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2025 DIGILAW 248 (TS)

Ramachandra Reddy v. M. Suvarna

2025-04-04

RENUKA YARA

body2025
JUDGMENT : RENUKA YARA, J. Heard Sri P. Gangarami Reddy, learned counsel for the appellants and Sri A. Sai Chakravarthy, learned counsel for respondent Nos.1 to 4. 2. This is an appeal preferred by the appellant/defendant No.6 aggrieved by the judgment and decree of the learned II Additional District Judge (FTC) at Mahabubnagar, dated 05.03.2019 in O.S.No.26 of 2012, whereby the suit for partition and separate possession filed by the respondent Nos.1 to 4/plaintiffs has been decreed allotting 1/6th share to respondent No.1/plaintiff No.1, 1/6th share to respondent Nos.3 and 4/plaintiff Nos.3 and 4, 1/6 th share each to respondent Nos.5, 6 and 8/defendant Nos.1, 2 and 4 and lastly, 1/6 th share to respondent Nos.10 to 13/defendant Nos.7 to 10. 3. For the sake of convenience, the parties in this appeal are referred to as they are arrayed in O.S.No.26 of 2012. 4. The suit was filed by the plaintiffs seeking 1/6 th share in the property consisting of Ac.3.00 gts. of dry land in Sy.No.25/1 within limits of Badepally Village of Jadcherla Mandal, Mahabubnagar District (hereinafter referred as ‘suit schedule property’). Sayanna who is original owner of suit schedule property died intestate. The plaintiff No.1 and her late sister Yadamma are daughters of Late Sayanna. Yadamma died. Said Late Yadamma’s husband is plaintiff No.2 and sons are plaintiff Nos.3 and 4. Defendant Nos.1 to 4 are sons of Late Sayanna and defendant No.5 is the wife of Late Sayanna. Defendant No.6 is the purchaser who purchased suit schedule property from defendant Nos.1 to 4 by way of registered sale deed dated 05.01.2008 vide document No.496 of 2008. Defendant No.5 died during pendency of the suit. Defendant No.4 also died during pendency of the suit and his legal heirs were brought on record as defendant Nos.7 to 10. 5. The plaintiffs filed the suit alleging that the suit schedule property was purchased by Late Sayanna under a private sale deed dated 10.05.1972 and has been in peaceful possession and enjoyment of his self-acquired property. After the death of Late Sayanna, the property has been in joint possession of the plaintiffs and defendant Nos.1 to 5. When the plaintiffs sought partition, defendant Nos.1 to 5 denied to partition and allot separate share to the plaintiffs, leading to filing of the suit under appeal. After the death of Late Sayanna, the property has been in joint possession of the plaintiffs and defendant Nos.1 to 5. When the plaintiffs sought partition, defendant Nos.1 to 5 denied to partition and allot separate share to the plaintiffs, leading to filing of the suit under appeal. After filing of the suit, defendant Nos.1 to 4 who are siblings plaintiff No.1 and brothers-in-law to plaintiff No.2 admitted the relationship but denied right of the plaintiffs to allotment of a share in the suit schedule property on the premise that plaintiff No.1 and Late Yadamma were married in the year 1983 by spending huge amount of money and by giving gold and silver ornaments. Ever since marriage, since the marriages were performed by giving money and gold ornaments, according to defendant Nos.1 to 4 and 5, plaintiffs are not entitled to any share. In addition, defendant Nos.1 and 2 pleaded that they have taken loan from defendant No.6 and therefore, nominally executed promissory note and registered sale deed dated 05.01.2008 in favour of defendant No.6 with an understanding to redeliver the property after payment of entire money with interest. As such, neither the plaintiffs nor defendant No.6 have any right over the suit schedule property. 6. According to defendant No.6, the defendant Nos.1 to 4 are the owners of the suit schedule property having purchased the same from the erstwhile vendor through a simple sale deed and got validated the same under the provisions of Record of Rights Act, 1971. The said property is conveyed by defendant Nos.1 to 4 in favour of defendant No.6 on 05.01.2008. The property was never purchased by late Sayanna. There is no documentary proof to show that plaintiff No.1 and Late Yadamma are daughters of Late Sayanna and therefore, neither the plaintiffs, nor the defendant Nos.1 to 4 have any rights over the suit schedule property. Defendant No.6 has been in possession of the suit schedule property ever since its purchase in the year 2008 and therefore, the court fee paid by the plaintiffs is insufficient and the suit is liable to be dismissed on said grounds. 7. On the basis of rival pleadings, the learned II Additional District Judge (FTC) at Mahabubnagar framed the following issues for trial: 1) Whether the plaintiff is entitled for partition of the suit schedule properties as prayed for? 7. On the basis of rival pleadings, the learned II Additional District Judge (FTC) at Mahabubnagar framed the following issues for trial: 1) Whether the plaintiff is entitled for partition of the suit schedule properties as prayed for? 2) Whether the first plaintiff and Yadamma ceased to be members of joint family consequently the plaintiff Nos.2 to 4 are also not members of the joint family? 