published in http://164.100.12.10/hcorders/orders/2011/sa/sa_1198_2011.html
*HON’BLE SRI JUSTICE L.NARASIMHA REDDY
+S.A. No.1198 of 2011
%15.12.2011
# Sadhineni Rajani and another.
..... APPELLANTS
AND
Sadhineni Hymavathi and others.
.....RESPONDENTS
! Counsel for the appellants: SRI C.Panduranga Rao
^ Counsel for the respondents: SRI G. Pedda Babu.
< Gist:
> Head Note:
? Cases referred:
[1] AIR 1953 Supreme Court 495
2 AIR 1966 Supreme Court 1523
3 AIR 1972 Andhra Pradesh 258
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY
S.A.No.1198 of 2011
JUDGMENT:
This appeal is filed against the judgment dated 17.08.2011 rendered by the Court of II Additional District Judge, Ongole in A.S.No.75 of 2010. Through the said judgment, the lower appellate Court decreed O.S.No.4 of 2005 filed by respondents 1 and 2 herein in the Court of Senior Civil Judge, Addanki.
The relevant facts in brief are as under:
One Sri Sadhineni Venkatarao got various items of property through partition in the joint family, as well as through settlement from the first wife of his father.
First appellant is the wife, second appellant and second respondent are daughters and
first respondent is the mother of Venkatarao.
He died on 15.09.2004.
Respondents 1 and 2 that is mother and one daughter of Venkatarao filed O.S.No.4 of 2005 for partition and separate possession of the suit schedule property.
They pleaded that the first appellant who is the wife of Venkatarao is trying to alienate the property on the assumption that she is the absolute owner and that by operation of law, the property has devolved upon all the class-I heirs.
The suit was resisted by the appellants by filing a written statement.
According to them, the suit schedule property was the self-acquisition of Venkatarao and that the same is not available for partition.
The trial Court dismissed the suit through judgment dated 30.11.2009.
Aggrieved thereby, respondents 1 and 2 filed A.S.No.75 of 2010 in the Court of II Additional District Judge, Ongole.
The same was allowed on 17.08.2011 by taking the view that on the death of Venkatarao, the property has devolved by succession on all his class-I heirs.
The third respondent is the brother of Venkatarao and since one of the items of the suit schedule property is a dwelling house, he too was impleaded in the suit.
The fourth respondent was impleaded only in the context of verification of accuracy of revenue records.
Sri C. Panduranga Rao, learned counsel for the appellants submits that
all the suit schedule properties are self acquisitions in the hands of Venkatarao since they constituted either a share, which he got in the partition, or through settlement from his step mother.
He submits that the trial Court has taken correct view of the matter but the lower appellate Court has reversed the judgment on wrong assumption of facts and law.
He placed reliance upon the judgments rendered by the Supreme Court and this Court.
Sri G. Pedda Babu, learned counsel for respondents 1 and 2 on the other hand submits that
though the property may have partaken the character of self acquired property during the life time of Venkatarao, after his death, it is available for partition among the class-I heirs.
He submits that the matter is covered by Section 8 and not Section 6 of the Hindu Succession Act, 1956 (for short ‘the Act’).
The trial Court framed two issues for consideration, which reads as under:
1) Whether the plaintiff is entitled for partition of plaint schedule property into four shares and allotment of 1/4th share as prayed for?
2) Whether the plaintiff is entitled for permanent injunction restraining the defendants 1 and 2, from alienating the suit schedule property?
On behalf of respondents 1 and 2, PWs 1 and 2 deposed as witnesses and Exs. A1 to A6 were filed. On behalf of the appellants, DWs 1 to 4 were examined and no documentary evidence was adduced. The suit was dismissed and in the appeal filed against it, the lower appellate Court framed the following issues and allowed the appeal.
1) Whether the 1st plaintiff is entitled to claim share in the schedule properties?
2) Whether the next friend of the 2nd plaintiff can file the suit on behalf of the 2nd plaintiff for partition of the properties of her father?
3) Whether the plaintiffs are entitled to the partition and separate possession of the shares in the schedule properties as claimed?
