O.S.219/2009
ACJ (Sr.Dvn.), Eluru
IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (SENIOR DIVISION):
ELURU
Present:- Smt. P.Vijaya
Additional Civil Judge (Sr.Dvn.), Eluru
Friday, this the 12th day of April, 2024
ORIGINAL SUIT No.219/2009
Between:-
Tammana Vijaya Kumari, W/o.Thammana Srirama Chandra Murthy, Hindu, Female, 58 years, Housewife, R/o.D.No.6C-7-8, Southern street, Eluru. … Plaintiff
AND
1.Golla Panduranga Rao (died)
2.Golla Venkateswara Rao (died)
3.Golla Sita Rama Vara Prasad @ Rambabu, S/o.Golla Panduranga Rao, Hindu, Male, 50 years, R/o.D.no.5-45, Pothunuru village, Denduluru mandal, West Godavari District.
4.Kambhampati Krishna Kumari, W/o.Mohana Rao, Hindu, Female, 60 years, R/o.D.No.21-5-1, anakapalli, Visakhapatnam district.
5.Katakam Lalitha Kumari, W/o.Sesharao, Hindu, Female, 58 years, R/o.D.No.21-5-1, Anakapalli, Visakhapatnam district.
6.Majeti Lakshmi Kumari, W/o.Jaya Rama Krishna Prasad, Hindu, female, 55 years, R/o.D.No.19/1, Gudivada, Krishna District.
7.Golla Lakshmi Kanthamma (died)
8.Tatavarthi Lakshmi, W/o.Venkata Srinivas, Hindu, Female, 44 years, R/o.BHEL, MIG 161, Ramachandrapuram, Hyderabad, Telangana state.
9.Tamma Ashok Kumar, S/o.Sriramachandra Murthy, Hindu, Male, 42 years, Business, R/o.D.No.6C-7-8, Southern street, Eluru.
10.Tammana Anil Kumar, S/o.Sriramachandra Murthy, Hindu, Male, 39 years, Business, F/o.D.No.6C-7-8, Southern street, Eluru.
11.Boddeti Rambabu, S/o.Boddeti Koteswara Rao, Hindu, Male, R/o.Kothuru village, h/o.Pothunuru, Denduluru mandal.
12.Golla Sitaravamma, W/o.late Venkateswara Rao, Hindu, Female, 68 years, R/o.D.no.5-45, Pothunuru village, Dendulur mandal.
13.Golla Ashok Kumar, S/o.late Venkateswara Rao, Hindu, male, 41 years, R/o.D.no.5-45, Pothunuru village, Dendulur mandal.
14.Golla Ramkumar, S/o.late Venkateswara Rao, Hindu, male, 39 years, R/o.D.no.5-45, Pothunuru village, Dendulur mandal.
15.Golla Jyothi Lakshmi, D/o.late Venkateswara Rao, Hindu, Female, 35 years, R/o.D.no.5-45, Pothunuru village, Dendulur mandal.
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ACJ (Sr.Dvn.), Eluru
16.Golla Mohini Rajyalakshmi, D/o.late Venkateswara Rao, Hindu, Female, 33 years, R/o.D.no.5-45, Pothunuru village, Dendulur mandal.
(Defendants 8 to 10 are impleaded as a parties who are children of the plaintiff to the proceedings) (Defendants 12 to 16 are added as legal heirs of deceased 2nd defendant, as per orders in I.A.No.931/2022 dt.03.04.2023) … Defendants
This suit is coming on 18.03.2024 for final hearing before me in the presence of Sri G.V.Anand Kumar, Advocate for plaintiff; and of Sri S.V.R.Gandhi, Advocate for Defendant Nos.3 to 7; and of Sri Ch.Sarath Chandra, Advocate for Defendant Nos.8 to 10; and of Sri Pydi Venkata Raju, Advocate for Defendant Nos.12 to 16; and of Defendant Nos.1 and 2 died pendenti lite; and having stood over the matter for consideration to this day, this Court delivered the following:
J U D G M E N T
This is a suit by the plaintiff against the defendants for partition of the plaint schedule property into seven equal shares and allot 1/7th share to her and separate possession of the same and also for partition of 1/12th share each to the defendants 8 to 10 and allot one such share to them.
2. The averments in the amended plaint, in brief, are as follows:
Plaintiff submits that the 1st defendant is the father, defendants 2 and 3 are brothers, defendants 4 and 5 are elder sisters and 6th defendant is the younger sister of her.
a) It is further averred that originally the plaint schedule property belongs to her grandfather by name Golla Venkataswamy and he died intestate and subsequent to his death, her father/Golla Pandu Ranga Rao/1st defendant and his brother/Venkata Narasimharao partitioned the property. Her father/1st defendant and defendants 2 to 6 possessed the ancestral properties which she acquired the right by birth by way of survivorship as per Hindu Succession Act and being a coparcenor, she is entitled for her share in the ancestral property possession by her father/1st defendant.
b) It is further averred that she got married in the year 1973 and she is residing at Eluru which is at a distance of 13 kilometers from Eluru. Even though, she married, herself and the defendants are in joint possession and enjoyment of the plaint schedule property. She demanded the defendants 1 to 6 many times to co-operate with her for partition of the plaint schedule property 2
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ACJ (Sr.Dvn.), Eluru by metes and bounds and allot one such share to her but they are protracting and not cooperating for partition, as such, she got issued legal notice on 11.01.2006 to the defendants for which the defendants 1 to 6 got issued a reply notice on 27.01.2006 with false and concocted story. In the partition deed, it was categorically mentioned that the properties covered under the Partition deed dt.09.04.1997 are ancestral properties and the partition is till place only in between the defendants 1 to 3 excluding the other sharers i.e., the other coparceners who have acquired right by birth by way of survivorship. As per the recitals of the said partition deed dt.09.04.1997, she is entitled for 1/7th share in the plaint schedule property. She has been suffering from financial depression under abject penury and as such she is not in a position to pay the Court fee at this stage unless she is exempted from paying the Court fee in this matter, justice will not be secured to her on account of her poverty and she filed this suit in forma pauperizes/indigent person. She is undertaking to pay the court fee after succeeding in the matter according to law and except the property shown in the schedule, there is no other properties to her from any quarter. Absolutely, there is no source of income to the plaintiff. Hence, it is just and necessary to permit her to file the suit as pauper, otherwise, irreparable prejudice and loss would be caused to her on account of her property.
c) It is further averred that during the pendency of the suit, the 1st defendant died on 07.01.2015 leaving behind the defendants 1 to 7 and her as his legal heirs. However, since the defendants 1 to 6 and she are already on record, the 7th defendant has been impleaded as a part to the suit proceedings for a proper adjudication in the matter. The defendants 8 to 10 are entitled to 1/12th share for in the plaint schedule property by virtue of the death of the 1st defendant, who is their grand father, who died intestate. The 11th defendant is subsequent allienee to part of the Item No.1 of the plaint schedule property and the vendor of 11th defendant is the son of 3rd defendant, who is the proper and necessary party in the suit and the said sale dt.05.08.2020 is subject to hit by doctrine of lis pendence. She got issued legal notice dt.20.02.201 to the 11th defendant and his vendor and they received the same and kept quiet. The 2nd defendant was died on 27.10.2022 intestate leaving the defendants 12 to 16 as his legal heirs and to represent his estates. Hence, constrained to file the suit.
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ACJ (Sr.Dvn.), Eluru
3) The defendants 1 and 3 to 6, 2nd defendant, 7th defendant, 9th defendant, 13th defendant filed their separate written statements. The written statement of 9th defendant is adopted by the defendants 8 and 10. The written statement of 13th defendant is adopted by the defendants 12,14 to 16.
4) The defendants 1 and 3 to 6 in the written statement denied all the material allegations made in the plaint and admitted the relationship mentioned in the plaint that 1st defendant is the father of the defendants 2 to 6 and the plaintiff. Defendants 2 and 3 are the sons and defendants 4 to 6 and the plaintiff are the daughters of the 1st defendant. The plaintiff is the 3rd daughter of the 1st defendant. Further, interalia contended that the question of survivorship does not arise. What Section 29-A of the Succession Act conferred on the daughters is that they were also made as coparceners by birth just like the sons, subject to the two conditions. First, the daughter should not have been married before 05.09.1985 and Secondly, there should not have been any partition in the family. Section 29-A has absolutely no application to the facts of the case as the plaintiff was married in the year 1973, long prior to 05.09.1985 i.e., the date when the amended Act came into force. All the four daughters married long prior to 05.09.1985 and they did not acquire any rights under
Section 29A of the Andhra Amendment. Equally, the amendment introduced by
Parliament to Section 6 of the Hindu Succession Act by Act 39 of 2005, which came into force with effect from 09.09.2005 has absolutely no application to the facts of the case, in view of the Proviso to Sub-Section (1) of Section 6, the
Proviso reads as follows:- “Provided that nothing contained in this sub-section shall effect or invalidate any disposition or alienation, including any partition or testamentary disposition of property, which had taken place before 20th day of
December, 2004”. It is therefore, manifest that the daughters are not entitled to a share by virtue of Section 6, Sub-Section (1) of the Act, if the partition had taken place before the 20th day of December, 2004. Further, Sub-Section (5) of
Section 6 emphatically laid down that nothing contained in this Section shall apply to a partition which has been effected before 20.12.2004. It is significant to note that the daughters have become coparceners with effect from 09.09.2005 only and they have no locus standi to question a partition that had taken place prior to that date.
a) It is further contended that the defendants 1 to 3 partitioned the joint family properties which existed on that date by registered Partition deed 4
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ACJ (Sr.Dvn.), Eluru dt.09.04.1997. Under the registered Partition deed, the A schedule property fell to the share of 1st defendant and the B schedule property fell to the share of 2nd defendant and the C schedule property fell to the share of 3rd defendant. Item
No.1 of the plaint schedule property viz., Ac.4.87 ½ cents in R.S.No.338/10 was divided into three shares and the 1st defendant was allotted Ac.1.63 ½ cents which is Item No.1 of the partition deed. The 2nd defendant was allotted Ac.1.87 cents out of Ac.4.87 ½ cents which is the middle share which is Item N.1 of the
B schedule of the partition deed. The 3rd defendant was allotted the Eastern
Ac.1.37 cents out of Ac.4.87 ½ cents. That is how, item No.1 of the plaint schedule property was partitioned.
b) It is further contended that regarding Item No.2 of the plaint schedule property, shown as 800 sq. yards of site and building therein, the 1st defendant was allotted 425 sq. yards of site and building therein which is Item
No.2 of the A schedule of the partition deed. The 3rd defendant was allotted the
Eastern side 375 sq. yards out of 800 sq. yards along with the tiled house therein which is shown as item No.2 of the „C‟ schedule of the partition deed.
c) It is further contended that regarding the Item No.3 of the plaint schedule, same was allotted to the 2nd defendant which is shown as Item Nos.2 and 3 of the B schedule of the Partition deed. Thus, all the joint family properties were divided under the registered Partition deed dt.09.04.1997 and the defendants 1 to 3 are the absolute owners of the properties allotted to them.
