THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO
SECOND APPEAL No.13 OF 2012
JUDGMENT:-
The unsuccessful plaintiff in O.S.No.25 of 2005 on the file of the Principal Junior Civil Judge, Kothapeta, is the appellant herein.
2. The suit was one filed for partition of the ‘A’ and ‘C’ schedule properties into three shares, allotment of one such share from each schedule to the plaintiff and plaint ‘B’ schedule properties into three shares and that allotment of two shares to the plaintiff.
3. The allegations in the plaint go to show that one Venkata Raju has got two sons, who are Subba Raju, the father of the plaintiff and Pullam Raju. The father of the plaintiff filed O.S.No.3 of 1973 on the file of the Senior Civil Judge, Razole, for partition and there was a compromise and father of the plaintiff was allotted some property and Venkata Raju got ‘A’ schedule property. Pullam Raju is alleged to have allotted ‘B’ schedule property. Pullam Raju is unmarried and pre-deceased to his brother and Venkata Raju died in 1985.
4. Defendants 1 and 2 are children of defendant No.3. The 3rd defendant is second wife of Venkata Raju. After the death of Pullam Raju and Venkata Raju, the ‘B’ schedule property was taken possession by the defendants and the ‘C’ schedule property was acquired by Venkata Raju from the income of the other properties. Therefore, they are ancestral properties. Venkata Raju died intestate on 12.02.2003 and the defendants took possession of all the properties and managed the same. Though shared the profits for sometime with the plaintiff, subsequently they did not give the share to the plaintiff. It was pleaded that the Pullam Raju having died intestate and unmarried his share of property devolved upon Venkata Raju and Subba Raju and they are entitled to half share each and half share of Venkata Raju is again liable for partition among the plaintiff, defendants 1 and 2. Subba Raju is entitled for 1/3rd share of the half share of Venkata Raju and the plaintiff being legal heir of Subba Raju is entitled for the same. It was contended by the plaintiff that the plaintiff is entitled for 1/3rd share in the ‘C’ schedule property also.
5. Defendants contended that in the compromise decree, Venkata Raju got 75 cents at Vedireswaram and 65 cents at the same place apart from 10 cents of house site. He also got some property at Deverapally. Venkata Raju acquired the ‘C’ schedule property by his own business. Therefore, the plaintiff is not entitled to the schedule property.
6. After considering the evidence on record, the trial Court has dismissed the suit and though a Will-Ex.B.7 by Venkata Raju was set up without any pleading, it was also accepted and dismissed the suit of the plaintiff. Against that, the plaintiff has carried the matter in appeal in A.S.No.14 of 2008 and the Senior Civil Judge, Kothapeta, set aside the finding of the lower Court with regard to the Will and applying the explanation to Section 6 of the Hindu Succession Act (for short, ‘the Act’), dismissed the suit of the plaintiff. Aggrieved by the said judgment the present appeal is filed.
7. The learned Counsel for the appellant contends that the Courts below have not properly appreciated the legal aspect and as Venkata Raju died intestate and as Pullam Raju has also died intestate, the father of the plaintiff will be entitled to the share in the property, consequently, the plaintiff will be entitled to the said shares.
8. There is no dispute about the fact that the father of the plaintiff filed the suit for partition and a decree was granted with regard to his share only as per Ex.B.9. It is also not in dispute that the other son Pullam Raju and the father Venkata Raju lived together and continued as co-parceners and members of the joint family.
9. The point to be considered is whether after the death of Pullam Raju, his share of property is liable for partition or will be succeeded by his father Venkata Raju by survivorship.
10. There is no serious dispute about the fact that Venkata Raju and Pullam Raju continued to be members of the family as can be seen from the allegations in the plaint. In this connection, it is useful to refer to Section 6 of the Act prior to amendment.
“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”.
11. Therefore, when Pullam Raju did not leave behind any female heir or legal heir through his explanation will not operate and by virtue of Section 6 of the Act by virtue of survivorship, the property will devolve upon Venkata Raju. Consequently, the father of the plaintiff or the plaintiff cannot claim any rights in the property. Further, the question is as to whether after the death of Venkata Raju since he has got wife as a class one heir and also the other legal heirs through her children since explanation No.1 lays down that the succession can only be by applying the Section 8 of the Act. The next question is as to whether the plaintiff is not entitled for any share in the property of Venkata Raju, who died intestate. The Court below has taken into consideration explanation ‘2’ of Section 6 of the Act and as the father of the plaintiff is already divided, the benefit of explanation ‘1’ will not inure to the plaintiff and consequently, there cannot be any share for the plaintiff.
