru pending disposal of Appeal
IA NO: 1 OF 2017(ASMP 1938 OF 2017
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
condone the delay of 2559 days in bringing the petitioners / proposed
respondents, the legal representatives of deceased Respondent No.6 i.e., Sri
Bathula Muralikrishna as respondents 7 to 9 in the above
IA NO: 2 OF 2017(ASMP 1939 OF 2017
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
set aside the abatement of the above appeal in respect of the deceased 6th
respondent in the interest of justice
IA NO: 3 OF 2017(ASMP 1940 OF 2017
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
bring the petitioners / proposed respondents, the legal represenatives of
deceased Respondent No.4 1. Bathula Vijaya Kumari, W/o.late Bathula
Muralikrishna, Aged 42 Years, Occ: Housewife 2. Bathula Rammohan Rao,
S/o.late Bathula Muralikrishna, Aged 21 Years, Occ: Student 3. B.Chandra
Prakash, S/o.late Bathula Muralikrishna, Aged 19 Years, Occ: Student all
are R/o.H.No.3-44, Kistaram Village, Sattupalli Mandalam, Khammam District
as respondents 7 to 9 in the above appeal
Counsel for the Appellants: PRUDVI RAJU MUDUNURI
Counsel for the Respondents 6 to 9: CH B R P SEKHAR
The Court made the following:
Judgment:
The appeal suit is filed against the judgment and decree dated
24-01-2001 in O.S.No.20 of 1994 passed by the learned Additional Senior
Civil Judge, Eluru, West Godavari District. The suit was filed by the plaintiff
for partition of the plaint schedule properties by metes and bounds into seven
equal shares and to allot two such shares to the plaintiff, mesne profits and for
costs of the suit.
2. The case of the plaintiff as narrated in the plaint, in brief, is as
follows:
It is pleaded that the deceased Viswanadharao Gopayya was plaintiff's
husband. Defendants 1 to 3 and the deceased Venkata Lakshmana Rao are
sons and the 4th defendant and the deceased Venkata Satyavathi, who is the
mother of defendants 5 to 8, are the daughters of plaintiff and Gopayya. Out
of them, Venkata Lakshmana Rao died unmarried and intestate in or about
1974 and Venkata Satyavathi died intestate in the year 1976 leaving behind
the defendants 5 to 8 as her legal heirs. The plaintiff was given cash of
Rs.50,000/- besides gold jewellery weighing 25 sovereigns and silver
weighing 100 tulas in addition to sare samans worth Rs.25,000/- while at the
time of her marriage with Gopayya and she entrusted all such properties to
Gopayya for improving his properties and plaint schedule properties. After
Gopayya died intestate in an accident in the year 1981, the 1st defendant took
management of the plaint schedule properties and started to enjoy the income
realized from the plaint schedule properties for himself, due to which the
plaintiff demanded for partition of the same and issued legal notice dated
15-9-1993 to the defendants 1 to 3 and she impleaded the defendants 2 to 8
as parties as they have not cooperated with her in getting the above said relief
and that the plaintiff was constrained to file the suit for partition of the plaint
schedule properties into seven equal shares by metes and bounds, allotting
two such shares to her and for other reliefs.
3. Brief averments in the written statement filed by the 1st defendant are
as follows:
It is contended that the 1st defendant's father Gopayya got Ac.10-00
only in the partition that took place among him and his brothers and the
remaining properties were acquired by Gopayya with his contribution. He, his
brothers and Gopayya partitioned the joint family properties in 1972 under
a registered partition deed and since then, respective shares have been in
possession and enjoyment of their respective shares and the properties fell to
the share of Gopayya have been in possession and enjoyment of the plaintiff
and 3rd defendant, and he never managed such property. The plaint schedule
properties are incorrect and item Nos.1 and 4 of plaint-B schedule are his self-
acquired properties and plaint-F schedule properties were purchased by him
with his own money and the joint family has nothing to do with it and plaint-E
schedule properties have been in possession and enjoyment of the plaintiff
and defendants 2 and 3. It is further contended that he is always ready and
willing to cooperate with the plaintiff in partitioning the properties of Gopayya
and he got issued a reply notice dated 10-11-1993. The plaintiff and the
defendants 2 and 3 are residing in item No.5 of plaint-B schedule and the suit
is liable to be dismissed with costs.
The defendants 2 to 8 remained ex parte in the early stage of the
proceedings in this case.