d) It is further contended that regarding Item No.4 of the plaint schedule property, which is a Rice Mill and land of Ac.0.63 cents. The site was purchased in the name of 2nd defendant and a Rice mill was constructed in the aid site bearing the name Sri Venkateswara Rice Mill. Subsequently, on 24.02.1986, the defendants 1 to 3 formed into registered Partnership, which was registered with the Registrar of Firms of A.P. under Section 58 (1) of Indian partnership Act, 1932. The said partnership deed dt.24.02.1986 shows that
Golla Pandurangarao, the 1st defendant and his sons Venkateswarrao and
Seeetarama Vara Prasad, defendants 2 and 3 in the suit, formed into a partnership firm. The said partnership deed shows that the said Golla
Venkateswararao got constructed a Rice Mill at Pothunuru in the year 1980 under self employment scheme by taking loan from A.P.State Financial
Corporation and from others and has been carrying on business in Paddy milling 5
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ACJ (Sr.Dvn.), Eluru on hire under the name and style of „Sri Venkateswara Rice Mill‟ at Pothunuru that as Golla Venkateswararao is running short of funds and working personnel to improve the mill and its business and feeling difficult to repay the installments of loan to the A.P.State Financial Corporation and the said Venkateswararao requested his father, the 1st defendant to join the firm as 1st partner and younger brother, the 3rd defendant as 3rd partner with 40% and 30% shares respectively, retaining himself a 30% in its business in all assets and liabilities. Item No.4 of the plaint schedule is an asset of the partnership firm Sri Venkateswara Rice Mill, which is carrying on business even today. So, item No.4 is an asset of the firm and so the plaintiff cannot ask for partition under Section 14 of the Indian
Partnership Act. For all the foregoing reasons, the plaintiff is not entitled to any share in any properties of the plaint schedule. The suit is frivolous, vexatious and speculative. The plaintiff has no legal right to ask for any share in the plaint schedule properties. The 1st defendant by his own exertions performed the marriages of the four daughters honourably consistent with the dignity of the family and stood by the plaintiff and her husband and their children when they were in financial problems.
e) It is further contended that the defendants 4 to 6 have no right in the plaint schedule property and items 1 to 3 of the plaint schedule properties are in the exclusive possession and enjoyment of defendants 1 to 3 and the defendants 1 to 3 are partners of „Sri Venkateswara Rice Mill‟ and the site is one of the assets of the firm. There is no cause of action for the suit. Hence, prayed for dismissal of the same.
5) The 2nd defendant in his written statement denied all the material allegations made in the plaint and further contended that the Item No.3 of the plaint schedule property i.e., house site is an extent of 250 sq. yards was fell to his share under the registered partition deed dt.09.04.1997 and subsequently he constructed RCC building in the said site borrowing amount from Indian bank,
Eluru to a tune of Rs.10,00,000/-. As such, the property shown in Item No.3 of the plaint schedule property is his absolute property acquired out of his own exertions without any recourse to the joint family funds and so either the plaintiff or 4 to 6 defendants are not having any share in the said property which is his absolute property. The Item No.4 of the plaint schedule property is a rice mill and the land in an extent of Ac.0.60 cents covered by R.S.No.339-1 under a registered Sale deed dt.26.03.1980 from Maddula Appalaswamy and his family 6
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ACJ (Sr.Dvn.), Eluru members for a valuable consideration of Rs.6,000/- out of his hard earned money subsequent to the partition of the joint family properties among the 1 to 3 defendants under the registered partition deed dt.09.04.1997.
a) It is further contended that he constructed a rice mill under the name and style of Sri Venkateswara Rice Mill in the said site by borrowing the amount from the A.P. State Finance Corporation, Eluru and the amount acquired by him out of his hard earned money subsequent to the partition of the joint family properties among the defendants 1 to 3 under the registered partition deed dt.09.04.1997. He obtained license from the Government of Andhra
Pradesh Factories department in his name for the construction of the said Rice
Mill and also obtained Registration certificate from the Andhra Pradesh Sales Tax
Department in his name for running the business in the said Rice Mill and also obtained permission from the Government of Andhra Pradesh Factories
Department for installing additional machinery in the said rice mill on 07.11.2007 in his name. He also obtained electricity connection bearing Electricity service
No.150 for the said rice mill in his name from the State Electricity Board and he used to run the said Rice mill by doing hire work in Pothunuru village and he invested much amount for development of the said rice mill out of his own earnings with a view to run the rice mill in profit manner. The Item No.4 of the plaint schedule property is his self acquired property and as such, either the plaintiff or the defendants 4 to 6 are not having any share in the said property which is his self acquired property.
b) It is further contended that the item Nos.1 to 4 of the plaint schedule properties were never in joint and constructive possession of the plaintiff and the defendants 4 to 6 at any point of time and the defendants 4 to 6 have no manner of right in the plaint schedule properties and the item Nos.1 to 3 of the plaint schedule properties are within the exclusive possession and enjoyment of the defendants 1 to3 and the item No.4 of the plaint schedule property is within his exclusive possession and enjoyment since he purchased the said property under a registered Sale deed dt.26.03.1980. Either the plaintiff or the defendants 1 to 3 and 4 to 6 are not having any manner of right to claim partition in the Item No.4 of the plaint schedule property which is absolutely his self acquired property. He acquired the said property under a registered Sale deed dt.26.03.1980 is subsequent to the registered Partition deed dt.09.04.1997 7
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ACJ (Sr.Dvn.), Eluru which was took place among the defendants 1 to 3 and the plaintiff is not entitled to claim 1/7th share in the plaint schedule properties either on law or on facts. In the notice got issued by him and the defendants 1 to 3, it is categorically stated in Para 8 of the reply notice dt.27.01.2006 that Item No.4 of the plaint schedule property was purchased by him under a registered Sale deed dt.26.03.1980 with his own exertions without any recourse to the joint family funds and also borrowed money from the A.P.State Finance Corporation, Eluru and constructed Rice Mill in it which is his self acquired property. The suit is frivolous and vexatious and speculative. The plaintiff as well as the defendants 4 to 6 have no legal right to ask for any share in the plaint schedule properties.
There is no cause of action for the suit. Hence, prayed for dismissal of the same.
6) The 7th defendant in her written statement contended that the plaintiff has absolutely no manner of right, title, interest or share in the plaint schedule properties. The plaint schedule properties are not at all the coparcener or joint family member. The 1st defendant died and before his death he executed a registered Will dt.16.08.2005. Therefore, after the death of 1st defendant, nothing devolved upon the plaintiff, defendants 1 to 7 and he bequeathed his properties in favour of the defendants 2 to 7 and also the son of eth 3rd defendant namely Triloknadh. The marriage of the daughter of the defendants 1 and 7 were performed prior to 1985 and the marriage of the plaintiff took place before the Andhra Pradesh Amendment to Hindu Succession
Act came into force. Thus, the plaintiff is not entitled to claim partition by invoking section 29-A of Andhra Pradesh Amendment to Hindu Succession Act.
The defendants 1 to 3 partitioned their properties as per the registered Partition deed dt.09.04.1997 and the A schedule property fell to the share of 1st defendant; B schedule property fell to the share of 2nd defendant and C schedule property fell to the share of 3rd defendant. Thus, the plaintiff is not entitled to invoke the Amendment to Hindu Succession Act came into force on 09.09.2005 also, as such, the present suit for partition is unsustainable and not maintainable under law.
a) It is further contended that in the registered Partition deed, the 1st defendant has got Ac.1.63 ½ cents in Item No.1 in the plaint schedule. The 1st defendant has got 425 sq. yards of site and the building therein in the partition towards his share. Item No.3 is the property of the firm and the defendants 1 to 8
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ACJ (Sr.Dvn.), Eluru 3 alone are entitled to the firm property. The 1st defendant has got 40% share and the defendants 2 and 2 have got 30% share in the firm and its property in
Item No.3. To the knowledge of the plaintiff, Item No.3 of the plaint schedule property is the property of the firm and the plaintiff is not at all the partner of the firm, therefore, the plaintiff is not entitled to claim any share in Item No.3 of the plaint schedule property. The 1st defendant during his life time, executed registered Will dt.16.08.2005 in a sound and disposing state of mind and the same is his last Will and testament. The 1st defendant died on 07.01.2015 without cancelling or modifying the Will dt.16.08.2005. Therefore, after the death of the 1st defendant his last will and testament dt.16.08.2005 came into effect.
b) It is further contended that in pursuance of the said Will, the 1st defendant bequeathed Ac.0.20 cents of land to each of the defendants 4 to 6 and the remaining Ac.1.00 cent of land to his wife/7th defendant with absolute rights. So also, the 1st defendant bequeathed the house property to his wife/7th defendant to enjoy the same for her life with a vested absolute right to his grand son/Triloknadh and so also the 1st defendant bequeathed his 40% share to his two sons/defendants 2 and 3 equally. Thus, the plaintiff has absolutely no right to claim any partition in Item No.3 of the plaint schedule property or in the 40% share of the 1st defendant or in the share of the 1st defendant. The plaintiff being the daughter of the defendants 1 to 7, has got notice and knowledge about the registered partition deed dt.09.04.1997 between the defendants 1 to 3 and also the registered Will dt.16.08.2005 executed by the 1st defendant. The plaintiff is also having notice and knowledge about establishment of the firm by the 1st defendant consisting of the defendants 1 to 3 as partners and execution of partnership deed among the defendants 1 to 3. Further, Item No.3 of the plaint schedule is the asset of the firm. Thus, the firm and its property is governed by the provisions of Indian Partnership Act. Further, the firm established by the 1st defendant with the defendants 2 and 3 along with him is a registered firm. Thus, the plaintiff is a stranger to the firm and has absolutely no manner of right, interest or share in the property of the firm and she is not entitled to seek partition of the property of the firm. The plaintiff with a view to make a false and speculative claim intentionally suppressed the true and correct facts within her knowledge and filed the suit with false allegations. There is no 9
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ACJ (Sr.Dvn.), Eluru joint family or joint family property as on the date of filing of the present suit and therefore, the present suit is unsustainable and not maintainable under law.
c) It is further contended that the plaintiff being the daughter of the defendants 1 and 7, is not at all a coparcener along with the defendants 1 to 3 in view of her marriage took place prior to 1985 and she is not entitled to the benefits of Section 29-A of Andhra Pradesh Amendment to Hindu Succession Act.
Subsequently, the defendants 1 to 3 partitioned their joint family properties as per the registered Partition deed dt.09.04.1997. Further, by the time of the
Amendment to Hindu Succession Act came into effect in 2005, there was already a partition as per the registered Partition deed, therefore, the plaintiff is not entitled to invoke the benefits of the Amendment to Hindu Succession Act, came into force in the year 2005. There is no cause of action for the suit and the cause of action in the plaint is baseless and incorrect. Hence, prayed for dismissal of the same.
7) 9th defendant filed written statement and the same is adopted by the defendants 8 and 10 and contended that 8th defendant is the elder sister and 10th defendant is the younger brother of the 9th defendant. 8th defendant got married in the year 1992 and the 9th defendant got married in the year 2014.
