Andhra Pradesh High Court – Amravati
Parnasala Kasivisala vs Nanduri Padmavathmma on 17 June, 2025
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
APPEAL SUIT No.852 of 2012
and
I.A.No.12 of 2012 (CROSS OBJECTIONS No.16690 of 2012)
COMMON JUDGMENT:
1. O.S.No.33 of 2007 was a suit for partition among siblings
and some of their legal heirs. After due trial, by a judgment dated
05.06.2012, learned Additional District Judge – cum – Family
Court, Ongole decreed the suit in part. That left both sides not
satisfied. D2 and D3 preferred A.S.No. 852 of 2012 in terms of
section 96 read with Order 41 Rule 1 CPC. The five plaintiffs
before the trial court preferred their cross appeal in terms of Order
41 Rule 1 CPC.
2. Heard arguments of Sri Y. Ramatirtha, the learned counsel
for appellants in the appeal and Sri Y.V.Ravi Prasad, the learned
senior counsel being assisted by Sri Y.V.Anil Kumar for
respondents in the appeal. Written arguments are filed and
precedents are cited on both sides.
3. The emanation of dispute is in the context of following
facts.
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Sri P. Veeraraghavacharyulu and Smt. P. Rajya
Lakshmamma are spouses. During their marital life, they were
blessed with two sons and six daughters. The sons are Sri
P.Mohana Krishnamacharyulu and Sri Kesavacharyulu. The
daughters are Smt. N.Padmavathamma, Smt. Suseela Devi, Smt.
D.Vijayalakshmi, Smt. N.Radha Devi and Smt. V.Seetha Devi and
Kumari Vani Kumari. The last of the children Kumari Vani Kumari
died unmarried long time before the suit was laid and nothing
concerning her is involved in the suit. Smt. Suseela Devi also
died prior to the institution of the suit. The surviving four
daughters and the son of late Suseela Devi joined together and
filed O.S.NO.33 of 2007 praying for partition of the plaint
schedule property into seven equal shares and allot one share to
each of the plaintiffs and grant separate possession after
considering good and bad qualities of the properties mentioned
in the plaint schedule. They also prayed for mesne profits to be
determined by a separate application and for costs and such
other reliefs.
4. Seven items of immovable properties were shown in the
plaint schedule. It is about all those properties, the suit was laid.
Initially, the suit was filed as against the eldest son of the Hindu
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spouses/ Sri P. Mohana krishnamacharyulu/ D1. By the time of
the suit, the other son/ Sri P.Kesavacharyulu died. His wife and
his daughter were shown as D2 and D3. The plaint was
presented on 28.03.2007 and was registered on 11.04.2007.
During the pendency of the suit, Sri N.Ramarao and Sri U.
Venkataramireddy were impleaded as D4 and D5 by the trial
court on 02.06.2008.
5. Sri P.Veera Raghavacharyulu died on 26.02.1986. His wife/
Smt. P. Rajya Lakshmamma died on 08.12.1995. Thus, it was
after the death of parents, the suit had come to be filed.
6. In the plaint, it was stated that the marriages of all the
daughters of the Hindu spouses were solemnized earlier to 1976.
That all the plaint schedule properties are the joint family
properties. It is further stated that the eldest son of the Hindu
spouses/ D1 has been living in Chennai eking out his livelihood.
Even after the death of the parents, the property remained joint
family properties. Despite demands for partition, there was no
positive move from the defendants. Sri Kesavacharyulu who is
husband of D2 and father of D3 was managing the properties and
was utilizing their profits. For sometime, plaintiffs were given their
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portions of revenue from the joint family properties. Plaintiffs and
defendants are in joint possession and enjoyment of the
properties in the eyes of the law. Since the Hindu spouses had
five daughters and two sons, the prayer in the suit is for equal
distribution of assets among them. In other words, the property
was prayed to be divided into seven equal parts and allot one part
to each of the children of the Hindu spouses.
7. D1 who was the eldest son of the Hindu spouses filed a
written statement wherein he admitted the relationship among the
parties and showed his willingness to have the division of
properties into seven parts and asserted that the plaint schedule
properties were ancestral joint family properties and by his written
statement, he prayed the court to decree the suit as prayed for.
8. D2 and D3 who were successors of late Kesavacharyulu
who the other son of the Hindu spouses put up their contest. D2
filed a written statement and D3 filed a memo adopting it. They
admitted the relationship among the parties. They asserted that
D1 left the family in or about 1970 and went to Madras and he
has been living there. D1 took huge amounts in cash which are
over and above his share in the joint family properties and he
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utilized them for purchasing the house at Madras and for the
other expenses of his livelihood. It is on that assertion they
claimed in the written statement that D1 got divided from the joint
family.
9. The pleaded case of D2 and D3, further, is that late
Veeraraghavacharyulu and his second son/ Kesavacharyulu
alone constituted joint Hindu family. On 16.12.1985 in sound and
disposing state of mind, Sri Veeraraghavacharyulu executed a
will consisting of A schedule and B schedule. A schedule therein
is a house which is item No.6 of the plaint schedule. He
bequeathed it to his own wife/ P. Rajya Lakshmamma. All the
remaining properties were bequeathed to Kesavacharyulu and
they are shown in B schedule in the will, and they consist of item
Nos. 1 to 5 and 7 of the plaint schedule. On death of Sri
Veeraraghavacharyulu on 26.02.1986, the will came into
operation and the will was acted upon. The beneficiaries under
the will obtained possession of the properties and have been
enjoying them in their own right.
10. The further pleaded case of D2 and D3 is that Smt.Rajya
Lakshmamma who is mother of late Kesavacharyulu executed a
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will dated 26.11.1995 in a sound and disposing state of mind and
bequeathed the house she got from her husband through the will
and the benefit was conferred to Sri Kesavacharyulu. Smt. Rajya
Lakshmamma died on 08.12.1995 and the will came into
operation and Kesavacharyulu being the legatee under the will,
took possession of the house/ item No.6 of the plaint schedule
and has been in possession and enjoyment in his own right. After
the death of Sri Kesavacharyulu, his wife/D2 and his daughter/D3
being his legal heirs have been in possession and enjoyment of
these properties. It is further stated that the properties ceased to
be joint Hindu family properties and the properties have been in
possession and enjoyment of Sri P.Kesavacharyulu and
thereafter, his successors in their own right. Even otherwise, they
perfected their title by adverse possession. That the suit is not
maintainable. Since the time of death of Sri P.V.Raghavacharyulu
on 26.02.1986, there was no joint family at all. The suit for
partition is not maintainable as it is misconceived. Daughters of
Sri Veeraraghavacharyulu having been married earlier to 1976,
do not possess any rights over these properties. The court fee
paid is incorrect and they prayed for the dismissal of the suit.
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11. D4 and D5 who are stated to be purchasers of some
properties belonging to the family did not choose to appear
contest.
12. The learned trial court settled the following issues for trial: –
1. Whether plaintiffs are entitled for partition of plaint schedule
property and separate possession of 5/7th share therein as
prayed for?
2. Whether plaintiff is entitled to future profits from date of suit,
If so for what sum or with what observations / directions
and against whom and with what interest and for what
period?
3. To what result?
To sustain their respective cases, 5th plaintiff testified as PW.1
and 4th plaintiff testified as PW.2. No documents were exhibited
on their behalf. On the other side, D1 testified as DW.1 and got
marked Ex.B1 to B3. D2 who was the wife of late Kesavacharyulu
testified as DW.2 and got marked Ex. B4 to B10. In Proof of Ex.
B9 and B10 wills, the attesters and scribe of the said wills were
examined as DW.3 to 9.
13. After considering the arguments advanced on both sides
and the evidence placed on record, the learned trial court took the
view that late Veeraraghavacharyulu died on 26.02.1986 and by
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virtue of Section 6 of the Hindu Succession Act, 1956 as existing
by then there was notional partition. In the said notional partition,
the sharers were late P.Veeraraghavacharyulu and his two sons.
Since Sri Veeraraghavacharyulu died his 1/3rd share in the
properties were to be divided among his five daughters and two
sons who are all class I legal heirs. It is further held that
daughters became coparceners by virtue of Hindu Succession
Amendment Act, 2005. That amending Act applies only
prospectively. However, since Sri Veeraraghavacharyulu died
long prior to the commencement of the said amendment of Hindu
Succession Act, 2005, the principle of notional partition was to be
applied. It concluded saying that the plaintiffs/daughters of late
Raghavacharyulu were only entitled for their share in the share
that fell to their father/ late Veeraraghavacharyulu in the notional
partition and they share it along with their sibling brothers;
Whereas the sibling brothers by virtue of the notional partition got
their respective 1/3rd share in addition to what they got from the
share of their deceased father. It considered the two sale deeds
such as Ex.B2 and B3 executed by D1 and his brother/
Kesavacharyulu in favour of D4 and D5 and ordered for
adjustment of equities. After recording its reasons, the learned
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trial court stated that there have been serious suspicious
circumstances surrounding Ex. B9 and B10 Wills and therefore
discarded the wills from its consideration. It decreed the suit in
the following terms:
In the result, this suit is decreed in part, accordingly
preliminary decree is passed directing the division of plaint
schedule properties into 21 shares and to allot plaintiffs
together five such shares, eight such shares to D1 and
remaining eight such shares to D2 and D3. As D1 and late
Kesavacharyulu sold the property to D4 and D5 under
Ex.B2 and B3, D4 and D5 are entitled to equities if the
extents sold to them is part and parcel of any of the plaint
schedule items and said extent shall be adjusted from out
of the share of D1 and share of late Kesavacharyulu, which
is to be allotted to D2 and D3. Parties are at liberty to make
a separate application to pass final decree in terms of this
preliminary decree for allotment of property as per their
aforesaid shares by metes and bounds. Considering the
facts and circumstances, there is no order as to costs.
Each party shall bear their own costs in this suit.
14. It is that judgment that has been criticized by both sides in
this appeal and cross appeal. In the appeal preferred by D2 and
D3 various grounds are urged in the memorandum
I. The judgment is contrary to facts, evidence and law.
II. Ex. B9 and B10 wills were validly proved and the
assessment of the trial court is invalid
III. Since the properties were obtained by Kesavacharyulu
under Ex. B9 and B10 wills, they were no more available
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for partition and the suit for partition itself was not
maintainable
IV. The letters addressed by D1 contain clear admissions of
relinquishment of his rights over the schedule properties
but the trial court erred in granting a share
V. Hindu Succession Act, 1956 as well as amendment to the
Hindu Succession Act in the year 2005 have no application
to the property involved in the suit, but the trial court
committed error in applying the provisions of the said
enactments
VI. All the properties have been in exclusive possession of late
Kesavacharyulu and they were not held jointly by the other
family members
VII. The court fee paid in the suit was incorrect
VIII. Item Nos.1 and 2 of the plaint schedule were sold out by
late Kesavacharyulu under registered sale deeds.