4. Based upon the pleadings of both the parties, the trial Court framed
the following issues for trial:
(1) Whether plaint schedule is correct ?
(2) Whether the partition between late Gopayya and his sons is true and
correct and binding plaintiff ? If so, what the properties fell to the share of late
Gopayya ?
(3) To what share plaintiff is entitled and in which of the plaint schedule,
plaintiff has got share ?
(4) Whether plaintiff is entitled to any mesne profits ? If so, to what amount ?
and
(5) To what relief ?
5. When the matter became part heard before the trial Court, the
defendants 5 to 8 got their ex parte order set aside. The 6th defendant filed
written statement, which was adopted by the defendants 5, 7 and 8 by filing
a memo, contending that he and the defendants 5, 7 and 8 are the legal heirs
of their mother Venkata Satyavathi and she was given Ac.3-58 cents in
R.S.No.17/2 of Lakshmi Narasimhapuram Village of Chintalapudi Mandal
towards pasupu-kumkuma by her parents. Gopayya and his sons took
a contention in the relevant proceedings initiated before the A.P. Land
Reforms Tribunal, Eluru that the above said landed property was given to
Venkata Satyavathi towards pasupu-kumkuma and when their contention was
negatived, they preferred an appeal in L.R.A.No.243/1990 on the file of the
Land Reforms Appellate Tribunal, Eluru, which was allowed by it by virtue of
its judgment dated 10-10-1991 upholding the giving of such property to
Venkata Satyavathi towards pasupu-kumkuma and the plaintiff and
defendants 1 to 3 are not entitled to claim the above said property. When the
defendants 1 to 3 are squatting upon the said property, which is item No.12 of
plaint-A schedule, he and the defendants 5, 7 and 8 as the heirs of Venkata
Satyavathi, filed the suit in O.S.No.156 of 1996 on the file of Principal Senior
Civil Judge's Court, Eluru, for declaration of their title over the same and for
consequential relief of possession along with other reliefs. In view of the
above circumstances, the plaintiff is not entitled to seek partition of item No.12
of plaint-A schedule and that he and the defendants 5, 7 and 8, being the
legal heirs of deceased Venkata Satyavathi, are entitled to have a share in
other joint family properties of plaint-A to F schedules.
6. The trial Court has also framed the following additional issue:
Whether the plaintiff is entitled to have possession of plaint AA-1 schedule
properties exclusively for herself as prayed for ?
7. During the course of trial, on behalf of the plaintiff, P.Ws.1 and 2 were
examined and Exs.A-1 to A-5 were marked. On behalf of the defendants,
D.Ws.1 to 3 were examined and Exs.B-1 to B-6 were marked.
8. After completion of the trial, on appreciation of the entire evidence on
record and hearing the arguments of both sides, the learned trial Judge
awarded preliminary decree of partition in part by granting 1/6th share in item
Nos.1 to 11 and 13 of plaint-A schedule properties and item Nos.2, 3, 5 and 6
of plaint-B schedule properties and also awarded future profits in respect of
the plaintiff's 1/6th share in the aforesaid properties. The trial Court further
ordered defendants 1 to 3 to deliver possession of plaint AA-1 schedule
properties to the plaintiff. The relief of partition in respect of the other
properties as sought by the plaintiff was dismissed by the trial Court.
9. Aggrieved against the said finding, the defendants 1 to 3 have filed
the present first appeal. The plaintiff has not filed any appeal or cross-
objections.
10. During the pendency of appeal suit before the composite High Court
of Andhra Pradesh at Hyderabad, the appeal against the 1st respondent/
plaintiff and the 2nd respondent/4th defendant was dismissed for default vide
Court order dated 09-02-2011. Respondents 7 to 9 were brought on record as
legal representatives of deceased 6th respondent/8th defendant vide Court
order dated 12-8-2024 in A.S.M.P.No.1940/2017.
11. Heard Sri Prudvi Raju Mudunuri, learned counsel for the
appellants/defendants 1 to 3 and Sri Ch.B.R.P. Sekhar, learned counsel for
the respondents 6 to 9.