His father used to look after the family affairs and recently he came to know that his mother i.e., the plaintiff and the 1st defendant herein got field the suit for partition of the plaint schedule properties which are the joint family properties of his mother i.e., Item Nos.1 to 4 into seven equal shares and allot one such share to his mother. During the pendency of the suit, his grandfather Golla
Pandurangarao, who is the 1st defendant died intestate leaving behind his mother and other children i.e., other defendants herein as his legal heirs and his grandmother/Golla Lakshmi Kanthamma also died intestate.
a) It is further contended that it is alleged in the said suit by the grandfather that his grandfather and defendants 2 and 3 got registered Partition their joint family properties i.e., Item Nos.1 to 3 in the plaint schedule properties and as per the contention of his grandfather, he got the property under a registered Partition deed dt.03.01.1955 which is an ancestral property and as per the registered Partition deed dt.09.04.1997, the properties which are the subject matter of registered partition deed dt.09.04.1997 are the ancestral properties of the defendants 1 to 3. As per the nucleus of the Item Nos.1 to 3 of the plaint schedule properties belongs to the ancestral properties as even as per the 10
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ACJ (Sr.Dvn.), Eluru contention of the 1st defendant, his grandfather, he is entitled for 1/3rd share who died intestate and as Item No.4 of the plaint schedule property is also purchased out of joint family properties i.e., the income realized from item Nos.1 to 3 of the plaint schedule properties belongs to the ancestral properties as even as per the contention of the 1st defendant, his grandfather is entitled for 1/3rd share who died intestate and as Item No.4 of the plaint schedule property is also purchased out of joint family properties i.e., the income realized from item Nos.1 to 3 of the plaint schedule properties in which his grandfather is entitled for 1/3rd share and plaintiff, defendants 8 to 10 herein are entitled 1/12 share each.
b) It is further contended that by the date of Ex.A1, Golla
Pandurangarao is married and having children and the succession under Hindu
Succession Act is opened and the property covered under Ex.A1 retains its character as ancestral property. Even assuming the alleged registered Will dt.16.08.2005 i.e., Ex.B5 if considered, the 7th defendant become the absolute owner of the Item Nos.1,3 and 4 who died intestate in which the plaintiff is entitled 1/6th share out of 1/6th share, the defendants 8 to 10 are having 1/18th share in Item Nos.1,3 and 4 of the alleged registered Will dt.16.08.2005. The item No.1 of the alleged registered Will dt.16.08.2005 is part of the Item No.1 of the plaint schedule property and item Nos.3 and 4 are the part of No.2 of the plaint schedule property. The defendants 8 to 10 are the proper and necessary parties as they are entitled for 1/12th share each in Item Nos.1 to 4 of the plaint schedule properties. Hence, prayed to allot 1/12th share to the defendants 8 to 10 each respectively in Item Nos.1 to 4 of the plaint schedule properties, in the interest of justice.
8. The 13th defendant filed written statement and the same is adopted by the defendants 12 and 14 to 16 and contended that the 2nd defendant is the husband of 12th defendant and father of defendants 13 to 16. 2nd defendant died intestate leaving behind the 12 to 16 defendants as legal representatives of his estate including the item No.4 of the plaint schedule property. Subsequent to the death of the 2nd defendant, defendants 12 to 16 have acquired absolute right and title over the estate left by the 2nd defendant including the Item No.4 of the plaint schedule property, the estate of the deceased 2nd defendant including the item No.4 of the plaint schedule property is within the possession and enjoyment of the defendants 12 to 16 since the death of 2nd defendant. The item No.4 of 11
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ACJ (Sr.Dvn.), Eluru the plaint schedule property is exclusively property of 2nd defendant, plaintiff is not entitled to claim any share in the item No.4 of the plaint schedule property which was self acquired property of the 2nd defendant and they are also adopting the written statement filed by the 2nd defendant in all aspects. Hence, prayed for dismissal of the same.
9. The 2nd defendant filed Additional written statement and contended that the defendant 8 to 10 are not entitled to claim in Item No.4 of the plaint schedule property which is self acquired property of him and the 1st defendant is not having any right and share in Item No.4 of the plaint schedule property which is absolute property of him. The Item No.4 of the plaint schedule property is not liable for partition among the plaintiff and the defendants as the said property was purchased by the defendants with his hard earned money. The plaint schedule properties were partitioned in the year 1997 among the 1st defendant and his children i.e., defendants 1 to 3, so the question of the partition of the said properties does not arise at all, so the defendants 8 to 10 does not acquire any right or share in the plaint schedule properties.
10. The 3rd defendant filed additional written statement and contended that the defendants 8 to 10 have no manner of right, interest or share in the plaint schedule property during the life time of the plaintiff and further the plaintiff has no manner of right, interest or share in the plaint schedule properties and thus they are not at all property and necessary parties to the suit.
The 1st defendant is the maternal grandfather of the defendants 8 to 10 and therefore, under the provisions of Hindu Succession Act, the children of the plaintiff who were impleaded as the defendants 8 to 10 have absolutely no manner of right in the plaint schedule properties. Further, under the provisions of Hindu Succession Act, in the presence of children of the deceased, the grand children has no void of right guilty. Further, the 1st defendant during his life time executed a Will dt.16.08.2015 duly registered in a sound and disposing state of mind. Therefore, the plaintiff is not entitled to claim any share in the plaint schedule properties or in the share of the 1st defendant in the plaint schedule properties. Thus, the question of the right and share of the defendants 8 to 10 does not arise. No leave was obtained by the plaintiff to make any consequential amendment to add paragraph 17-B in the plaint. Therefore, the said paragraph must be rejected. The plaintiff has absolutely no right in the plaint schedule properties. Further, assuming without admitting that the plaintiff is claiming a 12
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ACJ (Sr.Dvn.), Eluru share, her right has to be determined in the suit whether she is entitled to calim any share in the plaint schedule properties and under such circumstances, the defendants 8 to 10 have absolutely no place to come on record and the provisions of the Section 6 of Hindu Succession Act cannot be invoked by the defendants 8 to 10 during the lifetime of their mother/plaintiff herein. Further, the coparcenary right regarding the females will not be continued or claimed by birth by the children of female coparcener during her life time, as such, the petitioners are not at all proper and necessary parties to the suit and their presence in the suit is totally irrelevant and unnecessary. Hence, prayed for dismissal of the same.
11. In his further additional written statement of 3rd defendant, he contended that by virtue of the partition of Item Nos.1 to 3 of the plaint schedule properties as per the registered Partition deed dt.09.04.1997, the said properties lost its character as joint family properties and the plaintiff‟s right to seek partition was seized by virtue of the said partition and the amended provisions of
Hindu Succession Act 39 of 2005 debars the plaintiff to seek partition as per the
Partition deed dt.09.04.1997 is prior to the date 20.12.2004 mentioned in
Section 6 of the Hindu Succession Act. Therefore, suit for partition of item Nos.1 to 3 is unsustainable under law and the plaintiff has not acquired any right to seek partition, as such her children, the defendants 8 to 10 have no right to seek partition. The 1st defendant executed a registered Will dt.16.08.2005 and the same was marked as Ex.B5 and in view of the Ex.B5/Will, the 7th defendant has only a limited right in the properties covered by Ex.B5/Will and the said right can never be ripe into absolute title and Section 14 (2) of the Hindu Succession Act alone is applicable in the circumstances and thereby the interest of 7th defendant is only limited in respect of item Nos.1,3 and 4 of the properties covered by
Ex.B5/Will. The defendants 8 to 10 are the children of the plaintiff and they are claiming a 1/12th share each in the plaint schedule property and now by virtue of amended pleadings they are claiming 1/18th share in Item Nos.1,3 and 4 of the property described in Ex.B5/Will. In fact, during the life time of the plaintiff and her presence, the defendants 8 to 10 have no right to seek partition. Further, the defendants 3 to 6 are having children and in case the defendants 8 to 10 have any right in the plaint schedule properties in any manner, the children of the defendants 3 to 6 are also entitled to a share. Therefore, the suit for partition without joining the children of the defendants 3 to 6 is bad for non 13
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ACJ (Sr.Dvn.), Eluru joinder of proper and necessary parties and is liable to be dismissed in limine.
The averments in the amended statement is not true and correct and are invented for the purpose of protracting the suit proceedings posted for Judgment to 30.11.2023. Hence, prayed for dismissal of the same by rejecting the false and feeble contentions of the defendants 8 to 10.
12. Taking into consideration the above pleadings, one of my learned predecessor-in-office, framed the following issues for trial:-
1)Whether the plaint schedule properties are joint family properties of the plaintiff and the defendants?
2)Whether the defendants partitioned their properties on 09.04.1997 as alleged in their written statement?
3)Whether the plaintiff is entitled for partition of the plaint schedule properties and for allotment of 1/7th share in the plaint schedule property?
4)Whether the plaintiff is entitled for mesne profits?
5)To what relief?
13. The following additional issues are framed by one of my learned predecessor-in-office on 14.11.2019 are as follows:
1. Whether the defendants 8 to 10 are entitled to 1/12th share each of the plaint schedule property?
14. The following additional issues are framed on 02.05.2023 are as follows:
1. Whether the item No.4 of the plaint schedule property is exclusive property of 2nd defendant?
2. Whether the item No.4 of the plaint schedule property is in possession and enjoyment of the defendants 12 to 16?
15. The husband of plaintiff is examined as P.W.1 and exhibited Exs.A1 to A5. The 2nd defendant, 3rd defendant, 13th defendant, 9th defendant are examined as D.Ws.1, D.W.4, D.W.5, D.W.7 and their witnesses are examined as
D.W.2, D.W.3 and D.W.6 and exhibited Ex.B1 to B12.
16. Heard the learned counsel for plaintiff and defendants and perused the written arguments and the citations submitted by the learned counsel for the plaintiff and defendants.
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ACJ (Sr.Dvn.), Eluru
17. Issue Nos.1 to 5 and Additional Issues No.1(framed on
dt.14.11.2019) and Additional issue Nos.1 and 2 (framed on
02.05.2023):-
The admitted facts are as follows: - The plaintiff, defendants 4 to 6 are daughters and defendants 2 and 3 are sons of 1st defendant and 7th defendant. The defendants 8 to 10 are children of plaintiff. The defendants 12 to 16 are children of 2nd defendant. The vendor of the 11th defendant is the son of 3rd defendant, who sold part of Item No.1 of the plaint schedule property.
Item Nos.1 to 3 of the plaint schedule properties were partitioned among the defendants 1 to 3 under Ex.B5/registered Partition deed dt.09.04.1997. The 1st defendant and his brother partitioned their family properties under
Ex.A1/Partition deed dt.03.01.1955 among them. Item No.4 of the plaint schedule property is in the name of 2nd defendant under a registered Sale deed dt.26.03.1980/Ex.B1. In the said property, the Rice mill was constructed and defendants 1 to 3 are the partners to run the business in the said rice mill.
During the pendency of the suit, the 1st and 2nd defendants and 7th defendant passed away.
18. The contentions of the plaintiff, in brief, are as follows:- The 1st defendant is the father, defendants 2 and 3 are brothers, defendants 4 and 5 are elder sisters and 6th defendant is the younger sister of plaintiff. Originally, the plaint schedule property belongs to her grandfather by name Golla
Venkataswamy and he died intestate and subsequent to his death, her father/1st defendant and his brother/Venkata Narasimharao partitioned the property. Her father/1st defendant and defendants 2 to 6 possessed the ancestral properties which she acquired the right by birth by way of survivorship as per Hindu
Succession Act and being a coparcenor, she is entitled for her share in the ancestral property. She got married in the year 1973 and she is residing at Eluru which is at a distance of 13 kilometers from Eluru. Even though, she married, herself and the defendants are in joint possession and enjoyment of the plaint schedule property. She demanded the defendants 1 to 6 for partition of the plaint schedule property and allot one such share to her but they are protracting and not cooperating, as such, she got issued legal notice on 11.01.2006 to the defendants 1 to 6, for which they got issued a reply notice on 27.01.2006 with false and concocted story. In the partition deed, it was categorically mentioned that the properties covered under the Partition deed dt.09.04.1997 are ancestral 15
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ACJ (Sr.Dvn.), Eluru properties and the partition is till place only in between the defendants 1 to 3 excluding the other sharers i.e., the other coparceners who have acquired right by birth by way of survivorship. As per the recitals of the said partition deed dt.09.04.1997, she is entitled for 1/7th share in the plaint schedule property.
19. During the pendency of the suit, the 1st defendant died on 07.01.2015 leaving behind the defendants 1 to 6 and his wife as his legal heirs.
