1
In the Court of the IV Addl., Senior Civil Judge: Visakhapatnam.
Present: Sri G. Chakrapani, II Addl., Senior Civil Judge, FAC IV Addl., Senior Civil Judge Thursday, the 2nd day of June, 2016
O.S.576/1999
Between:
1. Kum. Theegala Venkata Ramanamma, D/o.Venkata Setty, Labour, Hindu, 20 yrs., Pappula Veedhi, Vizianagaram.
2. Theegala Venkata Suryanarayana (Junior), S/o. Venkatasetty, Hindu, 18 yrs., Pappula Veedhi, Vizianagaram. …Plaintiffs. A n d:
1. Theegala Venkata Suryanarayana Murthy (died)
2. Theegala Venkayya Setti, S/o.Venkata Suryanarayana Murthy, Hindu, 45 yrs., unemployee, Door No.23-1-40, Pappulaveedhi, Visakhapatnam.
3. Theegala Demullu, S/o.Perayya, Hindu, 45yrs., College Down Road, Visakhapatnam.
4. Theegala Veeraraju, S/o. Perayya, Hindu, 48 yrs., New Green Park, Akkayyapalem, Visakhapatnam.
5. Theegala Venkata Raju, S/o. Venkayya, Hindu, 65 yrs., Tank Bund, Near Alankar Talkies, Visakhapatnam.
6. Theegala Satyanarayana Setty, S/o. Venkayya, Hindu, 63 yrs., Spring Road, Visakhapatnam.
7. Theegala Subba Rao, S/o. Late Venkata Ramanamurthy, Hindu, 51 yrs., Prop., Lodge Vishranthi, Main Road, Visakhapatnam.
8. Theegala Appala Narasayya, S/o. Late Venkata Ramanamurthy, Hindu, 48 yrs., Kirana Merchant, Bowdara Road, Visakhapatnam.
9. Theegala Venkata Nageswara Rao, S/o.late Venkata Ramana Murthy, Hindu, 45 yrs., Pan Masala & Cigarette Business, Bowdara Road, Visakhapatnam.
10. Theegala Ramanaji, S/o.late Venkata Ramana Murthy, Hindu, 40 yrs., Kirana Merchant, Kanithi Road, Gajuwaka, Visakhapatnam.
11. Theegala Raja Rao, S/o.late Venkata Ramana Murthy, Hindu, 37 yrs., Kirana Merchant, Pedagadi village, Pendurthi mandal, Visakhapatnam.
12. Jana Chaitanya Housing (Pvt.) Ltd., having its Divisional Office at Door No.43-9-38, beside Sri Kanya Theatre, Railway New Colony.
13. Theegala Venkata Narasimha Gupta, S/o. Late Venkata Suryanarayana Murthy, Hindu, 30 yrs., Business, 22-71-10, Chavalavari Veedhi, Visakhapatnam.
14. Theegala Ramadevi @ Rama, W/o. Venkata Narasimha Gupta, Hindu, 27 yrs., Business, 22-71-10, Chavalavari Veedhi, Visakhapatnam.
15. Theegala Venkata Satya Surya Kanaka Durga Prasada Rao, S/o. Venkata Suryanarayana Murthy, Hindu, 42 yrs., business, 22-71-10, Chavalavari Veedhi, Visakhapatnam.
16. Theegala Madhuri, W/o. Satya Surya Kanaka Durga Prasada Rao, Hindu, 38 yrs., household duties, 22-71-10, Chavalavari Veedhi, Visakhapatnam.
17. Theegala Sitharamayya Gupta, S/o. Late Suryanarayana, 58 yrs., Vepparthi Veedhi, Visakhapatnam.
18. Theegala Venkataramanamma, W/o. Late Suryanarayana, Hindu, 56 yrs., D.No.27-06-37, Spring Road, Visakhapatnam.
19. Theegala Venkayya Setti, S/o. Late Suryanarayana, 54 yrs., D.No.23-1-40, Pappula Veedhi, Visakhapatnam.
2
20. Theegala Venkata Satya Surya Kanaka Durga Prasada Rao, S/o. Surya- -narayana, Hindu, 52 yrs., D.No.27-6-37, Spring Road, Visakhapatnam.