12. The learned counsel for appellants would contend that the trial
Court grossly erred in giving entitlement to the respondents 1 to 6 herein,
daughter and heirs of the deceased daughter of 1st respondent of equal
shares with that of sons i.e. appellants 1 to 3 though they are not entitled to
have any share in law. He would further contend that the trial Court grossly
failed to observe that Section 23 of the Hindu Succession Act, 1956, bars
a female Hindu i.e. 1st respondent to file the suit for partition of dwelling house
contained in the plaint-B schedule properties. He would further contend that
the trial Court erred in awarding 1/6th share each to the defendants 4, 5 and 6/
daughters and heirs of deceased daughter of 1st respondent as they are not
entitled to claim any share in the properties in view of their marriage much
prior to the commencement of the Hindu Succession (A.P. Amendment Act),
1986. The learned counsel for appellants would contend that the trial Court
failed to observe that the partition suit insofar as dwelling house is concerned,
the suit is not maintainable and he would further contend that the learned trial
Judge, without properly appreciating the evidence on record, decreed the
partition suit in part and that the appeal may be allowed by setting aside the
judgment and decree passed by the learned trial Judge.
13. Per contra, the learned counsel for respondents 6 to 9 would
contend that on appreciation of the entire evidence on record, the learned trial
Judge rightly decreed the suit for partition in part and there is no need to
interfere with the findings as arrived by the learned trial Judge.
14. Now, the points for determination are:
(1) Whether the suit for partition insofar as dwelling house is not
maintainable ?
(2) Whether the plaintiff is entitled to the relief of partition in item
Nos.1 to 11 and 13 of plaint-A schedule properties and item
Nos.2, 3, 5 and 6 of plaint-B schedule properties ?
(3) Whether the plaintiff is entitled for the future profits in item Nos.1
to 11 and 13 of plaint-A schedule properties and item Nos.2, 3, 5
and 6 of plaint-B schedule properties ?
(4) Whether the judgment and decree passed by the learned trial
Judge needs any interference ? and
(5) To what extent ?
15. Point No.1: Whether the suit for partition insofar as dwelling house
is not maintainable ?
The learned counsel for appellants would contend that the suit for
partition insofar as dwelling house is not maintainable in view of Section 23 of
the Hindu Succession Act and Section 23 of the Hindu Succession Act bars
a female heir to get the share in a suit for partition of the dwelling house in
plaint-B schedule properties. The appeal is filed by the defendants 1 to 3.
The defendants 2 and 3 are remained set ex parte and they have not
challenged the claim of the plaintiff. The 1st defendant was examined as
D.W.1 before the trial Court. He specifically admitted in his evidence in cross-
examination itself that item Nos.2, 3, 5 and 6 of plaint-B schedule properties
are their ancestral properties and item Nos.2, 3, 5 and 6 are the house
properties in plaint-B schedule properties. D.W.1 further admitted in his
evidence in cross-examination that he had no objection to have partition the
item Nos.2, 3, 5 and 6 of plaint-B schedule properties and also to render
accounts with regard to the rentals collected by him.
16. Section 23 of the Hindu Succession Act, 1956, has been repealed.
After repeal of Section 23, a female heir got a right to seek partition.
The Hindu Succession (Amendment) Act, 2005, is held to be prospective in
operation with retrospective effect. The law is well settled by the Apex Court
in the case of Vineeta Sharma v. Rakesh Sharma1, wherein a Full Bench of
the Apex Court held as follows:
"56. The daughter is treated as a coparcener in the same manner as a son by
birth with the same rights in coparcenary property and liabilities. However, the
proviso of sub-section (1) contains a non obstante clause providing that
nothing contained in the sub-section shall affect or invalidate any disposition
or alienation including any partition or testamentary disposition of the property
which had taken place before 20-12-2004."
The prospective statute operates from the date of its enactment
conferring new rights and the retrospective statute operates backward and
takes away or empowers vested rights acquired under existing rights.
The retrospective statute is the one that does not operate retrospectively.
It operates in future. However, its operation is based upon the character or
statute that arose earlier. Characteristic or event, which happened in the past,
is requisite which had been drawn from antecedent events. Under the
amended Section 6, since the right is given by birth i.e. an antecedent event
and the provisions operate concerning claiming rights on and from the date of
the Hindu Succession (Amendment) Act, 2005. The Hindu Succession Act,
1956 is amended with effect from 05-9-2005.
1
(2020) 9 SCC 1
17. In the case of Vineeta Sharma (supra), a Full Bench of the Apex
Court further held as follows:
"129. ................................................