Since, the defendants 1 to 6 and plaintiff are already on record, his wife impleaded as 7th defendant. The defendants 8 to 10 are impleaded, who are children of plaintiff by claiming 1/12th share in the plaint schedule property by virtue of the death of the 1st defendant, who is their grandfather, who died intestate. The 11th defendant is impleaded, who is allienee to the part of the
Item No.1 of the plaint schedule property and the vendor of 11th defendant is the son of 3rd defendant, who is the proper and necessary party in the suit and the said sale dt.05.08.2020 is subject to hit by doctrine of lis pendence. She got issued legal notice dt.20.02.2021 to the 11th defendant and his vendor and they received the same and kept quiet. The 2nd defendant was died on 27.10.2022 intestate leaving the defendants 12 to 16 as his legal heirs, who are impleaded to the suit proceedings. Hence, constrained to file the suit.
20. The contentions of the defendants 1 and 3 to 6, in brief, are as follows:- The question of survivorship does not arise. Under Section 29-A of the Succession Act conferred on the daughters is that they were also made as coparceners by birth just like the sons, subject to the two conditions. First, the daughter should not have been married before 05.09.1985; and Secondly, there should not have been any partition in the family. Section 29-A has absolutely no application to the facts of the case as the plaintiff was married in the year 1973 and other daughters prior to 05.09.1985 i.e., the date when the amended Act came into force. Equally, the amendment introduced by Parliament to Section 6 of the Hindu Succession Act by Act 39 of 2005, which came into force with effect from 09.09.2005 has absolutely no application to the facts of the case, in view of the Proviso to Sub-Section (1) of Section 6, the Proviso reads as follows:- “Provided that nothing contained in this sub-section shall effect or invalidate any disposition or alienation, including any partition or testamentary disposition of property, which had taken place before 20th day of December, 2004”. It is therefore, manifest that the daughters are not entitled to a share by virtue of
Section 6, Sub-Section (1) of the Act, if the partition had taken place before the 16
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ACJ (Sr.Dvn.), Eluru 20th day of December, 2004. Further, Sub-Section (5) of Section 6 emphatically laid down that nothing contained in this Section shall apply to a partition which has been effected before 20.12.2004. It is significant to note that the daughters have become coparceners with effect from 09.09.2005 only and they have no locus standi to question a partition that had taken place prior to that date. The defendants 1 to 3 partitioned the joint family properties which existed on that date by registered Partition deed dt.09.04.1997. Under the registered Partition deed, the A schedule property fell to the share of 1st defendant and the B schedule property fell to the share of 2nd defendant and the C schedule property fell to the share of 3rd defendant. Item No.1 of the plaint schedule property viz.,
Ac.4.87 ½ cents in R.S.No.338/10 was divided into three shares and the 1st defendant was allotted Ac.1.63 ½ cents which is Item No.1 of the partition deed.
The 2nd defendant was allotted Ac.1.87 cents out of Ac.4.87 ½ cents which is the middle share which is Item N.1 of the B schedule of the partition deed. The 3rd defendant was allotted the Eastern Ac.1.37 cents out of Ac.4.87 ½ cents.
Regarding Item No.2 of the plaint schedule property i.e., 800 sq. yards of site and building therein, the 1st defendant was allotted 425 sq. yards of site and building therein, which is Item No.2 of the A schedule of the partition deed. The 3rd defendant was allotted the Eastern side 375 sq. yards out of 800 sq. yards along with the tiled house therein which is shown as item No.2 of the „C‟ schedule of the partition deed. Regarding the Item No.3 of the plaint schedule, same was allotted to the 2nd defendant which is shown as Item Nos.2 and 3 of the B schedule of the Partition deed. Thus, all the joint family properties were divided under the registered Partition deed dt.09.04.1997 and the defendants 1 to 3 are the absolute owners of the properties allotted to them. Regarding Item
No.4 of the plaint schedule property, which is a Rice Mill and land of Ac.0.63 cents. The site was purchased in the name of 2nd defendant and a Rice mill was constructed in the said site bearing the name Sri Venkateswara Rice Mill.
Subsequently, on 24.02.1986, the defendants 1 to 3 formed into registered
Partnership, which was registered with the Registrar of Firms of A.P. under
Section 58 (1) of Indian partnership Act, 1932. The said partnership deed dt.24.02.1986 shows that Golla Pandurangarao/1st defendant and his sons
Venkateswarrao and Seeetarama Vara Prasad/defendants 2 and 3 in the suit, formed into a partnership firm. The said partnership deed shows that the said
Golla Venkateswararao/2nd defendant got constructed a Rice Mill at Pothunuru 17
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ACJ (Sr.Dvn.), Eluru in the year 1980 under self employment scheme by taking loan from A.P.State
Financial Corporation and from others and has been carrying on business in
Paddy milling on hire under the name and style of „Sri Venkateswara Rice Mill‟ at
Pothunuru that as Golla Venkateswararao is running short of funds and working personnel to improve the mill and its business and feeling difficult to repay the installments of loan to the A.P.State Financial Corporation and the said
Venkateswararao requested his father, the 1st defendant to join the firm as 1st partner and younger brother, the 3rd defendant as 3rd partner with 40% and 30% shares respectively, retaining himself a 30% in its business in all assets and liabilities. Item No.4 of the plaint schedule is an asset of the partnership firm Sri
Venkateswara Rice Mill, which is carrying on business even today. So, item No.4 is an asset of the firm and so the plaintiff cannot ask for partition under Section 14 of the Indian Partnership Act. For all the foregoing reasons, the plaintiff is not entitled to any share in any properties of the plaint schedule. The suit is frivolous, vexatious and speculative. The plaintiff has no legal right to ask for any share in the plaint schedule properties. The 1st defendant by his own exertions performed the marriages of the four daughters honourably consistent with the dignity of the family and stood by the plaintiff and her husband and their children when they were in financial problems. The defendants 4 to 6 have no right in the plaint schedule property and items 1 to 3 of the plaint schedule properties are in the exclusive possession and enjoyment of defendants 1 to 3 and the defendants 1 to 3 are partners of „Sri Venkateswara Rice Mill‟ and the site is one of the assets of the firm. There is no cause of action for the suit.
Hence, prayed for dismissal of the same.
21. In the additional written statement of 3 rd defendant which was adopted by the defendants 4 to 6, it is contended that the defendants 8 to 10 have no manner of right, interest or share in the plaint schedule property during the life time of the plaintiff and further the plaintiff has no manner of right, interest or share in the plaint schedule properties and thus they are not at all property and necessary parties to the suit. The 1st defendant is the maternal grandfather of the defendants 8 to 10 and therefore, under the provisions of
Hindu Succession Act, the children of the plaintiff who were impleaded as the defendants 8 to 10 have absolutely no manner of right in the plaint schedule properties. Further, the 1st defendant during his life time executed a Will dt.16.08.2015 duly registered in a sound and disposing state of mind. Therefore, the plaintiff is not entitled to claim any share in the plaint schedule properties or 18
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ACJ (Sr.Dvn.), Eluru in the share of the 1st defendant in the plaint schedule properties. Thus, the question of the right and share of the defendants 8 to 10 does not arise. No leave was obtained by the plaintiff to make any consequential amendment to add paragraph 17-B in the plaint. Therefore, the said paragraph must be rejected. The plaintiff has absolutely no right in the plaint schedule properties.
Further, assuming without admitting that the plaintiff is claiming a share, her right has to be determined in the suit whether she is entitled to claim any share in the plaint schedule properties and under such circumstances, the defendants 8 to 10 have absolutely no place to come on record and the provisions of the
Section 6 of Hindu Succession Act cannot be invoked by the defendants 8 to 10 during the lifetime of their mother/plaintiff herein. Further, the coparcenary right regarding the females will not be continued or claimed by birth by the children of female coparcener during her life time, as such, the petitioners are not at all proper and necessary parties to the suit and their presence in the suit is totally irrelevant and unnecessary. Hence, prayed for dismissal of the same.
22. In the further additional written statement of 3 rd defendant, he contended that by virtue of the partition of Item Nos.1 to 3 of the plaint schedule properties as per the registered Partition deed dt.09.04.1997, the said properties lost its character as joint family properties and the plaintiff‟s right to seek partition was seized by virtue of the said partition and the amended provisions of Hindu Succession Act 39 of 2005 debars the plaintiff to seek partition as per the Partition deed dt.09.04.1997 is prior to the date 20.12.2004 mentioned in Section 6 of the Hindu Succession Act. Therefore, suit for partition of item Nos.1 to 3 is unsustainable under law and the plaintiff has not acquired any right to seek partition, as such her children, the defendants 8 to 10 have no right to seek partition. The 1st defendant executed a registered Will dt.16.08.2005 and the same was marked as Ex.B5 and in view of the Ex.B5/Will, the 7th defendant has only a limited right in the properties covered by Ex.B5/Will and the said right can never be ripe into absolute title and Section 14 (2) of the
Hindu Succession Act alone is applicable in the circumstances and thereby the interest of 7th defendant is only limited in respect of item Nos.1,3 and 4 of the properties covered by Ex.B5/Will. The defendants 8 to 10 are the children of the plaintiff and they are claiming a 1/12th share each in the plaint schedule property and now by virtue of amended pleadings they are claiming 1/18th share in Item
Nos.1,3 and 4 of the property described in Ex.B5/Will. In fact, during the life 19
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ACJ (Sr.Dvn.), Eluru time of the plaintiff and her presence, the defendants 8 to 10 have no right to seek partition. Further, the defendants 3 to 6 are having children and in case the defendants 8 to 10 have any right in the plaint schedule properties in any manner, the children of the defendants 3 to 6 are also entitled to a share.
Therefore, the suit for partition without joining the children of the defendants 3 to 6 is bad for non joinder of proper and necessary parties and is liable to be dismissed in limine. The averments in the amended statement is not true and correct and are invented for the purpose of protracting the suit proceedings posted for Judgment to 30.11.2023. Hence, prayed for dismissal of the same by rejecting the false and feeble contentions of the defendants 8 to 10.
23. The contentions of the 2 nd defendant, in brief, are as follows:- The Item No.3 of the plaint schedule property i.e., house site is an extent of 250 sq. yards was fell to his share under the registered partition deed dt.09.04.1997 and subsequently, he constructed RCC building in the said site borrowing amount from Indian bank, Eluru to a tune of Rs.10,00,000/-. As such, the property shown in Item No.3 of the plaint schedule property is his absolute property acquired out of his own exertions without any recourse to the joint family funds and so either the plaintiff or 4 to 6 defendants are not having any share in the said property which is his absolute property. The Item No.4 of the plaint schedule property is a rice mill and the land in an extent of Ac.0.60 cents covered by R.S.No.339/1 which was purchased under a registered Sale deed dt.26.03.1980 from Maddula Appalaswamy and his family members for a valuable consideration of Rs.6,000/- out of his hard earned money subsequent to the partition of the joint family properties among the 1 and 3 defendants under the registered partition deed dt.09.04.1997. He constructed a rice mill under the name and style of Sri Venkateswara Rice Mill in the said site by borrowing the amount from the A.P. State Finance Corporation, Eluru and the amount acquired by him out of his hard earned money subsequent to the partition of the joint family properties among the defendants 1 and 3 under the registered partition deed dt.09.04.1997. He obtained license from the Government of Andhra
Pradesh Factories department in his name for the construction of the said Rice
Mill and also obtained Registration certificate from the Andhra Pradesh Sales Tax
Department in his name for running the business in the said Rice Mill and also obtained permission from the Government of Andhra Pradesh Factories
Department for installing additional machinery in the said rice mill on 07.11.2007 in his name. He also obtained electricity connection bearing Electricity service 20
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ACJ (Sr.Dvn.), Eluru
No.150 for the said rice mill in his name from the State Electricity Board and he used to run the said Rice mill by doing hire work in Pothunuru village and he invested much amount for development of the said rice mill out of his own earnings with a view to run the rice mill in profit manner. The Item No.4 of the plaint schedule property is his self acquired property and as such, either the plaintiff or the defendants 4 to 6 are not having any share in the said property which is his self acquired property. The item Nos.1 to 4 of the plaint schedule properties were never in joint and constructive possession of the plaintiff and the defendants 4 to 6 at any point of time and the defendants 4 to 6 have no manner of right in the plaint schedule properties and the item Nos.1 and 3 of the plaint schedule properties are within the exclusive possession and enjoyment of the defendants 1 and 3 and the item No.4 of the plaint schedule property is within his exclusive possession and enjoyment since date of purchase. Either the plaintiff or the defendants 1 and 3 and 4 to 6 are not having any manner of right to claim partition in the Item No.4 of the plaint schedule property which is absolutely his self acquired property. He acquired the said property under a registered Sale deed dt.26.03.1980 is subsequent to the registered Partition deed dt.09.04.1997 which was took place among the defendants 1 and 3 and the plaintiff is not entitled to claim 1/7th share in the plaint schedule properties either on law or on facts. In the notice got issued by him and the defendants 1 to 3, it is categorically stated in Para 8 of the reply notice dt.27.01.2006 that Item No.4 of the plaint schedule property was purchased by him under a registered Sale deed dt.26.03.1980 with his own exertions without any recourse to the joint family funds and also borrowed money from the A.P.State Finance Corporation,
Eluru and constructed Rice Mill in it which is his self acquired property. The suit is frivolous and vexatious and speculative. The plaintiff as well as the defendants 4 to 6 have no legal right to ask for any share in the plaint schedule properties.