3) Whether the suit schedule properties are purchased by late Sayanna with his own funds or not? 4) Whether D-3 and D-4 contacted debt from defendant No.6? 5) Whether the court fee paid by the plaintiffs are correct or not? 6) Whether the defendant No.6 is purchaser of the sit property and he is in enjoyment and property is not available for partition? 7) To what relief? 8. Upon considering the Issue No.3 with respect to purchase of the suit schedule property by Late Sayanna, the learned II Additional District Judge (FTC) decided it in favour of plaintiffs holding that Late Sayanna purchased the suit schedule property under a private sale deed in the year 1972, more particularly on 10.05.1972. Thereafter, the Issue Nos.1 and 2 with respect to plaintiffs entitlement to the partition of suit schedule property, alternatively as to whether the plaintiffs and Late Yadamma’s legal heirs ceased to be members joint family property, it is answered that the relationship is undisputed and that there is no evidence about the performing marriages by giving huge amount of money, gold and silver ornaments and therefore, held that the plaintiffs are entitled for partition and allotment of separate share. More particularly, it is held that the suit schedule property was not partitioned after the death of Sayanna among his legal heirs under Section 8 of Hindu Succession Act , 1956, therefore, after the death of late Sayanna, as per admissions of defendant Nos.1 to 4, the plaintiff No.1, defendant Nos.1 to 5 and plaintiff Nos.3 and 4 are entitled for a share in the suit schedule property being Class-I legal heirs. 9. With respect to issue No.4 about whether defendant Nos.3 and 4 have contacted debts, it is not answered and held that same is not necessary for the adjudication of the suit. 9. With respect to issue No.4 about whether defendant Nos.3 and 4 have contacted debts, it is not answered and held that same is not necessary for the adjudication of the suit. The Issue Nos.5 and 6 with respect to whether the court fee paid by the plaintiffs is incorrect and whether defendant No.6 is purchaser of the suit schedule property and he is in enjoyment of the same, they are answered in favour of both the plaintiffs as well as defendant No.6 to the effect that the sharers of a joint property would have possession over every inch of land in the joint property. Though the possession of defendant No.6 is admitted, since right of the plaintiffs is not extinguished, the plaintiffs are in constructive possession of the suit schedule property and therefore, court fee paid is held to be sufficient. In view of the aforementioned findings, the suit is decreed in favour of the plaintiffs allotting 1/6 th share to plaintiff No.1, 1/6 th share to plaintiff Nos.3 and 4, 1/6 th share each to defendant Nos.1, 2 and 4 and 1/6 th share to defendant Nos.7 to 10. In view of the fact that defendant Nos.1 to 4 sold the property to defendant No.6, their shares were directed to be adjusted in favour of defendant No.6 while drawing the final decree with a compact block of shares allotted to defendant No.6. 10. During the pendency of the appeal, the appellant/defendant No.6 died and appellant Nos.2 to 5 are brought on record as legal representatives of deceased appellant/defendant No.6. 11. During arguments in appeal, learned counsel for the LRs of deceased defendant No.6 contended that the sale deed dated 10.05.1972 shows that the suit schedule property was jointly purchased by defendant Nos.1 to 4 and is validated under the provisions of ROR Act. 12. According to appellant, the plaintiff No.1 and Late Yadamma got married much earlier to the filing of the suit and therefore, they are not members of the joint family and therefore, they cannot claim allotment of 2/6th share. More particularly, it is contended that defendant Nos.1 to 4 have partitioned the property with Ac.0.30 gts. each and their names are mutated in ROR in the year 1989. Defendant Nos.1 to 4 enjoyed the suit schedule property until it was sold to defendant No.6 in the year 2008. More particularly, it is contended that defendant Nos.1 to 4 have partitioned the property with Ac.0.30 gts. each and their names are mutated in ROR in the year 1989. Defendant Nos.1 to 4 enjoyed the suit schedule property until it was sold to defendant No.6 in the year 2008. The partition among defendant Nos.1 to 4 took place much prior to Hindu Succession (Amendment) Act, 2005 came into force and therefore, the suit filed by the plaintiffs is not maintainable. Further, it is argued that the plaintiffs and defendant Nos.1 to 4 are not in possession of the suit schedule property and therefore, the court fee paid under Section 34(2) of the Telangana Court-fees and Suits Valuation Act is not correct. The defendant No.6 is bonafide purchaser of the suit schedule property in the year 2008, his name is mutated in the ROR records, patta passbook and title deed are issued in his name and therefore, there is no justification for the plaintiffs to claim share in the suit schedule property. According to appellant, the plaintiff No.1 and legal heirs of Late Yadamma ceased to be members of joint family property. 13. In response, the learned counsel for the plaintiffs argued that the sale deed executed in favour of defendant No.6 is of the year 2008 i.e. after Hindu Succession (Amendment) Act, 2005 came into force and therefore, said alienation does not preclude partition. It is argued that defendant Nos.1 to 4 have alienated the property in favour of defendant No.6 without the consent of daughters i.e. plaintiff No.1 and the legal heirs of Late Yadamma i.e. plaintiff No.2 to 4. It is argued that the suit schedule property does not belong to defendant Nos.1 to 4 as it is not their self-acquired property but ancestral property. Since, the suit schedule property is ancestral property, the plaintiffs are entitled to a share as Class-I legal heirs. 14. By way of reply of arguments, the learned counsel for the appellant argued that defendant Nos.1 to 4 are recognized as pattadars and therefore, the daughters are not shown as vendors in the sale deed executed in favour of defendant No.6. 15. 14. By way of reply of arguments, the learned counsel for the appellant argued that defendant Nos.1 to 4 are recognized as pattadars and therefore, the daughters are not shown as vendors in the sale deed executed in favour of defendant No.6. 15. The learned counsel for the appellant referred to the judgment of the Hon’ble Supreme Court of India in Vineeta Sharma vs. Rakesh Sharma and others , (2020) 9 SCC 1 , wherein, it is discussed about the coparcenary and Hindu joint family property. It is held that if the daughter is alive on the date of enforcement of the Amendment Act i.e. 09.09.2005, she becomes a coparcener with effect from said date irrespective of whether she was born before the said amendment. It is further held that provisions in substituted Section 6 of the Hindu Succession Act confer status of coparcener on daughter born before or after the amendment in the same manner as son with same rights and liabilities. 16. The learned counsel for the respondent Nos.1 to 4/plaintiffs referred to the judgment of the Hon’ble Supreme court of India in the matter of Prakash and others vs. Phulavati and others , (2016) 2 SCC 36 , wherein, it is held that the Hindu Succession (Amendment) Act, 2005 applies only when both coparcener and his daughter are alive on the date of commencement of Amendment Act i.e. 09.09.2005. He further referred to the judgment of this Court in the matter of Vadla Balaswamy vs. V. Suvarna , [2022 LawSuit (TS) 1102] with respect to rights of coparcener under Section 6 of the Hindu Succession Act , wherein, legal ratio in case of Vineeta Sharma (supra 1) is reiterated and the judgment of the Hon’ble Supreme Court of India in the matter of Prakash (Supra 2) has been revised. 17. From the oral as well as documentary evidence let in by the parties, Late Sayanna died prior to mutation of names of defendant Nos.1 to 4 in revenue records in the year 1990. Even prior to his death, her daughter Yadamma died. However, the judgment of Vineeta Sharma (supra 1) has retrospective applicability and it extents the benefit of the 2005 amendment to daughters, even if the daughter had predeceased the father before the amendment came into effect. Even prior to his death, her daughter Yadamma died. However, the judgment of Vineeta Sharma (supra 1) has retrospective applicability and it extents the benefit of the 2005 amendment to daughters, even if the daughter had predeceased the father before the amendment came into effect. Hence, the surviving plaintiff No.1 as well the legal heirs of a predeceased daughter i.e. plaintiff Nos.3 and 4 are entitled to a share in the ancestral property. 18. It is proven by oral and documentary evidence that Late Sayanna purchased the suit schedule property in the year 1972, the same is the joint family property of the plaintiff and defendant Nos.1 to 5. Such being the case, the alienations made prior to 09.09.2005 are not disturbed for the purpose of partition. In view of the enforcement of the Hindu Succession (Amendment) Act, 2005 w.e.f. 09.09.2005, the alienations subsequent thereof in favour of defendant No.6 i.e. in the year 2008 is not saved. The plaintiffs ought to have been joined as vendors while executing registered sale deed in favour of defendant no.6 under Ex.B1. Further, the partition claimed by appellants between defendant Nos.1 to 4 and recording of their names as pattadars does not stand judicial scrutiny as said partition is not effected through a registered partition deed. In the circumstances, the suit schedule property purchased by Late Sayanna has to be divided and the shares allotted by the learned II Additional District Judge (FTC) at Mahabubnagar vide impugned judgment dated 05.03.2019 in O.S.No.26 of 2012 is in conformity with the law of the land and therefore, cannot be interfered with. 19. In the result, the Appeal Suit is dismissed. No order as to costs. As a sequel, all the pending miscellaneous applications are closed.