Sri Chancharapu Madhusudhan Reddy vs Kum. Ch. Charishma on 25 January, 2024

[Cites 12, Cited by 0]

Telangana High Court

Sri Chancharapu Madhusudhan Reddy vs Kum. Ch. Charishma on 25 January, 2024

Bench: P.Sree Sudha

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

              APPEAL SUIT No.2154 of 2002
                            AND
            CROSS OBJECTIONS No.1 OF 2002

COMMON JUDGMENT:

This appeal is filed against the Judgment and decree dated 03.06.2002 in O.S.No.25 of 1998 passed by the learned I - Additional District Judge, Warangal.

2. The suit vide O.S.No.25 of 1998 was filed by the respondents/plaintiffs against the appellants herein for preliminary decree. The trial Court after considering the arguments of both sides decreed the suit in favour of the respondents/plaintiffs. Aggrieved by the said Judgment, defendants in the suit preferred the present appeal.

3. P.Ws.1 to 5 are examined on behalf of plaintiffs and D.Ws.1 to 4 are examined on behalf of defendants. Exs.A1 to A39 are marked on behalf of plaintiffs and Exs.B1 to B401 are marked on behalf of defendants.

4. Learned counsel for the appellants mainly contended the trial Court misconstrued the pleadings and oral evidence. 2 The procedure and manner in which the trail Court disposed of the suit would show that the trial Court constructed the words 'Joint Family' and 'Joint Family Property' is improper. Plaintiffs are unable to prove A and B suit schedule properties as Joint Family Properties and their entitlement to seek partition as well as the adjudication with regard to other issues automatically falls to ground. There is no discussion of any decision on issue No.1 as well as additional issue no.1 which were most crucial to be decided first by the trial Court. The trial Court ignored the specific admissions of P.W.1 in the chief examination. The properties in Sy.Nos.24, 26 and 465 were Rajamma's self acquired properties and during her life time she disposed of some of the properties and the balance of her properties were inherited jointly by the father of the 1st defendant along with his brother Raja Reddy.

5. Learned counsel for appellants further contended that the trial Court failed to notice the items No.2 and 3 of Plaint 'A' Schedule do not stand in the name of defendant No.1 or his father and in the revenue records, they are continued to be shown in the name of their parents. The father of defendant No.1 and also his brother Raja Reddy jointly 3 purchased the said lands and defendant No.1, his brothers and sister as well as children of Raja Reddy succeeded to those properties, but they cannot be described as joint family properties. Thus, there was neither any joint family property nor joint family nucleus and further contended that the finding of the trial Court regarding 'B' Schedule Property is correct, but regarding the 'A' schedule property, it is unsatisfactory. The decree with regard to item No.1-A of schedule is not sustainable under Section 23 of the Hindu Succession Act. He also contended that the mere entries in pahanies cannot be decisive of the nature of the property to whether it is a joint family property or otherwise. The trial Court ignored the Land Ceiling declarations in respect of all the brothers of defendant No.1 and notional partition was assumed by the Land Ceiling Authorities and based on such notional partition, declarations were finalized. The trial Court assumed the record of land ceiling proceedings as conclusive. Regarding issue No.3 and 6, properties of Rajamma are no way traceable to her husband or the joint family. He further stated that an appeal vide A.S.No.2836 of 1996 was filed against O.S.No.13 and 1996 and the same was allowed. The 4 compensation granted by the reference Court for enhancement of compensation is set aside. Therefore, requests this Court to allow the present appeal.

6. Heard arguments on both sides. Perused the record.

7. The primary contention of the appellant is that the judgment under appeal does not show any discussion or any decision on issue number one as well as additional issue number two which were most crucial to be first decided by the trial court.

Issue No-1: whether the plaint Schedule Properties are the joint family properties liable for partition? Additional Issue No.1: whether the suit A and B schedule properties are the ancestral properties of the joint family comprising of the first defendant his wife and their two sons that is Late Raja Sekhar Reddy and the second defendant as contended by the plaintiffs?

