Telangana High Court
Vadla Balaswamy vs V. Suvarna on 29 March, 2022
Author: P.Sree Sudha
Bench: P.Sree Sudha
HON'BLE SMT. JUSTICE P.SREE SUDHA
SECOND APPEAL No.1026 of 2011
JUDGMENT
This Second Appeal is filed by Vadla Balaswamy against the orders of the Additional District Judge, Mahabubnagar in A.S. No. 87 of 2008, dated 09-02-2011 confirming the Judgement of the trial court in O.S. No. 80 of 2007 (O.S. No. 175 of 2005), dated 01- 09-2008.
02. Learned counsel for appellant mainly contended that the trial court failed to ascertain that the properties are ancestral and they belong to the appellant's father and he also submitted that the "B" schedule properties exclusively belong to "Mangali" people, but it was not considered by both the courts. The schedule properties do not belong to joint family. Plaintiff failed to establish that the suit schedule properties are ancestral properties. Suit filed by the plaintiff in O.S. No. 27 of 1999 for declaration of suit "C" schedule property was dismissed on 25-12-2004 and thus present suit for "C" schedule property is not maintainable. Plaintiff has not stated the correct Survey Numbers in the pleadings and she has strained relationship with her father and thus she is not entitled for the share in the schedule property. At the time of her 2 marriage, she was given gold and dowry and she also constructed a house with the said funds. Moreover, their father died in the year 2001 as such, the amendment of Section 6 of the Hindu Succession Act, 2005 is not applicable as the succession opened on the death of her father in the year 2001 even before filing of the suit and thus notional partition has to be affected and he is entitled for half share in the property but not 1/3rd share as decided by both the courts. Plaintiff was married much prior to the amendment of the Hindu Succession Act and therefore, she is not entitled for any share.
03. The facts before the trial court are that one V. Suvarna filed suit for partition against her brother and sister after the death of their father Vadla Krishnaiah and claimed 1/3rd share as per Hindu Succession Act, 1956, 1986 and 2005. Vadla Krishnaiah died intestate. The properties are his self-acquired properties. Though she issued notice to the defendants they did not affect partition.
04. Defendants No. 1 and 2 filed separate written statements. Defendant No. 1 contended that the plaintiff and defendant No. 2 are not coparceners and the properties are not joint family properties. Vadla Krishnaiah was the owner and pattedar of the 3 "B" schedule property and he got issued reply notice the plaintiff. Plaintiff and her husband squeezed entire earnings of his father and purchased a house adjacent to his house. Even during the life time of his father, she filed O.S. No. 27 of 1999 for declaration of title and recovery of possession of the suit schedule property alleging that her father gifted the same as pasupu kunkuma, but the suit was dismissed. Due to the filing of the cases his father contacted debts for defending the civil suits and he was forced to repay the same. Defendant No. 2 also claimed 1/3rd share along with plaintiff.
05. Plaintiff examined himself as Pw-1 and two other independent witnesses as Pws.2 and 3 and marked Exs.A1 to Ex.A10. Defendant examined himself as DW-1 and also examined other witnesses up to DW-7, but, DW-6 could not turn up for cross-examination as such, his evidence was eschewed. The trial court after hearing both the parties and also considering the evidence on record, decreed the suit and held that plaintiff is entitled for 1/3rd share in plaint "A" schedule and also "B" schedule properties except Ac.2-22 gts. in Survey No.422/E and she is also entitled for 1/3rd share in the plaint "C" schedule residential house and the defendants are directed to put in possession of her share within two months from the date of 4 judgment and plaintiff is at liberty to approach the court for division of properties and possession of properties by due process of law.
