Telangana High Court
Vutukuru Suneethamma, vs Surampally Venkayamma, on 11 August, 2025
THE HON'BLE SMT. JUSTICE RENUKA YARA
APPEAL SUIT No.39 of 2019
JUDGMENT:
Aggrieved by the judgment and decree of the learned VII Additional
District Judge, Khammam (for short ‘the learned Judge’) in O.S.No.128 of
2017 (O.S.No.291 of 2011 on the file of Senior Civil Judge, Khammam) dated
24.12.2018, the appellant/plaintiff filed the present appeal seeking partition
and separate possession of her 1/5th share in the suit schedule property.
2. Heard Sri S. Srinivas Reddy, learned counsel for the appellant/plaintiff
and Sri Shaik Abdul Kalam Riyaz, learned counsel appearing on behalf
of Sri S.A.Razak, learned counsel for respondent Nos.1 to 3/defendant Nos.1
to 3.
Facts of the case:
3. The appellant/plaintiff filed suit for partition and separate possession of
suit schedule Item No.1 and Item No.2 properties consisting of irrigated dry
land to an extent of Ac.10.20 Gts. in Sy.No.270/A and Ac.12.24 Gts. in
Sy.No.360 of Konijerla Village and Mandal, Khammam District, within the
boundaries detailed in the plaint schedule. The respondents/defendants are the
mother (respondent No.1), brother (respondent No.2) and sisters (respondent
Nos.3 and 4). The appellant is the daughter of respondent No.1 and Late
Surampalli Narsaiah. The suit schedule properties are the ancestral properties
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of said Surampalli Narsaiah. He died about 50 years prior to filing of the suit
while the appellant and respondent Nos.2 to 4 were minors. Thereafter,
respondent No.1 became kartha of the family and managed the suit schedule
properties. All the four children of respondent No.1 i.e. appellant and
respondent Nos.2 to 4 are married. At the time of marriage, all the three
daughters were given Ac.4.00 Gts. of land towards their share. The appellant
was also allotted Ac.4.00 Gts. of land. Said land was cultivated by respondent
No.2 and his son and usufruct was given for about 35 years. Thereafter,
respondent Nos.1 and 2 developed greedy eye and denied to give yield for the
year 2010 onwards. A panchayath was called for and in spite of advice of
elders, respondent Nos.1 and 2 refused to give yield and therefore, the
appellant filed suit for partition and separate possession of her 1/5th share out
of the suit schedule properties.
4. Respondent No.3 remained ex-parte before the learned trial Court.
Respondent Nos.1, 2 and 4 filed common written statement admitting
relationship between the parties. The case of the respondents is that the
appellant had a love marriage, that she contacted second marriage with a
married person without their consent and left the house. Subsequently, there
was communication and cordial relationship between the respondents and
appellant. The appellant was given Ac.3.00 Gts. of land towards her share by
giving the yield as agreed. Subsequently, due to financial constraints, the
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appellant sold her share of Ac.3.00 Gts. to son of respondent No.2 and he is in
possession of said land for about 18 years prior to filing of the suit. The
respondents denied giving the yield of appellant’s share up to the year 2010 as
the land was sold much prior to the year 2010. There are no lands with the
boundaries mentioned in the plaint schedule according to the respondents
since the shares of all the daughters were given by way of ‘Pasupu Kumkuma’
at the time of their marriages. According to the respondents, a suit for
partition is not maintainable as the appellant is estopped from claiming
partition as she was given her legitimate share and she has divested her rights
by selling the land given to her. The land in question is not in possession of
the respondents and therefore, the suit is liable to be dismissed.
5. On the basis of the above pleadings, the following issues have been
settled for trial:
1) Whether the plaintiff is entitled for 1/5th share in the
suit schedule property?
2) Whether the plaintiff is entitled for preliminary decree
for partition of suit schedule property?
3) To what relief?
6. During trial, the appellant got examined PW1 and PW2 and got marked
Exs.A1 to A20/Certified copies of pahanies. The respondents got examined
DW1 and DW2 and got marked Exs.B1 to B5/Attested copies of pahanies.