21. Theegala Narasimha Gupta, S/o. Suryanarayana, Hindu, 50 yrs., D.No.27-6-37, Spring Road, Visakhapatnam.
22. Smt. Karnatapu Venkataramanamma @ Parvathi, W/o. Rajeswara Rao, Hindu, 48 yrs., r/o. Madugula, Visakhapatnam.
23. Dangeti China Venkata Ramanamma @ Lakshmi, W/o.Krishna Kumar, Hindu, 46 yrs., Plot No.25, LIG 25/8, MVP Colony, Visakhapatnam.
24. Kopparapu Lakshmidevi, W/o. Eswara Prasad, Hindu, 44 yrs., r/o.Kamma Veedhi, Vizianagaram. (Defendants 17 to 24 are added as the legal representatives of the deceased first defendant as per the orders dated 28.11.2006 in I.A.491/2006) … Defendants. This suit coming on 29.4.2016 for final hearing before me in the presence of Sri P. Srinivas, Advocate for the plaintiffs and Sri D.N.G.S. Gupta, Advocate for the defendants 12,13,14,15,16,18,20, 21 and 24, Sri V.S.N. Advocate for D17, Sri D. Dakshinamurthy, Advocate for D23 and the defendants 2 to 11, 19 and 22 having remained exparte and the matter having stood over for consideration till this day, this Court made the following:
J U D G M E N T
This suit is filed for partition of the item No.1 of the plaint A schedule property into 108 shares and to allot two such shares to the plaintiff, for partition of the item No.2 to 6 of the plaint schedule properties into twelve shares each and to allot two such shares to the plaintiffs and also for partition of the plaint B schedule property into twelve shares and to allot two such shares to the plaintiff, mesne profits, for costs and such other reliefs.
2. The brief averments in the plaint being thus:
The first defendant is the father of the second defendant and the defendants 13 to 15. The plaintiffs are the children of the second defendant.
The first defendant’s father late Venkayya, one late Perayya and late Venkata
Ramanamurthy are the sons of one Teegala Gavarayya. The defendants1, 5 and 6 are the sons of late Venkayya. The defendants 7 to 11 and late Venkata
Surya Rao are the sons of late Venkata Ramanamurthy. Venkayya, Perayya and Venkata Ramanamurthy were the members of Hindu Co-parcenary undivided joint family. In the said status , they purchased Ac.43.66 cents of land situated in Pedgadi village of Pendurthi mandal which is shown as item
No.1 of the plaint A schedule, however, in the name of the first defendant’s father Teegala Venkayya by means of a registered sale deed dated 17.9.1936.
3
Since then, they have been in possession and enjoyment of late Veerayya and his brothers during their life time and after their death under the joint enjoyment of their heirs. Later, inspite of severance of status as members of joint family, the said property remained undivided. They continued as tenants in common. The twelfth defendant appeared to have entered into a sale transaction regarding the said property from the first defendant, late Perayya and the defendants 4 to 11, 13 and 15 and their lineal descendants . Therefore, the twelfth defendant was put to notice by the plaintiffs about the invalidity of the said transaction in view of the joint status of the parties to the said property. But, they are forging ahead to complete the said transaction. The twelth defendant, in fact, is fast-apace to alienate the same by forming a lay out of house plots to its members by way of installments. The first defendant is an astute businessman and pending the suit, he passed away. He partitioned the other family properties with his father, brothers along with the defendants 6 and 7 and his own brothers and thereafter the defendants 1 and 2 jointly developed the properties described in item No.2 to 6 of the plaint A schedule.
