1 . ltha Shobhan Babu v. '1 . ltha Srisailam

Judgment

This Second Appeal is filed by the appellants - appellants - plaintiffs aggrieved by the judgment and decree dated 19.03.2004 passed in A.S.No.28 of 1999 by the leamed Senior Civil Judge, Bhongir confirming the judgment and decree dated 18.02.1999 passed in O.S.No.23 of 1997 by the learned Junior Civil Judgc, Bhongir.

2. The facts of the case in brief are that the plaintiffs, who were minors, represented by their natural mother, filed a suit for partition and separate possession claiming three-fourth share in the plaint schedule A & B properties situated at Pothireddypally, Hamlet of Rahimkhanpet Village of Atmakur Mandal, Nalgonda District. The parties to the suit were Hindus by religion and were govemed by Mitakshara School of Law. It was averred that the plaintiffs

I to 3 were the sons of defendant No.l. The suit properties were ancestral properties of plaintiffs I to 3 and defendant No.l. The defendant No.l was habituated to all vices and was neglecting to look after the welfare of the plaintiffs and was trying to dispose of the suit A and B schedule properties. The defendant No.l was negotiating and making efforts to dispose of the suit ./ I ) Dr.GR& J sa 745 2004 properties to otheni. Hence, the plaintiffs demanded for partition and separate possession of their respective shares on 28'08'1990 and 03'09'1991' But the defendant No.t paid deaf ear' The plaintiffs also stated that thel' filed a suit for partition and separate possession earlier vide O'S'No'254 of 1990 against the defendant No. I . But due to the intervention of elders' on the promise of defendant No.l to provide a peaceful life to the plaintiffs and their mother Itha Rajeswari, the suit as well as M'C'No'6 of 1990 were not pressed on 13.11.1990. But the defendant No'l faited to keep up his promise and again started to ill-treat the plaintiffs and their mother' Hence' having no other altemative filed the iiesh suit'

3. The suit schedule "A" properties were shown as items I and 2' the agricultural dry tands to an extent of Ac'18-38 guntas in Survey No'417 of Pothireddlpally Village and the agricultural wet landl to an extent of Ac'2-30 guntas in Survey No.420 of Pothireddypally Village was shown as item 3 of "A" schedule properties. The suit schedule "B" properties were a house plot admeasuring 182 square yards situated at Motkur' a tiled house' a huller and a current motor.

4. The defendant No.l filed written statement admitting the relationship with the plaintiffs. However, contended that the suit schedule properties were not ancestral or joint family properties' Ytems I and 2 of plaint "A" schedule in ,l 3 Dr.GR& J sa 745 2004 Survey No.4l7 admeasuring Ac.l8-35 guntas were the self-acquisition of the defendant's senior patemal uncle Itha Narayana having been purchased by him from one Kanala venkat Ram Narsaiah. As Narayana died intestate without having class-l legal heirs, the said land devolved upon the defendant's fatheq as the sole heir of Narayana. consequent upon the death of the defendant,s father somaiah, the said land devolved upon the defendant No.r and his mother Sathemma as tenants in common under the provisions of Hindu Succession Act,

1956. Thus, the halfshare got by the defendant No.l in the said land constitutes his self-acquisition and the plaintiffs had no right what so ever in the said .land. Item No.3 of plaint "A" schedule was the sellacquired property of the defendant's father and consequent upon the death of his father, the same was devolved upon the defendant and his mother to be enjoyed by them as tenants in common. Item No.l of plaint "B" schedule namely the house plot of lg2 square yards forming part of survey No.447 of Motkur village was the sthreedhana property of the defendant's mother Sathemma having been purchased by her. She sold the same to one B.chakraiah in May, 1991. Neither the plaintiffs nor the defendant No.l had got any right over the said house plot. Item No.2 of plaint "B" schedule, tiled house sihrated at pothireddipally village was in the occupation of the defendant No.l originally. The same belonged to the defendant's senior patemal uncle having been constructed by him with his own funds and therefore it was his self acquisition. consequent upon his death, the 4 Dr.GR& J sa 745 2004 defendant's father Somaiah got the said house as sole legal heir to him and consequent upon the death of defendant No.l's father, the del'endant No.l and his mother became the owners of the said house and were holding the same as tenants in common. The defendant No.l got half share and the same was his self-acquisition. Item No.3 of plaint "B" schedule i.e. huller u'as purchased by the defendant No. I with his own income and it was sold by the defendant No.l in the year 1989 iself to one T.Ilaiah of Pothireddypally Village. The current motor referred to as item No.4 of "8" schedule was a second hand motor purchased by def-endant No.l with his own funds and it would constitute his self acquisition. The defendant No.l's father did not inherit any property from his father and therefore there was no ancestral and joint l'amity property. The plaintiffs had no share in the suit schedule property, as it was not a joint lamily property of the defendant No.l or his father. The suit for partition was misconceived and was liable to be dismissed.

5. Basing on the said pleadings, the trial court framed the issucs as follows: (i) Whether the suit properties were ancestral properties? (ii) Whether the plaintiffs were in joint possession of the suit properties? (iii) Whether the plaintiffs were entitled to two-third sharc in the suit properties? (iv) To what reliefl 5 Dr.GRR, J sa 745 2004

6. The mother and natural guardian of the plaintiffs was examined as PW-l' She also got examined two other witnesses as PWs.2 and 3 and got marked Exs.Al to A13. The defendant No.l was examined as DW.1 and got examined one more witness as DW.2 and got marked Exs.Bl to 89.

7. On considering the oral and documentary evidence on record, the leamed Junior civil Judge, Bhongir observed that defendant No.l inherited the items I and 2 of "A" schedule land in Survey No.4l7 directly from Itha Narayan4 his senior paternal uncle without being first mutated in the name of Somaiah, the father of defendant No.l, as such considered the same as the self-acquired property of defendant No.l and that the same could not be subjected for partition. However, with regard to the item 3 of "A" schedule land in Survey No.420 admeasuring Ac.2-33 guntas, as admittedly the same belonged to Somaiah, the father of defendant No.l and grandfather of plaintiffs, considered the same as coparcenary and joint family property and that the same was liable for partition. With regard to items 1, 3 and 4 of plaint "B" schedule properties, it was held that, as no documentary evidence was filed by either parties about the existence or non-existence of the said properties or that the same was acquired from the funds of the nucleus of the joint family, excluded the same from partition. With regard to item 2 of "8" schedule property, basing upon Ex.Bl certificate issued by the Sarpanch, Gram Panchayat, Pothireddypally, 6 DT.GRR' J sa-745 2004 wherein it was shown that the house bearing N o'3-72 in Pothireddypally village stood in the name of defendant No' l and as no document was filed by defendant No.l to show that the said item belonged to his senior patemal uncle' considered the same as coparcenary property and that the same was liable for partition' As such' the rial court held that item 3 of "A" schedule i'e' Ac'2-33 guntas in Survey No'420 and the house bearing No'3-72 situated at Pothireddypally vitlage were only liable for partition and granted one-eighth share each to the plaintiffs I m 3 and 9/40e share to defendant No'i and one- tenth share each in item No'3 of 'A* schedule property and item No'2 of "B" schedule propertf to defendants 2 to 5 and rejected the claim for partition with regard to items I and 2 of "A" schedule and items l' 3 and 4 of "B" schedule' 8. Aggrieved by the saidjudgment and decree passed by the leamed Junior Civil Judge, Bhongir' the plaintiffs preferred A'S'No'28 of 1999 against the dismissal of their suit in respect of items I and 2 of plaint "A" schedule and items l, 3 and 4 of plaint "B" schedule properties' The defendans - respondents did not prefer any appeal against the passing of preliminary decree for partition of item 3 of plaint "A" schedule and item 2 of plaint "B" schedule' as such the same attained rrnarity. The appear was heard by the leamed Senior civil Judge' Bhongir and vide judgment and decrggdated 19'03'2004' dismissed the appeal 7 Dr.GR& J sa 745 2OO4 confirming the judgment and decree passed by the leamed Junior Civil Judge, Bhongir in O.S.No.23 of 1997.

9. Aggrieved further, the plaintiffs preferred this Second Appeal by raising the following substantial questions of law in ground No.l 1 : I 1(a) Whether the judgment of the lower court was valid and was in consonance with the provisions of Order XLI Rule 3l of CPC? (b) Whether the provisions of Section 8 of the Hindu Succession Act, 1956 were applicable to the case on hand? (c) Whether the judgment of the lower court was vitiated by non-consid6ration of relevant evidence, consideration of irrelevant documents and by perverse reasoning?