24. In his Additional written statement, it is contended that the defendant 8 to 10 are not entitled to claim in Item No.4 of the plaint schedule property which is self acquired property of him and the 1st defendant is not having any right and share in Item No.4 of the plaint schedule property which is absolute property of him. Hence, prayed for dismissal of the same.
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ACJ (Sr.Dvn.), Eluru
25. The contentions of the 7 th defendant, in brief, are as follows: The plaint schedule properties are not at all the coparcener or joint family member. The 1st defendant died on 07.01.2015, prior to his death, he executed a registered Will dt.16.08.2005. Therefore, after the death of 1st defendant, nothing devolved upon the plaintiff but he bequeathed his properties in favour of the defendants 2 to 7 and also the son of the 3rd defendant namely
Triloknadh. The marriage of the daughter of the plaintiff was performed prior to the amendment to Hindu Succession Act, came into force, so she is not entitled to claim partition by invoking section 29-A of Andhra Pradesh Amendment to
Hindu Succession Act. The defendants 1 to 3 partitioned their properties as per the registered Partition deed dt.09.04.1997 and the A schedule property fell to the share of 1st defendant; B schedule property fell to the share of 2nd defendant and C schedule property fell to the share of 3rd defendant, so she is not entitled to invoke the Amendment to Hindu Succession Act, which came into force on 09.09.2005 also, as such, the present suit for partition is unsustainable and not maintainable under law. In the registered Partition deed, the 1st defendant has got Ac.1.63 ½ cents in Item No.1 in the plaint schedule. The 1st defendant has got 425 sq. yards of site and the building therein in the partition towards his share. Item No.4 is the property of the firm and the defendants 1 to 3 alone are entitled to the firm property. The 1st defendant has got 40% share and the defendants 2 and have got 30% share in the firm and its property in Item No.4.
To the knowledge of the plaintiff, Item No.4 of the plaint schedule property is the property of the firm and the plaintiff is not at all the partner of the firm, therefore, the plaintiff is not entitled to claim any share in Item No.4 of the plaint schedule property. The 1st defendant during his life time, executed registered
Will dt.16.08.2005 in a sound and disposing state of mind and the same is his last Will and testament. The 1st defendant died on 07.01.2015 without cancelling or modifying the Will dt.16.08.2005. Therefore, after the death of the 1st defendant his last will and testament dt.16.08.2005 came into effect. In pursuance of the said Will, the 1st defendant bequeathed Ac.0.20 cents of land to each of the defendants 4 to 6 and the remaining Ac.1.00 cent of land to his wife/7th defendant with absolute rights. So also, the 1st defendant bequeathed the house property to his wife/7th defendant to enjoy the same for her life with a vested absolute right to his grandson/Triloknadh and so also the 1st defendant bequeathed his 40% share to his two sons/defendants 2 and 3 equally. Thus, the plaintiff has absolutely no right to claim any partition in Item No.4 of the 22
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ACJ (Sr.Dvn.), Eluru plaint schedule property or in the 40% share of the 1st defendant or in the share of the 1st defendant. The plaintiff being the daughter of the defendants 1 and 7, has got notice and knowledge about the registered partition deed dt.09.04.1997 between the defendants 1 to 3 and also the registered Will dt.16.08.2005 executed by the 1st defendant. The plaintiff is also having notice and knowledge about establishment of the firm by the 1st defendant consisting of the defendants 1 to 3 as partners and execution of partnership deed among the defendants 1 to
3. Further, Item No.3 of the plaint schedule is the asset of the firm. Thus, the firm and its property is governed by the provisions of Indian Partnership Act.
Further, the firm established by the 1st defendant with the defendants 2 and 3 along with him is a registered firm. Thus, the plaintiff is a stranger to the firm and has absolutely no manner of right, interest or share in the property of the firm and she is not entitled to seek partition of the property of the firm. The plaintiff with a view to make a false and speculative claim intentionally suppressed the true and correct facts within her knowledge and filed the suit with false allegations. There is no joint family or joint family property as on the date of filing of the present suit and therefore, the present suit is unsustainable and not maintainable under law. Hence, prayed for dismissal of the same.
26) The contentions of the defendants 8 to 10, in brief, are as follows:- 8th defendant got married in the year 1992 and the 9th defendant got married in the year 2014. His father used to look after the family affairs and recently they came to know that his mother i.e., the plaintiff and the 1st defendant herein got filed the suit for partition of the plaint schedule properties which are the joint family properties of his mother i.e., Item Nos.1 to 4 into seven equal shares and allot one such share to his mother. During the pendency of the suit, his grandfather Golla Pandurangarao, who is the 1st defendant died intestate leaving behind his mother and other children i.e., other defendants herein as his legal heirs and his grandmother/Golla Lakshmi Kanthamma also died intestate. The said suit by the grandfather that his grandfather and defendants 2 and 3 got registered Partition their joint family properties i.e., Item
Nos.1 to 3 in the plaint schedule properties and as per the contention of his grandfather, he got the property under a registered Partition deed dt.03.01.1955 which is an ancestral property and as per the registered Partition deed dt.09.04.1997, the properties which are the subject matter of registered partition deed dt.09.04.1997 are the ancestral properties of the defendants 1 to 3. As per 23
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ACJ (Sr.Dvn.), Eluru the nucleus of the Item Nos.1 to 3 of the plaint schedule properties belongs to the ancestral properties as even as per the contention of the 1st defendant, his grandfather, he is entitled for 1/3rd share who died intestate and as Item No.4 of the plaint schedule property is also purchased out of joint family properties i.e., the income realized from item Nos.1 to 3 of the plaint schedule properties belongs to the ancestral properties as even as per the contention of the 1st defendant, his grandfather is entitled for 1/3rd share who died intestate and as
Item No.4 of the plaint schedule property is also purchased out of joint family properties i.e., the income realized from item Nos.1 to 3 of the plaint schedule properties in which his grandfather is entitled for 1/3rd share and plaintiff, defendants 8 to 10 herein are entitled 1/12 share each.
27. By the date of Ex.A1, Golla Pandurangarao is married and having children and the succession under Hindu Succession Act is opened and the property covered under Ex.A1 retains its character as ancestral property. Even assuming the alleged registered Will dt.16.08.2005 i.e., Ex.B5 if considered, the 7th defendant become the absolute owner of the Item Nos.1,3 and 4 who died intestate in which the plaintiff is entitled 1/6th share out of 1/6th share, the defendants 8 to 10 are having 1/18th share in Item Nos.1,3 and 4 of the alleged registered Will dt.16.08.2005. The item No.1 of the alleged registered Will dt.16.08.2005 is part of the Item No.1 of the plaint schedule property and item
Nos.3 and 4 are the part of No.2 of the plaint schedule property. The defendants 8 to 10 are the proper and necessary parties as they are entitled for 1/12th share each in Item Nos.1 to 4 of the plaint schedule properties. Hence, prayed to allot 1/12th share to the defendants 8 to 10 each respectively in Item Nos.1 to 4 of the plaint schedule properties, in the interest of justice.
28. The contentions of the defendants 12 to 16, in brief, are as follows:- Subsequent to the death of the 2nd defendant, defendants 12 to 16 have acquired absolute right and title over the estate which was left by the 2nd defendant including the Item No.4 of the plaint schedule property, the estate of the deceased 2nd defendant including the item No.4 of the plaint schedule property is within the possession and enjoyment of the defendants 12 to 16 since the death of 2nd defendant. The item No.4 of the plaint schedule property is exclusively property of 2nd defendant, plaintiff is not entitled to claim any share in the item No.4 of the plaint schedule property which was self acquired property 24
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ACJ (Sr.Dvn.), Eluru of the 2nd defendant and they are also adopting the written statement filed by the 2nd defendant in all aspects. Hence, prayed for dismissal of the same.
29. In support of contentions of the plaintiff, her husband/Tammana
Srirama Chandra Murthy, is examined as P.W.1 and exhibited Exs.A1 to A5. He testified in his evidence in chief less or more what was pleaded in the pleadings by reiterating the same.
30. In support of the contentions of the defendants, 2nd defendant, 3rd defendant, 13th defendant, 9th defendant are examined as D.Ws.1, D.W.4,
D.W.5, D.W.7 and exhibited Exs.B1 to B12. They testified in their evidence what was pleaded by them in their pleadings by reiterating the same less or more.
31. To corroborate their evidence, they got examined one Maddula
Haribabu and Maddula Lakshmanarao, who are the vendors of Item No.4 of the
Plaint schedule property and who have an agricultural land on the Southern side of the Item No.4 of the plaint schedule property are examined as D.W.2 and
D.W.3. The gist of their evidence is that he, his father and other family members sold the Item No.4 of the plaint schedule property to the 2nd defendant and delivered the possession on the date of sale dt.26.03.1980. Their evidence also goes to show that 2nd defendant constructed rice mill in the said site under the name and style of Venkateswara Rice Mill. Their evidence further goes to show that the said site and the said rice mill were purchased and run with the own funds of 2nd defendant.
32. The Chalasani Satyanarayana, who is the attestor of the
Ex.B11/Will is examined as D.W.6. The gist of his evidence is that out of his free will and volition and in his sound and disposing state of mind executed a Will dt.16.08.2005 and got it registered. His evidence also goes to show that the testator gave instructions to draft the same and having satisfied with the contents, he put his signature on the said Will in the presence of him, Challagolla
Prabhakar Rao and Dakarapu Satyanarayana Murthy. His evidence also goes to show that they all witnessed and saw while Golla Panduranga Rao signed on the
Will and later they signed on the said Will and Golla Panduranga Rao witnessed the same.
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33. When, we analyze the present suit facts and circumstances, this is suit for Partition, so at this juncture, initially, it is just and necessary to ascertain the nature of the plaint schedule properties which were pleaded either side in different versions. In order to determine the nature of the property, the proposition laid down in the judicial precedents can be seen. In Sesidhar and
others Vs. Smt. Aswani Uma Mathad and another reported in 2015(3)
ALT 7(SC), wherein it is held that, when a suit is filed by a co-owner or co- sharer or coparcener for partition, it is necessary for the Court to analyze the following details in first instance which are as follows:
“The nature and character of the property in a suit ie. the real owner of the schedule property, the source through which he/she as acquired the property whether it was his/her self acquired property or ancestral property, joint property, or coparcener property in his possession and if so who are/were the coparceners. How, that devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proposition whether her/she died intestate or left a testamentary documentary in favour of any family members to inheritance his/her share in properties and if so its affect. Whether the all the properties are involved in the suit and all the coparceners are parties to a suit. Whether the properties in the suit are capable being partitioned and if so in what manner?”