(i) The provisions contained in substituted Section 6 of the Hindu Succession
Act, 1956 confer status of coparcener on the daughter born before or after
amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from
9.9.2006 with savings as provided in Section 6(1) as to the disposition or
alienation, partition or testamentary disposition which had taken place before
20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father
coparcener should be living as on 9.9.2006.
(iv) The statutory fiction of partition created by 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 Act of 1956 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.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act
of 1956, 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 same manner as if
it had been affected 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."
Section 23 of the Hindu Succession Act, 1956, has been omitted so as
to remove the disability of female heirs contained in the section. It sought to
achieve larger public purpose. As stated supra, in the case on hand, the
plaintiff is none other than the mother of defendants 1 to 3, the father of
defendants 1 to 3 died intestate and the plaintiff/mother is claiming share of
her husband property. It is admitted case of both the parties that the plaintiff's
husband i.e. Gopayya and his sons partitioned the joint family properties on
17-01-1972 under the original of Ex.A-1. It is the specific case of plaintiff that
the house properties i.e. item Nos.2, 3, 5 and 6 of plaint-B schedule properties
are not mutated. The 1st defendant/D.W.1 admitted in his evidence in cross-
examination itself that item Nos.2, 3, 5 and 6 of plaint-B schedule properties
are their ancestral properties and the said items are not included in the
partition, which was taken place among the father and his sons in the year
1972. For the aforesaid reasons, the suit for partition is maintainable. Section
23 of the Hindu Succession Act, 1956, is not at all applicable to the present
case.
18. Point No.2: Whether the plaintiff is entitled to the relief of partition in
item Nos.1 to 11 and 13 of plaint-A schedule properties and item Nos.2, 3, 5
and 6 of plaint-B schedule properties ?
The undisputed facts are that the plaintiff and Viswanadharao Gopayya
are wife and husband, respectively and defendants 1 to 3 and deceased
Venkata Lakshmana Rao are the sons, and the 4th defendant and deceased
Venkata Satyavathi are the daughters of plaintiff and Gopayya. It is
undisputed by both sides that Venkata Lakshmana Rao died unmarried and
intestate in or about 1974 and Venkata Satyavathi died intestate in the year
1976 leaving behind her the defendants 5 to 8 as her legal heirs. It is an
admitted fact by both the parties that Gopayya and his sons partitioned the
joint family properties on 17-01-1972 under the registered partition deed i.e.
under the original of Ex.A-1. The learned trial Judge, on appreciation of the
entire evidence on record, by giving cogent reasons, held in the judgment that
item Nos.1 and 4 of plaint-B schedule properties are self-acquired properties
of the 1st defendant. The plaintiff did not challenge the said finding, no appeal
or cross-objections are filed by the plaintiff, therefore, the said finding attained
finality.
19. To prove the claim of the plaintiff, the plaintiff relied on the evidence
of P.Ws.1 and 2. P.W.1 is the plaintiff. The plaintiff also relied on the
evidence of P.W.2 and relied on Ex.A-1 registration extract of partition deed
executed among the plaintiff's husband and sons in the year 1972 i.e. on
17-01-1972, the same is undisputed by the 1st defendant. The defendants 2
and 3 are also not disputed the same. Ex.A-1 clearly reveals that plaint-AA1
schedule properties fell to the share of Venkata Lakshmana Rao in the said
partition under Ex.A-1. It is undisputed that Venkata Lakshmana Rao died
intestate and unmarried and that the plaintiff, being Class-I heir, plaintiff is
entitled to the share of deceased unmarried son, by name Venkata
Lakshmana Rao. The learned trial Judge, by giving cogent reasons, held in
the judgment that the plaintiff is entitled for possession of plaint-AA1 schedule
properties. Therefore, there is no need to interfere with the said finding given
by the learned trial Judge.
20. The evidence of P.W.1 coupled with Ex.A-1 clearly goes to show
that plaint-A schedule properties fell to the share of Gopayya under
a registered partition deed. The said Gopayya was none other than the
plaintiff's husband. As stated supra, the defendants 1 to 3 and deceased
Venkata Lakshmana Rao are the sons, and the 4th defendant and
deceased Venkata Satyavathi are the daughters of plaintiff and Gopayya.
The defendants 2 and 3 remained set ex parte. The 1st defendant contended
in the suit that the 1st defendant alone contested the suit. The present appeal
is filed by the defendants 1 to 3, and the remaining defendants in the suit
proceedings have not filed any appeal challenging the judgment and decree
passed by the learned trial Judge.