10. This Court admitted the Second Appeal on 18.08.2004 on the ground No.l I [(a) and (b)] in the memorandum of appeal.

11. Heard Sri Y.Srinivasa Murthy, learned Senior Counsel for the appellants - plaintiffs and Sri J.Kanakaiah, leamed Senior Counsel for the respondents- defendants.

12. Leamed Senior Counsel for the appellants contended that both the courts below materially erred in misconstruing the provisions of the Hindu Succession Act, 1956, which resulted in miscarriage ofjustice. The courts below failed to see that the properties of Narayana were devolved upon Somaiah, the father of -a"' 8 Dr.GRR, J sa 145 2004 defendant No.l as class-ll legal heir, As such, the same would become coparcenary propertv to the plaintiffs and the plaintiffs were entitled to a share by survivorship. Thc defendant No.1 admitted in his written statement that items I and 2 of plaint "A" schedule properties were devolved upon his father as sole heir ofNarayana and consequent upon the death of his father, Somaiah, the said land devolved upon him and his mother Sathemma. The evidence of DW.2 also would disclosc that somaiah lived after the death ol' Narayana and Narayana left behind him Ac.20-00 guntas of land and house and the wife and son of Narayana predeceased Narayana 30 years ago' The said pleadings and evidence of the witnesses was ignored by the courts below. Mutation could not be the basis to determine title. The trial court excluded the entire Ac. t 8-35 guntas of land from partition. The distribution of shares in Survey No.420 made by the triat court was also incorrect. No share could be alloned to a dead person. No written statement was filed by defendant No.2 nor she entered into the witness box, but the trial court made presumptions in her favor. 'I'wo of the sisters of defendant No.l, defendants 3 and 4 were married prior to 1985 and those sisters were also not entitled for any share. The courts below relied upon the revenue entries to hold that items I and 2 of plaint "A" schedule propertiet t directly devolved upon defendant No.1, but not upon Somaiah' As per the Law of Succession, only through Sornaia!, the said properties could be devolved upon defendant No.l. As such, the same should be considered as coparcenary '/ I Dr.GRR, J sa 745 2004 property and defendant No.l and his sons alone could have a share in it, but not defendants 2 to 5. The reasoning given by the trial court was erroneous, un- sound and un-sustainable. The lower appellate court failed to re-appreciate the evidence and only certified the frndings of the trial court. Hence, prayed to allow the Second Appeal.

13. Leamed Senior Counsel for the respondents - defendants on the other hand contended that items I and 2 of plaint "A" schedule properties and item No.2 of plaint "B" schedule properties were the self-acquired properties of Narayana and after his death, the same were devolved upon Somaiah as his self- acquired properties. After the death of Somaiah, the same would be devolved upon his wife (defendant No.2) and son (defendant No.1) as his self-acquired properties. The item No.l of "B" schedule property was purchased by defendant No.2 from her sthreedhana and the same was sold to one B.Chakraiah. As such, the same was not available for partition. Somaiah, the father of defendant No.l did not acquire any property from his father so as to constitute coparcenary property. The trial court as well as the lower appellate court discussed the law, evidence and documents, no substantial questions of law would arise and prayed to dismiss the Second Appeal.

14. The Amendment Act of 1976 to the Code of Civil Procedure, 1908 introduced drastic changes in the scope and ambit of Section 100 of CPC. A 10 Dr.GRR, J sa 745 2004 Second Appeal under Section 100 of CPC is now confmed to cases where a question o[law is involved and such question must be a substantial one-

15. The Hon'ble Apex Court in Chandrabhan (deceased) through LRs- and others v. Saraswati and Othersr dated 22.09.2022, observed that: "Right of appeal is not automatic. Right of appeal is conferred by statute. When statute confers a limited right of appeal restricted only to cases which involve substantial questions of law. it is not open to this Court to sit in appeal over the factual findings arrived at by the First Appellate Court."

16. The Hon'ble Apex Court also summarized the following principles relating to Section 100 of CPC: "(i) An inlerence of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a drrcument is a question of law. Construction of a document involving the application of any principle of law is also a question of law. Therefore, when there is misconstruction ofa documen{ or wrong application of a principle of law in constnring a document, it gives rise to a question of [aw. (ii) Thc fligh Court should be satisfied that the case involves a substantial question of law, and not a mere question of lax. A question of law having a material bearing on the decision ofthe case (that is, a question, answer to which affects the rights of panies to the suit) will be a substantial question of law, if it is not co\,ered by any specillc l5ovisions of law or settled legal principle emerging lrom binding precedents and involves a | 2022 SCC Onl.ine S(- 1273 I I I 17 Dr.GRR, J sa 745 2004 debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding prec€dents, but the court below has decided the matter, either ignoring or acting conaary to such legal principle. In the second type oi cases, the substantial question of law arises nol because the law is still debatable, but because the decision rendered on a material question, violates the seftled position of law. (iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where: (D The courts below have ignored material evidence or acted on no evidence; (ii) The courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) The courts have wrongly cast the burd€n of proof. When the Court refers to a decision based on no evidence, it not only refers to cases where there is a total dearth ofevidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably caPable of supporting the finding." 72 Dr.GR& J sa 745 20O4 17. In Suresh Lataruji Ramteke v. Sau. Sumanbai Pandurang Petkar and others2, the Hon'bte Apex Court hetd that: "After all, a second appeal is not a third trial on facts, and so for re-appreciation ofevidence to be justified, and for the same to bc required as well as being demonstrably, at a different threshold from merely, a possible different view, perversity or the other conditions of no evidence or inadmissible evidence ought to be urged. Accepting the argument of perversity merely on the submissions made and not having appreciated the record, would be unfair to the court of Second Appeal."

18. This Second Appeal is filed against the concurrent judgments of the courts below. 1'he findings on facts cannot be disturbed in the Second Appeal. Keeping in viera, the above principle, the judgments of the courls below need to be looked into.

19. As seen from the pleadings and admitted facts, the relationship between the parties is not in dispute. It was also admitted that the parties were Hindus and they were bound by Mitakshara School of Law. It was also admitted that Somaiah has got three brothers by name Chandraiah, Ramaiah and Narayana and that all the three brothers died without leaving any issues. It was also admitted that items 1 and 2 of plaint-'A' schedule properties and item No.2 of the plaint "B" schedule property were the self-acquired properties of Narayana and that the same were devolved upon defendant No.l from Narayana, who was '1 2023 Live Law SC 82 I 13 Dr.G RR, J sa 745 2004 his senior patemal uncle . Item 3 of plaint "A" schedule property was the self- acquired property of Somaiah, the father of defendant No.l and the same was devolved upon defendant No.l from his father. It is also to be remembered the difference between a coparcenary property and a self-acquired property.

20. The coparcenary property is a property inherited by a male Hindu from his three immediate lineal male ascendants i.e. his father, grandfather and great grandfather. In the case of death of a member of coparc€ner under Mitakshara Law, his right would devolve upon the other members by survivorship' An important element of coparcenary under Mitakshara Law is unity of owngrship' A coparcenary property is considered as held by all the coparceners in collective ownership. The incidents of coparcenary are firstly, the lineal male descendants ofa person upto the third generation, acquire on birth ownership in the ancestral property of such person, secondly, that such descendants can at any time work out their rights by asking for partition, thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest, fourthly, that as a result ofsuch co-ownership the possession and enjoyment of the property is common, fifthly, that no alienation of the property is possible unless it is for legal necessity, without the concurrence of the coparceners and lastly that the interest ofa deceased member passes on his death to the surviving members oi the coParcenary. l4 Dr.GRR, J sa-745-2004

21. In the case ol self-acquired property' the rules of Succession as laid down under Section 8 of tlindu Succession Act' 1956 would foltow' Ljnder Section 8 of the Hindu Successron Act' 1956' the property a male l{indu' who dies Act' 1956' the ProPertY a intestate would devolve upon his class-I legal heirs as their absolute property' In the absence of class-I legal heirs' it would devolve upon class-Il legal heirs' and if there is no heir of any of the two classes' then upon the aguates of the deceased and lastty, if there is no agnate, then upon the cognates of the deceased

22. When a property is inherited by a male Hindu from his three immediate lineal male ascendants, then only it can be considered as coparcenary' The property inherited by a Hindu from other relations such as his brother and uncle is his seParate ProPerty

23. In Mulla's principles of Hindu Law (15ft Edition)' it is stated at page No.289 that: ''. .. il A inherits property' whether movable or immovable' from his father, or father's father' or father's father's father' it is ancestral property as regards his male issue' lf A has no son' son's son or son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal ]ttrtit ut he pleases "" A person inheriting property from his three immediate patemal ancestors holds it, and must hold it' in coparcenary with his sons' sons' 15 Dr.GRR, J sa 745 2004 sons and sons' sons' sons but as regards other relations he holds it and is entitled to hold it, as his absolute property."