IX. Part of item Nos.3 and 5 were also alienated under an
agreement for sale – cum – GPA to the third parties by the
present appellants
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X. Subsequent purchasers were not impleaded by plaintiffs in
the suit and such non-joinder should have resulted in
dismissal of the suit
15. Learned counsel for appellants had drawn the attention of
this court to the various parts of the evidence so as to
demonstrate that Ex. B9 and B10 wills were validly executed and
due regard should be given to those testaments. Reliance is
placed on HV Nirmala Vs R Sharmila1 and Mallamma Vs
N.Gangamma2
16. Learned counsel for appellants argued that since Sri
Veeraraghavacharyulu died on 26.02.1986 survived by two of his
sons and five of his daughters and widow of the deceased
Veeraraghavacharyulu, the Hindu Succession Act (Amendment
Act 39 of 2005) is not retrospective in its operation and the rights,
if any, of the daughters come into effect only from the
commencement of the Amendment Act 2005. As on 09.09.2005/
date of commencement of Amendment Act, 2005, there was no
Coparcenery existing in the present case. By virtue of the wills
executed by Veeraraghavacharyulu/Ex. B9 and thereafter, late
1
2018 (2) ALT (SC) 41 (DB)
2
2018 (1) ALT 98 (DB)
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Rajya Lakshmamma/Ex.B10, the property vested in late
Kesavacharyulu. The un-amended Section 6 of the Hindu
Succession Act, 1956 alone need be applied. The impugned
judgment is erroneous in the light of the above principles. In
support of these contentions, the following rulings are cited.
• Uttam Vs Soubhag Singh3
• Prasanta Kumar Sahoo Vs Charulata Sahu4
• Revanasiddappa Vs Mallikarjun5
• Vineeta Sharma Vs Rakesh Sharma6
• Karunanidhi Vs Seetharama Naidu7
• Smt.Raja Rani Vs The Chief Settlement Commissioner8
• Anar Devi Vs Parmeshwari Devi9
• Appropriate Authority (IT DEPTT) Vs M.Arifulla10
• P .Govinda Reddy Vs Golla Obulamma11
• Ganta Appalnaidu Vs Ganta Narayanamma12
3
AIR 2016 SC 1169
4
(2023) 9 SCC 641
5
(2023) 10 SCC 1
6
(2020) 9 SCC 1
7
AIR 2017 SC 1632
8
AIR 1984 SC 1234
9
AIR 2006 SC 3332
10
(2002) 10 SCC 342
11
AIR 1971 AP 363
12
AIR 1972 AP 258
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• Gurupad Khandappa Magdum Vs Hirabai Khandappa
Magdum13
17. The plaintiffs in their cross appeal took the stand that the
trial court committed error in applying the principle laid down in
Anar Devi’s case14. Since the said ruling was under un-amended
Section 6 of the Hindu Succession Act, by virtue of amending Act,
2005, the daughters became coparceners by birth and the
notional partition that arose on the death of late
Veeraraghavacharyulu is confined only to determine the share of
the deceased coparcener by name late Veeraraghavacharyulu
and nothing beyond that and that the property continued to be
joint Hindu coparcenery and since there was no partition of the
same, it remained joint. The trial court committed grave error in
not granting equal share to the daughters along with the sons.
Disallowing mesne profits was another error on part of the trial
court. In support of these contentions, learned counsel cited
• Vineeta Sharma Vs Rakesh Sharma15
• Prasanta Kumar Sahoo Vs Charulata Sahu16
13
AIR 1978 SC 1239
14
Supra 9
15
(2020) 9 SCC 1
16
2023 SCC Online SC 360
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A.S.No.852 of 2012 & Batch
• Kavita Kanwar Vs Pamela Mehta18
• Achutuni Sitharavamma Vs Turaga Ananda20
18. Before adverting to the material on record and the rival
submissions, one has to keep in mind the principles laid down by
the Hon’ble Supreme Court of India in Shashidhar Vs Smt.
Ashwini21. Adverting to the suit for partition and separate
possession filed by co-sharer, coparcener, co-owner or joint
owner seeking an individual share qua others, the courts have to
consider settled principles of law governing the adjudication of
issues such as
• family tree
• inter-se relation of family members
• relevant law applicable for owning succession of such
properties
• nature and character of the suit property
17
(2022) 3 SCC 209
18
(2021) 11 SCC 209
19
(2022) 8 SCC 798
20
CRP.No.1364 of 2010 of Hon’ble High Court of AP
21
2015 (11) SCC 269
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• mode and source of acquisition of the said property,
whether self acquired property or ancestral property
• whether the interest in the property was acquired by
succession or devolvement /Sections 6 and 8 of the Hindu
Succession Act, 1956
• if the property is not self acquired property, who are the
joint owners or coparceners
• consequent upon death of a person having interest in the
property, how the property devolved on the living members,
and in what proportion
• whether the person having interest in the property died
intestate or left behind any testamentary succession in
favour of family member or outsider in respect of
inheritance of his share in the property
• whether the suit properties are capable of being partitioned
19. Keeping focus on the above principles and based on the
contentious facts, the necessary points have to be settled for
adjudication.
20. The following points fall for consideration in these appeals.
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1. Whether the plaint schedule properties are ancestral
properties held by the joint family during the lifetime of
late P. Veeraraghavacharyulu?
2. On assuming that the plaint schedule properties were
ancestral joint family properties, whether they ceased
to be joint family properties, and if so, when and how
that transformation took place?
3. What was the legal effect of death of late P
Veeraraghavacharyulu on 26.02.1986?
4. Whether Ex. B9, B10 wills shall be given affect to?
5. Whether the impugned judgment of the trial court is
required to be modified?
Point Nos. 1, 2, 3 and 4: –
21. The facts that are not in dispute are that Sri
P.Veeraraghavacharyulu and Smt. Rajyalakshmamma and their
five daughters and two sons were together at one point of time.
All the daughters were married prior to 1976 and the sons were
also married. Each of these family members has been living at
different places. For quite some time, late Veeraraghavacharyulu
and his wife were with their younger son/ late Kesavacharyulu. It
is in the evidence of DW.2 who is the wife of late Kesavacharyulu
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that a month prior to his death late Veeraraghavacharyulu went to
Eluru and lived with his daughters and he died there and his
daughters performed all obsequious. The plaint schedule consists
of agricultural lands as well as a house. The oral evidence on
both sides clearly indicated that for the education and marriages
of the children, the family was dependent on properties and a few
of the properties were sold out to meet such expenses. The
remaining properties are mentioned in the plaint schedule.
22. The plaintiffs in the suit/ daughters pleaded and deposed
as PWs.1 and 2 that all the plaint schedule properties of their
family were ancestral properties. The pleaded case of their elder
brother/D1 in the suit is the same. However, the pleaded case of
legal heirs of late Kesavacharyulu is that at one time, they were
joint Hindu family properties and they ceased to be so. Thus,
even according to them, the suit schedule properties were
ancestral properties at one time. In such circumstances, it shall
be recorded that the suit schedule properties were ancestral joint
family properties.
23. There is neither pleadings nor evidence on both sides to
show acquisition of any of the plaint schedule properties by late
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Veeraraghavacharyulu or his children. Thus, plaint schedule
properties were not the self acquired properties of late
Veeraraghavacharyulu. D1 deposing as DW.1 stated that his
father late Veeraraghavacharyulu and his two brothers got
properties from their ancestors and they got them divided in the
year 1981. Thus, he was indicating that the plaint schedule
properties were ancestral properties and in division among
brothers, they came to the share of late Veeraraghavacharyulu.
That legal event took place in the year 1981. It is undisputed that
by then, his five daughters and two sons were all grown up and
they lived together. This further makes it clear that during the life
time of Veeraraghavacharyulu and his wife, these properties were
ancestral joint family properties. Therefore, the observations of
the trial court in paragraph No.10 of its judgment that the plaint
schedule properties are the ancestral joint family properties must
be approved as correct.
24. Ownership over the property refers to the exclusive rights
and interest that an individual or entity has over particular
properties. There is right to possess, right to use, right to enjoy,
right to dispose and right to exclude. They are manifestations of
ownership. Such ownership when held by the joint family
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members, there is joint ownership which in other words, there is
ownership shared by multiple individuals. Coparcenery property
refers to ancestral property that is jointly owned and inherited by
members of Hindu undivided family through generations. In a
coparcenery, the ownership rights are not defined by specific
shares but are held collectively by all coparceners. All the
coparceners have their right to reside in the coparcenery
property. Coparceners may have right to alienate to the extent of
their interest in the coparcenery property. The concept of
coparcenery property is governed by Hindu law, particularly the
Hindu Succession Act, 1956. As noticed earlier, the suit schedule
properties were ancestral joint Hindu family properties. The suit
for partition was instituted in the year 2007. By Virtue of the
amendment to section 6 Hindu Succession Amendment Act in the
year 2005, along with sons, the daughters as well are recognized
as coparceners in Hindu Mitakshara Law.
25. It is relevant to notice Section 6 of the Hindu Succession
Act, 1956 and thereafter amended section 6 of the Hindu
Succession Act which occurred in the year, 2005.
Sec. 6 of unamended Hindu Succession Act is as follows:
S.6 Devolution of interest in coparcenary property:-
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A.S.No.852 of 2012 & BatchWhen a male Hindu dies after commencement of this
Act, having at the time of his death an interest in a
Mitakshara coparcenary property, his interest in the
property shall devolve by survivorship upon the surviving
members of the coparcenary and not in accordance with
this Act.
Provided that, if the deceased had left him surviving
a female relative in Class-1 of the Schedule on a male
relative specified in the class who claims through such
female relative, the interest of the deceased in the
Mitakshara coparcenary property shall devolve by
testamentary or intestate succession, as the case may be
under this Act and not by survivorship.
Explanation 1:-For the purposes of this section the
interest of a Hindu Mitakshara coparcener shall be deemed
to the share in the property that would have been allotted to
him if a partition of the property had taken place
immediately before his death irrespective of whether he
was entitled to claim partition or not.
Explanation 2:- Nothing contained in this proviso to
this section shall be construed as enabling a personwho
has separated himself from the coparcenary before the
death of the deceased or any of his heirs to claim on
intestacy a share in the interest referred to therein.
Sec. 6 of Amended Act is as follows:
The Hindu Succession (Amendment Act 39 of 2005)
The amended Section 6 of the Hindu Succession
Act, 1956, which came in effect vide Act 39 of 2005 w.e.f
from 09-09-2005 reads as under: –
S.6 Devolution of interest in coparcenary property:-
(1) On and from the commencement of the Hindu
Succession (Amendment) Act, 2005, in a Joint Hindu family
governed by the Mitakshara law, the daughter of a
coparcener shall, –
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(a) by birth become a coparcener in her own right in
the same manner as the son;
(b) have the same rights coparcenary property as
she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the
said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener
shall be deemed to include a reference to a daughter of a
coparcener: Provided that nothing contained in this sub-
section shall affect or invalidate any disposition or
alienation including any partition or testamentary
disposition of property which had taken place before 20th
day of December, 2004.
(2) Any property to which a female Hindu becomes
entitled by virtue of sub- section (1) shall be held by her
with the incidents of coparcenary ownership and shall be
regarded, notwithstanding anything contained in this Act or
any other law for the time being in force in, as property
capable of being disposed of by her by testamentary
disposition.