In order to clarify the nature of property herein, it is necessary to reproduce the definition of the Ancestral property and Coparcener property and on whom the burden of proof lies to establish the nature of property which was claimed by them in respective of the schedule property.
The term ancestral property defined in Shyam Narayana Prasad
Vs Krishna Prasad (2018) 7 SCC 646, Wherein, it is held that property inherited by a male Hindu from his father, fathers father (or) fathers‟ fathers‟ father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth.
Coparcener and coparceneree property under explanation 1 of the section 6 of Hindu succession Act defines Coparcener means “ one who shares (equally) with others in inheritance in the estate of common ancestor. In Rohit Chauhan
Vs Surinder Singh 2013 (9) SCC 419, wherein, it is held that Coparceneree 26
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ACJ (Sr.Dvn.), Eluru property the property which consists of the ancestral property and a
Coparcener would mean a person who shares equally wit others in inheritance in the estate of common ancestor. Coparcener is a narrow body than the joint
Hindu family and before the commencement of the Hindu succession (Amendment) Act 2005 only, male members of the family used to acquire by birth an interest in the coparceneree. A coparcener has no defenate share in the coparceneree property but he has an undivided interest in it enlarges by deaths and diminishes by births in the family. It is not static. In view of the amendment in 2005, a daughter of a coparceneree became a coparcener. In this request there is no distinction between son and daughter. So long on partition, a share of ancestral property remains in the hand of single person, it has to be treated as separate property and such a person shall be entitled to dispose of the coparcener treating to be is separate property. Where the property which a coparcener gets on partition is ancestral property and a son or daughter are both is born to him. The said children will form coparceneree irrespective of the property allocated to the coparceneree on partition with their father. In
Arshnoor Singh Vs. Harpal Kaur reported in AIR 2019 SC 3098, wherein it is held that, „under Mitakshara, whenever a male ancestor inherent any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him, would get an equal right as coparceners in that property.‟ In Sushanth Vs. Sundhar Syam reported in 2014(NOC) 90 (Del), wherein it is held that, when no Hindu family is in existence at the material time, accordingly, the properties inherited by the deceased owner on demise of his father would became his personal property. As such, the son of the deceased owner would not acquire any coparceneree share in these properties till the owner was alive. Held that, the suit property was devolved on the son in his individual capacity on the death of owner and claim of the grandson of the deceased for Partition of the suit properties, on the ground that, the same were ancestral would be not maintainable. In Pushpalatha NV
Vs.V.Padma(AIR 2010 Kant 124), wherein it is observed that, a coparcenery is one who shares (equally) with others in inheritance in the estate of common ancestor. Otherwise called coparceners‟, are such as have equal portion inheritance of an ancestor or who come in the equality in the hands of their ancestors. A person to whom an estate desents jointly and who holds it as an entire estate. But, sometimes who are more persons together constitute the heir, 27
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ACJ (Sr.Dvn.), Eluru an to this case they took the land as parceners or coparceners, the later expression being the more common. In theory of law, coparceners together constituted a single heir, they be but one heir and yet several persons. They were called parceners because a coparcener have to common right to have a partition made. A male member of joint family and his sons, grandsons, great sons constitute a coparceneree. On other words three generations comes to the holder in un-broke male decendant. Coparcenery is a creature of law, it can‟t be created by acts of parties. By adoption, stranger may be introduced as a member thereof. It is a family unit.
Now, we have to see on whom burden lies. In Appasaheb Peerasaheb
Chandgade vs. Devendra Peerappa Chandgade and others (AIR 2006
SCW 5562), wherein it is observed that the initial burden is on the plaintiff to show that the entire property was a joint family property. After initial discharge of burden, it shifts on the defendants to show that the property claimed by them was not purchased out of joint family nucleus and it was purchased independent them. In D.S. Lakshmaiah and another Vs L.Balasubrahmanyam and another reported in 2003 (10) SCC 310, wherein it is held that there is no presumption being joint family property only on account of existence of a joint
Hindu family. The one who assets has to prove that, the property is a joint family property and the said principals is reiterated in Yerra Veeraiah Vs. Kanukuri
Santhamma and others reported in 2018 (4) ALT 523 and also in
Rayadurgham Subrahmanyam and others (Died) Vs.Rayidurgham
Gangayya (Died) and others reported in 2020 (6) ALT 141 A.P.
34. According to the above Judge made Law and statutory provisions, in a suit for partition, this is the burden of the plaintiff to prove the nature of the property that the same is belongs to grandfather of the plaintiff by name Golla
Venkata Swamy and he died intestate and after his demise the same was partitioned by his sons i.e., 1st defendant herein and Venkata Narasimharao under a registered Partition deed dt.03.01.1955.
Issue No.1 and Additional Issue No.1 (which is framed on
02.05.2023):-
35. On careful scrutiny of the evidence is available on the record on either side by way of oral and documentary, it is considered harmoniously. The claim of the plaintiff is that the plaint schedule property belongs to her 28
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ACJ (Sr.Dvn.), Eluru grandfather by name Golla Venkataswamy and he died intestate, subsequently the same was partitioned by the 1st defendant and his brother Venkata
Narasimha Rao under Ex.A1/Partition deed dt.03.01.1955. To prove the nature of the property, she relied on the Ex.A1/Partition deed dt.03.01.1955. There is no dispute in respect of the said partition and the nature of the property is concerned on the side of the defendants in respect of the Item Nos.1 to 3 of the plaint schedule properties are concerned, but there is a dispute with regard to the nature of the property in respect of the Item No.4 of the plaint schedule property. Since, there is no dispute in respect of the Item Nos.1 to 3 of the plaint schedule properties, the said properties belongs to deceased Golla Venkata
Swamy, who is father of the deceased 1st defendant herein and Venkata
Narasimharao and he died intestate and after his death, his sons i.e., 1st defendant and Venkata Narasimharao partitioned the same under
Ex.A1/registered Partition deed dt.03.01.1955.
36. Now, it has to be examined whether the Item No.4 of the plaint schedule property is the joint family property or self acquired property of 2nd defendant.
37. The learned counsel for the 2nd defendant argued that the burden is always on the plaintiff to prove the nature of the property and non examination of plaintiff, the adverse inference can be drawn. In support of his contention, he relied on Rayadurgam Subramanyam (died) and others vs.
Rayadurgam Gangaiah (died) and others, reported in 2020 (6) ALT 141
(AP), wherein it is held that non examination of the plaintiff is fatal to the case and adverse inference has to be drawn against the plaintiff under Section 114 of the Indian Evidence Act and the initial burden to prove that the plaint schedule properties are the joint family properties is on the plaintiff.
38. According to the written statement of the defendants 1 and 3 to 6 is concerned, it is pleaded that Item No.4 is Rice mill and land of Ac.0.63 cents and the site was purchased in the name of 2nd defendant and a rice mill was constructed in the said site in the name and style of Venkateswara Rice Mill and on 24.02.1986, the defendants 1 to 3 formed in to registered Partnership, which was registered with the Registrar of Firms of Andhra Pradesh under Section 58 (1) of Indian Partnership Act, 1932. It is also pleaded that the said partnership 29
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ACJ (Sr.Dvn.), Eluru deed shows that the 2nd defendant got constructed a rice mill under self employment scheme by taking loan from Andhra Pradesh State Financial
Corporations and from others and has been carrying business on business in paddy milling on hire in the year 1980.
39. Now, come to the written statement of 2nd defendant is concern, it is pleaded by him that Item No.4 of the plaint schedule property was purchased by the 2nd defendant under registered Sale deed dt.26.03.1980 from Maddula
Appalaswamy and his family members for valuable consideration of Rs.6,000/- out of his hard earned money subsequently to the partition of the joint family properties among the defendants 1 to 3 under registered partition deed dt.09.04.1997. It is also pleaded that the same is self acquired property of him and he purchased the same out of his own earnings and also constructed the rice mill by borrowing the Mill from the Andhra Pradesh State Financial
Corporation, Eluru and also invested running capital as well as capital required for development of the said rice mill out of his own earnings.
40. On scrutiny of the said pleadings, it indicates that the 2nd defendant purchased the said property with his hard earnings subsequent to the partition of the Item Nos.1 to 3 of the plaint schedule properties under registered
Partition deed dt.09.04.1997. On scrutiny of the Ex.B1/Sale deed dt.26.03.1980, it reveals that the said property was purchased prior to partition of the joint family properties, because Ex.B5/Partition deed dt.09.04.1997 evidencing that the said partition was done after purchase of the Item No.4 of the plaint schedule property. Where is the question of purchasing of the ItemNo.4 of the plaint schedule property prior to partition of the joint family properties.
Admittedly, the recitals of the Ex.B1/Sale deed not reveals the item No.4 of the plaint schedule property was purchased with the income derived from the joint family properties but own pleadings of the 2nd defendant evidencing that the said property was purchased with the income derived from the joint family properties which was partitioned among them but even the same was not partitioned as on the date of purchasing of the property. Further, the pleadings of 1st defendant and defendants 3 to 6 evidencing that the said property was purchased in the name of 2nd defendant. When, the joint family properties were not yet partitioned as on the date of purchase of the Item No.4 of the plaint schedule property, but it is not the plea of plaintiff that the Item No.4 of the plaint schedule property was purchased with the income derived from the joint family 30
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ACJ (Sr.Dvn.), Eluru properties and it is not her pleadings that the said property is not self acquired property of 2nd defendant in her pleadings specifically because even Item No.4 of the plaint schedule property is not covered under Ex.A1/Partition deed but she pleaded the said property is also property of the father of the 1st defendant and partitioned the same under Ex.A1/partition deed. It is settled law, that documentary evidence prevails than oral evidence under Indian Evidence Act and the recitals of the Ex.B1/Sale deed reveals that the said property was purchased by the 2nd defendant, but no recitals in the said document that the said property was purchased with the income derived from the joint family property. In the cross examination of D.W.1 also it is elicited by the learned counsel for the plaintiff that from the beginning, item No.4 of the plaint schedule property is the firm property. When the same was elicited as an admission from the cross examination of D.W.1 from the learned counsel for the plaintiff, what is more required that the said property is the firm property but not the joint family property. Therefore, the said property is the exclusive property of the 1st defendant.
41. Now, it has to be examined, when in the said Item No.4 of the site, the rice mill was constructed and run the business in the name of Sri
Venkateswara Rice Mill and run the same under registered partnership firm.
According to Section 14 of the Indian Partnership Act, 1942, subject to contract between the parties, the property of the firm includes all property and rights and interest in the property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm or for the purpose and in the course of business of the firm and includes also the good will of the business. Unless the contrary intention appears, the property and rights and interest in the property acquired with money belonging to the firm or deemed to have been acquired for the firm. Though, the learned counsel for the plaintiff pleaded that the Item No.4 of the plaint schedule property is not firm property but the documentary evidence which is available on record i.e., Exs.B2,
B3, B4, B7, B9 and B12 are very much evidencing about the same. Per contra, nothing was placed before this Court and so also nothing was elicited in the cross examination of D.W.1 to D.W.5. Therefore, taken into consideration of one version, the item No.4 of the plaint schedule property is the partnership firm property and in another version, it is the self acquired property of the 2nd 31
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ACJ (Sr.Dvn.), Eluru defendant. Therefore, the said property is nothing but exclusive property of the 2nd defendant.