The said properties were acquired in the name of the defendants 1, 13 and 15 and their wives i.e., the defendants 14 and 16. But, in fact, they were acquired by using the ancestral co-parcenary nucleus of their Hindu undivided family headed by late Perayya as Kartha. After the severance of status the branch of Teegala Venkayya is headed by the first defendant as Kartha. The second defendant is not worldly wise and cannot take any independent decision. Even he used to treat the defendants 13 and 15 in preference to the second defendant as the defendants 13 and 15 are the children of his second wife. The first defendant sent out the second defendant callously from his family without giving his share. But, at that time, it appears, they have obtained some documents gullibly, to the effect of relinquishment of his share in item NO.2 to 6. The first defendant and his sons together constituted a partnership firm under the name and style T.V. Suryanarayana & Sons with the funds of Hindu undivided family and did business. With the income from the 4 said business, he acquired 200 tulas of gold and 18 kgs., of silver ornaments.
But, the second defendant because of his ignorance and waywardness, was under the influence of the first defendant. He rendered manual service, but he was denied the comforts, as a result of the said negligence and deprivation, he came out and lived with the plaintiffs at the mercy of their maternal uncle. The plaintiffs got issued a legal notice dated 29.5.1995 to the first defendant for partition. But, the first defendant sent a contentious and false reply dated 22.6.1995 by setting up a plea of earlier partition without furnishing any proof.
Though the plaintiffs are starving, the first defendant did not show any mercy.
He does not want to leave his hold over items 2 to 6 of the plaint A schedule property. The alleged partition is false and it does not bind the plaintiffs because the same must have been the result of fraud, misrepresentation and undue influences and duress. Even otherwise, the partial partition is not valid.
The plaintiffs derived right by birth over the plaint schedule properties. In view of the amendment to Hindu Succession Act, the second defendant has a right in the ancestral property. Hence, this suit.
3. This suit was original filed in 1997 in forma pauperis and later it was numbered in 1999. Although there are as many as twenty four defendants, the first defendant alone has filed his written statement. The name of the 15th defendant is again shown as the 20th defendant in the suit. The 14th defendant filed a memo adopting the written statement of the first defendant. But, in fact, their Advocate has been representing the defendants 12, 16, 20 and 21 and it seems, the defendants 13,15, 18 and 24 are also sailing with him.
Therefore, they simply denied the averments in the plaint although there was no specific memo by them adopting the written statement of the first defendant. The matter was adjourned from time to time as if the defendants 17 and 23 have been contesting the matter. But, a perusal of the whole record shows that the defendants 17 and 23 did not file their written statement at all, however, because of some confusion, they were not set exparte. Instead of showing them that they were due to file their written statement, they were 5 shown as the persons that were due to file their additional written statement and finally it was treated as no additional written statement for them as if they have filed their written statement. But, the fact remains that the defendants 17 and 23 either did not file their written statement and in fact they did not contest the matter. The defendants 2 to 11, 19 and 22 remained exparte.
Pending the suit, the first defendant died.
4. The first defendant filed his written statement denying the allegations in the plaint and further contended as under:
The relationship mentioned in the plaint, alone, is correct. The first defendant is not aware of the purchase of item No.1 of the plaint A schedule property in an extent of Ac.43.66 cents in Pedagadi village by means of a registered sale deed dated 17.9.1936 by their ancestors. The first defendant separated from his brothers after his marriage and started his own business at
Visakhapatnam and as such he is not aware of any of the properties being jointly enjoyed by the sons of Venkayya, Perayya and Venkata Ramanamurthy.
To the knowledge of the first defendant, there are no such properties in existence. Thus, the first defendant is not aware of the sale of any part of item
No.1 to the 12th defendant. The plaintiffs have to prove all such allegations.
The first defendant has separated from their joint family even during the life time of his father Venkayya. He started a kirana business of his own in
Visakhapatnam. Subsequently, the first defendant was informed that certain land in item No.1 of the plaint A schedule property was acquired by the government and his share of compensation was paid. The other land is managed by the other members of the family. In so far as the land sold to the 12th defendant and other family members is concerned, their other family members have bargained and later paid the share to him out of the sale consideration. Therefore, the first defendant is not aware of the existence of any such property, now, Since he separated from the joint family long back, the first defendant did not have any ancestral property at the time of his separation from the joint family and as such the second defendant cannot 6 assert that he along with the first defendant developed the properties. The properties acquired by the first defendant are his self acquired properties.
Items 2 to 7 of the plaint A schedule properties are acquired in the name of the defendants 1, 13 and 15 and their wives D14 and D16 respectively. Item
No.2 and 3 of the plaint schedule properties were purchased by the first defendant’s father after borrowing money from his second wife who in turn brought the same from her parents. Item No.4 is also the self acquired property of the first defendant. Items 5 and 7 belonged to the defendants 15 and 13 and item No.6 belongs to the 16th defendant who is the wife of the 15th defendant. The 16th defendant purchased the same by utilizing her marriage gifts and her self earnings and the contributions made by her parents. The defendants 13 and 15 also have nothing to do with the said properties. The first defendant did not make any contribution to purchase the same. Item No.6 is the absolute property of the 16th defendant. The properties covered by the plaint B schedule are not in existence. The properties mentioned in the plaint
C schedule belonged to the first defendant and they are nothing to do with the joint family. Apart from the plaint B schedule property, T.
Venkataramanamma is having 80 tulas of silver plates and one vessel and ten tulas of gold waist belt of 15 tulas, gold chain weighing 8 tulas, another pustulatadu of 8 tulas, ear rings of 1¼ tula and four pairs of gold bangles weighting 6 tulas, in total, 30 tulas of gold. The 16th defendant is having 8 tulas of gold. The 14th defendant is having 9 tulas of gold. Her name is Ramani and not Ramadevi. The said properties are the Sthreedhana properties of the defendants 14 and 16. The 14th defendant is the wife of the 13th defendant.
After the demise of his wife, the first defendant married one Venkata
Ramanamma. Through his first wife, he begot a son; through his second wife, he begot three sons and two daughters. The second defendant is the father of the plaintiffs. After the birth of the second defendant and the 15th defendant, a partnership was entered between the defendants 1, 2 and 15 who was a minor and was admitted for the benefit of the partnership. The said partnership is 7 known as T. Venkata Suryanarayana & Sons. Their members of co-parcenary was registered through Income Tax and Sales Tax Departments also. Later, the said partnership was dissolved on 13.4.1975 at the instance of the second defendant whose marriage was took place on 21.3.1973. At the time of dissolution of the partnership by means of a deed of execution on proper stamp, the 15th defendant was to be given Rs.61,090.56 ps. Who was a minor.
The first defendant was liable to pay the said amount to the 15th defendant as a continuing partner. In fact, the second defendant executed a registered relinquishment deed dated 30.12.1974 after receipt of Rs.11,000/- relinquishing his right in the movable and immovable properties which the first defendant got in the family partition with his brothers. But, the second defendant raised disputes before the family elders and again received a sum of Rs.14,000/- and executed a receipt on 5.8.1975 to that effect in the presence of his own father-in-law. Subsequently, the second defendant filed a suit in O.S.335/1978 on the file of the Principal District Munsif at
Visakhapatnam questioning the said relinquishment deed, but the said suit was dismissed and against the same, he preferred an appeal in A.S.131/1987 and it was also dismissed. Later, a second appeal in S.A.4/1994 was filed
before the Hon’ble High Court and it is pending. The wife of the second
defendant filed a suit in O.S.643/1988 for return of the Gold jewellery and sare saman and it was partly decreed and an appeal was filed before the
Hon’ble High Court and it is pending. In fact, the second defendant received
his entire share in the joint family property and in the partnership business by way of cash. But, the father-in-law of the second defendant is behind this litigation. The first plaintiff was born on 16.9.1975 and the second plaintiff was born in the year 1977. Their father i.e., the second defendant executed a relinquishment deed even before their birth. Hence, this suit is not maintainable and hence this suit may be dismissed with costs.
5. Basing on the above pleadings, the following issues are settled for trial:
1. Whether the suit property is in joint possession of the plaintiffs?
8
2. Whether the plaintiff is entitled for partition of the plaint schedule property?
3. Whether the plaintiffs are entitled for mesne profits?
4. To what relief?
6. During the course of the trial, on behalf of the plaintiffs, P.Ws 1 and 2 are examined and EXs.A1 and A2 are marked. On behalf of the defendants,
D.W 1 is examined and EXs.B1 to B13 are marked.
7. Heard arguments on both sides and the defendants’ side filed written arguments also.
8. I S S U E No.1:-
Whether the suit property is in joint possession of the plaintiffs?
This suit is filed by the plaintiffs against two different co-parcenaries, in which, they claimed to be the parties. One co-parcenary is from the time of their great grandfather Venkayya and the other co-parcenary is comprised by their grandfather i.e., Teegala Venkata Suryanarayana Murthy. According to the plaintiffs, item No.1 of the plaint A schedule property was purchased by their great great grandfather Teegala Gavarayya in the name of their great grandfather Teegala Venkayya and his brothers Teegala Perayya and Teegala
Venkata Ramanamurthy are also having shares and therefore the legal heirs of
Teegala Venkayya and his brothers are also made parties to the suit. The defendants 3 and 4 are the legal heirs of late Perayya, the defendants 7 to 11 and one Venkata Surya Rao are the legal heirs of T.V. Ramanamurthy. The plaintiffs and other parties except the 12th defendant are belonging to the branch of Venkayya. The plaintiffs impleaded the legal heirs of Perayya and
Ramanamurthy for the purpose of claiming a share in item No.1 of the plaint A schedule property. Therefore, they claimed two shares out of 108 shares.
However, for the purpose of item No.2 to 7 of the plaint A schedule property and for claiming shares in the plaint B schedule property, their branch of
Teegala Venkayya alone is necessary and therefore the plaintiffs are claiming two shares out of twelve shares in each item. The first defendant contends that item No.1 is not in existence now because some of its extent was 9 acquired by the Government and the remaining was sold to 12th defendant and that in both the said affairs, he received his share.
9. Admittedly, Venkayya had three sons i.e., the defendants 1, 5 and 6.
Admittedly, the first defendant had two marriages. 17th defendant is the son of the first defendant through his first wife. The defendants 2, 13 and 15 are the sons of the first defendant through his second wife and 18th defendant is the second wife of the first defendant. The defendants 20 to 24 are the daughters of the first defendant. The fourteenth defendant is the wife of the thirteenth defendant. The sixteenth defendant is the wife of the fifteenth defendant. The plaintiffs are the children of the second defendant. The plaint was drafted as if the second defendant is the son of the first wife of the first defendant and as the first defendant is having more fondness towards his second wife and her children, the first defendant neglected and sent out the second defendant. But, the fact remains is that the second defendant is not the son of the first wife of the first defendant and in fact he is also the son of the second wife of the first defendant.
10. According to the first defendant, item No.1 was sold away long back and it is not in existence and it is no longer the joint family property.
Therefore, the plaintiffs have to establish that it is not in existence and it remains to be the joint family property. When it is alleged that the government has acquired part of it and the remaining property was sold to the 12th defendant, all the purchasers of the said property who purchased the same prior to the filing of the suit would be effected thereby and therefore the plaintiff has to establish such details and make them parties to the suit. But, the plaintiffs did not do so. In such circumstances, the suit would have to be considered as bad for non-joinder of necessary parties because in their absence, no effective relief can be passed in favour of the plaintiffs.
11. However, the learned counsel for the defendants who represents the defendants 1, 14 and 20 etc., would argue that the suit is filed at the behest of the second defendant who is the father of the plaintiffs as he was 10 unsuccessful in the earlier litigation against the first defendant and however the plaintiffs are entitled for shares only through the second defendant and since it is established that the second defendant has already relinquished his rights in the schedule property, they are not entitled for any share in the schedule property. To establish that the second defendant has already relinquished his share in the schedule property, the 20th defendant who is examined as D.W.1 would exhibit the certified copies of the relinquishment deed dated 30.12.1974 as EX.B3 and dated 5.8.1975 as EX.B5. The plaintiffs in the plaint itself would insinuate that the first defendant obtained some gullible documents from the second defendant to the effect of relinquishing his share in the schedule property and that they were obtained by fraud, undue influence and duress. But, the defendants contend that the second defendant withdrew from the partnership business and also relinquished his share in the joint family properties and executed EXs.B3 to B5. EX.B4 is the dissolution deed
dated 13.4.1975, whereby, the said partnership form was dissolved.
12. However, the first plaintiff is examined as P.W.1 and the father-in-law of the second defendant is examined as P.W.2. They would depose that the said documents are not valid and binding on the plaintiffs. They denied the execution of such documents by the second defendant. Therefore, D.W.1 exhibited the said certified copies. The contesting defendants contend that the second defendant withdrew from the partnership by having dissolution of the same and executed EXs.B3 and B5 by receiving amounts thereunder and as such he severed all his connections with the family, properties and business of the first defendant and as such the second defendant himself has no right in the said properties and consequent thereto, the plaintiffs who are entitled for shares in the property of the second defendant are not entitled for any such share in the plaint schedule property and hence the suit is liable to be dismissed. According to the defendants, soon after the dissolution of the partnership and relinquishing his share, the second defendant filed a suit in
O.S.335/1978 on the file of the Prl., District Munsif, Visakhapatnam. EX.B8 is
11 the certified copy of the Judgment and Decree in the said suit. The suit was filed by the second defendant as if the partnership is not properly dissolved and that the first defendant had to render accounts of the said partnership.
However, in the said case, the first defendant has taken up a contention basing on EXs.B3 to B5 and the Court has categorically held that the second defendant herein has executed EXs.B3 to B5 and as such he is not entitled for any such rendition of accounts in the said business relating to EX.B4. The learned counsel for the defendants would argue that the said judgment is operating as res judicata since the plaintiffs are claiming through the second defendant only. I consider, if the plaintiffs are entitled to claim through the second defendant only and not in their individual capacity, obviously, the findings in the said judgment would operate as res judicata in the case on hand.
13. It may be argued that the said suit was filed for rendition of accounts and not for partition of the properties and therefore the findings in the said case would not operate as res judicata in the case on hand. But, I consider, since a finding with regard to the genuineness of EXs.B3 to B5 herein was given in the said judgment, the said finding would operate as res judicata if the plaintiffs are entitled to claim through the second defendant only. Although the said suit is relating to partnership business, although this suit is pertaining to the joint family property, the contention of the defendants is based on the genuineness of EXs.B3 to B5 only in both the cases, and hence I consider, the genuineness of EXs.B3 to B5 is relevant for both the cases because under
EXs.B3 and B5, the second defendant has separated not only from the partnership business, but also relinquished his rights with regard to his share in the joint family property. For the purpose of the said suit covered by EXs.B8,
EXs.B3 and B5 herein are relevant to establish that the second defendant herein withdrew from the said partnership firm by receiving amount. At the same time, the said documents are relevant for the purpose of this suit also since the said documents contained that the second defendant herein has relinquished his share in their joint family property by receiving amounts.
12
EXs.B3 and B5 are exhibited by the contesting defendants with regard to both the aspects and when once the genuineness of EXs.B3 and B5 was upheld, it cannot be said that the genuineness of the said documents was upheld only with regard to the partnership business and not with regard to the other joint family properties. The genuineness of the said documents as a whole is upheld and I consider, all the transactions covered by the said documents are deemed to have been upheld by the Court. For the purpose of this suit is concerned, I consider, by virtue of EX.B8, it was already held that EXs.B3 and B5 are genuine. When EXs.B3 and B5 are genuine, it is clear that the second defendant has relinquished his share in the joint family properties in favour of the first defendant and others.
14. The plaintiffs have not placed any proof to show that the findings in
EX.B8 were set aside by any competent superior Court or in any other suit.
Therefore, in so far as the second defendant is concerned, the said judgment would operate as res judicata for the purpose of this suit also. Therefore, it is clear that by virtue of EXs.B3 and B5, the second defendant has relinquished his rights in the joint family properties.
15. Now, it is to be seen whether the plaintiffs are claiming rights only through the second defendant or in their independent capacity. The learned counsel for the plaintiffs would argue that admittedly the first plaintiff was born on 16.9.1975 and as such she was a child in womb by the time of EXs.B3 and
B5 and as such the second defendant has no right to relinquish the share of the first plaintiff in the said property and as such the said document does not bind the plaintiffs. EX.B6 birth certificate of the first plaintiff shows that she was born on 16.9.1975. EX.B3 relinquishment deed is dated 30.12.1974,
EX.B4 dissolution of partnership is dated 13.4.1975 and EX.B5 relinquishment deed is dated 5.8.1975. Therefore, within nine months next before the birth of the first plaintiff, EXs.B3 to B5 transactions took place and by that time, the first plaintiff has to be considered as a child in womb.
13
16. Now, it is to be seen whether the second defendant has no right to alienate or relinquish his rights in the said properties when the first plaintiff was in the womb of her mother. Admittedly and evidently, the first plaintiff was not born by the time of conclusion of EXs.B3 to B5 transactions. But, I consider, simply because the first plaintiff was a child in womb, she is not entitled for a share when the second defendant is alive by that time.
17. Section 20 of the Hindu Succession Act reads as under:
Right of child in womb :- A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate. Section 20 of the Act deals with the rights of a child in womb only when his/her ancestor i.e., a male died intestate. U/sec.8 Clause I , heirs were enumerated as persons entitled to shares in the property of a male dying intestate. But, at that time if a child is in womb, his interest also to be protected and for that purpose only Section 20 is incorporated and it cannot be invoked when the father of the child is alive. The analogy is that when the father of a child is no more by which time the child is already in the womb, there would not be any protection to the rights of such child since the father of the child is no more.
Therefore, Section 20 is incorporated. But, when the father is alive, Section 20 will not be invoked since the said father of the child would himself take care of rights of such child. Therefore, the first plaintiff as a child in womb cannot invoke Section 20 of the Act to claim any share in the said property which was alienated prior to her birth.
18. It is settled law that a person in a joint Hindu family can alienate his share and the persons born subsequent to the said alienation cannot question the same. Before their birth, the said share has to be treated as the absolute estate of the said person and hence he can alienate the same. When once the children are born, the said ancestral property will no longer remain to be the 14 absolute estate of the said person and it becomes a co-parcenary property of the said person and his children. But, as seen already, if no child was born by the time of the alienation by a person, the subsequently born child cannot question the same. Therefore, in the case on hand, the plaintiffs cannot question the alienations made by the second defendant under EXs.B3 to B5 as they were born subsequent to the said transactions.
19. Therefore, the plaintiffs are entitled to claim through the second defendant only and not as co-parcenars with the other collaterals of the second defendant. It is already seen that EX.B8 operates as res judicata against the second defendant and since the plaintiffs are claiming rights through the second defendant only, EX.B8 operates as res judicata against the plaintiffs also. Therefore, it is clear that by virtue of EX.B3 to B5, the plaintiffs are not entitled for any shares since the second defendant himself has no right to claim any such share in the plaint schedule properties. The said fact was already upheld under EX.B8 which operates as res judicata.
20. The learned counsel for the contesting defendants relied upon a decision reported in AIR 2016 Jharkhand 22 held in the case of Priyaranjan
Bhagat Vs., Saroj Bhagat and others, wherein, it was held that “when a joint family property of the deceased and his four sons was partitioned during their life time according to their choice and will, the same cannot be challenged by the descendants of any of the parties to the said settlement subsequently. In view of the said Judgment, the plaintiffs herein now cannot question the validity of EX.B3 and B5, more over, as seen already, the plaintiffs are barred from questioning the same by the operation of res judicata.