24. As seen from the facts of the case, the trial court in its judgment observed that: "lt is also not a disputed fact that Itha Narayana died intestate without any wife, sons and daughters. So as can be seen from Exs.Al3 and 84, the certified copy of faisal patti for the year 1976-77, the suit lands in Survey Nos.4l7 and 420 have been mutated in the name ol defendant No.l consequent upon the death of ltha Narayana. Thus, the propefi belonging to defendant No.l was belonged to Itha Narayana, who was his senior patemal uncle and was mutated in the name ofdefendant No.l. Where a person has inherited a property from a collateral relation as for instance from a brother, nephew, cousin or uncle, it is not an ancestral property in his hands in relation to his male issue and consequently his male issues have no equal rights as coparceners. The trial court also further observed that: "ln the instant case, the defendant No.l inherited the land in Survey No.4l7 after the death of Itha Narayana, his senior patemal uncle, who died issue less and other class-I heir, neither parry led evidence as to when Narayana died, whether he predeceased Somaiah, the father of defendant No.l. Though, PW.2 deposed in the cross-examination that Somaiah succeded to the suit lands consequent upon the death of Ramaiah and Narayana issueless but a perusal of Exs.Al3 and 84 faisal patti would reveal that suit lands were mutated in the name of delendant No.l directly from ltha Narayana. No -r I I I Dr.GR& J sa 745 2004 document was filed to show that the land in Survey No'417 was first mutated in the name of Somaiah, the father of defendant No.l and subsequent to his death upon defendant No'l himself' So, since defendant No.l inherited the land in Survey No'417 from Itha Narayana directty, who died issueless, hence, I hold that item No.l i.e. survey No.4l7 inherited by defendant No'l fiom ltha Narayana, his senior patemal uncle, who is a collateral and not a male ancestral, the said item is self- acquired property of defendant No.l. So the said item cannot be subjected for Partition."

25. These observations of the trial court are found fault with by'the teamed counsel for the appellants contending that the defendant No'l in his wrinen statement itself stated that as Narayana died intestate and he had no wife / children at the rime of his death, the said land was devolved upon the defendant's father as the sole heir of Itha Narayana and consequent upon the death of defendant's father Somaiah, the said land was devolved upon him and his mother Sathemma as tenants in common under the provisions of Hindu Succession AcL 1956.

26. He also further contended that DW.2 in his evidence stated that the father of defendant No.l Somaiah died of paralysis about 15 years back, Narayana died 20 years back and the wife and son of Narayana predeceased Narayana about 30 years back. As such, the trial court committed an error in making its observations contrary to the admissiaqS, made by the defendants and the evidence adduccd by the defendants. He further contended that mutation is not 17 Dr.GRR, J sa 745 2004 criteria for deciding the title. As Somaiah is the brother of Narayana and was alive by the time ol death of Narayana, the said properties items I and 2 of plaint "A" schedule and item No.2 of plaint "B" schedule were devolved upon Somaiah and on his death, upon defendant No.l, and the plaintiffs being the sons of def'endant No. I and grand sons of Somaiah were entitled for partition in the said properties.

27. In Madhavan Nair v. Bhaskar Pillair, the Hon'ble Apex Court observed that it is well settled that even if the first appellate court commits an error in recording a hnding of fact, that itself will not be a ground for the High Gourt to upset the same

28. In H.P.Pyarejan v. Dasappa (dead) by LRs. and others{, the Hon'ble Apex Court found serious infirmity in the judgment of the High Court and observed that it suffers from the vice of exercise ofjurisdiction which did not vest in the I-{igh Court. Under Section 100 of the Code (as amended in 1976), the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it invokes re- appreciation of evidence. The Court lound that the impugned judgment of the High Court was vulnerable and needed to be set aside '(2005) r0 scc 553 ' (2006) 2 SCC 496 I I 18 Dr.GRR, J sa 745 2004

29. As such, even if the properry was devolved upon Somaiah from Narayana, who was his brotheq the same amounts to his separate Property and would devolve upon defendant No.l as per Section 8 of the Hindu Succession Act, 1956. The defendant No.l would not acquire any interest in it by birth and it would pass on to him by succession and not by survivorship. The personal property inherited for at least four generations without division can only be classified as ancestral property. But the plaintiffs belonged to only third generation liom Somaiah. As such, it cannot be considered as a coparcenary property of the plaintiffs. Thus, even if the property was devolved upon Somaiah, this Court considers that there would be no change in law and the same cannot be considered as a coparcenary property to the plaintiffs.