42. Though, there is a dispute with regard to the execution of the Will, but in one version the plaintiff is admitting about the same by claiming the property covered under the said Will. Further, the said Will was proved with the supporting evidence of one of the attestor/D.W.6. His evidence proved the execution of the Will in all aspects as there are no any suspicious circumstances to suspect the same and there are no grounds to the defendants to dispel the suspicious circumstances. When the defendants are able to establish about the execution of the Will by examining the one of the witness under Section 68 of the Indian Evidence Act and under Section 63 (c) of the Indian Succession Act and plaintiff could not elicit any suspicious circumstances from the cross examination of D.W.6 and his evidence was not shaken in any angle in respect of the execution of the said Will and moreover the said Will is registered one, therefore there are no grounds to unbelieve the said Will. On scrutiny of
Ex.B11/Will dt.16.08.2005, the same was executed by the deceased 1st defendant during his life time in sound and disposing state of mind and recited in the said Will that when he and his sons were in joint, they purchased the property an extent of Ac.0.60 cents in R.S.No.339/1 of Pothunuru in the name of his elder son/2nd defendant under a registered Sale deed dt.26.03.1980 from
Maddula Appalaswamy and others. The learned counsel for the plaintiff argued that the recitals of the said will speaks as the nature of the property is joint family property, so, the said property is liable for partition. Though, the recitals of the said Will speaks about the same, but there are no specific recitals in the said Will that the said property was purchased with the joint family funds but it is only mentioned as they were in joint, the same was registered in the name of 2nd defendant. When there are no specific recitals about eth same, it cannot be treated as the said property is joint. Even it is assumed as a joint but once the said property is the property of the firm, it is the property of the firm. When the said recitals are believed by the plaintiff, the presumption is the other recitals of the said Will also are believed by the plaintiff. Therefore, according to the recitals of the said Will, the 1st defendant and his two sons entered into the partnership deed on 01.04.1992 under the name and style of Sri Venkateswara
Rice Mill and movable and immovable properties of said firm were divided among them as 40% share to the deceased 1st defendant and 30% share each to the defendants 2 and 3. In the said Will also it is recited that the said share shall be 32
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ACJ (Sr.Dvn.), Eluru bequeathed to the 7th defendant for her life interest and after her demise the same shall be bequeathed to the defendants 2 and 3 equally. Therefore, the
Item No.4 of the plaint schedule property is concern, is exclusive property of the 2nd defendant and later, his father and 3rd defendant entered into the partnership deed. In view of the discussion, the item Nos.1 to 3 of the plaint schedule properties are joint family properties, but item No.4 is concern is the exclusive property of the 2nd defendant but subsequently, the said property is the firm property. Accordingly the issue No.1 is answered in favour of the plaintiff against the defendants and the Additional issue No.1 is concern, is answered against the plaintiff and in favour of defendants.
Issue No.2:
43. Whether the defendants partitioned their properties on 09.04.1997 as alleged in their written statement?
According to the defendants 1 to 7 and defendants 12 to 16, item Nos.1 to 3 of the plaint schedule properties were partitioned under Ex.B5/partition deed dt.09.04.1997. The learned counsel for the defendants 1,3 to 7 argued that the burden is heavily lies on the plaintiff to prove that as on the date of filing of the present suit, there are coparcenary properties available and liable for partition, but undisputedly there was a registered partition deed between the defendants 1 to 3, therefore, under Section 6 (5) of the Hindu Succession Act, the plaintiffs have no right to seek the partition of the plaint schedule properties.
44. The learned counsel for the 2nd defendant argued that if there be any testamentary disposition of the property or partition which has taken place
before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha,
shall not be invaidated.
45. In order to strength his arguments he relied on Vineeta Sharma
Vs. Rakesh Sharma and others reported in 2020 (5) ALD 49 (SC), wherein it is held that if there by any testamentary disposition of the property or partition, which has taken place before 20.12.2004, under the amended Section 6, since the right is given by birth i.e., an antecedent event and the provisions operate concerning claiming rights on and from the date of amendment Act.
46. He also relied on M.Sujatha Vs. M.Surender Reddy and others, reported in 2015 (4) ALT 273 (D.B.), wherein it is held that the 33
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ACJ (Sr.Dvn.), Eluru amended Section 6 not applicable only to cases where disposition or alienation or partition had taken place before 20.12.2004 and where testamentary disposition of property was made before that date. For the purpose of new Section, partition means any partition made by a registered partition deed or by a decree of court.
47. He rightly argued on this aspect because the amendment was introduced to the Section 6 of the Hindu Succession Act, which came into force on 09.09.2005. The proviso to the Sub-Section (1) of the Section 6 as follows:- that provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation, including any partition or testamentary dispossession of property, which had taken place before 20th day of December, 2004. Therefore, the daughters are not entitled to claim the share over the coparcenary property or joint family property by virtue of Section 6 (1) of the
Act, if the partition had taken place before the 20th day of December,2004. It is significant note that the daughters have became coparceners with effect from 09.09.2005 only but prior to that when there is a registered partition deed among the family members in respect of either coparcenary property or joint family property, they have no right to claim the partition. In the instant case on hand, prior to 20.12.2004, the item Nos.1 to 3 of the plaint schedule properties were partitioned among the defendants 1 to 3 under Ex.B5/Partition deed, therefore, the plaintiff is not entitled to claim the partition over the said properties. Since the defendants 1 to 3 partitioned their properties under a registered partition deed dt.09.04.1997 as alleged in the written statement, the plaintiff has no right to claim the right as one of the coparcener to seek the partition of the said properties.
Additional Issue No.2 (which is framed on 02.05.2023):-
49. Whether the Item No.4 of the plaint schedule property is in possession and enjoyment of the defendants 12 to 16?
Though, the defendants 12 to 16 and deceased 2nd defendant pleaded that the item No.4 of the plaint schedule property is in exclusive possession and enjoyment of them but to establish the same, nothing is placed before this Court and further their version is that there is a partnership deed in between the deceased defendants 1 and 2 and 3rd defendant and all of them are one in the said business under partnership firm and so also in the said partnership deed, they mentioned about the shares specifically. Therefore, the question of 34
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ACJ (Sr.Dvn.), Eluru exclusive possession of the defendants 12 to 16 does not arise when the said property is the firm property and defendants 1 to 3 are partners of the said property and they are having specific shares over the said property. Though, in the cross examination of D.W.1, deposed that he do not know about the existence of the Will and execution of the same by the deceased 1st defendant and to dispute of the same, nothing was elicited from the cross examination of
D.W.6, therefore, after demise of deceased 1st defendant and his wife, the share of him bequeathed to the deceased 2nd and 3rd defendants, so exclusive possession of the defendants 12 to 16 over the said property is not established and 3rd defendant and defendants 12 to 16 are in possession and enjoyment of the said property. Therefore, the said additional issue answered against the defendants 12 to 16 and in favour of the defendants 3 to 6.
Additional Issue No.1 (which is framed as per the docket order
dt.14.11.2019):-
41. Whether the defendants 8 to 10 are entitled 1/12th share each of the plaint schedule property?
The learned counsel for the defendants 3 to 6 argued that the defendants 8 to 10 are the legal heirs of the plaintiff but when she is alive, they are not entitled for the alleged share, therefore, the defendants 8 to 10 have no right to say anything in this suit. He further argued that the plaintiff or the defendants 8 to 10 have not filed any written statement with regard to the pleadings on behalf of the 7th defendant that her husband (1st defendant) executed a registered Will dt.16.08.2005 in sound and disposing state of mind and the said
Will is last Will and testament, therefore, under the provisions of the CPC, the pleadings of the 7th defendant with regard to the Ex.B11/Will remained unchallenged and deemed to have been admitted by the plaintiff and the defendants.
42. He further argued that secondary evidence can be permitted but
before permitting the same, the nature of documents and probative value of
documents and probabilities of tampering of documents have to be taken into consideration.
43. To substantiate his arguments, he relied on Krishnapatnam Port
Co. Ltd., Hyderabad Vs. Cargill India Private Limited, New Delhi and
35
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ACJ (Sr.Dvn.), Eluru another reported in 2018 (5) ALD 13 (DB), wherein it is held that before permitting xerox copies into evidence, nature of documents and probative value of documents and possibilities of tampering of documents have to be taken into consideration.
44. He also relied on Gonepalh Rajamallaiah Vs. Ragipalli
Rajaram @ Pedda Rajaram @ Rajamreddy and others, reported in 2017
(3) ALD 511, wherein it is held that certified copy of the registered Sale deed is admissible in evidence as a secondary evidence in the absence of original and permission cannot be declined on the basis of contentions of the defendant, its original is not genuine. He also relied on Theresa Vs. Special Court under A.P.
Land, decided on 22.09.1998.
45. The learned counsel for the 2nd defendant also took the same stand and relied on Keshav Reddy Vs. Bal Reddy and others reported in 2016 (2) ALT 219, wherein it is held that secondary evidence relating to the documents may be given. Section 66 of the Evidence Act cannot be invoked by a party holding secondary evidence seeking a direction to a party to produce original document without first establishing as to the existence of such document.
46. The learned counsel for the plaintiff argued that even assuming the alleged registered Will dt.16.08.2005/Ex.B11, if considered, the 7th defendant became the absolute owner of the Item Nos.1,3 and 4, who died intestate in which the plaintiff is entitled 1/6th share out of 1/6th share, the defendants 8 to 10 are having 1/18th share in the item Nos.1,3 and 4 of the alleged Will dt.16.08.2015. The stand was also taken by the learned counsel for the defendants 8 to 10. He also argued that Ex.B11 original Will was not placed
before this Court, therefore, the said Will is not admissible in evidence.
47. Having considered either side stands in respect of the said aspect, though the plaintiff denied the Will in one version but assumed in another version about the existence of the said Will and her children also take the same stand, so, non filing of original Will does not arise and Ex.B11/Will can be considered as a secondary evidence, because it is a registered one and above rulings which are relied by the learned counsel for the defendants 3 to 6 are applicable to the present case facts on hand. Though, in one version they accepted and in another version they denied about the existence of the said 36
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ACJ (Sr.Dvn.), Eluru
Ex.B11/Will, but 7th defendant took the plea as her husband executed the said
Will during his life time and the same is proved with the one of the attesting witness i.e., D.W.6. As already stated above, the said Will was proved and there are no suspicious circumstances to disbelieve the said Will. Therefore, there is an existence of the Ex.B11/Will in respect of the share of the deceased 1st defendant covered under Ex.B5/Partition deed. It is specifically recited in the said Ex.B11/Will that Item No.1 of the Ex.B5/Partition deed i.e., an extent of
Ac.1.62 ½ cents out of Ac.4.87 ½ cents in R.S.No.338/10 of Pothunuru was fell to the share of deceased 1st defendant and in the said property, Ac.1.02 ½ cents land was bequeathed to the 7th defendant along with the alienation rights and the remaining extent of Ac.0.60 cents was bequeathed to the defendants 4 to 6 equally.
48. The remaining properties covered under the said Will, he bequeathed to the others, but life interest was given to the 7th defendant. Now, come to the Item No.2 of the schedule „A‟ of the Ex.B5/Partition deed is the part of the Item No.2 of the plaint schedule property herein. The said property also was given for life interest to the 7th defendant but after her demise, the same bequeathed to the Triloknadh. Therefore, the share of the deceased 1st defendant in the item No.1 and 2 of the plaint schedule properties are concern, there is a testamentary instrument i.e., Ex.B11/Will herein in favour of his wife and his daughters, and grand children and sons except plaintiff. Once, there is a testamentary instrument for the property partitioned between the 1st defendant and his two sons, the question of claiming of the partition over the share of the deceased 1st defendant does not arise.
