Whether Even if the property is treated as coparcenary property, the plaintiff, being the wife of a deceased coparcener of the third generation, does not have any right to claim partition as her father-in-law, who is the 2 nd generation coparcener, is still alive and his share has not yet been crystallized. ?
held that The second incident of Mitakshara law enumerated above, states that the descendents up to the third generation can, at any time, claim partition. In the present case, the 1st defendant is the first generation, the 2nd defendant is the second generation and late Sri Pulla Rao and defendants 3 and 5 to 7 are the third generation of the coparcenary. There is no impediment for late Sri Pulla Rao to make a claim for partition nor any impediment for the plaintiff to make such a claim.
whether the properties transferred under the deeds of settlement executed by the 1st defendant cannot be included in the suit schedule as the deeds of settlement have not been challenged?
held that the deeds of settlement are void as they have been executed by a person, who does not have the right or authority to execute such deeds and consequently, no declaration is necessary in this regard, especially since the plaintiff is not a party to the documents.
suit for partition -
Both the trial Court and the appellate Court held that the 3rd defendant in his deposition, as DW.1, had admitted that there was a joint family and the suit schedule properties are coparcenary properties. On this basis, both the Courts had held that the suit schedule properties are joint family properties in which the plaintiff, as the widow and sole legal heir of her husband late Sri Pulla Rao, would be entitled to have a share. On question of settlement deeds, both the Courts below held that in view of the above finding, the 1st defendant did not have any right or authority to execute any deeds of settlement and the same are void. The Courts below, on the ground that the deeds of settlement are void, had held that there was no need for the plaintiff to seek any further declaration that the deeds are void or that the deeds of settlement do not affect the rights of the plaintiff over the suit schedule property. 2023:APHC:32588
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
Second Appeal No.318 of 2023
SRI KEDASU VENKATA SRINIVASVersus
SMT. KEDASU DEVI SUBBALSKHMI
JUDGMENT:
Heard Sri K.A. Narasimham, learned counsel appearing for Sri V. Sai
Kumar, learned counsel appearing for the appellants and Sri M.R.S.
Srinivas learned counsel appearing for the 1st respondent/plaintiff.
2. Defendants 3 and 6 in the original suit are the appellants
herein. For ease of reference, the parties are being referred to as they
have been arrayed in the suit.
3. The 1st defendant is the common ancestor. He was married
to the 9th defendant. The 1st defendant had two children, viz., the 2nd
defendant-son and the 8th defendant-daughter. The 2nd defendant had
two sons and three daughters, viz., the 3
rd defendant and late Sri Pulla
Rao, who is the husband of the plaintiff, who are sons; and defendants 5
to 7, who are the daughters of the 2nd defendant. The 4th defendant is the
son of the 3rd defendant. The plaintiff is the wife of late Sri Pulla Rao, who
was the other son of the 2nd defendant. In addition to this, the plaintiff is
also the daughter of the 8th defendant. The 1st defendant, 2nd defendant
and 9th defendant have passed away. The wife of the 2nd defendant had
also died and the date of her death is not available.
4. It is the case of the plaintiff that she was married to her first
cousin, i.e., late Sri Pulla Rao. She had given birth to a daughter on
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S.A.No.318 of 2023
2
16.05.1990, who unfortunately passed away within three months after her
birth. Late Sri Pulla Rao, the husband of the plaintiff passed away
intestate on 11.05.2003 leaving the plaintiff as his only legal heir. The
plaintiff is said to have continued to reside in the matrimonial home along
with defendants 1 to 4 and 9 after the death of her husband. However,
the 2nd defendant started behaving badly with her and quarrelled with her
and demanded her to go to her parents house stating that she had no
share in the plaint schedule property. The plaintiff also came to know that
defendants 2 and 3 had made the 1st defendant to execute certain
settlement deeds in the names of defendants 3 and 4 in respect of some
of the plaint schedule properties as if they are his exclusive and absolute
properties. Having come to know of these facts, the plaintiff had filed
O.S.No.226 of 2005 before the Principal Senior Civil Judge, Kovvur for
partition of the suit schedule properties on the ground that they were joint
family properties on which every coparcener had a share and that she
would be entitled to a separate share amounting to 1/3 in the properties
as the legal heir of her husband late Sri Pulla Rao.