4) Whether the plaintiffs are entitled to the Permanent Injunction as prayed for?
5) To what relief?
The controversy between the parties centres around the question as to
whether the said matter is covered by Section 6 or Section 8 of the Act.
For a better understanding of the matter, it becomes relevant to extract provisions.
Section 6: Devolution of interest of 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 purpose 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.
Section 8: General rules of succession in the case of males.- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:-
a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
d) lastly, if there is no agnate, then upon the cognates of the deceased.
Section 6 gets attracted whenever a Hindu male, who was a member of coparcenary dies before any partition in the family has taken place. In such an event, his interest in the coparcenary property would devolve by survivorship and not by succession.
In other words, if there existed four members in a coparcenary, each one of them would be entitled to 1/4th share in the event of any partition taking place; and if one of the coparcener’s dies before the partition has taken place, his interest in the coparcenary would result in change of shares meaning thereby; that the shares of the remaining three members would become 1/3rd each.
Exception carved out under the proviso is that,
if such coparcener is survived by a class-I female heir, his interest would devolve upon such class-I heir, or any male person claiming through her by succession.
This can be exemplified by taking the instance of a son, who is a member of the coparcenary predeceasing his mother.
In such an event, his share which would have been determined, had a partition taken place when he was alive would devolve upon his mother.
However, it is only the male successors of the mother of the deceased, that would entitle to claim the said property through her.
Section 8 operates in cases where a Hindu male, not being a member of coparcenary but holding property in his own right, dies.
In such an event, the devolution would be through succession in favour of this class-I heirs, and in their absence to class-II heirs, and so on.
A typical transformation of the character and nature of property takes place, in the event of death of a Hindu male, who held property in his own right.
Take for instance; a Hindu male acquired property in different ways i.e.,
a) through his own efforts, i.e., self-acquisition or
b) through partition in a joint family or
c) through gift/settlement or other kinds of transfers from his kin or
d) through succession.
If during his life time any of his children demands partition of the said properties, he can resist the same by pleading that the properties, except those that have devolved through succession i.e., ancestral properties are his self acquisitions; and not available for partition.
However, if he dies intestate, leaving behind the properties held by him,
whether through succession, or in partition or through self-acquisition, or through transfer from his kin would become available for being shared by his class-I heirs.
The properties, which, till his death were his self acquisitions would assume a different character and would be available for partition, among the class-I heirs of the deceased.
In the instant case, Venkatarao died holding the suit properties in the form of self-acquisitions.
Had any demand been made by his daughters for partition, during his life time, he could have effectively resisted the same by pleading that his self acquired properties are not available for partition.
On his death, a substantial change takes place be it as regards the persons who can claim the share in it, or the nature of the property.
The class-I heirs include not only his daughters i.e., second appellant and second respondent but also his mother and wife, first respondent and first appellant respectively, whereas the coparceners could have been his daughters alone.
The property loses its character of self-acquisition and would be available for partition.
Learned counsel for the appellants relied upon the judgment of the Supreme Court in ARUNACHALA MUDALIAR v C.A.MURUGANATHA MUDALIAR AND ANOTHER[1].
That was a case in which their Lordships dealt with the character of a property, which has accrued, to a Hindu male, through a Will or Gift by his father.
It was held that such a property would assume the character of self-acquisition.
There is no quarrel with the proposition.
In fact that would have been applied, had any demand been made for partition, during the lifetime of Venkatarao.
Almost on the same lines is the judgment of the Supreme Court in GOWLI BUDDANNA v COMMISSIONER OF INCOME TAX[2].
In GANTA APPALANAIDU v GANTA NARAYANAMMA AND OTHERS[3].
this Court explained the circumstances under which Section 6 on the one hand and Section 8 on the other hand operate.
As has already been mentioned, Section 6 does not get attracted to the facts of the case. The lower appellate Court has taken correct view of the matter and this Court is not inclined to interfere with the same.
The second appeal is dismissed accordingly. There shall be no order as to costs.
L.NARASIMHA REDDY,J
Dt.15.12.2011
Note:
LR Copy to be marked.
b.o.
lvl
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY
