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2013 DIGILAW 697 (AP)

Rambai v. G. H. Shiv Kumari

2013-08-26

L.NARASIMHA REDDY, S.V.BHATT

body2013
JUDGMENT : 1. This appeal is filed against the order dated 21-11-2008 passed by the Court of III Additional District and Sessions Judge (Fast Track Court), Ranga Reddy District at L.B. Nagar in I.A. No.171 of 2008 in A.S. No.76 of 2005. Through the order under appeal, the lower appellate Court reviewed its judgment and decree dated 25-01-2008 passed in A.S. No.76 of 2005 arose out of O.S. No.374 of 1994 on the file of II Additional Senior Civil Judge, Ranga Reddy District, filed by the 1st respondent herein. 2. For the sake of convenience, the parties are referred to as arrayed in the suit before the trial Court. 3. The sole plaintiff filed the suit against the defendants for the relief of partition of Suit A and B Schedule properties. Suit - A Schedule comprised of four items, out of which, Items - 1 and 2 are house properties, whereas Items – 3 and 4 are the lands measuring Acs.2-28 guntas and Acs.16-14 guntas, respectively, situated at Macha Bollaram Revenue Village, Ranga Reddy District. Suit - B Schedule comprised of the belongings of late Bansilal in the bank locker and his account in a bank. The 1st defendant is the wife of late Bansilal. The sole plaintiff and defendants 2, 3 and 4 are their daughters and defendants 5, 6, 7 and 8 are their sons. The plaintiff pleaded that late Bansilal died leaving the suit schedule properties and that she is entitled for a share in it along with the defendants. Through its judgment dated 29-04-2005, the trial Court passed a preliminary decree directing that the plaintiff and defendants 1 to 8 shall be entitled to 1/9th share each in Items - 1 and 3 of Suit -A Schedule properties. It was held that Item - 4 of Suit – A Schedule property was sold and that the parties would be entitled to 1/9th share each in the sale proceeds thereof. Suit was dismissed as regards the other items of Suit - A Schedule properties and the entire items of Suit - B Schedule properties. 4. Defendants 1 and 5 to 8 i.e., the mother and brothers of the sole plaintiff preferred A.S. No.76 of 2005 in the lower appellate Court challenging the preliminary decree. Through its judgment dated 25-01-2008, the lower appellate Court allowed the appeal in part. 4. Defendants 1 and 5 to 8 i.e., the mother and brothers of the sole plaintiff preferred A.S. No.76 of 2005 in the lower appellate Court challenging the preliminary decree. Through its judgment dated 25-01-2008, the lower appellate Court allowed the appeal in part. Items 1 and 3 of Suit – A schedule are treated as ancestral in nature and accordingly available for partition. The plaintiff and defendants 2 to 4 i.e., daughters were held to be entitled to 1/45th share in each of those Items and the sale proceeds of Item - 4 of Suit - A schedule properties. 5. The plaintiff and defendants 2 to 4 i.e., all the sisters filed I.A. No.171 of 2008 before the lower appellate Court with a prayer to review the judgment and decree dated 25-01-2008 in A.S. No.76 of 2005. Their contention was that 1/9th share was allotted to them, by the trial Court taking in to account, the provision of Section 29 of the Hindu Succession Act, as amended by the A.P. State Legislature, and there was no justification for the lower appellate Court in reducing their share from 1/9th to 1/45th. They further pleaded that in view of the recent amendment made by the Parliament to Section 6 of the Act, it makes no difference whether the property was ancestral or self-acquired and they are entitled to share on par with the sons. The review petition was opposed by the other defendants. 6. Through its order under appeal, the lower appellate Court reviewed its judgment and revised the sharing pattern. The 1/9th share each in favour of the mother, daughters and sons, directed by the trial Court, was restored. 7. Sri N.V. Suryanarayana Murthy, learned senior counsel for defendants 1 and 5 to 8 (appellants), submits that the review undertaken by the lower appellate Court is beyond the scope of its powers and that there are no grounds that constitute a basis for review of its judgment. He contends that when in the appeal itself, no point was framed about the applicability of the amendment made to the Act by the Parliament in 2005, it could not have reviewed its judgment. He contends that when in the appeal itself, no point was framed about the applicability of the amendment made to the Act by the Parliament in 2005, it could not have reviewed its judgment. He contends that the plaintiff and defendants 2 to 4 have filed another review petition in the recent past and for all practical purposes, the points that can be urged before the appellate Court are being pleaded in the review petition. 