21. The evidence on record goes to show that plaint-A
schedule properties fell to the share of Gopayya i.e. plaintiff's husband
under a registered partition deed way back in the year 1972.
The 1st defendant/D.W.1 admitted in his evidence in cross-examination that
plaint-A schedule properties fell to the share of his father, and defendants 2
and 3 are remained set ex parte. As noticed supra, by giving cogent reasons,
the learned trial Judge rightly held that since one of the sons of plaintiff and
Gopayya, by name Venkata Lakshmana Rao died unmarried and intestate in
or about 1974, the plaintiff/mother of the said Venkata Lakshmana Rao being
Class-I heir, is entitled to the share of Venkata Lakshmana Rao and she is
entitled for possession of the said properties from the defendants 1 to 3.
22. For the aforesaid reasons, the plaintiff is entitled for partition in
respect of item Nos.1 to 11 and 13 of plaint-A schedule properties and the
plaintiff is also entitled to the possession of plaint-AA1 schedule properties
from the defendants 1 to 3.
23. It is the specific case of the plaintiff that item Nos.2, 3, 5 and 6 of
plaint-B schedule properties are ancestral properties and those properties are
not included in the registered partition deed that has taken place among
Gopayya and his sons in the year 1972. In order to prove the same, the
plaintiff examined herself as P.W.1 and also relied on the evidence of P.W.2.
The 1st defendant/D.W.1 admitted in his evidence in cross-examination itself
that item Nos.2, 3, 5 and 6 of plaint-B schedule properties are their ancestral
properties and the said items are not included in the partition that took place in
the year 1972. He further admitted that he had no objection to have partition
of item Nos.2, 3, 5 and 6 of plaint-B schedule properties and also to render
accounts with regard to the rentals collected by him in respect of the said
properties. By giving cogent reasons, the learned trial Judge rightly held in
the judgment that the plaintiff is also entitled for partition of item Nos.2, 3, 5
and 6 of plaint-B schedule properties and also 1/6th share was allotted to the
plaintiff in item Nos.1 to 11 and 13 of plaint-A schedule properties and item
Nos.2, 3, 5 and 6 of plaint-B schedule properties. Accordingly, point No.2 is
answered.
24. Point No.3:- Whether the plaintiff is entitled for the future profits in
item Nos.1 to 11 and 13 of plaint-A schedule properties and item Nos.2, 3, 5
and 6 of plaint-B schedule properties ?
It is the specific case of the plaintiff that she is entitled for future profits
in respect of her share in the joint family properties. It is the specific
contention of the 1st defendant that he is not in possession of joint family
properties and the plaintiff is in possession of the same.
25. As seen from the material on record, the 1st defendant himself
admitted in his evidence that he has no objection to render accounts with
regard to the rentals collected by him in respect of item Nos.2, 3, 5 and 6 of
plaint-B schedule properties. It is in the evidence of plaintiff/P.W.1 that the
plaint schedule properties are ancestral properties and she is entitled to the
share of her deceased 2nd son Venkata Lakshmana Rao and also heir of her
husband. She further deposed that her sons have been completely neglected
her and she is a sick person and she has not even provided to medical aid
and she is having a share in the properties and she was neglected by her
sons. The plaintiff also relied on Ex.A-2 legal notice said to have been issued
on 15-9-1993. In Ex.A-2, it is reiterated that the 1st defendant has been in
possession and enjoyment of the family properties from the date of death of
the plaintiff's husband. In Ex.A-2 legal notice itself, it was contended by the
plaintiff that the 1st defendant has been in possession and enjoyment of the
family properties. Exs.A-3 to A-5 goes to show that the defendants 1 to 3
received Ex.A-2 legal notice. In Ex.A-2 legal notice, it is asserted by the
plaintiff that the 1st defendant has been in possession and enjoyment of the
family properties. To deny the contents in Ex.A-2 legal notice, no reply notice
has been issued by the defendants 1 to 3. The 1st defendant alone contested
in the suit proceedings. The defendants 2 and 3 remained set ex parte. None
of the defendants including the 1st defendant gave reply notice to deny the
contents in Ex.A-2 legal notice. As stated supra, the defendants 2 and 3 are
remained set ex parte.