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7. Upon examining the version presented by the appellant, her counsel;
and the respondents, their counsel, the learned Judge dismissed the suit. The
learned Judge relied upon the pleadings in the plaint and the admissions made
by the appellant as PW1 during her chief and cross examination and came to
conclusion that the appellant is given Ac.4.00 Gts. of land by respondent No.1
towards her share at the time of marriage. Further, the remaining respondents
i.e. respondent Nos.3 and 4 were also given their respective shares at the time
of marriage. The appellant as per her own pleading has received yield in
respect of her share for more than 35 years and therefore, it is held that there
was a prior partition and a suit for partition is not maintainable. In case, the
respondents have denied the share of the appellant and are refusing to give
yield, it is held that the appellant ought to have filed a suit for declaration and
recovery of possession of the property allotted to her. The contention of the
appellant that there is no proof of alienation in favour of son of respondent
No.2, that her name is not mutated in the revenue records as she trusted
respondent No.1 who is the mother and respondent No.2 who is the brother,
are not considered in view of the fact that there is admission of partition by the
appellant and admitted facts need not be proven according to Section 58 of the
Indian Evidence Act. Further, the learned Judge relied upon the judgment
cited by the respondents in the case of Union of India and others v. Vasavi
Cooperative Housing Society Ltd. and others {AIR 2014 SC 937} wherein
it was held by the Hon’ble Supreme Court of India that the burden of proof is
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on the appellant when the suit is filed for declaration of title and recovery of
possession and that the appellant cannot take advantage of the weakness of
case of respondents’ case. In view of the foregoing reasoning, the suit has
been dismissed leading to filing of the present appeal.
Grounds of appeal:
8. In grounds of appeal, the appellant re-iterated that she was given
Ac.4.00 Gts. of land in Sy.No.270/A of Konijerla Village which is part of Item
No.1 of suit schedule property being managed by respondent Nos.1 and 2,
who stopped giving her the yield by declaring that she has no share in the joint
family property. Since her share in the joint family property is denied, a suit
for partition is filed. The appellant denied alienating her share of the property
in favour of son of respondent No.2 and that there is no documentary proof of
said ground taken by the respondents. Further, it is pleaded that the admissions
of DW1 and DW2 during their cross examination ought to have been
considered and thereby, decreed the suit. Further, it is pleaded that when there
is admission by the respondents that the appellant was given land at the time
of marriage, the suit ought to have been decreed, instead, erred in holding that
the appellant is not entitled to decree of partition when the land was in
possession of respondent Nos.1 and 2. On the basis of above mentioned
grounds, the appellant prayed that the impugned judgment and decree be set
aside and to decree the suit.
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Contentions of the appellant/plaintiff:
9. During arguments in appeal, the learned counsel for the appellant
argued that it is the case of both appellant and respondents that the appellant
was given Ac.4.00 Gts. of land but the same was not mutated in her name as
she had trusted in respondent Nos.1 and 2 who are her mother and brother.
Though the land was given, the same was not partitioned and ownership was
not transferred. Respondent Nos.1 and 2 have given the yield from the share of
appellant’s land for many years and subsequently, due to greed, refused the
same. Since the land allotted to the appellant is undivided and forms part of
the share of the respondents, suit for partition is filed. It is vehemently
emphasized that the respondents have set up a plea that the appellant has sold
her share of land to son of respondent No.2 but not a single piece of document
is filed to prove the same. Therefore, the plea of respondents that the appellant
alienated her share of land cannot be considered and the suit ought to have
been decreed.
10. The learned counsel for the appellant relied upon the judgment of the
Hon’ble Supreme Court of India in case between Vineeta Sharma v. Rakesh
Sharma and others 1 for partition and allotment of share and emphasized that
as a daughter, the appellant is a coparcener and entitled to allotment of a share
in the joint family properties. The learned counsel referred to finding of the
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(2020) 9 SCC 1
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Hon’ble Supreme Court of India with respect to explanation to Section 6(5) of
the Hindu Succession Act, 1956, which is extracted and produced below:
“129. …..
(ii) The rights can be claimed by the daughter born earlier with
effect from 09.09.2005 with savings as provided in Section 6(1)
as to the disposition or alienation, partition or testamentary
disposition which had taken place before 20th day of December,
2004.
(v) In view of the rigor of provisions of Explanation to Section
6(5) of the Act of 1956, 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 the same manner as if it had been affected 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.”
11. Further, the learned counsel for the appellant referred to judgment of
the Hon’ble Supreme Court of India in case between A. Krishna Shenoy v.
Versusganga Devi G. and others 2, wherein, it is held that every interested
party is deemed to be a plaintiff. Lastly, reference is made to judgment of the
Hon’ble Supreme Court of India in the case between Dudh Nath Pandey
(Dead) By Lrs v. Suresh Chandra Bhattasali (Dead) 3, wherein, it is held as
follows:
” 6. ….. Even on merits, if the High Court had to rely upon the
alleged admission in the written statement, the admission must
be taken as a whole and it is not permissible to rely on a part of
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Petition (s) for Special Leave to Appeal (C) No(s).8080/2019
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AIR 1986 SC 1509
8the admission ignoring the other. The High Court, in our
opinion, has erred in making a fresh appraisal of the evidence to
come to a different conclusion. Even otherwise, the plaintiff has
to stand on his own strength.”