8. On perusal of the judgment delivered by the trial court it is evident that trial court has elaborately discussed the evidence adduced by the plaintiff as well as the defendant in 5 respect of suit schedule properties. Ex.Al, the CC of pahani for the year 1955 show that Rajamma is the pattedar of the lands covered by survey number 562 to 569, 598, 24, 26, 26/a, 26/b, 39,40,41,465 showing that the lands are joint family properties. Ex.A2 is the certified copy of pahani for the fasli year 1997 in respect of the lands covered in survey number 568, 569, 595, 579, 589/1, 562 to 567, 20/1, 24, 41/1,465/1, 40/1, 39/1, 21/1, 26/9, 589, 589/1 showing that these lands are joint family properties. Ex.A3 is certified copy of the pahani for the fasli year 1344 and respect of lands covered by survey number 24, 465 showing that Rajamma is the owner of the lands. Exs.A4 to A16 are the certified copies of the pahanis for fasli year 1345 to 1359 respectively, showing that the land is covered by survey Nos.24, 25, 465 stands the name of Chancharapu Rajreddy and according to P.W.1 with the income derived from the joint family lands, the joint family acquired some more lands and some out of them were acquired by the government. According to her item number of the plaint schedule A is also ancestral property of the dependent. According to her the lands at WadlaKonda village were purchased by the income derived from the 6 ancestral lands which work covered by survey numbers 465, 24, and 26 at Jangaon. She denied that lands are Stridana property of Rajamma. According to her Rajamma predeceased Raja Reddy and Ramanamma. She further deposed that Raj Reddy used to earn Rs.2,00,000/- per annum as net income for the lands and 15 years before the death of the partition between her father in law D.W.1 and his brother took place and the properties wadlakonda which were shown in the plaint schedule property A, fell to the share of D1 in the said partition and she does not know what are the properties that are allotted to the share of Dl's father Papi Reddy and she came to know about the allotment through her parents and in laws number of times and she has no other sources of information except from her parents and in laws. P.W.3 speaks of the partition between Raja Reddy and Papi Reddy who are the sons of Laxma Reddy and he acted as one of the elders and out of 75 acres 25 were given to Malla Reddy and 51 acres were given to Laxma Reddy at the time of partition. According to him except 50 acres of land the remaining property was in the name of Rajamma and he stated that though he cannot say the survey numbers he knew that the 7 lands are marribavi lands at wadlakonda, nallrallacheraka and marribavi lands were purchased with the income derived from ancestral property and thus according to him these lands are ancestral properties. On the other hand, the defendant number one who was examined as D1 deposed that land covered in 579 wadlakonda stands in the name of Shyam panthulu vide Ex.A1 and according to him his father and Raj Reddy Janki purchased these lands from the Pattedars Shyam panthulu and Kumari narsayya and since 1956_55 his father and Raj Reddy were in possession of the above land and so far the patta has not been mutated either in the name of his father himself or his brothers.

9. He further has stated that by the words of joint efforts of Papi Reddy and Raja Reddy through which they acquired A schedule lands he meant that they were selling milk and curd separately and purchased, the lands. But the same was not mentioned in the written statement. He further deposed that Rajamma did not get any property from his grandfather Laxma Reddy. Item number of plaint A schedule property, that is house was got constructed by his father Plaint B schedule items are his own. And that he is not in possession 8 of plaint C schedule properties. He further deposed that Ex.B24 is the ownership certificate relating to item No.1 of plaint a schedule issued by nagar panchayat Jangaon showing that the house stands in the name of his father Papi Reddy. He further deposed that we had spent 10 lakhs towards the treatment of his late son Rajasekhar Reddy and he can produce bills for rupees 2 lakhs. Ex.B25, 296 are the reports, Ex.B97 to 107 had the prescriptions and Ex.B104 to 196 are the bills. During his cross Examination D.W.1 admitted that at the time of his death grandfather was owning 51 acres of land and his mother ramanamma was born 2 months after his death. Rajamma his grandmother was uneducated and unemployed woman. He further admitted that he did not mention in his written statement that land in survey Nos.24, 26, 465 of Jangaon are self- acquired properties of Rajamma, as she died by the time and that he only mentioned it as joint family. He further admitted that he had not mentioned in his in his written statement that the lands in survey Nos.20, 21, 39, 40, and 41 are protected tenancies of Papa Reddy and Raja Reddy. 9