26. The defendants 1 to 3, who received Ex.A-2 notice before filing of
the suit, did not even choose to send a reply notice denying the contents of
legal notice and the 1st defendant did not even deny the possession of the
family properties. The defendants 1 to 3 have not explained the reasons for
not responding to Ex.A-2 legal notice. This circumstance goes a long way in
showing that the defendants 1 to 3 are admitting the contents of Ex.A-2 legal
notice. As stated supra, the defendants 2 and 3 are remained set ex parte,
but the 1st defendant pleaded in the written statement itself that he issued
a reply notice, dated 10-11-1993, to the legal notice under Ex.A-2 said to have
been issued by the plaintiff. But, except taking the said formal plea in the
written statement, the 1st defendant did not even place any material either
before the trial Court or before this Court to show that he issued a reply notice
to deny the contents of Ex.A-2 legal notice.
27. As seen from the evidence of P.W.1, she lost her husband in a road
accident and she being a co-sharer having lost her husband unexpectedly in
a road accident, therefore, it is very difficult for maintaining family properties,
the 1st defendant, who is elder son was available when the plaintiff is not in
a position to manage the family properties, it is quite natural to entrust the
management of properties to the 1st defendant being an elder surviving son in
the family. Furthermore, the 1st defendant/D.W.1 admitted in his evidence in
cross-examination itself that he has no objection to have partition the item
Nos.2, 3, 5 and 6 of plaint-B schedule properties and also to render accounts
with regard to the rentals collected by him. For the aforesaid reasons, the
plaintiff is entitled to future profits in respect of her 1/6th share in item Nos.2, 3,
5 and 6 of plaint-B schedule properties. Accordingly, point No.3 is answered.
28. Point No.4: Whether the judgment and decree passed by the
learned trial Judge needs any interference ?
After careful consideration, the trial Court had adequately appreciated
the evidence on record and there is no reason for this Court to arrive at
a different conclusion than the one arrived at by the trial Court. I believe the
findings arrived by the trial Court are correct and no justifiable reasons have
been shown by the appellants/defendants 1 to 3 for arriving at different
conclusions. I agree with the conclusion reached by the trial Court.
29. Point No.5: To what extent ?
In the result, the appeal suit is dismissed confirming the judgment and
decree, dated 24-01-2001, in O.S.No.20 of 1994 passed by the learned
Additional Senior Civil Judge, Eluru. Pending applications, if any, shall stand
closed. Each party do bear their own costs in the appeal.
REGISTRAR
//TRUE COPY//
SECTION OFFICER
To,
1. VISWANADHARAO LAKSHMI NARASAMMA 5 ORS, W/o late Gopayya
R/o Lakshminarasimhapuram, Chintapudi, West Godavari Dist.
2. Ch Ammaji, W/o Chakrapani Peruru (V), Vajedu (M), Kothagudem,
Khammam Dist.
3. Y Usha Rani, W/o Nagamalleswara Rao R/o Naidupet, Krishnalanka,
Krishna Dist.
4. B Murali Krishna, S/o Ramamohana Rao Kistaram, Sattupalli, Khammam
Dist.
5. B Kishore, S/o Ramamohana Rao Kistaram, Sattupalli, Khammam Dist.
6. B Aruna Kumari, D/o Ramamohana Rao Kistaram, Sattupalli, Khammam
Dist.
7. Bathula Vijaya Kumari, W/o. Late Bathula Murali krishna, Aged about 42
years, Housewife, H.No.3-44, Kistaram Village, Sattupalli, Mandalam,
Khammam District.
8. B Rammohan Rao, S/o. Late Bathula Muralikrishna, Aged about 21 years,
H.No. 3-44, Kistaram Village, Sattupalli, Mandalam, Khammam District.
9. B Chandra Prakash, S/o. late Bathula Muralikrishna, Student, Aged 19
years, H.No. 3-44, Kistaram Village, Sattupalli, Mandalam, Khammam distrct.
Respondent Nos. 7 to 9 are brought on record as LRs of deceased
respondent No.6 vide court order dated 12.08.2024 in A.S.M.P.No. 1940 of
2017 in A.S.No. 224 of 2002.
10. One CC to SRI. PRUDVI RAJU MUDUNURI Advocate [OPUC]
11. One CC to SRI. G ANANDAM Advocate [OPUC]
12. One CC to SRI. CH B R P SEKHAR Advocate [OPUC]
13. One CC to SRI. . Advocate [OPUC]
14. Two CD Copies
HIGH COURT
VGKRJ
DATED:23/10/2025
ORDER
AS NO. 224 OF 2002