21. The learned counsel for the contesting defendants relied on another decision reported in AIR 1978 Gujarath 10 held in the case of Aher Hamir
Duda Vs., Aher Duada Arjan, wherein, it was held that “the lineal descendants are not entitled for filing a suit for partition against the collaterals of their father without the consent of their father”. In the 15 said Judgment, a distinction was drawn that the sons can file a suit against the father for partition during the life time of their father provided the father has already separated from his brothers by way of partition and however that the sons cannot file a suit against the collaterals of their father for partition when the father is alive without the consent of the father. The plaintiffs in the case on hand have not made any mention that the second defendant has given his consent to file the above suit for partition. Therefore, for the said reason also, I consider, the suit is not maintainable. However, now for the purpose of this issue, it is answered that no such joint family property of the plaintiffs and the defendants is in existence and therefore the plaintiffs are not in joint possession of the plaint schedule property. Thus, I answer the above issue.
22. I S S U Es 2 to 4:-
Whether the plaintiff is entitled for partition of the plaint schedule property? Whether the plaintiffs are entitled for mesne profits? To what relief?
In view of the discussion and finding in issue No.1, I consider, the plaintiffs are not entitled for any relief and therefore the suit is liable to be dismissed with costs. Thus, I answer the above issues.
23. In the result, the suit is dismissed with costs and the plaintiffs shall pay the Court fee of Rs.7,426/- within one month from now, failing which, communicate this decree to the Collector, Visakhapatnam for realization of the said Court fee in terms of Order 33 Rule 14 of C.P.C.
Dictated to the Senior Assistant, transcribed by him, corrected and pronounced by me
in open Court, this the 2nd day of June, 2016.
II Addl., Senior Civil Judge, FAC IV Addl., Senior Civil Judge, Visakhapatnam.
16
Appendix of evidence. *** No. of witnesses examined for *** Plaintiffs: P.W.1… … Teegala Venkata Ramanamma (first plaintiff) P.W.2… … Kolluru Ramarao (grandfather of the plaintiffs)
Defendants: D.W.1… … Theegala Venkata Satya Surya Kanaka Durga Prasda Rao (20th defendant)
No. of exhibits marked for *** Plaintiffs: EX.A1/29.5.1995 Office copy of the registered Lawyer’s notice got issued by the plaintiffs to the first defendant. EX.A2/22.6.1995 Reply notice got issued by the first defendant. Defendants: EX.B1/5.4.1959 Certified copy of the registered sale deed stands in the name of the first defendant. EX.B2/29.9.1972 Certified copy of the registered sale deed stands in the name of the first defendant. EX.B3/30.12.1974 Certified copy of the relinquishment deed executed by the second defendant. EX.B4/13.4.1975 Dissolution deed executed between the first and second defendants. EX.B5/5.8.1975 Certified copy of relinquishment deed executed by the second defendant. EX.B6/16.9.1975 Certificate of birth of the first plaintiff. EX.B7/30.5.1977 Certificate of birth of the second plaintiff. EX.B8/7.7.1987 Certified Copy of the decree and judgment in O.S.335/1978 on the file of the Prl.,District Munsif's Court, Visakhapatnam. EX.B9/16.8.1993 Certified copy of the registered sale deed stands in the name of D.W.1. EX.B10/17.8.1993 Certified copy of the registered sale deed stands in the name of D.W.1. EX.B11/18.8.1993 Certified copy of the registered sale deed stands in the name of D.W.1 EX.B12/5.8.1994 Certified copy of the decree and judgment in
O.S.643/1988 on the file of the Prl., Subordinate Judge's
Court, Visakhapatnam. EX.B13/13.2.2004 Certified copy of order in S.A.4/1994 on the file of the
Hon'ble High Court of Andhra Pradesh.
II A.Sr.C.J., FAC IV A.Sr.C.J., Vsp.