10. A Faisalpatti filed by D.W.l and admitted by him vide Ex.206 shows that in 1965 Acres 56 and 20 guntas of land was mutated in favour of Raji Reddy and Papi Reddy after the Death of Rajamma. At one stage, he says that there was no partition between Raji Reddy and Papi Reddy at any point of time but he again says that after the death of their mother Rajamma there was partition between them in the year 1965 at Jangaon in presence of Arutla Venkat Narasimha Reddy and Vennam Venkat Narasimha Reddy and that he does not know the details of the partition.

11. According to the witness who answered to the query made by the court as to what disruption of joint family means, the disruption of joint family means after the death of members of the family the relations are cutoff. Thus, the defendant No.1 was not having a clear idea of disruption of joint family on the death of the member of the joint family.

12. On perusing the above evidence on record the learned trial court held that the lands acquired by the government in Survey No. 39, 20, 21, 40 & 41 at Jangaon are joint family properties and the lands in Survey No. 465, 24, & 34 of 10 Jangaon which are acquired by the government for housing board purpose are also joint family properties and the plaintiffs are entitled for the share in the compensation.

13. In this context it would not be out of place to discuss the concept of ancestral property for adjudication of Main issue No.1 and Additional No.1. The Hindu joint family property includes all ancestral property, property acquired with aid or assistance of ancestral property (doctrine of accretion) property acquired at the cost of ancestral property (doctrine of detriment). Separate property of a coparcener which is voluntarily thrown by him into the common stock to such an extent that it cannot be distinguished from joint family property. (Doctrine of blending) other type of properties recovered from joint family property. Now coming to the concept of ancestral property, it is the property inherited from the father's father of father's father's father. Thus, according to Mitakshara Law, it is the sons, grandsons and great grandsons of the persons who inherit it and acquire an interest in it by birth. It may be noted that the self acquired property (separate property of the grandfather in the hands of the father is ancestral property because all property inherited 11 by male Hindu from his father or father's father or father's father's father is ancestral property. It is immaterial whether the property was ancestral or self-acquired in the hands of the deceased. The burden of proof is upon the person who alleges that it is joint family property to establish it. If he establishes that there is sufficient joint family nucleus from out of which the said property could have been acquired, the burden shift on the member of the family who claims it to be his separate or personal property.

14. Property jointly acquired by the coparceners with their joint labour and without the aid of the joint family property will be joint family in which sons will acquire interest by birth unless it is proved that the acquirers intended to own the property as co-owners of between themselves in which case it will be joint property and not joint family property.

15. Similarly, when a coparcener partitions from the joint family and obtains his share of property, then in respect of his own son, son's son and son's son's son it will continue to be joint family property, but in respect of others it will be separate property.

16. Thus, applying the above principles the case in hands reveals that suit schedule item Nos.1, 2 and 3 are joint family properties as the father of D.W.1 filed declaration before the land ceiling authority and gave sworn statement that lands in Jangaon are ancestral properties and lands Wadlakonda and Shamirpet were purchased with the sale proceeds of some of the ancestral lands about 30 acres prior to the date of his statement. Thus, it is clear that the lands acquired by the government in survey number 39, 20, 21, 40, 41 at Jangaon (T) are join family properties and also the lands in survey number 465, 24, 36 of Jangaon (T) which were acquired by the government for housing board purpose are also joint family properties.