(3) Where a Hindu dies after the commencement of
the Hindu Succession (Amendment) Act, 2005, his interest
in the property of a Joint Hindu family governed by the
Mitakshara law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by
survivorship, and the coparcenary property shall be
deemed to have been divided as if a partition had taken
place and,-
(a) the daughter is allotted the same share as is
allotted to a son;
(b) the share of the pre-deceased son or a pre-
deceased daughter, as they would have got had they been
alive at the time of partition, shall be allotted to the
surviving child of such pre-deceased son or of such pre-
deceased daughter; and
(c) the share of the pre-deceased child of a pre-
deceased son or of a pre-deceased daughter, as such child
would have got had he or she been alive at the time of the
partition, shall be allotted to the child of such pre-deceased
child of the pre-deceased son or a pre-deceased daughter,
as the case may be.
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Explanation. -For the purposes of this sub-section,
the interest of a Hindu Mitakshara coparcener shall be
deemed to be the share in the property that would have
been allotted to him if a partition of the property had taken
place immediately before his death, irrespective of whether
he was entitled to claim partition or not.
(4) After the commencement of the Hindu
Succession (Amendment) Act, 2005, no court shall
recognise any right to proceed against a son, grandson or
great– grandson for the recovery of any debt due from his
father, grandfather or great- grandfather solely on the
ground of the pious obligation under the Hindu law, of such
son, grandson or great-grandson to discharge any such
debt: Provided that in the case of any debt contracted
before the commencement of the Hindu Succession
(Amendment) Act, 2005, nothing contained in this sub-
section shall affect-
(a) the right of any creditor to proceed against the
son, grandson or great- grandson, as the case may be; or
(b) any alienation made in respect of or in
satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule of pious
obligation in the same manner and to the same extent as it
would have been enforceable as if the Hindu Succession
(Amendment) Act, 2005 had not been enacted.
Explanation. -For the purposes of clause (a), the
expression “son”, “grandson” or “great-grandson” shall be
deemed to refer to the son, grandson or great- grandson,
as the case may be, who was born or adopted prior to the
commencement of the Hind Succession (Amendment) Act,
2005.
(5) Nothing contained in this section shall apply to a
partition, which has been effected before the 20th day of
December, 2004. Explanation. -For the purposes of this
section “partition” means any partition made by execution
of a deed of partition duly registered under the Registration
Act, 1908 (16 of 1908) or partition effected by a decree of a
court.
26. Sri P.Veeraraghavacharyulu lived a long life of about 75
years and died on 26.02.1986. By then, it was the un-amended
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A.S.No.852 of 2012 & Batch
Section 6 of the Hindu Succession Act, 1956 that was in statute
book. The said un-amended section 6 provides that when a male
Hindu died after commencement of this Act, having at the time of
his death an interest in Mitakshara coparcenery property, his
interest in the property shall devolve by survivorship upon the
surviving members of the coparcenery. By the time of his death in
the joint family, there were only three males which include
Veeraraghavacharyulu and his two sons and they alone
constituted coparcenery. If no other fact is there on death of
Veeraragavacharyulu, his interest in the coparcenery shall
devolve on his two sons who are the other coparceners and this
devolution was by application of the principle of survivorship.
However, there is proviso in the un-amended Section 6 of the
Hindu Succession Act, 1956 which states that if the deceased
had left surviving a female relative in class 1 of the schedule, the
interest of the deceased in the Mitakshara coparcenery property
shall devolve by testamentary or intestate succession as the case
may be under the Act and not by survivorship. As a fact,
Veeraraghavacharyulu had his wife and five daughters and all of
them are class 1 relatives mentioned in the schedule. Therefore,
the interest of Veeraraghavacharyulu in the coparcenary would
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not devolve by survivorship on his two sons. His interest in the
coparcenery property should be shared by his class 1 legal heirs.
In other words, his wife and two sons and five daughters were
entitled to take the share of the interest of late
Veeraraghavacharyulu in the coparcenary property. Death of late
Raghavacharyulu is a fact. Such death is a legal incident in the
context of devolution of interest in coparcenery property. Such
legal consequences cannot be discarded. The statutory legal
consequence arising on the death of Veeraraghavacharyulu shall
always be kept in mind. Since by that date of his death on
26.02.1986, the law as applicable by then alone had to be
applied. This is to be done by way of notional partition. Thus, the
share of late Veeraraghavacharyulu needed to be determined so
as to distribute it in accordance with the proviso contained in the
un-amended section 6 of the Hindu Succession act. By doing so,
the 1/3rd share of late Veeraraghavacharyulu was succeeded by
his wife, two sons and five daughters which means it must be
shared by eight persons. However, the crucial aspect to be
observed is whether this notional partition has brought disruption
of the entire coparcenery or not. In the Treatise of Mullah,
Principles of Hindu law, Seventh Edition, page 250, referring to
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the notional partition, the great jurist had stated that the notional
partition is for the purpose of enabling succession to and
computation of an interest, which was otherwise liable to devolve
by survivorship and for the ascertainment of the shares in that
interest of the relatives mentioned in class I of the schedule.
Subject to such carving out of the interest of the deceased
coparcenar, the other incidents of the coparcenary are left
undisturbed and the coparcenary can continue without disruption.
The statutory fiction which treats an imaginary state of affairs as
real requires that the consequences and incidents of the putative
state of affairs must flow from or accompany it as if the putative
state of affairs had in fact existed and effect must be given to the
inevitable corollaries of the state of affairs. It is further mentioned
the operation of the notional partition and its inevitable corollaries
and incidents is to be only for the purpose of section 6, namely,
devolution of interest of the deceased in the coparcenary property
and would not bring about total disruption of the coparcenary as if
there had in fact been a regular partition and severance of status
among all the surviving coparceners.