7. Defendants 8 and 9 remained ex-parte. The written
statement filed by the 1st defendant was adopted by defendants 2 to 7.
the case of the 1st defendant was that the properties shown in the suit
schedule were his self acquired properties and were not amenable to
partition. The 1st defendant also stated that one of the properties had
been purchased by him along with the daughter-in-law of his uncle and
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S.A.No.318 of 2023
3
the said daughter-in-law had relinquished her share in favour of the 1st
defendant by receiving necessary consideration.
8. After trial and after hearing the submissions on all sides, the
trial Court passed a preliminary decree ordering partition of the plaint
schedule properties into 12 equal shares with the plaintiff being given one
share out of the 12 equal shares. Defendants 3 and 5 and 7 were also
declared to have one share. The 2
nd defendant being entitled to 4 shares
and the 8th defendant being entitled to 3 shares.
9. Aggrieved by this preliminary decree dated 17.12.2017,
defendants 2 to 7 moved A.S.No.34 of 2017 before the IX Additional
District Judge, Kovvur. This appeal was dismissed on 18.01.2023.
Aggrieved by the said order of dismissal, defendants 3 and 6 have moved
this Court by way of the present second appeal.
10. The defence raised before the trial Court and the appellate
Court were that the suit schedule property was the self acquired property
of the 1
st defendant; the 1st defendant, during his life time, had settled
northern half of item No.4 and Item No.1 in favour of the 3rd defendant
and items 2 and 3 in favour of the 4th defendant under two separate
registered settlement deeds dated 06.09.2005 and the suit would not be
maintainable against the said properties because the plaintiff had not
chosen to challenge these two deeds of settlement.
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4
11. The plaintiff disputed the contention of the defendants that
the suit schedule property was the self acquired property of the 1st
defendant. She also contended, by way of a rejoinder, that the said deeds
of settlement are void as the 1st defendant had no right or title to execute
any settlement deeds and in any event these settlement deeds are hit by
the doctrine of lis pendens.
12. Both the trial Court and the appellate Court held that the 3rd
defendant in his deposition, as DW.1, had admitted that there was a joint
family and the suit schedule properties are coparcenary properties. On this
basis, both the Courts had held that the suit schedule properties are joint
family properties in which the plaintiff, as the widow and sole legal heir of
her husband late Sri Pulla Rao, would be entitled to have a share. On
question of settlement deeds, both the Courts below held that in view of
the above finding, the 1st defendant did not have any right or authority to
execute any deeds of settlement and the same are void. The Courts
below, on the ground that the deeds of settlement are void, had held that
there was no need for the plaintiff to seek any further declaration that the
deeds are void or that the deeds of settlement do not affect the rights of
the plaintiff over the suit schedule property. Both the Courts below also
held that the deeds of settlement were not proved, as the attestors to the
said documents were not examined and no statement was made that the
attestors are not alive or available to be examined.
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5
13. Sri K.A. Narasimham, learned counsel appearing for the
appellants raised the following grounds of appeal as the questions of law.
1. The plaintiff could not have claimed any partition as her father-inlaw, viz., the 2nd defendant, was alive at the time of filing of the
suit and she cannot claim any share till the share of the 2nd
defendant is crystallized.
2. The wife of the 2nd defendant, who is the mother-in-law, of the
plaintiff, was also entitled to a share along with the plaintiff and she
was not arrayed as a party which is fatal to the case of the plaintiff.
3. The calculation of shares made by the trial Court and affirmed by
the appellate Court is wrong as the share of the mother-in-law of
the plaintiff was not taken into account.
4. Late Sri Pulla Rao, who is the grand-son of the 2
nd defendant, could
not have claimed partition during the life time of his father-the 2nd
defendant, and as such the plaintiff as the legal heir of late Sri Pulla
Rao cannot raise such a claim.
5. The deeds of settlement, under which the 1st defendant had
transferred certain properties to defendants 3 and 4 have not been
challenged and the claim of the plaintiff, to the extent of these
properties, would have to be negatived, as the deeds of settlement
have not been set aside.
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6
6. The burden of proving that there is a Hindu Undivided Family (HUF)
and that the coparcenary of this family has any property, is on the
plaintiff and the same has not been discharged.