17. The contention of the defendant is that the lands covered by survey number 565 to 569 are Inam lands out of item No.2 of Schedule A. They are part of service inam, the patta for survey number 565, 566 and 567 was granted in his name under Inam abolition act. The land covered under for the number 569 of wadlakonda, shown in item No.2 of plaint 'A' said stands in the name of sham panthulu, and the land covered by survey No.595 stands in the name Unde 13 Chandrigadu and land in survey number 562, 564 stands in the name of Kummari Narasiah and the land covered under seven number 563 stands in the name of sham panthulu. According to him, his father and Raji Reddy jointly purchased the land covered by the above survey numbers from above pattedars. Sham panthulu, kummari narasiah and Unde Chandrigadu and since 1954 and 1955 his father and Raji Reddy were in possession of the said lands. And so far the patta has not been mutated either in the name of his father, himself or in the name of his brother.

18. On perusal of Ex.B10 which is in the form of No.3 issued by the RDO Jangaon, it is mentioned that in accordance with the provisions of Section 10 of Abolition of Inam's Act 1955 r/w Amendment 29/1995, Sri. Chancharapu of Madusudan Reddy (D1) S/o.Papi Reddy resident of Wadlakonda village of Jangaon shall be registered as an occupant in the spirit of the lands specified in the schedule below and shall be liable to pay the government and amount of Rs.365/- towards premium in lump sum and he shall also be liable to pay land revenue assessment in respect of the said land in accordance with the provisions of the act. 14 The schedule consisted of Survey No. 565 in an extent of Ac 0.11Gts and Survey No.566 in an extent of Ac 0.27Gts and Ac.0.35 Gts in Survey No. 567 in Ac.1.33 Gts. According to the defendants, the lands are not liable for partition and a decision reported in Lokaraj & Others (vs) Kishan Lal & Others 1, was relied wherein the Lordship Justice K.Ramaswamy and Justice Sujata Manohar held that consequent to the abolition, the pre-existing right, title and interest of the Inamdar or any person having occupation of inam lands stood divested and vested in the state until the regrant is made. The Inamdar thereby lost the pre-existing right title and interest in the land. The right to the partition itself also has been lost by the statutory operation, unless regrant is made. When regrant is made and in what capacity re-grant would be made is a matter to be considered and decided in terms of the re-grant. But in N.Padmamma and Others (vs) S. Ramakrishna Reddy 2, an appeal delivered on 23.09.2014 by the Hon'ble Apex Court in which the appeal has been placed before a larger bench pursuant to a reference made by a division bench of the Apex Court reported in 1 1995(3) SCC 291 2 (2008) 15 SCC 517 15 N.Padmamma and Other vs S.Rama Krishna Reddy and other which formulated the following question for determination "whether the civil court has jurisdiction to entertain a suit for partition for the division of respective shares amongst the members of joint family when in respect of some of the lands, occupancy rate has been granted in favour of one of them in terms of provision of the Andhra Pradesh (Telangana) Area Abolition of Inam's Act 1955 is the question involved herein".

19. While discussing elaborately the principles "Right of inheritance and succession is a statutory right. A right in a property which is vested in terms of the provisions of the Hindu Succession Act cannot be taken away, except in terms of provisions of another statute, which would have an overriding effect. Such special statute should be a complete code. It shall ordinarily be a later statute. Ordinarily again it must contain a non obstante clause." The Hon'ble Apex court also discussed about the possession of Co-heir and the presumption of a joint title. The Hon'ble court while referring 16 decisions rendered in Bhuvaneshwar Prasad Narain Singh and Others Vs. Sidheswar Mukherjee and Others. 3, with regard with the court dealing with Inam lands held by the Ancestors, Kalagonda Babgonda Patil vs Balgonda Kalgonda Patil & Others 4, Sivappa Tammannappa Karaban vs Parasappa Hanumappa Kuraban & Others 5 were discussed.

20. In the instant case, the trial court held that as per Ex.B10 the coparcener's right was given in favour of D.W.1 in respect of survey number S65, 566, 567 to an extent of Ac 1.33 gts and in respect of the remaining survey numbers no regrant is made and therefore following the decision in Lokaraj and ors (vs) V. Kishanlal, the trial court held that lands in item No.2 of schedule 'A' are not available for partition as they are Inam lands.