49. Now, come to the property which is an extent of Ac.1.02 ½ cents is concerned which is part and parcel of the Item No.1 of the plaint schedule property, the absolute rights were given to the 7th defendant after his demise, but during the lifetime of the 7th defendant, there is no any testamentary instrument in respect of the said property. Therefore, all the legal heirs of 7th defendant are entitled for the partition of the said property.
50. The learned counsel for the plaintiff argued with regard to the remaining properties of the deceased 1st defendant covered in Ex.B11/Will that 37
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ACJ (Sr.Dvn.), Eluru once life estate was given to the women, Section 14 of the Hindu Succession Act, will play the role as the same is the absolute property of the women.
51. The learned counsel for the defendants 3 to 6 argued that when a
Hindu executed a Will and bequeathed his property to his son and grandson with absolute rights by giving limited rights/life interest to his wife, such limited rights can never be enlarged into absolute rights and the said proposition was upheld by the Shivdev Kaur (D) by Lrs. and others vs. R.S.Grewal decided on
20.03.2013 and Gaddam Ramakrishnareddy and others Vs. Gaddam
Rami Reddy and another, decided on 14.09.2010.
52. As rightly argued that the learned counsel for the plaintiff as above,
Section 14 (1) of the Hindu Succession Act, says that property given to Hindu female with limited right, her entitlement to transfer the property is not given, property bequeathed to her wife by her husband under a Will creating limited interest in her favour for her life with estate remainder to the other legal heirs.
When there is no pre existing right to be maintained, the limited interest created in her favour is not became absolute right under Section 14 (1) of the Act and
Section 14 (2) of the Act, does apply as it appears to cases where property is given to a Hindu Female for the first time without any pre existing right. It is clear that when there is no pre existing right for Hindu female for her maintenance, the Section 14 (1) not applicable and Section 14 (2) of the Act does attract. Therefore, in the present case on hand, the testator of the
Ex.B11/Will not created any pre existing right to the 7th defendant over his share of his property for her maintenance and only it is recited that she shall enjoy the said properties during her life time and after her demise the same will be devolved to whom the same was executed. Therefore, the question of absolute rights to the 7th defendant over the share of the deceased 1st defendant which is part of the property in Item No.1,2 and 4 of the Plaint schedule property.
Therefore, the children/defendants 8 to 10 of the plaintiff are not having right over the properties to claim the partition of 1/12th share each of the plaint schedule property and they are not entitled to 1/12th share each of the plaint schedule property.
Issue No.3
53. Whether the plaintiff is entitled for partition of the plaint schedule properties and for allotment of 1/7th share in the plaint schedule property?
38
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ACJ (Sr.Dvn.), Eluru
The learned counsel for the plaintiff argued that the plaintiff proved that the plaint schedule properties are joint family properties and their family is joint nucleus and the same was purchased in the income of joint family property and she discharged her burden. Therefore, the onus of proof shifted on to defendants to substantiate stand taken by them under Section 101 of Indian
Evidence Act.
54. The learned counsel for the defendants 3 to 6 argued that this suit is not maintainable without impleading all members of joint family as well as without including all properties of joint family property and the plaintiff not disclosing in plaint that she is having one sister but cross examination of her admitted that she is having one sister, therefore, suit not maintainable for failure to implead sister.
55. In support of his contention, he relied on Yeluru Ramakrishna
Vs. Yeluru Venkateshwarlu and others reported in 2018 (2) ALD 361, wherein it is held that without impleading all family members of joint family as well as without impleading all properties of joint family, the suit is not maintainable.
56. He also relied in Moreshar Yadaorao Mahajan Vs. Vyankatesh
Sitaram Bhedi (D) thr. Lrs. and others, decided on 27.09.2022, wherein it is held that a necessary party is a person who ought to joint in as a party and in whose absence no effective decree could be passed at all by the Court. If a necessary party is not impleaded, suit itself is liable to be dismissed.
57. The burden was discharged by the defendants in respect of the nature of the property that the plaint schedule properties 1 to 3 were partitioned prior to 09.09.2005 and Item No.4 of the plaint schedule property is firm property. Now, come to the non joining of necessary parties and non joining of properties concern, his stand is that remaining legal heirs i.e., who are sons and daughters of defendants 3 to 6 are not added when plaintiff added the defendants 8 to 10 as her legal heirs for the partition of the deceased 1st defendant and 7th defendant. Though, they were added as claimed the 1/12th share but it is not a ground to the defendants 3 to 6 as non joining of necessary parties because, the defendants 3 to 6 are alive and plaintiff is also alive, therefore, the question of non joining of parties does not arise but mis joinder of 39
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ACJ (Sr.Dvn.), Eluru parties will arrive as defendants 8 to 10. Therefore, the question of not maintainable of the suit on that ground not sustainable.
58. Now, come to the non joining of other properties are concerned, they are not specifically pleaded, but Ex.B11/Will speaks about the same, but when there is a testamentary instrument and the same was claimed by the defendants 3 to 7 themselves, the non joining of joint family properties does not arise. The above ruling is different to the present case facts on hand.
59. The learned counsel for the defendants 3 to 6 argued that when specific plea raised by the defendants in their written statement that the deceased executed a Will bequeathing the properties to the plaintiffs but suit property was exclusively bequeathed to the defendants and plaintiffs not filing any rejoinder, in the absence of rejoinder suit becomes untenable as plea raised by the defendants virtually stands unrebutted and therefore, the very cause of action seek relief of partition became shaky.
60. In order to strengthen his arguments, he relied on Yadla Venkata
Subbamma and others Vs. Yadla Punnamma and others, reported in
2012 (3) ALD 88, wherein it is held that in the absence of rejoinder, becomes untenable as plea raised by the defendants virtually stands unrebutted and therefore, the very cause of action to seek relief for partition became shaky.
61. Admittedly, rejoinder is not filed by the plaintiff in spite of taking the plea of existence of the Ex.B11/Will by the 7th defendant but to seek the relief of partition, it is the burden of the plaintiff to establish that the nature of the property and her joint possession over the plaint schedule property as on the date of filing of the suit but mere non filing of the rejoinder is not a ground for dismissal of the partition suit and it amounts to admission of the Will. Therefore, there is no force on the said arguments.
62. The learned counsel for the 2nd defendant argued that suit is not maintainable against the unregistered firm. Subsequent registration during the pendency of the suit will not cure initial and fatal defect in case of effect of non registration of plaintiff partnership firm
63. In order to strengthen his arguments, he relied on New India
Assurance Co. Ltd., Tadepalligudem Vs. Varsha Aqua Farm,
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ACJ (Sr.Dvn.), Eluru
Visakhapatnam, reported in 2018 (2) ALD 291, wherein it is held that suit by partner of unregistered firm against another partner not maintainable. Once, there is a agreement of partnership, unless it is registered no suit can be maintained by partners for enforcing any right accruing from such agreement.
64. He also relied on Penki Aruna Kumari Vs. Sunkari Tirumala
Rao and others reported in 2019 (6) ALD 4 (AP), wherein it is held that no suit to enforce a right arising from contract, shall be instituted in any Court by or on behalf of the firm against any third party unless the firm is registered and the person sueing or have been shown in the register of firm as partners in the firm.
65. It is rightly argued by the learned counsel for the 2nd defendant, but it is not a suit for exclusively with regard to the firm property and it is the suit for partition but the stand was taken by the 2nd defendant as the 4th item of the plaint schedule property is firm property, so on that ground suit is not maintainable does not arise.
66. In view of the above discussion, the plaintiff is unable to establish the nature of the property as the joint family properties and defendants 1 to 3 partitioned their properties under a registered partition deed dt.09.04.1997 and item No.4 of the plaint schedule property is the exclusive property of the 2nd defendant, therefore the plaintiff is not entitled for partition of the all the plaint schedule properties except part of the item No.1 of the plaint schedule property i.e., an extent of Ac.1.02 ½ cents out of Ac.1.62 ½ cents in R.S.No.338/10 of
Pothunuru village. Accordingly, the issue is answered.
Issue No.4:-
67. Now come to the mesne profits is concerned, the plaintiff did not place any proof of document before this Court with regard to the same, therefore she is not entitled for any mesne profits in respect of the part of the plaint schedule property is concerned. Accordingly, the issue is answered against the plaintiff.
Issue No.5:-
68. In the result, the suit is decreed partly by passing preliminary decree for partition of the part of the property in item No.1 of the plaint schedule property i.e., an extent of Ac.1.02 1/2 cents out of Ac.1.62 1/2 cents in 41
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ACJ (Sr.Dvn.), Eluru R.S.No.338 of 10 of Pothunuru village in to six equal shares and allot one such share to the plaintiff and defendants 8 to 10, and one share to the 3rd defendant, one share to the 4th defendant one share to the 5th defendant, one share the 6th defendant, and one such share to the defendants 12 to 16, who are the legal heirs of deceased 2nd defendant. With regard to the remaining properties is concern, the suit is dismissed. Under the facts and circumstances both parties do bear their own costs.
Typed to my dictation by the Stenographer Grade-II, corrected and pronounced by me in open Court this the 12th day of April, 2024.
Sd/-. P.Vijaya
ADDITIONAL CIVIL JUDGE (SENIOR DIVISION),
ELURU.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:
PW.1: Tammana Srirama Chandra Murthy
FOR DEFENDANTS:
DW.1:G.Venkateswara Rao DW.2:Maddula Haribabu DW.3:Maddula Lakshmana Rao DW.4:Golla Sita Rama Vara Prasad @ Rambabu DW.5:Golla Ashok Kumar DW.6:Chalasani Satyanarayana DW.7:Tammana Ashok Kumar
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A1:Certified copy of Partition deed dt.03.01.1955; Ex.A2:Office copy of legal notice issued by plaintiff to the defendants; Ex.A3:Reply notice given by the defendants 1 to 3 dt.27.01.2006; Ex.A4:Reply notice given by the defendants 4 to 6 dt.30.01.2006;
Ex.A5:Valuation slips relating to Item Nos.1 to 4 of plaint schedule property; 42
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ACJ (Sr.Dvn.), Eluru
FOR DEFENDANTS :-
Ex.B1:Certified copy of Registered Sale deed dt.26.03.1980 in the name of 2nd defendant relating to the Item No.4 of the plaint schedule property;
Ex.B2:Attested copy of General loan ledger dt.08.09.1980 issued by Department of Industries, Eluru, relating to the Item No.4 of the plaint schedule property;
Ex.B3:Factory license dt.17.03.1981 issued by Factories and Boilers Department of Andhra Pradesh, Eluru relating to the item No.4 of the plaint schedule property;
Ex.B4:Factory license dt.19.10.1992 issued by Factories and Boilers Department of Andhra Pradesh, Eluru relating to the item No.4 of the plaint schedule property;
Ex.B5:Certified copy of registered Partition deed dt.09.04.1997 relating to the properties of the 2nd defendant‟s family;
Ex.B6:Lease Agreement dt.22.03.2016 among the defendants 1 to 3;
Ex.B7:Loan application dt.20.08.1980 and sanction order issued by State Finance Corporation, Eluru;
Ex.B8:Registered Sale deed dt.09.08.1990 in the name of 2nd defendant relating to the House site in an extent of 81.3 sq. yards in R.S.no.339/1;
Ex.B9:Copy of letter dt.15.05.1997 addressed to the Manager, Indian Bank, Eluru by the defendants 1 to 3;
Ex.B10:Certified copy of registered lease deed dt.16.10.2006 executed by the partners of the firm;
Ex.B11:Certified copy of Registered Will dt.16.08.2005 executed by 1st defendant;
Ex.B12:Signatures of 2nd defendant on each page of the Xerox copy of the unregistered partnership deed dt.01.04.1992;
Id/-. P.Vijaya
A.S.C.J,
ELURU.
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