Contentions of the respondent Nos.1 to 3/defendant
Nos.1 to 3:
12. The learned counsel for the respondents argued that as per the pleadings
and evidence of the appellant herself, partition has already taken place and
therefore, there can be no question of partition of already partitioned
properties, as such, the suit is not maintainable. It is argued that the appellant
has contacted second marriage with a married person without the knowledge
and consent of the respondents, however, the appellant’s marriage was
accepted and she was given her legitimate share in the suit schedule properties
by allotment of Ac.4.00 Gts. of land. Due to financial problems, the appellant
sold her share of land to Surampalli Ravi who is son of respondent No.2 and
ever since, said Surampalli Ravi is in possession of the land sold by the
appellant. The suit schedule Item Nos.1 and 2 properties, as they are
mentioned in the plaint are not available on ground and therefore, the suit for
partition is not maintainable. Further, it is argued that since there is admission
by the appellant that she was allotted Ac.4.00 Gts. of land towards her share,
the appellant ought to have filed a suit for declaration of her title and recovery
of possession but not suit for partition. As such, argued that the impugned
judgment and decree passed by learned Judge be confirmed.
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13. The learned counsel for the respondents relied upon the judgment of the
Hon’ble Supreme Court of India in Vineeta Sharma Case (1 supra) with
respect to proviso of Section 6 of the Hindu Succession Act, 1956. Relevant
portion of the judgment is extracted and produced below:
“127. …. The intendment of Section 6 of the Act is only to
accept the genuine partitions that might have taken place under
the prevailing law, and are not set up as a false defence and only
oral ipse dixit is to be rejected outrightly. The object of
preventing, setting up of false or frivolous defence to set at
naught the benefit emanating from amended provisions, has to
be given full effect. Otherwise, it would become very easy to
deprive the daughter of her rights as a coparcener. When such a
defence is taken, the Court has to be very extremely careful in
accepting the same, and only if very cogent, impeccable, and
contemporaneous documentary evidence in shape of public
documents in support are available, such a plea may be
entertained, not otherwise. This Court reiterates that the plea of
an oral partition or memorandum of partition, unregistered one
can be manufactured at any point in time, without any
contemporaneous public document needs rejection at all costs.
This Court says so for exceptionally good cases where partition
is proved conclusively and the courts are cautioned that the
finding is not to be based on the preponderance of probabilities
in view of provisions of gender justice and the rigor of very
heavy burden of proof which meet intendment of Explanation to
Section 6(5). It has to be remembered that courts cannot defeat
the object of the beneficial provisions made by the Amendment
Act. The exception is carved out as earlier execution of a
registered document for partition was not necessary, and the
Court was rarely approached for the sake of family prestige. It
was approached as a last resort when parties were not able to
settle their family dispute amicably. It is also taken note of the
fact that even before 1956, partition in other modes than
envisaged under Section 6(5) had taken place.”
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14. Now, the points for consideration in the present appeal are:
1) Whether the judgment and decree of the learned
VII Additional District Judge, Khammam in O.S.No.128
of 2017, dated 24.12.2018 is liable to be set aside as
being erroneous in facts and law?
2) To what relief?
Finding of the Court:
15. The merits of the appellant’s case have to be examined in the light of
the pleadings, oral evidence and the legal precedents relied upon by the rival
parties.
16. The appellant’s case is that the suit schedule properties are ancestral
properties in which the legal heirs of Late Surampalli Narsaiah have equal
share i.e. the appellant and respondent Nos.1 to 4 have 1/5th share each in the
suit schedule properties. Said properties were managed by respondent No.1 as
kartha of the family after the death of Surampalli Narsaiah. The marriages of
respondent Nos.2 to 4 were performed from the income of the suit schedule
properties and also each of the respondents was allotted his/her share at the
time marriage. Relevant pleading is extracted and produced below:
“At the time of marriage, the defendant No.1 gave Ac.4-00 gts
in and out of Sy.No.270/A of Konijeria village i.e., part of item
No.1 of the suit schedule property in favour of the plaintiff i.e.,
from and out of the joint family properties. So also the other
defendants were given the other properties at the time of their
respective marriages.”
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17. It is also the case of the appellant that herself and respondent Nos.3
and 4 were given their yield from the respective shares given to them and the
appellant did not insist for mutation as the yield from her share was given
from time to time. Thus, the pleadings are clear that each of the respondents as
well as the appellant were given their respective share in the suit schedule
properties, in effect, partition has taken place though there is no registered
document in proof of the same. Further, the respondents also in the written
statement acknowledged the contention of the appellant about partition and
allotment of share to an extent of Ac.3.00 Gts. in the suit schedule properties.