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27. In Anar Devi’s case22, the Hon’ble Supreme Court of India
after noticing the above statement of law contained in the
Treatise of Mulla, and after considering the facts of the case
concluded saying that notional partition on the death of Sri Nemi
Chand had also brought with the entitlement of his son to take up
half share in the coparcenery in addition to 1/3rd share of the
deceased father as one of his successors. It is this ruling that was
considered by the trial court and accordingly, it disposed of the
suit for partition. It is this principle which has now fallen for debate
in the present appeal and cross appeal.
28. It is at this juncture, one is required to notice the law laid
down by the three Judges Bench of the Hon’ble Supreme Court
of India in Vineeta Sharma’s case23. The reference before their
lordships raised the questions concerning the interpretation of
section 6 of the Hindu Succession Act as it stood prior to the
amendment and after the amendment in the year 2005 in view of
the conflicting decisions of the Division Bench of the Hon’ble
Supreme Court of India in Prakash Vs Phulavati24 and
22
Supra 9
23
Supra 6
24
(2016) 2 SCC 36
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Danamma Vs Amar25. After elaborate consideration of the
statute and the precedent, their Lordships answered the
reference at paragraph No.137 and the same reads as below.
137. Resultantly, we answer the reference as under:
137.1. The provisions contained in substituted
Section 6 of the Hindu Succession Act, 1956 confer status
of coparcener on the daughter born before or after the
amendment in the same manner as son with same rights
and liabilities.
137.2. The rights can be claimed by the daughter
born earlier with effect from 9-9-2005 with savings as
provided in Section 6(1) as to the disposition or alienation,
partition or testamentary disposition which had taken place
before the 20th day of December, 2004.
137.3. Since the right in coparcenary is by birth, it is
not necessary that father coparcener should be living as on
9-9-2005.
137.4. The statutory fiction of partition created by the
proviso to Section 6 of the Hindu Succession Act, 1956 as
originally enacted did not bring about the actual partition or
disruption of coparcenary. The fiction was only for the
purpose of ascertaining share of deceased coparcener
when he was survived by a female heir, of Class I as
specified in the Schedule to the 1956 Act or male relative of
such female. The provisions of the substituted Section 6
are required to be given full effect. Notwithstanding that a
preliminary decree has been passed, the daughters are to
be given share in coparcenary equal to that of a son in
pending proceedings for final decree or in an appeal.
137.5. In view of the rigour of provisions of the
Explanation to Section 6(5) of the 1956 Act, a plea of oral
partition cannot be accepted as the statutory recognised
mode of partition effected by a deed of partition duly
registered under the provisions of the Registration Act,
1908 or effected by a decree of a court. However, in
exceptional cases where plea of oral partition is supported
by public documents and partition is finally evinced in the25
(2018) 3 SCC 343
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A.S.No.852 of 2012 & Batchsame manner as if it had been affected (sic effected) by a
decree of a court, it may be accepted. A plea of partition
based on oral evidence alone cannot be accepted and to
be rejected outrightly.”
Thus, it is to be noted that this statutory fiction of the
partition created by the proviso to Section 6 of the Hindu
Succession Act, 1956, as originally enacted did not bring about
the actual partition or disruption of coparcenary. The fiction was
only for the purpose of ascertaining share of deceased
coparcenar when he was survived by a female. The provisions of
the substituted Section 6 are required to be given full effect. At
paragraph No.71, their Lordships have stated that no coparcener
has any fixed share. It keeps on fluctuating by birth or by death. It
is the said principle of administration of Mithakshara coparcenery
carried forward in statutory provisions of section 6. Even if a
coparcener had left behind female heir of class I or a male
claiming through such female class I heir, there is no disruption of
the coparcenery by statutory fiction of partition/ notional partition.
Fiction is only for ascertaining the share of the deceased
coparcenar, which would be allotted to them as and when an
actual partition takes place. The deemed fiction of partition is for
that limited purpose. The classic Shastric Hindu law excluded the
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daughter from the coparcenery, which injustice has now been
done away with by amending the provisions in consonance with
the spirit of the Constitution. At Paragraph No.74, their Lordships
stated that the death of every coparcener is inevitable. How the
property passes on death is not relevant for interpreting the
provisions of section 6(1). Survivorship as a mode of succession
of property of a Mitakshara coparcenery, has been abrogated
with effect from 09.09.2005 by Section 6(3). At Paragraph No. 69
and 76, their Lordships stated that a daughter can assert the right
on and from 09.09.2005 and seek for partition, provided as on
09.09.2005, there shall be a coparcenery in existence. At
paragraph No.80, their Lordships stated that it is not necessary to
form a coparcenery or to become a coparcenar that a
predecessor coparcener should be alive. Relevant is birth within
degrees of coparcenary to which it extends. Any reference to the
coparcener shall include a reference to the daughter of a
coparcenar. At paragraph No.107, their Lordships have further
stated that the statutory fiction of partition is far short of actual
partition, it does not bring about disruption of the joint family or
that of coparcenary is the settled proposition of law.
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29. One is required to notice the ratio in Shub Karan Bubna
Vs Sitha Saran Bubna26. Their Lordships stated that partition is
a redistribution or adjustment of pre-existing rights among co-
owners/ coparceners, resulting in a division of lands or other
properties jointly held by them into different plots or portions and
delivery thereof to the respective allottees. The effect of such
division is that the joint ownership is terminated and the
respective shares vest in them in severalty. “separation of share”
is a species of partition. When all co-owners get separated, it is a
partition. Separation of share refers to a division where only one
or only a few among several co-owners/coparceners gets
separated, and others continue to be joint or continue to hold the
remaining property jointly without division by metes and bounds.
