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2011 DIGILAW 118 (AP)

Goraka Anjaneyulu v. Gunti Tatayya Naidu

2011-02-11

C.V.NAGARJUNA REDDY

body2011
Judgment : This Second Appeal is filed against judgment and decree dated 25.03.2003 in O.S.No.36 of 1997 on the file of the learned Junior Civil Judge, Palasa (for short, “the trial Court”) as confirmed in judgment dated 17.03.2010 in A.S.No.33 of 2003 on the file of the Senior Civil Judge, Sompeta (for short, “the lower appellate Court”). Defendant No.1 is the appellant. Respondent No.1 filed O.S.No.36 of 1997 in the trial Court for partition of the suit schedule properties. The properties admittedly belong to the wife of respondent No.1 – plaintiff. She died intestate. The appellant is the grandson of the father-in-law of respondent No.1. The appellant has pleaded that as the original owner i.e., the wife of the plaintiff has inherited the property from her father, Section 15 (2) of the Hindu Succession Act, 1956 (for short, “the Act”) gets attracted and therefore the plaintiff cannot claim the entire property. Having regard to the respective pleadings, the trial Court framed the following issues: “1. Whether Gunti Kanthamma the wife of the plaintiff pre-deceased her mother Kondappa Lakshmamma? 2) Whether item No.5 of the suit schedule property was purchased by Goraka Appanna the father of defendants? 3) Whether plaintiff, Goraka Yerakamma, the mother of the defendants and Kondappa Lakshmamma partitioned their properties covered under registered Will dated 26.11.1971? 4) Whether the registered settlement deed dated 13.06.1988 is a nominal and collusive document and binding on the plaintiff? 5) Whether the registered Will dated 13.06.1988 is true, valid and binding? 6) Whether the cancellation of Will is true, valid and binding? 7) Whether the registered Will dated 13.04.1994 is true, valid and binding? 8) Whether the plaintiff is entitled for partition of the plaint schedule properties as prayed for? 9) Whether the suit is maintainable? 10) To what extent?” Issue Nos.1 and 4 were held against the plaintiff. However, all other crucial issues were held in favour of the plaintiff and against the appellant. The lower appellate Court has confirmed the judgment of the trial Court. At the hearing, Sri V. Raghu, learned counsel for the appellant, strenuously contended that by virtue of Section 15(2) of the Act, the appellant, being the legal heir of the plaintiff’s wife through her father, is entitled to a share. It is therefore necessary to consider Section 15, which reads as under: “15. At the hearing, Sri V. Raghu, learned counsel for the appellant, strenuously contended that by virtue of Section 15(2) of the Act, the appellant, being the legal heir of the plaintiff’s wife through her father, is entitled to a share. It is therefore necessary to consider Section 15, which reads as under: “15. General rules of succession in the case of female Hindus—(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; b) secondly, upon the heirs of the husband; c) thirdly, upon the mother and father; d) fourthly, upon the heirs of the father; and e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),- a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.” From the above-reproduced provision, it is evident that the property of a female Hindu dying intestate shall devolve firstly upon the sons and daughters and the husband. Subsection (2), however, carved out an exception in respect of the property inherited by the female Hindu from her father or mother in which case the property devolves upon the heirs of her father. It is not in dispute that the father-in-law of the plaintiff has executed a Will i.e., Ex.B1 in favour of the plaintiff’s wife, which, in fact, was exhibited as a document on the appellant’s side. Thus, the plaintiff’s wife had become the owner of the property through testamentary succession and not by inheritance. Section 15(2) gets attracted only in case of inheritance and not that of succession. Thus, the plaintiff’s wife had become the owner of the property through testamentary succession and not by inheritance. Section 15(2) gets attracted only in case of inheritance and not that of succession. With the execution of Will in favour of the plaintiff’s wife, she became the absolute owner of the property notwithstanding the fact that the same was ancestral. Therefore, with her death her husband i.e., plaintiff succeeded to the property by virtue of Section 15(1)(a) along with his sons and daughters including the children of any pre-deceased son or daughter. In the instant case, the plaintiff and his wife did not have issues. Accordingly, the property devolved upon the plaintiff alone. In the light of the above facts, I am of the opinion that the judgments of the Courts below do not suffer from any illegality and the appellant failed to make out any substantial question of law warranting interference of this Court. The second appeal is accordingly dismissed. As a sequel to dismissal of the second appeal, SAMP No.2824 of 2010 filed by the appellant for interim relief is also dismissed.