8. Sri Raghuveer Reddy, learned counsel for the plaintiff and defendants 2 to 4, on the other hand, submits that though the lower appellate Court found that the properties are ancestral in nature, it committed a patent error in revising the shares for the daughters from 1/9th to 1/45th. He submits that such a course is opposed to the specific provisions of the Act. 9. Bansilal and his wife, the 1st defendant, had four sons i.e., defendants 5 to 8 and four daughters i.e., plaintiff and defendants 2 to 4. It is a matter of record that Bansilal owned and possessed substantial movable and immovable properties, by the time he died. He died on 26-07-1994. Even during his life time, the plaintiff filed O.S. No.230 of 1990 in the Court of Principal Subordinate Judge, Ranga Reddy District, for partition. After the death of Bansilal, that suit was withdrawn by the plaintiff. Shortly thereafter, she filed the present suit, being O.S. No.374 of 1994. Defendants 5 to 8, the sons, pleaded that neither the plaintiff nor their other sisters are entitled to any share since their marriages are performed during the life time of Bansilal and that their father executed a Will in their favour. 10. The trial Court did not believe the Will. By applying the provisions of Section 29 of the Act, as amended through the A.P. Legislature, the trial Court passed a preliminary decree in respect of Items – 1 and 3 of Suit – A schedule properties, directing that the wife, four daughters and four sons of late Bansilal are entitled to 1/9th share in each of them. It was also held that landed property i.e., Item – 4 of Suit – A schedule was sold and the parties were directed to share the sale proceeds in the same ratio. Defendants 1 and 5 to 8 preferred appeal by raising several grounds. It was also held that landed property i.e., Item – 4 of Suit – A schedule was sold and the parties were directed to share the sale proceeds in the same ratio. Defendants 1 and 5 to 8 preferred appeal by raising several grounds. They pleaded that the lower appellate Court could review that Items - 1, 3 and 4 of Suit - A schedule properties are ancestral in nature. Therefore, the lower appellate court took the view that the daughters of Bansilal are not entitled to claim partition of those properties. On the other hand, it observed that in a notional partition, Bansilal would get 1/5th share in the ancestral properties along with his four sons and the plaintiff and defendants 2 to 4 i.e., the daughters of Bansilal are entitled to have one share each on par with his sons in 1/5th share of late Bansilal. Thus, he determined the shares of the daughters i.e., plaintiff and defendants 2 to 4 at 1/45th. 11. In the review petition, the plaintiff and defendants 2 to 4 placed heavy reliance upon the recent amendment caused by the Parliament to Section 6 of the Act, through which rights of a coparcener in a Joint Hindu Family were conferred upon the daughters also on par with the sons. The review petition was allowed and the relief was granted as prayed for. 12. It may be true that the ground urged by the plaintiff and defendants 2 to 4 is purely legal in nature and it can constitute a basis for review. While dealing with review petition, the matter has to be undertaken at two stages. The first is to set at naught the finding, which was given in contravention of the specific provision, and the second is to examine the nature of relief, to be granted. In case the lower appellate Court has already framed a point on the issue that is urged on the controversy that is urged in the review, the discussion can straight away undertaken. On the other hand, if no point was framed at all, on the controversy, it has to first recall the order or the finding, which is in contravention of a given provision, and thereafter, hear the arguments duly framing a point. In a given case, the proposed relief claimed in a review may need recording of evidence. On the other hand, if no point was framed at all, on the controversy, it has to first recall the order or the finding, which is in contravention of a given provision, and thereafter, hear the arguments duly framing a point. In a given case, the proposed relief claimed in a review may need recording of evidence. An effective adjudication can take place, if only a point is framed for determining the controversy and the findings are recorded. The composite exercise of setting aside the finding recorded earlier and granting relief in a different form at one and the same stretch cannot be treated appropriate, in the facts of the present case. Added to that, it is brought to the notice of this Court that the plaintiff and defendants 2 to 4 have filed another review petition, being I.A. No.1 of 2009 in relation to the items of the property regarding which, relief was not granted. Such an uncertainty would not at all be in the interests of any of the parties. 13. Hence, the appeal is allowed and the order under appeal is set aside. The lower appellate Court is directed to hear I.A. No.171 of 2008 and I.A. No.1 of 2009 together. It is also directed that in case it finds that the points urged by the parties in the review petition need to be considered in detail, it shall frame necessary points for consideration, hear the arguments with reference thereto, and pass orders on merits. The arrangement directed by this Court in its order dated 26-03-2013, in this appeal, shall remain in force till disposal of the review petitions. There shall be no order as to costs. 14. The Miscellaneous Applications filed in this appeal shall stand disposed of.