21. However, in the reference made to the apex court in N.Padmamma VS S Ramakrishna Reddy, it was held that "In our opinion, the grant of such occupancy rights in favour of respondent No.1 was for the benefit of all the legal heirs 3 (1971)1 SCC 556 4 1989 Suppli) SCC 246 5 1995 Supp(1) SCC 162 17 left behind by Ramachandra Reddy. Reliance upon Lokraj's case (supra), therefore, is of no assistance to the respondents. We are also of the view that the decision in Lokraj's case (supra), does not correctly apply the earlier decision of this Court in Bhubaneshwar Prasad Narain Singh's case (supra). With utmost respect to the Hon'ble Judges who delivered the decision in Lokraj's case, the law was not correctly laid down, if the same was meant to say that even in the absence of a plea of ouster, a co-heir could merely on the basis of grant of the occupancy rights in his name exclude the other co-heirs from partition of the property so granted."

22. Therefore, in the obedience to the above finding this court holds that the extent of Ac 1.33 gts in Survey No. 565, 566, 567 granted in favour of D.W.1 is partible among the heirs. According to the trail courts finding that item No.2 of Schedule A are not available for partition as they are inam lands is reversed and the cross objections raised by the plaintiff in Para No.2 is allowed.

23. The defendant who was examined as D.W.1 has admitted that he along with the deceased Raja Sekhar Reddy 18 and Raja Sukumar Reddy constituted a joint Hindu family but at the same time he contended that the same was disrupted due to death of Raja Sekhar Reddy so also the joint family consisting of his father, himself and his brothers got disrupted with the death of his father.

24. Before discussing about the contention raised by the defendant it would be apt to mention that the partition is also a type of disintegration of the joint family. Because it is the severance of the status of the coparceners from the joint family. The coparcener has a right to demand partition anytime without the consent of other coparceners. To decide shares of heirs, first step is to ascertain the share of the deceased in coparcener a property as on the date of his death. In the state of Maharashtra vs Narayana Rao Sham Rao Deshmukh and Others 6, characteristics of joint family and coparcenary were called out. It was also held that interest of a female member of a joint Hindu family getting fiction, on her inheriting interest of a deceased male member of the family, she would not cease to be a member of the family unless she chooses to become separate by partition. 6 1985(2) SCC 321 19

25. Section 6 of ₹19 exact by no provision vide 2005 Amendment act was amended as the new section 6 reads as follows: "6 Devolution of interest in coparcenary property:-

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son.

And any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. 20 (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and 21

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-

deceased son or a pre-deceased daughter, as the case may be.

Explanation:- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great- grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the 22 Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect:

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case maybe; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation: For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation: For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court. Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005] Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint 24 Hindu Family System (Abolition) Act, 1975. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.

State Amendment Sections 6A to 6C Karnataka:

After section 6 the following sections shall be inserted, namely "6A": Equal rights to daughter in co-parcenary property-Notwithstanding anything contained in section 6 of this Act:

(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-

parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property 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;

(b) at a partition in such a joint Hindu family the co- parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: Provided 25 that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter: Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;

(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the 26 commencement of Hindu Succession (Karnataka Amendment) Act, 1990."

26. A division bench of the Hon'ble Apex Court in Prakash V Phula, it was held that section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment act 09.09.2005 In Danamma @sumar surpur & Anrv Awar & Others 7 the Hon'ble Apex Court 'held that the amended provisions of section 6 confirmed full rights upon the daughter coparcener. Any coparcener including a daughter can claim a partition in coparcenary property while answering the difference made the Hon'ble Apex Court answered in Vinitha Sharma vs Rakesh Sharma:

(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 9.9.2005 with savings as provided in Section 7 (2018)3 SCC 383 27 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 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 28 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."

27. Thus, the Hon'ble Supreme Court held that a woman/daughter shall also be considered as a joint legal heir as a son and can inherit ancestral property equally as a male heir, inspective that the father was not alive before the Hindu Succession (Amendment) Act, 2005 came into effect. Thus, irrespective of the date of death of the deceased Raja Sekhar Reddy the daughter and wife are entitled for shares in the partition of the property as there is no disruption in the joint family. Accordingly issue number three is answered negatively while substantiating the notion that the joint family cannot be disrupted with the death of Papi Reddy and Raja Sekhar Reddy.

