THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO 
APPEAL SUIT No.433 OF 2001
19-07-2011
R.V.PADMAVATHI AND OTHERS
GANGARAPU SUDARSANA CHOUDARY AND OTHERS
COUNSEL FOR APPELLANT: --------
COUNSEL FOR RESPONDENTS :-----------
:COMMON JUDGMENT:
The appeal is filed by the 1st plaintiff and 12th defendant in O.S.No.24
of 1996 on the file of the Additional District Judge, Madanapalle. The suit
was one filed for partition of the schedule properties.
2. The case of the plaintiffs is that the schedule properties belongs to one
R.Venkata Swamy Naidu, who died on 28.12.1953 leaving behind his wife Achamma
and four sons and four daughters. The 1st plaintiff is one of the daughters.
The sons are Rama Swamy Naidu whose heirs are defendants 1 to 6 and another son
Guru Swamy Naidu, whose heir is the 7th defendant and another son Ranga Swamy
Naidu, who is said to have gone in adoption in the year, 1925 and died leaving
behind his wife defendant No.11, who also died subsequently, another son is Rama
Murthy, defendant No.8. The daughters are Seethamma, the 1st plaintiff, another
Sundaramma and defendant No.9. The 2nd plaintiff is said to be the son of
Seethamma. The 1st plaintiff and Sundaramma are said to be unmarried and
Sundaramma also died unmarried. The suit schedule properties are the family
properties.
3. According to the case of the plaintiffs, after the death of Venkata Swamy
Naidu on 28.12.1953 as an undivided coparceners, his 1/4th share along with the
other three sons excluding the adopted son defendant No.7 Ranga Swamy Naidu
devolved on Achamma, the adoption of the 3rd son Ranga Swamy Naidu in 1925 was
evidenced by a registered adoption deed and therefore, he has no right in the
family properties as he has waived all the rights in the natural family. The
1st son Rama Swamy Naidu died in 1963 even before the death of his mother. The
2nd son Venkata Swamy Naidu died in 1960 and 8th defendant is only surviving son
of the late Venkata Swamy Naidu. The eldest daughter Seethamma died on
19.02.1967 and the legal representatives are 2nd plaintiff and defendants 10 to
13. The mother of the 1st plaintiff having inherited to the joint 1/4th share
of her husband along with the three sons, her rights have enlarged into absolute
rights under Section 14 of the Hindu Succession Act (for short, 'the Act') and
the plaintiffs and other heirs have become entitled to her property as co-
sharers. When the plaintiffs got issued a notice, a reply was given by
defendant No.8 with false allegations. A specific allegation was made in para
No.9 of the plaint that the plaintiffs are not claiming any share in the suit
properties through late Venkata Swamy Naidu, but only through the estate of
Achamma whose rights have enlarged into absolute rights. The defendants pleaded
a partition, which was not true and the 1st plaintiff is not married.
Thereafter, by virtue of an amendment, in I.A.No.531 of 1989 a plea was taken
that by virtue of the A.P. Act 13 of 1986 the plaintiff being a daughter, who is
unmarried, has got the status of a coparcener and has got equal rights in the
family properties along with the male members. Therefore her another sister
Sundaramma would get equal rights along with their brothers and consequently,
the 1st plaintiff claimed the share of 1/180+140/540 on her behalf and on behalf
of the 2nd plaintiff and both of them put together claimed share of 143/540
share, defendant Nos.1 to 6 are entitled for a share of 105/540, defendant No.7
to a share of 90/540, defendant No.8 to a share of 140/540, defendant No.9 to a
share of 50/540 and defendants 10 to 13 to a share of 12/540. The legal
representatives of the 10th defendant and defendants 11 and 13 were brought on
record after their death. The property is not divided and therefore, the
plaintiffs filed suit for the share in the estate of her mother for partition of
the property. As there was no co-operation for partition, the suit was filed.
The plaintiffs also claimed for mesne profits.