12. The learned counsel for the appellant tried to contend that the share of Pullam Raju in ‘B’ schedule is liable for partition as the plaintiff is a class 2 heir and as both Venkata Raju and Pullam Raju died intestate, so far as the properties of Venkata Raju are concerned, as a class one heir, the plaintiff is entitled for the property and so far as the properties of Pullam Raju are concerned, he is entitled for a share as class ‘2’ heir.
13. The claim made by the appellant has already been decided and there is no ambiguity about the question of law. It is useful to refer to the decision reported in Ganta Appalanaidu Vs. Ganta Narayanamma and others[1], it will be appropriate to extract paragraph ‘5’ at page 260, which is as follows:
“5. Explanation 2 to Section 6 also does not help the defendants in the present case. According to the proviso to Section 6 the interest of a male Hindu in coparcenary property shall not devolve by survivorship if there is a female relative specified in class ‘1’ of the Schedule or a male relative specified in that class who claims through such female relative. That is to say, even though the property is coparcenary property which should devolve on the surviving coparceners in accordance with the main provision of Section 6, it shall not so devolve if there is a female relative specified in class (1) etc. In such an event, the property shall devolve by testamentary or intestate succession as the case may be. Explanation 2 provides that a separated member of the coparcenary cannot take advantage of the proviso to claim a share in property. An example will make the position clear. Suppose A dies leaving a divided son B, an undivided son C and a widow D. At the time of his death A and C alone are members of a coparcenary. On A’s death his half share in the coparcenary property shall not go by survivorship to C since there is a female relative specified in Class I. It shall devolve by intestate succession. The two sons and the widow will be heirs but Explanation 2 excludes the divided son B. The result therefore is that the half share of A in the coparcenary property shall devolve by intestate succession on C, his undivided son and D, his widow. That is all the effect of the explanation. Where property which ought to devolve by survivorship on an undivided coparcener under the main provision of Section 6 devolves on the heirs as if on intestacy because of the existence of the female relative etc., mentioned in the proviso to Section 6, the explanation provides that the divided coparcener, nonetheless, shall not claim as an heir. The explanation does not however prevent a divided son from claiming succession on intestacy if there is no person on whom the property can devolve by survivorship in accordance with the provisions of Section 6. Section 8 applies to every case of a Hindu dying intestate leaving no one on whom the property can devolve by survivorship”.
14. Evidently, the 1st defendant is son of Venkata Raju through the 3rd defendant and he creates a coparcenary with Venkata Raju and under Section 6 of the Act, he would have got the property but for the fact that the deceased left behind him female member, who is class one heir i.e., the 3rd defendant, the wife. Therefore, in view of the above principle of law, the plaintiff, who is the son of Subba Raju and who has divided from other coparceners, cannot get any share in the property. Though it was sought to be contended that ‘B’ Schedule property was allotted to the share of Pullam Raju, there is no material and Ex.B.9 compromise decree clearly shows that plaintiff’s father alone has got his share from the joint family properties and the remaining properties are still joint kin between Venkata Raju and Pullam Raju. In fact, it is a finding of fact recorded by both the Courts below, does not call for any interference.
15. The learned counsel for the appellant relied upon a decision reported in Satyanarain Mahto and other Vs. Rameshwar Mahto and others[2], wherein it was found that explanation 2 has no application where all the sons and the father have separated and there was no copercenary. In fact, the decision of this Court referred above was considered with approval. He also relied upon a decision reported in G.V. Kishan Rao Vs. State of A.P.[3], which has also no application to the facts of this case. So also the decision reported in Savitri Amma Vs. Devki Amma and others[4] has also no application to the facts of this case.
16. Therefore, for all the above reasons, I find that there is no substantial question of law since it has been already decided by the Court in the decision referred supra and the appeal is liable to be dismissed.
Accordingly, the Second Appeal is dismissed at the stage of admission. No costs. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
_______________________________
JUSTICE N.R.L. NAGESWARA RAO
Date:16.07.2012
Note: L.R. Copy to be marked.
(B/O.)
INL