For example, where four brothers owning property divided among
themselves by metes and bounds, it is a partition, but if only one
brother wants to get his share separated and other three brothers
continue to remain joint, there is only separation of the share of
one brother.
30. In the light of the above principles, the facts on record are
to be considered.
26
2009 (9) SCC 689
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31. It is undisputed that the plaint schedule properties were not
subjected to any partition under a registered partition deed. By
the time of institution of the suit, as per the pleadings, all the
plaint schedule properties were in existence and were held by the
joint family. There was no earlier suit for partition, and there was
no final decree dividing the properties by metes and bounds.
Thus, by the time the suit was filed, the suit schedule properties
were intact and were held by the joint family. Thus, they were
joint family coparcenery properties as on the date of filing of the
suit. If that be the case, the daughters who have become
coparceners from the time of their birth by virtue of the
amendment in the year 2005 to the Hindu Succession Act, they
are entitled to sue for partition. The contention of the appellants/
D2 and D3 that they are not entitled to sue for partition is against
the law.
32. The legal status of D1/ Sri Mohan Krishnamacharyulu /
eldest son of late P. Veeraraghavacharyulu has been contested.
According to D2 and D3, this D1 got separated from the joint
family. This was denied by plaintiffs as well as D1. Whatever D1
may have written in his Ex.B4 letters, the question of separation
or relinquishment should be only through a registered
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relinquishment deed or a registered partition deed. Neither of
them is made available by those who contended that D1 was
separated from the family. Therefore, there is no merit in the
contention of D2 and D3 and the observations of the trial court
that D1 continued to be member of the joint family and
coparcenery is right on facts and law.
33. The principal contention of D2 and D3 in their appeal is that
the properties ceased to be joint family properties. Their
contention is based on the un-amended section 6 and notional
partition bringing disruption of coparcenary. This contention has
no legal merit in view of the binding precedent of their Lordships
in Vinita Sharma‘s case. Even otherwise, the facts on record do
indicate that even after the death of late P.Veeraraghavacharyulu,
the joint status of his children remained undisturbed. This aspect
of the matter needs consideration along with Ex. B9, B10 wills.
34. The Evidence of DW.2 to 9 is to prove Ex. B9 and B10
wills. Both are unregistered wills. Under Ex. B9, item No.6 of the
plaint schedule was given to Smt.Rajya Lakshmamma, while the
remaining plaint schedule properties were given to late
Kesavacharyulu. Under Ex.B10, Smt.Rajya Lakshmamma gave
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item No.6 of the plaint schedule to late Kesavacharyulu. D2 and
D3 put faith in Ex. B9 and B10 and contend that by virtue of these
wills, late Kesavacharyulu got the properties and thus they were
his self acquired properties and they ceased to be joint family
properties. This court finds no merit in this contention. Assuming
that Ex. B9 and B10 wills are proved and are to be acted upon,
the principle to be noticed is that the testator must have legal
capacity to bequeath properties in the manner they were
attempted to be bequeathed under those wills. In this regard,
Section 30 of the Hindu Succession Act, 1956 is required to be
noticed and the same reads as below.
30. Testamentary succession.―1 Any Hindu may
dispose of by will or other testamentary disposition any
property, which is capable of being so 2 [disposed of by
him or by her], in accordance with the provisions of the
Indian Succession Act, 1925 (39 of 1925), or any other law
for the time being in force and applicable to Hindus.
Explanation.―The interest of a male Hindu in a
Mitakshara coparcenary property or the interest of a
member of a tarwad, tavazhi, illom, kutumba or kavaru in
the property of the tarwad, tavazhi, illom, kutumba or
kavaru shall, notwithstanding anything contained in this Act
or in any other law for the time being in force, be deemed to
be property capable of being disposed of by him or by her
within the meaning of this section.
35. Testamentary disposition can be made only to the extent
of that interest the testator holds in the coparcenery. A reading of
Ex.B9 will executed by Veeraraghavacharyulu shows that all the
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plaint schedule properties which are mentioned in the said will are
his ancestral properties. That being the own admission of the
testator, what all he could bequeath under a will is only his share.
He could not bequeath the share of other coparcener, namely, his
eldest son/Sri P. Mohan Krishnamacharyulu/D1. Similarly, other
coparcener/ Kesavacharyulu had his own share in the
coparcenery and therefore it was not within the competence of
Veeraraghavacharyulu to bequeath that share also. In such view
of the matter, Ex. B9 will, even if accepted as true cannot be
given full effect to. If Ex.B9 fails, it follows that Ex.B10 shall fail.
36. On considering the submissions raised on behalf of D2 and
D3, this court assumes for a while that by virtue of the evidence
of DW.2 to 9, Ex.B9 will is proved. Still to act upon such will the
mere formal evidence by itself would not come to avail and one
has to see all the attendant circumstances and the conduct of the
parties.
37. In this regard, the following significant aspects as available
from the material on record are required to be noticed.
Ex. B9 will dated 16.12.1985 is an unregistered will. It was
executed by late Veeraraghavacharyulu. If really, this was a true
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will, the beneficiary under the will/ Kesavacharyulu could have
acted upon the terms of the will. The suit was filed in the year
2007, which means 22 years after Ex. B9 will. During the period
of more than two decades, he did not seem to have obtained
mutation of entries in Revenue records. That much is clear since
his wife and daughter who are parties to the suit as D2 and D3
did not file any such documents indicating mutation of entries.