4. The 1st defendant filed a written statement contending that the plaintiffs
have no right or interest in the schedule property. The relationship is
admitted. The adoption of the 3rd son is admitted. The entitlement of the
mother to 1/4th share is also admitted. It was also pleaded that after the
death of Rama Swamy Naidu, he along with others is entitled for a share in his
property. It was further pleaded that after the death of Venkata Swmay Naidu,
differences arose between the family members and there was a partition and in
that partition, she has given up all her rights in the family properties and
intended to stay with 8th defendant. Thereafter, there was a partition between
the defendants and the particulars of the shares were mentioned. The factum of
partition is known to the plaintiffs. The 1st plaintiff has developed illicit
intimacy with one Bhaskar Rao and living with him and in spite of the advice of
the elders of the family, she did not change and severed all her connections
with the family. The 2nd plaintiff is a seasoned litigant and the suit was
instigated at his instance. The shares claimed by the plaintiffs are incorrect
and therefore, the suit is liable to be dismissed.
5. The 8th defendant also filed a written statement reiterating most of the
contentions raised by the 1st defendant. The 2nd plaintiff has no right along
with defendants 10 to 13 as their mother Seethamma gave up her rights by keeping
fight for several years during her life time. It was late Ranga Swamy Naidu and
the 2nd plaintiff, who have partitioned the properties between the family
members. Therefore, they claimed as there was no partition of the family
properties is not correct. Atchamma never enjoyed 1/4th share in the schedule
properties and she lived with the 8th defendant till her death and kept quiet
for several years. The plaintiffs are estopped from claiming any share in the
properties. The 1st plaintiff is also aware of the partition. Therefore, the
suit is to be bad.
The 8th defendant filed additional written statement contending that since
the 1st plaintiff is a married woman, she cannot claim the benefit of Act 13 of
1986. Further more, as there was already a division of the property, she cannot
be treated as a coparcener.
6. The 11th defendant filed a written statement claiming that though her
husband Rama Swamy Naidu went in adoption his rights in the natural family are
not lost and therefore, the 11th defendant is entitled for the share.
Additional written statement was also filed disputing the benefits under
A.P. Act 13 of 1986.
The 10th defendant filed a written statement adopting the written
statement of the 11th defendant. The 13th defendant also adopted the same
written statement.
7. On the basis of the above pleadings, the following issues have been framed
for trial:
1) Whether the plaintiff has title to any share in the plaint schedule property?
2) Whether the defendants have perfected their title by ousting the plaintiffs
and their predecessors in title?
3) Whether the partition pleaded by the defendants is true, valid and binding on
the plaintiffs?
4) To what relief?
8. On behalf of the plaintiffs, PWs.1 was examined and marked Exs.A.1 to
A.22. On behalf of the defendants, DWs.1 to 3 were examined and marked Exs.B.1
to B.35.
9. After considering the evidence on record, the learned Additional District
Judge, Madanapalle, found that the 1st plaintiff is unmarried daughter, but by
the date of death of Venkata Swamy Naidu and after his death no coparcenary
existed, the plaintiff is not entitled to the benefits of the A.P. Act 13 of
1986. The claim of the 1st plaintiff was only restricted to the share in the
1/4th properties of her mother. The earlier partition pleaded by the defendants
is not believed and also the fact that the plaintiff was unmarried was accepted.
Accordingly, a preliminary decree was passed for allotment of 1/28th share and
1/144th share to the 1st plaintiff and also 1/140+1/720 share to the plaintiffs
3 to 6, who are the legal representatives of the 2nd plaintiff. Aggrieved by
the said judgment and decree, the present appeal is filed by the 1st plaintiff
as she was not given the benefits of A.P. Act 13 of 1986 and also 12th
defendant.
10. Respondent No.26, who is the legal heir of Ranga Swamy Naidu, who is said
to have gone in the adoption, has filed the cross-objections contending that
even after adoption, the rights in the joint family are not divested.
11. The points that arise for consideration are:
1) Whether the 1st plaintiff is entitled to the benefits of A.P. Act 13 of 1986
and entitled to an independent share apart from the share she succeeds from her
mother?
2) Whether the unmarried sister of 1st plaintiff by name Sundaramma is also
entitled for share?
3) Whether the adopted son Ranga Swamy Naidu and his heirs are entitled for any
share in the joint family properties?
4) Whether the Judgment and decree passed by the learned Additional District
Judge, Madanapalle, is legal and sustainable?