14. Sri K.A. Narasimham, learned counsel for the appellants
relies upon the judgment of the learned Single Judge of the erstwhile High
Court of Andhra Pradesh in Sundaragiri Ramulu vs. Sundaragiri Siddi
Rajaiah1
. He also relied upon the a judgment of the Hon‘ble Supreme
Court in Shasidhar and Ors., vs. Smt. Ashwini Uma mathad and
Anr.,
2
and Vineeta Sharma vs. Rakesh Sharma and Ors.
3
.
15. Sri M.R.S. Srinivas, learned counsel appearing for the 1st
respondent/plaintiff relying upon the judgment of the Hon‘ble Supreme
Court in State Bank of India vs. Ghamandi Ram4
, would contend that
there is no bar for any member of the coparcenary to claim partition and
that there is no specific bar that such claim cannot be made while the
members of the preceding generation of the joint family are alive. He
would further contend that the judgment of the Hon‘ble Supreme Curt in
Uttam vs. Saubhag Sing and Ors.,5
relied upon by Sri K.A.
Narasimham would not be applicable to the present case.
Consideration of the Court:
1
2008 (6) ALT 314 (S.B.)
2
2015 (3) ALT (SC0 7 (D.B.)
3
(2020) 9 SCC 1 : 2020 SCC OnLine SC 641
4
AIR 1969 SC 1330
5
(2016) 4 SCC 68
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S.A.No.318 of 2023
7
16. The grounds raised by Sri K.A. Narasimham can be
summarised as follows:
1) Whether the suit schedule properties are amenable to
partition as coparcenary property. The subsidiary grounds raised on this
question are – (i) the burden of proving, that the property in question is
coparcenary property, is on the plaintiff which has not been discharged;
(ii) the details of the acquisition of property, given by the 1st defendant,
makes it clear that all the suit properties are self acquired properties.
2) Even if the property is treated as coparcenary property, the
plaintiff, being the wife of a deceased coparcener of the third generation,
does not have any right to claim partition as her father-in-law, who is the
2
nd generation coparcener, is still alive and his share has not yet been
crystallized.
3) The 1st defendant, had already transferred some of the
properties enumerated in the suit schedule and these properties cannot be
partitioned as the plaintiff has not chosen to challenge the validity of these
deeds of settlement.
Ground No.1:
17. The trial Court and the appellate Court have held that the
properties are coparcenary properties on the basis of the admissions made
by the 3rd defendant, who had examined himself as DW.1. Apart from this,
both the courts had also held that the description of the source of the
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S.A.No.318 of 2023
8
property, in the revenue records, shows that this is ancestral property and
consequently would have to be treated as coparcenary property. This
Court has not been shown anything to arrive at any contrary conclusion.
In any event, these are findings of fact, which are plausible and cannot be
disturbed by this Court. In that view of the matter, the burden of proving
that the suit schedule property is coparcenary property has been
discharged by the plaintiff.
Ground No.2:
18. Sri K.A. Narasimham, learned counsel appearing for the
appellants had contended that neither late Sri Pulla Rao nor the plaintiff as
his heir can claim partition of the coparcenary property as late Sri Pulla
Rao would be the third generation o f the member of the coparcenary and
would not be entitled to claim partition and secondly neither the plaintiff
nor the legal heir of late Sri Pulla Rao claim such partition.
19. Hon‘ble Supreme Court in State Bank of India vs.
Ghammandi Ram, had set out , in paragraph 7 of the judgment, the law
in relation to the property of Hindu Undivided Family, in the following
manner, –
According to the Mitakshara School of Hindu Law all the
property of a Hindu joint family is held in collective ownership
by all the coparceners in a quasi-corporate capacity. The
textual authority of the Mitakshara lays down in express
terms that the joint family property is held in trust for the
joint family members then living and thereafter to be born
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9
(see Mitakshara, Chapter I, 1-27). The incidents of coparcenership under the Mitakshara law are: first, the lineal
male descendants of a person up to the third generation,
acquire on birth ownership in the ancestral properties of such
person; secondly, that such descendants can at any time
work out their rights by asking for partition; thirdly, that till
partition each member has got ownership extending over the
entire property, conjointly with the rest; fourthly, that as a
result of such co-ownership the possession and enjoyment of
the properties is common; fifthly, that no alienation of the
property is possible unless it be for necessity, without the
concurrence of the coparceners, and sixthly, that the interest
of a deceased member lapses on his death to the survivors. A
coparcenary under the Mitakshara School is a creature of law
and cannot arise by act of parties except in so far that on
adoption the adopted son becomes a co-parcener with his
adoptive father as regards the ancestral properties of the
latter. In Sundaranam Maistri v. Harasimbhulu Maistri [ILR 25
Mad 149 at 154]
Mr Justice Bhashyam Ayyangar stated the legal position
thus:
―The Mitakshara doctrine of joint family property is
founded upon the existence of an undivided family, as a
corporate body (Gan Savant Bal Savant v. Narayan Bhond
Savant) [ILR 7 Bom 467] and Mayne's Hindu Law and Usage,
(6th Edn para 270) and the possession of property by such
corporate body. The first requisite therefore is the family unit;
and the possession by it of property is the second requisite.