06. Aggrieved by the said order, the first defendant preferred an appeal in A.S. 87 of 2008, but the appeal was dismissed on 09-02- 2011 by confirming the judgment of the trial court. Aggrieved by the said judgment, he preferred this second appeal. Admittedly, plaintiff is the first daughter and defendant No. 2 is the second daughter and defendant No. 1 is the only son of Vadla Krishanaiah and he died intestate. Plaintiff contended that all the properties are self-acquired properties of Vadla Krishnaiah. Whereas the defendant stated that "B" schedule property pertains to "Mangali" people and they are in possession and enjoyment of the same. He also contended that at the time of marriage gold and dowry were given to her and with the funds given by them she also purchased a house, but considering the evidence on record, it was held that there are certain variations in the extents of the land mentioned in Ex.A1 and also in the plaint "B" schedule property as detailed herein :-
Plaint "B" Schedule (Wet) lands Ex.A1 lands 1 Sy.No. 418/E, 0-10gts 418/E, 0-10 gts 2. 419/AA. 0-16 ½ gts 419/AA 0-33 gts 3. 420/AA 0-10 ½ gts 420/AA 0-21 gts 4. 421/1 extent 4 ½ gts 421/1 0-38 gts 5. 422/E, 0-02 gts 5
07. The trial court observed that name of Vadla Krishnaiah was shown as pattedar in column No. 1 apart from other persons, as such Exs.A9 and A10 were filed. As per Ex.A9 Vadla Krishnaiah was shown as pattedar in column No. 12 and the name of defendant No. 1 was shown as enjoyer in column No. 13 in Exs.A9 and A10 and thus as per Ex.A9 and A10, Vadla Krishnaiah died leaving behind plaint "B" schedule properties except 2 gts in Survey No. 422/E. Defendant No. 1 has not filed any document to show that the land in "B" schedule pertains to "Mangali" people. As per Ex.A2 Vadla Krishnaiah was pattedar for Ac.4-00 of land in Survey No. 455/AA. As per Ex.A8 defendant No. 1 is the pattedar and possessor of the said land and as per Ex.A1 and A8 Vadla Krishnaiah died leaving behind "A" schedule property. There is no dispute regarding the residential house mentioned in "C" schedule property. Ex.A5 is the legal notice issued by the plaintiff with postal acknowledgement under Ex.A6 and Ex.A7 is the reply notice given by defendant No. 1. Defendant No. 1 contended that the marriage of the plaintiff was performed in the year 1975 and she has no share in the ancestral properties. Ex.A2 is the ownership certificate of the plaint "C" schedule property in the name of his father till 10.08.2005 and later mutated in the name of defendant No. 1. Ex.A3 and A4 are the house valuation 6 certificates. Defendant No. 1 relied upon Ex.B3 caveat petition filed by the plaintiff and stated that the relationship between plaintiff and their father was strained as such she is not entitled for any share. Whereas Pw1 submitted that in the year 1989 her father assured to give a share in the land and executed a document on 19.01.1989 and she filed O.S. No. 27 of 1999 basing on Ex.B1, but it was dismissed. The trial court observed that the said suit is filed only for open place situated between her house and the house of her father. It was also observed that the father of the plaintiff, during his life time, gave some property on her demand and she demanded some more property. PW1 stated that the marriage of defendant No. 2 was performed about 20 years back and it was brought on record that she has not attended the death ceremony of her father. But the trial court held that the strained relationship between daughter and father does not disentitle her to claim any share. So also payments made to her at the time of her marriage, does not amount relinquishing her rights in the properties of her parents. As per the evidence, properties were not divided among the plaintiff and the defendants subsequent to the death of his father. Though defendant No. 1 stated that he cleared the debts incurred by his father and also examined DW3 and DW4 and marked Ex.X1 to X3, considering 7 the variation in the dates, trial court held that he failed to establish the debts left behind by Vadla Krishnaiah and also undertaking by defendant No. 1 to discharge such debts. It was further held that as per evidence of PWs 2 and 3 who supported PW1, Vadla Krishnaiah had title for plaint "B" schedule properties. As plaintiff has not sought for any share in certain properties, the same were not decided by the court and finally decreed the suit in favour of plaintiff as mentioned above. In the lower Appellate Court, the appellant herein contended that the plaintiff is not coparcener as her marriage was performed long back and "B" schedule properties does not pertain to his father. Suit schedule property consists of schedule "A", schedule "B" and schedule "C" properties as follows :-
Schedule-A is dry land in Sy.No. 555/AA extent Ac. 4-00 situated in the limits of Kothur Village and Mandal.
Schedule-B of suit schedule properties are wet lands total admeasuring Ac. 1-04 ½ guntas situated in Sy.No. 1418/9 extent Ac. 0-12 gts, Sy.No. 4919/AA extent Ac. 0-17 ½ guntas, Sy.No. 420/AA extent Ac.0-10 ½ guntas Sy.No. 421/1 extent Ac. 0-04 ½ guntas and Sy.No. 422/E extent Ac.0-02 guntas.
Schedule-C is house property bearing door No. 6-74, situated in the limits of Kothur Village and Mandal.