12. POINTS:
Before deciding the issues involved in this appeal, it is to be noted that
the relationship between the parties is not in dispute. The date of death of
the deceased Venkata Swamy Naidu, from whom all the parties claiming the
partition of property, is not in dispute. It is also not in dispute that
Venkata Swamy Naidu died on 28.12.1953 and as the law stood then, the wife
Achamma has become entitled to his 1/4th share after excluding the son Ranga
Swamy Naidu, who is said to have gone in adoption. It is also not in dispute
that by virtue of the Hindu Succession Act, 1956 under Section 14(1), the rights
of Achamma have enlarged into absolute estate and she became the owner of the
properties. The 1st plaintiff claims that she is unmarried. Though there was
some proof about her living with another person Bhaskar Rao, the lower Court
found that there was no valid marriage between them and therefore, she shall be
recognized as an unmarried daughter of Venkata Swamy Naidu. It is also to be
noted that though defendants 1 and 8 have contended that there was a partition
of the properties and Achamma has given up her interest in the 1/4th share, she
got from her husband, which was divided amongst other sharers, the lower Court
has not accepted both the facts and consequently, the finding of the lower Court
is that the 1st plaintiff is an unmarried daughter and there was no partition,
whereunder Achamma relinquished her interest in the properties succeeded by her
from her husband. These are substantial questions of fact having a bearing on
the decision in the suit and against those findings, the defendants have not
preferred any appeal and consequently, there is no scope for considering the
above issues again by exercising the power under Order 41, Rule 33 of the Civil
Procedure Code (for short, 'CPC'), which by itself restricts and shall be read
along with Order 41, Rule 22 CPC.
13. Keeping in view the judgment reported in Banarsi and others Vs. Ram Phal1,
relied on by the counsel for the appellant, I feel any attempt to disturb those
findings is not warranted.
14. It is to be mentioned that originally, the 1st plaintiff has confined her
share as a heir of Achamma after her death. But, after the amendment of Hindu
Successions Act by our State and introducing Section 29(A) in Act 13 of 1986,
which is effective from 05.09.1985, the 1st plaintiff has developed the theory
that she being an unmarried daughter, she along with her brothers is a
coparcener and she shall have an independent right of share in the property
apart from the share which she succeeds to the property of her mother and also
another unmarried sister Sundaramma. In fact, the lower Court has not dealt
with the scope of Section 29(A) at length and only has gone to the conclusion
that the acceptance of the contention raised by the 1st plaintiff will be giving
her undue benefit of giving more share and therefore, she is not entitled for
the benefits of the Act.
15. The learned counsel for the appellants tried to attack the judgment of the
lower Court particularly with reference to para No.32, which evidently deals
with the contention of the parties and it is not a finding as such. Therefore,
in view of the above circumstances, the question before the Court is as to
whether the 1st plaintiff has got a right equally along with the brothers and
the share granted by the lower Court is not correct.
16. In order to appreciate the contentions, it would be useful to extract
Section 6 of Hindu Succession Act, which stood prior to the amendment by the
Central Government:
6. Devolution of interest in coparcenary property.- When a male Hindu dies after
the commencement of this Act, having at the time of his death an interest in a
Mitakshara coparcenary property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and not in accordance
with this Act:
Provided that, if the deceased had left him surviving a female relative
specified in Class I of the Schedule or a male relative specified in that class
who claims through such female relative, the interest of the deceased in the
Mitakshara coparcenary property shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship.
Explanation 1.- For the purposes of this 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.
Explanation 2.- Nothing contained in the proviso to this section shall be
construed as enabling a person who has separated himself from the coparcenary
before the death of the deceased or any of his heirs to claim on intestacy a
share in the interest referred to therein.
17. It is also useful to extract Section 29(A) as amended by the State under
Act 13 of 1986:
29A. Equal rights to daughter in co-parcenery property:- Notwithstanding
anything contained in Section 6 of this Act,
(i) 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.
(ii) At a partition such a joint Hindu family the co-parcenery property shall be
so divided as to allot to a daughter the same share as is allotable to a son.
(iii) ...........
(iv) Nothing in clause (ii) shall apply to a daughter married prior to or to a
partition which had been effected before the commencement of the Hindu
Succession (Andhra Pradesh Amendment) Act, 1986.
18. It is also to be noted that by virtue of Act 39 of 2005 the Central
Government has amended and substituted Section 6 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 a 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.