28. With regard to this issue No.4 that is whether the plaintiff No.2 is in joint possession of the property, it is well settled principle of law that if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of joint family is presumed to be joint family property. Similarly in this instance case there is no plea taken the defendant that the property is self- acquired property and the existence of a nucleus of joint family property is established by the evidence of the defendant that his father and uncle have purchased the same properties jointly out of their income which is nothing but the agricultural income.

29. In page No.3 of his deposition the defendant No.1 deposes that "Rajamma during her lifetime disposed of some of the above property and the remaining was inherited by my father and his brother Raji Reddy the property which fell to the share of Raji Reddy and my father after the death of Rajamma were subsequently acquired by government for construction of houses by housing board department. After the death of Rama and said property was mutated in the name of Raji Reddy and my father. My father and Raji Reddy 30 became tenants in the script of the land covered by survey number 20, 21, 40, 41 and 31 of Jangaon. They have 1/15 share each in the above lands. The Government acquired the above lands for the purpose of constructing market had still the patta for the tenancy land stood in the name of Venkat Reddy". Ex.B9 is the award passed by the RDO Warangal dated 23.09.1986 for the tenancy lands. The compensation was given to the beneficiaries treating them as protected tenants in respect of the above lands. Again in Page No.4, he has deposed that "item No.1 of plaintiff A schedule i.e. house was got constructed by my father". "Ex.B24 is the ownership certificate relating to item No.1 of plaint A schedule issued by Nagara Gram Panchayat Jangaon showing that the house stands in the name of my father Papi Reddy". Thus, the admission made by D.W.1 clearly proves that the house property was owned by his father and land survey Nos.20, 21, 40, 41 and 31 were derived from ancestors and it is settled principle of law that possession of one co-owner is presumed to be the possession of all co-owners unless it is established that the possession is in hostility to co-owners and the possession is in hostility to co-owner by exclusion of 31 them. Thus, the oral and documentary evidence clearly proves that A schedule properties are joint family properties. Accordingly, main issue No.4 is answered is in favour of plaintiff and the finding of trial court is confirmed.

30. This court feels that there is no necessity, in interfering in the finding of the district court in holding that there is no evidence on record to show that B schedule properties are family properties. Thus, the cross objections raised by the plaintiff fails with regard to the B schedule properties.

31. This court holds that the preliminary decree be passed directing the parties to divide item No.1, the dwelling house item number two and four of plaint A schedule properties that is land covered by survey number 565 two 569 into three equal shares allotment and delivery of separate possession of such share out of the shares to the plaintiffs. The defendant No. 1 is further directed to deposit Rs.7,19,589/- which is being 1/3 share of the plaintiff, out of compensation received by the defendant No.1 from the acquisition of lands by the Government in survey Nos.465, 24 and 26 at Jangaon (T) and survey Nos.39, 20, 21, 40 and 41 of Jangaon village with 32 interest at the rate of 12% per annum from the date of the suit till the date of realisation with costs. The defendant No.1 is further directed to render accounts of all receipts and expenses supported by attending authors pertaining to the suit properties by appointing an advocate commissioner and also to conduct a separate enquiry with regard amounts due to the plaintiffs in respect of the acquired lands and other properties. The Claim of Plaintiff in respect of 'B' schedule property is dismissed along with return of 'C' schedule gold ornaments from the Defendant No.1.

32. In the result, the Appeal Suit is dismissed confirming the Judgment and decree dated 03.06.2002 in O.S.No.25 of 1998 passed by the trial Court and the Cross-Objections are partly allowed.

Miscellaneous petitions pending, if any, shall stand closed.

_________________________ JUSTICE P.SREE SUDHA DATE: 25.01.2024 CHS 33 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA APPEAL SUIT No.2154 of 2002 AND CROSS OBJECTIONS No.1 OF 2002 DATED: 25.01.2024 CHS

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