08. Appellate Court held that Vadla Krishnaiah is the pattedar of "B" schedule property. "Mangali" people did not made any claim 8 before the trial court stating that they are in possession of "B" schedule property and defendant No. 1 did not produce any documents to show that "Mangali" people are not owners, possessors and enjoyers of the "B" schedule property. He considered the admission of defendant No. 1 in para No. 3 of the written statement as "that in replay to para No. 3 of the plaint it is utterly wrong to say as Vadla Krishnaiah died without executing any will. In fact, late Vadla Krishnaiah was not the owner and pattedar over "B" schedule property and late Krishanaiah acquired them for HIMSELF" and held that "B" schedule properties are also available for partition. The Appellate Court held that, even if the plaintiff failed to establish that suit "A" to "C" schedule properties are ancestral properties as those properties were possessed by Vadla Krishaniah by the date of death, the plaintiff and defendants are entitled for 1/3rd share of each. Appellant filed the additional documents in O.S. No. 216 of 2008, but they were not received as they were subsequent to the suit and not relevant to decide the issue in controversy. The appellant herein almost with the similar contentions preferred the second appeal.
09. Heard the arguments of both parties and also citations filed on behalf of both sides.
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10. As per Section 6 of Hindu Succession Act, 1956, Sons and daughters of the coparcener have been conferred the right of becoming coparcener by birth. It is the very factum of birth in a joint family that creates the coparcenary, therefore the sons and daughters of a coparcener becomes coparceners by virtue of birth.
11. As per Hindu Succession (Amendment) Act, 2005, the appellant would become coparcener by birth in her own right the same manner the son, therefore, entitled to equal share as that of a son.
12. Regarding the issue whether right would be conferred only upon the daughters who are born after September 09, 2005 or even to those daughters who were born earlier, in Badrinarayana Shankar Bhandari v. Omprakash Shankar Bhandari1, a full Bench of the Bombay High Court held as follows :-
"......clause (a) of sub-section (1) of Section 6 would be prospective in operation whereas clause (b) and (c) and other parts of sub-section (1) as well sub-section (2) would be retroactive in operation. It held that amended Section 6 applied to daughters born prior to June 17, 1956 (the date on which Hindu Succession Act came into force) or thereafter (between June 17, 1956 and September 8, 2005) provided they are alive on September 9, 2005 i.e. on the date when Amended Act, 2005 came into force....".1
214 AIR (Bombay) 151 10 The said authority to pronouncement was settled in Prakash & Ors. v. Phulvati & Ors. reported in 2016 2 SCC 36.
13. In a citation reported in Vineeta Sharma v. Rakesh Sharma & Ors..
(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 the same rights and liabilities.
(ii) 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 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 9.9.2005.
(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 as 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 recognized mode of partition effected by a deed of partition duly registered 11 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 to be rejected out rightly.
Under Section 6(1) and 6(2), the rights of a daughter are "pari passu" with the son.
14. Coparcener would mean, a person who shares equally with other in inheritance in the estate of common ancestor. A coparcener has no definite share in the coparcenary property, but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family, it is not static.
The coparcener will get: -
1. Right by birth.
2. Right of survivorship.
3. Right to partition.
4. Right to joint possession and enjoyment.
5. Right to restrain unauthorized acts.
6. Right of alienation.
7. Right to accounts.
8. Right to make self-acquisition.
15. In view of the above citations, now it is for this court to discuss the aspect raised by the appellant herein. The contention of the appellant is that plaintiff is not entitled for coparcenary property as her marriage was performed in the year 1975. But, it 12 was clearly held that daughter born earlier with effect from 09.09.2005 can claim rights. However, as per Section 6(1) she is not entitled as to the dispossession or alienation, partition or testamentary dispossession which had taken place before 20.12.2004. In this case there was no prior partition between the parties after the death of Vadla Krishnaiah and the properties devolved upon him came up for partition between the parties only after his death, as such the argument of the appellant counsel was already considered by the courts below and held that it is not sustainable. He further contended that Vadla Krishnaiah died in the year 2001 as such the Amendment Act of 2005 is not available for the plaintiff and defendant No. 2. But, it was clearly held that in a coparcenary the daughters are entitled for equal treatment along with the sons as the son is entitled for right in the property from the date of birth. It also equally applies to the daughters and thus the argument of the appellant cannot be accepted. In view of the legal position and the reasoning given by both the courts as there is no substantial question of law raised by the appellant herein, this second appeal has no merits and accordingly dismissed.
16. Accordingly, the Second Appeal is dismissed. There shall be no order as to costs.
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17. As a sequel, pending miscellaneous applications, if any, shall stand closed.
____________________ P.SREE SUDHA, J.
29th MARCH, 2022.
Pssk/PGS