For the present purpose, female members of the family may
be left out of consideration and the conception of a Hindu
family is a common male ancestor with his lineal descendants
in the male line, and so long as that family is in its normal
condition viz. the undivided state — it forms a corporate
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10
body. Such corporate body, with its heritage, is purely a
creature of law and cannot be created by act of parties, save
in so far that, by adoption, a stranger may be affiliated as a
member of that corporate family.‖
Adverting to the nature of the property owned by such
a family the learned Judge proceeded to state:
―As regards the property of such family, the
‗unobstructed heritage‘ devolving on such family, with its
accretions, is owned by the family, as a corporate body, and
one or more branches of that family, each forming a
corporate body within a larger corporate body, may possess
separate ‗unobstructed heritage‘ which, with its accretions,
may be exclusively owned by such branch as a corporate
body.‖
Having regard to the juristic nature of the Hindu joint
family, according to the doctrine of Mitakshara, we are of the
opinion that the Hindu joint family firm of Ghamandi Ram
Gurbax Rai cannot be treated as an ‗individual‘ within the
meaning of the notification of the Pakistan Government,
dated 19th February, 1952, but the said firm must be treated
as ‗a body of individuals whether incorporated or not‘ within
the meaning of that notification.‖
20 The second incident of Mitakshara law enumerated above,
states that the descendents up to the third generation can, at any time,
claim partition. In the present case, the 1st defendant is the first
generation, the 2nd defendant is the second generation and late Sri Pulla
Rao and defendants 3 and 5 to 7 are the third generation of the
coparcenary. There is no impediment for late Sri Pulla Rao to make a
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S.A.No.318 of 2023
11
claim for partition nor any impediment for the plaintiff to make such a
claim.
21. Sri K.A. Narasimham, learned counsel for the appellant had
contended that the mother-in-law of the plaintiff had not been included in
the array of parties and she would also have a share in view of the demise
of the 2nd defendant. It is contended that the absence of the mother-inlaw of the plaintiff, in the suit, is fatal to the maintainability of the suit.
This contention has not been raised either before the trial Court or before
the first appellate Court and has been raised for the first time before this
Court. A perusal of the pleadings and the orders of the trial Court and the
appellate Court would show that the mother-in-law of the plaintiff had
passed away and no date of her passing away has been set out anywhere.
In view of the absence of any pleading about the necessity of including
the mother-in-law of the plaintiff, this Court cannot countenance such an
argument at this stage. It is also not clear as to whether the mother-inlaw of the plaintiff had passed away before the filing of the suit or after
the filing of the suit.
22. The contention of the defendants that the properties
transferred under the deeds of settlement executed by the 1st defendant
cannot be included in the suit schedule as the deeds of settlement have
not been challenged, has been negatived by both the trial Court and the
first appellate Court. This contention was negatived on two grounds –
firstly, the deeds of settlement have not been proved in accordance with
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S.A.No.318 of 2023
12
law and cannot be taken into account; and secondly, the deeds of
settlement are void as they have been executed by a person, who does
not have the right or authority to execute such deeds and consequently,
no declaration is necessary in this regard, especially since the plaintiff is
not a party to the documents. This Court does not find any reason to
differ with the said findings of the trial Court and the first appellate Court.
23. For all the aforesaid reasons, there are no grounds for this
Court to interfere, and further, there are no question of law, much less
substantial questions of law, requiring any adjudication by this Court.
24. Accordingly, the second appeal is dismissed. There shall be
no order as to costs. As a sequel, pending miscellaneous petitions, if any,
shall stand closed.
__________________________
R. RAGHUNANDAN RAO, J.
12th September, 2023
Js.
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S.A.No.318 of 2023
13
HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
Second Appeal No.318 of 2023
12th September, 2023
Js.