Relevant portion is extracted and produced below:
“Out of the love and affection and towards pasupu kumkuma
Ac.3.00 gts. of land was given to the plaintiff in Sy.No.390 of
Konijerla Revenue Village and the plaintiff in turn had sold the
same in favour of the son of the defendant No.2 about 18 years
back and the purchaser by name Surampalli Ravi has been in
possession of the same…. So also, the defendant No.3 was also
given the land towards her share as Pasupu Kumkuma and also
the defendant No.4 was given her respective share on par with
the share of the plaintiff in and out of the suit schedule
properties.”
18. The only additional fact pleaded by the respondents is that the appellant
has sold her share of land in favour of Surampalli Ravi who is son of
respondent No.2 about 18 years back. The respondents denied giving the share
of produce to the appellant till filing of the suit. They contended that after
giving the respective shares, there is no land available with the boundaries
mentioned in the suit schedule properties.
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19. Coming to the oral evidence, the appellant as PW1 in chief affidavit
deposed that she was given Ac.4.00 Gts. of land in and out of Sy.No.270/A of
Konijerla Village and that the other respondents were given other properties at
the time of their marriages. In cross examination, the appellant deposed about
the allotment of the shares of respective respondents and their possession as
follows:
“… The landed properties which were given to D.3 and D.4 are
in their possession and enjoyment. It is true I mentioned in the
plaint and in my chief affidavit that D.1 gave me 4 acre land in
and out of Sy.No.270/A of Konijerla village.”
20. The witness PW2 also deposed that at the time of marriage of the
appellant, the respondent No.1 gave Ac.4.00 Gts. of land out of Sy.No.270/A,
part of Item No.1 of suit schedule property. Likewise, the other respondents
were given their share at the time of their marriage. The evidence of DW1 and
DW2 is to the effect that the appellant was given land to an extent of
Ac.3.00 Gts. towards her Pasupu Kumkuma and usufruct taken by her for
about 25 years. Thereafter, due to hardship to cultivate as there was none
coming forward to take appellant’s land on lease, she sold the same to
Surampalli Ravi and his name is reflected in the revenue records. Exs.B1to B5
prove the same. There is nothing contra elicited from any of the witness about
prior partition taking place. All the witnesses have unanimously deposed that
there was partition and allotment of respective shares of the appellant and the
remaining respondent Nos.2 to 4 at the time of their marriages.
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21. As already held by the learned Judge, admitted facts need not be proven
as per Section 58 of the Indian Evidence Act. In the instant case, the appellant
herself admitted that she was allotted Ac.4.00 Gts. of land towards her share
and she has received the usufruct for the said land for many years. Once such a
pleading is made about allotment of her share, a suit for partition cannot be
maintained. It is also a point to be noted that it was not appellant alone who
was allotted a share but the remaining daughters i.e. respondent Nos.3 and 4
were also allotted their share of land and they are in possession of said land.
While the counsel for the appellant relied upon the judgment of the Hon’ble
Supreme Court of India in Vineeta Sharma case (1 supra) insisting upon
non-existence of a registered document in proof of partition, the finding of the
Hon’ble Supreme Court of India is that with respect to oral partitions which
are proven with cogent and convincing evidence cannot be disregarded.
22. In the instant case, there is cogent and convincing evidence from the
appellant and the respondents in proof of prior partition of the suit schedule
properties. The appellant was allotted her share and respondent Nos.3 and 4
were allotted their share. The appellant herself did not dispute allotment of a
share to respondent Nos.3 and 4 and their possession over the share allotted to
them. When such is the case, unless there is proof that the suit schedule
property is ancestral property, no partition took place and that the property is
available for partition within the boundaries specified, a suit for partition is not
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maintainable. In the instant case, the suit schedule Item No.1 and Item No.2
properties are ancestral properties but they are already partitioned and the
properties as stated in the plaint schedule are not available on ground as each
coparcener is in possession of their respective share. As such, there are no
grounds to interfere with the impugned judgment and decree passed by the
learned VII Additional District Judge, Khammam in O.S.No.128 of 2017
(O.S.No.291 of 2011 on the file of Senior Civil Judge, Khammam) dated
24.12.2018. The appeal lacks merits and is liable to be dismissed.
23. In the result, the Appeal Suit is dismissed. No order as to costs.
As a sequel, all the pending miscellaneous applications are closed.
___________________
RENUKA YARA, J
Date:11.08.2025
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