38. Ex.B2 is registration extract of a sale deed dated
23.04.1993. Ex.B3 is registration extract of a sale deed dated
20.11.1998. These sale deeds were executed by the two sons of
late Veeraraghavacharyulu. Under the former document, they
sold 10 cents of the land in survey number 85/3 and under the
latter document, they sold 18 cents of the land in survey number
85/3. Those purchasers are D4 and D5. These two sale deeds
were executed long after Ex.B9 will of the year 1985. If really,
there was such a will in favour of late Kesavacharyulu, he would
have asserted his rights and would have sold the properties by
himself. The very fact that he did not sell them by himself, and he
sold them only along with his elder brother/D1 indicates that the
properties continued to be joint.
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39. Ex. B2, B3 have not made any reference to Ex. B9 will. If
really there was such a will, it should have found a mention in
those documents.
40. From the oral evidence on both sides, it is seen that late
Veeraraghavacharyulu during his lifetime filed O.S.No.278 of
1985 praying for certain reliefs against third parties. He died
pending that suit. Ex. B9 will was said to have been executed by
him during his lifetime. On the death of Veeraraghavacharyulu,
the legatee under Ex.B9 would have been the only legal
representative to prosecute O.S.No.278 of 1985. DW.2 who is the
wife of late Kesavacharyulu stated during her cross-examination
that O.S.No.278 of 1985 was looked after by her husband
Kesavacharyulu only and by then D1 was in Madras. It is seen
from the evidence on record that in that suit on death of late
Veeraraghavacharyulu, all his five daughters and two sons came
on record as his legal representatives.
41. Absence of mutations in Revenue records, absence of any
mention of Ex. B9 will in Ex. B2, B3 sale deeds, execution of
Ex.B2, B3 Wills by the two brothers disregarding Ex.B9 will
standing in favour of late Kesavacharyulu, non-disclosure of the
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will to the court in O.S.No.278 of 1985, cumulatively indicated to
the mind of the trial court that Ex. B9 will was spurious. The
contention of D2 and D3 that because of demand by the
purchasers, D1 also joined execution of Exs.B2 and B3 and that
D1 played fraud and all the children of late Veeraraghavacharyulu
joined as legal representatives in O.S.No.278 of 1985 have no
merit and cannot serve to say anything other than what the trial
court said about the two wills.
42. The claim of D2 and D3 that the joint family properties
ceased to be joint family properties by virtue of Ex. B9 will and Ex.
B10 will, is devoid of any merit. As stated earlier, late
Veeraraghavacharyulu was legally not competent to bequeath the
entire coparcenery property and an incompetent act cannot be
considered to change the legal character of the property.
43. Viewed in the above context of reasons, one has to
necessarily say that as on the date of filing of the suit in the year
2007, coparcenary existed and the daughters are entitled to sue
for their share. Their prayer in the suit is for division among all the
seven children in equal proportion. Trial Court granted share to
the daughters only in the share of the deceased coparcener,
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namely, late Veeraraghavacharyulu which is incorrect. Therefore,
the cross appeal of the plaintiffs is full of merits in impugning the
trial court’s judgment. On considering the facts and law, it is
crystal clear that the suit ought to have been decreed dividing the
property into seven equal proportions granting one share to each
of the children of late Veeraraghavacharyulu and Rajya
Lakshmamma.
44. The properties covered under Ex.B2, B3 are not part of the
plaint schedule properties. There was no contention from
defendants in the suit, that the suit is bad for seeking partial
partition. None of the parties to the suit have challenged Ex. B2
and B3 which indicates they all accept such alienations. In such
circumstances, trial court mentioning about adjustment of equities
is uncalled for. Be it noted, referring to Ex. B2 and B3 alienations,
there were no pleadings on both sides. Even after impleadment of
D4 and D5 who were purchasers under Ex. B2 and B3, the
pleadings on both sides were not amended. There has been no
whisper in the pleadings or in the evidence in challenge to Ex. B2,
B3. Therefore, the findings and the operative portion of the trial
court judgment referring to Ex. B2, B3 and D4 and D5 cannot be
supported and are thus set aside.
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45. The grounds urged in the appeal by D2 and D3 that item
Nos.1 and 2 of the plaint schedule were sold out to third parties
and that item Nos.3 and 5 of the plaint schedule properties were
alienated under agreement of sale – cum – GPA are not required
to be considered since they were not part of the evidence.
46. For the reasons mentioned above, points are answered
against D2 and D3/ appellants and in favour of plaintiffs/
appellants in the cross appeal.
Point No.5: –
In view of what is stated above, the impugned judgment
requires interference.
47. In the result, the impugned judgment dated 05.06.2012 in
O.S.No.33 of 2007 of learned Judge, Family Court – cum –
Additional District Judge, Ongole is set aside. O.S.No.33 of 2007
stands decreed, dividing the plaint schedule property into 7 equal
shares. Each of the five plaintiffs is entitled for one such share.
Defendant No.1 in the suit is entitled for one such share. The one
share of late Kesavacharyulu shall be given to defendant Nos.2
and 3 who represented his estate. Plaintiffs in the suit are entitled
to move relevant application for assessment of mesne profits.
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Accordingly, A.S.No.852 of 2012 is dismissed and I.A.No.12 of
2012 (Cross Appeal No.16690 of 2012) is allowed. Both parties
shall bear their own costs.
As a sequel, miscellaneous applications, pending, if any,
shall stand closed.
________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 17.06.2025
Dvs
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A.S.No.852 of 2012 & Batch
THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
APPEAL SUIT No.852 of 2012
and
I.A.No.12 of 2012 (CROSS OBJECTIONS No.16690 of 2012)
Date: 17.06.2025
Dvs