(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, as property capable of being disposed of 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
(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 parition, 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
Mitaksha 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) .............
(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 dead of partition duly registered under the Registration
Act, 1908 (16 of 1908) or partition effected by a decree of a court.]
19. A reading of the above provisions clearly go to show so far as the
provisions of the Central Act are concerned, they clearly show that on and from
the commencement of the said Act, the daughter shall be treated as a coparcener,
whereas under Section 29(A) of the State Act, such restriction is not there.
Under Section 29(A) of the State Act the only restriction is that under clause
(iv) where-under a daughter married prior to the amendment or to a partition
which had been effected before the commencement of the Act, the provision of
Section (ii) of the State Act will not apply.
20. The substance of the contention of the learned counsel for the appellants
is that the 1st plaintiff by birth becomes a coparcener and as she was born even
by the date of death of Venakata Swamy Naidu, she along with her another sister
Sundaramma will be entitled to a share in the property equivalent to the
brothers and consequently the benefit of Section 29(A) of the State Act cannot
be denied. Though the learned counsel for the appellant has relied upon several
decisions as to when a right of Hindu Woman, who got right under the Hindu
Women's Right to Property Act, confers right of separation or division and as to
how she should be treated if she has not asked for partition, the said decisions
have no relevancy to this case. The only judgment, which has got relevancy for
a decision in this case is the decision relied on by the counsel for the
appellant reported in S.Sai Reddy Vs. S.Narayana Reddy and others2 dealing
directly with the Section 29(A) of the State Act. In that case, it was held
that the right of the daughter for a share in the coparcenary property must be
determined on the date of the passing of the final decree for partition by meats
and bounds. Even after the preliminary decree is passed in view of the
amendment, the daughter was held entitled to a share in the coparcenary
property. But, however, in that case, it was a case filed by the plaintiff
against the father and others for passing of a decree for partition, which
clearly goes to show that the father was alive by then. Therefore, the facts of
the case will have no application to the present case. Unlike explanation to
the amended Hindu Succession Act passed by the Central Government as to the
purport of partition being any partition made by execution of a deed of
partition duly registered under the Registration Act, or partition effected by a
decree of a Court, there is no such explanation in the Section 29(A) of the
State Act. Therefore, the question is whether a notional partition can be
recognized under Section 29(A) sub clause (iv) of the amended Act. It is to be
borne in mind that prior to the amendment of the Central Act under Section 6
explanation (1) of the Act, it was specifically provided that the interest of
Hindu Mitakshara, Coparcener shall be deemed to be the share in the property
that would have been allotted to him if a partition had taken place immediately
before his death irrespective of whether he was entitled to claim partition or
not. Therefore, it is quite clear that if the male had left behind him a female
class one heir, it shall be treated as a interest of his share by his making a
notional partition of the properties. Therefore, by virtue of the Hindu
Succession Act and by virtue of the right, Achamma has got from her husband, it
shall be deemed under Section 6 of the Act that there was a notional partition
and the share of her husband shall devolve on her. In such a circumstance,
there shall be deemed to be a partition amongst the other members of the family
and the sons will get their shares and the wife will get the share of her
husband, irrespective of the fact whether earlier to it, till she seeks
partition the family is held to be joint. The purpose of Section 14(1) of the
Succession Act is also to confer such absolute rights and it can only be by
notional partition.
21. The learned counsel for the respondents relied upon the following
decisions reported in
1) Smt.Bagirathi and others Vs. S.Manivanan and another3.
2) Sheela Devi and others Vs. Lal Chand and another4.
3) M.Yogendra Vs. Leelamma N5
All these cases deal with the Central Act as amended and it was held that it has
no retrospective effect and it does not apply to the cases where the father died
prior to the commencement of the amended Act. But, in those decisions, the
theory of notional partition, which is incorporated under Section 6 of the Act
has been taken into consideration.
22. It is also useful to refer to a decision reported in Anar Devi Vs.
Parmeshwari Devi6, where-under the notional partition to determine the share
consequent on the death of a deceased male under Section 6 of the Act was
considered. Evidently, when Venkata Swamy Naidu died in 1953, it is not in
dispute that as per the law, the wife would be entitled to his share in the
coparcenary property and such share can only be by virtue of a notional
partition to be effected. She has got an option to sue for partition or to
continue in the joint family but not as a coparcener. If she fails to sue for
partition, then her interest will go by survivorship but for the amendment under
Section 14(1) of Hindu Succession Act under which the property held by her has
become her absolute estate. Therefore, it has to be held that a notional
partition has taken place and in that partition only Achamma became entitled to
the 1/4th share of her husband and that has subsequently, enlarged into absolute
estate. The partition by meats and bounds need not be there and consequently it
has to be held that there was already a partition prior to the amendment Act
under Section 29(a) of the State Act and therefore, the 1st plaintiff does not
become a coparcener to have equal rights. The very purpose of protecting the
earlier partition or the rights of the parties is only to see that rights that
have accrued long prior to the amendment shall not be disturbed. Evidently,
after 1953 the brothers have grown up and all of them were living separately and
some alienations have also said to have taken place. The suit was filed in the
year 1985 nearly 32 years after the death of the father and it is difficult to
believe and accept that after the devolution of the interest of the father of
the 1st plaintiff in her mother Achamma, still there continues to be a
coparcenary, where-under she has got a right to claim for partition. Therefore,
I have no hesitation in holding, viewed from any angle, the 1st plaintiff is not
entitled to the benefits of the amended Section 29(A) of the State Act or the
amended Central Act 39 of 2005, she shall be entitled to the shares along with
others in the property of her mother Achamma.
23. So far as the cross objections are concerned, evidently, another son Ranga
Swamy Naidu was given in adoption in the year 1925 under a registered adoption
deed. The question is whether he retained a share in the natural family.
24. The learned counsel for the cross-objectors contends that the right which
has vested prior to the adoption will not be divested and continues to be there
for his benefit. The counsel for the cross-objectors wanted to rely upon a
decision reported in Ratakonda Kanthamma Vs. District Registrar, Chittoor7.
However, in the judgment reported in Rayaprolu Narayana Murthy V. Rayaprolu
Ramakrishna Sarma and others8, it was held that even the adoption have taken
place several decades prior to the filing of the suit and prior to the Act, and
when the person has kept quiet for several years, and severed all his
relationship with the natural family, it was held that no right of partition is
available. This decision directly deals with the case for partition whereas the
earlier decision deals with the question of stamp duty and penalty in
registration of a document. It is also useful to refer to a decision reported
in Devgonda Raygonda Patil, Vs. Shamgonda Raygonda Patil and another9, where-
under it was held that -
"If there is co-parcenary or joint family in existence in the family of birth on
the date of adoption, then the adoptee cannot be said to have any vested
property. The property does not vest and therefore provision of S.12, Proviso
(b) is not attracted. In the context of S.12, Proviso (b) 'vested property'
means where indefeasible right is created i.e., on no contingency it can be
defeated in respect of particular property. In other words where full ownership
is conferred in respect of a particular property. But this is not the position
in case of co-parcenery property. The co-parcenery property is not owned by a
coparcener and never any particular property. All the properties vest in the
joint family and are held by it. Section 30 of the Hindu Succession Act
supports the view that co-parcenary property is not vested in the coparcener.
The legislature therefore included Section 30 with a view to enable a coparcener
to dispose of his interest in the co-parcenary property by Will or other
testamentary disposition. But for this enabling provision, that was not
possible.
25. It is also useful to refer to a decision reported in Kunwar Lallajee V.
Ram Dayal and others10, wherein it was held that under the Mitakshara law, the
coparcernary property belongs to the whole family as a unit and not to any
individual and adoption the adopted son looses all rights of interest in the
property of his natural father. Therefore, in view of the above
circumstances, there are no merits in the cross-appeal and accordingly, cross-
appeal is also dismissed.
26. In the result, appeal suit is dismissed and cross-objections are also
dismissed. No costs.
?1 (2003) 9 Supreme Court Cases 606
2 (1991) 3 Supreme Court Cases 647
3 AIR 2008 MDS 250
4 (2006) 8 Supreme Court Cases 581
5 2009 ALT (SC) 6
6 2006 AIR (SC) 3332
7 2007(4) ALD 13
8 2003(3) ALT 11
9 AIR 1992 Bombay 189
10 AIR 1936 Allahabad 77