30. The Hon'ble Apex Court in Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Otherss on the question, whether the income or asset, which a son inherits from his father when separated by partition, the same should he assessed as income of the Hindu Un-divided Family (for short "F[UF") of son or in his individual capacity and considering the effect of Section 8 of the Hindu Succession Act, 1956, held that: "'lhe Hindu Succession Act, 1956 lays down the general rules ol'succession in the case-efqales. The first rule is that the property of a male Hindu dying intestate shall devolve 11986) 3 sCC s67 79 Dr.GR& J sa 745 2004 according to the provisions of Chapter II. Class I of the Schedule provides that if there is a male heir of Class I then upon the heils mentioned in Class I ofthe Schedule. The heirs in Class I includes the son but not the grandson. Under Section 8 ofth€ Hindu Succession Act, 1956, the property ofthe father who dies intestate devolves on his son in his individual capacity and not as kartha ofhis family. On considering the divergent views expressed on the said aspect by the Allahabad High Court, Full Bench ofthe Madras High Court, Madhya Pradesh and Andhra Pradesh High Courts on one side and the Gujarat High Court on the other, it was held that: "It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codi! the law relating to intestale succession among Hindus. ln view of the preamble to the Act, i.e., that to modi$ where necessary and to codiry the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under section 8 to inherit, the latter I 20 Dr.GRR, J sa 745 2004 would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in section E. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difticutt to hold today the property which devolved on a Hindu under section 8 of the Hindu Succession rvould be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under section 8 of the Act included widow, mother, daughter of predeceased son etc. Before we conclude we may state that we have noted the observations of Mulla's Commentary on Hindu law l5th Edition dealing with settion 6 of the Hindu Succession Ac1 at page 924-26 as well as Mayne's on Hindu Law, I2th Edition pages 9lg- 9r9." "The express words ofsection 8 ofThe Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to'amend,the law, with that background the express language which excludes son's son but included son of a predeces{ son cannot be ignored." 27 Dr.GR& J sa 745 200,1 "In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable lo agree with the views of the Gujarat High Court noted hereinbefore."

31. . The same view was also followed in Yudhister v. Ashok Kumar6, wherein it was held thaf the property devolved on a Hindu male under Section 8 of the Hindu Succession Act, 1956 would not be a HUF property in his hands vis-a-vis his own sons.

32. Thus, the above judgments would disclose that once a property was devolved upon a Hindu under Section 8 of the Hindu Succession Act, 1956, the same cannot be considered as a HUF property or ancestral property or coparcenary property and the same shall be considered as his absolute property.

33. As the property of Narayana was devolved upon defendant No'l through his father Somaiah under Section 8 of the Hindu Succession Act, 1956, the same would become his absolute property, buf cannot be considered as an ancestral property or coparcenary property or a HUF property vis-a-vis his sons i.e. the plaintiffs herein. As such, this Court considers that the trial court as well as the lower appellate court had not committed any error of law in considering items 1 and 2 of "A" schedule property as the absolute property of "AIR 1987 sc 558 22 Dr.GRR, J sa 7,15 2004 defendant No.l and holding that the said items could not be subjected to partition.

34. The lower appellate court on discussing the oral and documentary evidence on record observed that: "The crucial question is, whether items I and 2 of plaint "A" schetlule are the coparcenary property of plaintiffs and defendants I to 5. Even assuming items I and 2 of ptaint "A" schedule were devolved upon ltha Somaiah from his brother Itha Narayana and after the death of ltha Somaiah as per Section 8 of the Hindu Succession Act, 1956, it shall devolve upon defendants I to 5 only being the class-I legal heirs' The propcrty devolved on Itha Somaiah from his brother cannot be treated as an ancestral coparcenary proPerty v'i-a-v'i, the son of defendant No-l i.e. the plaintiffs. When items I and 2 of ptaint "A" schedule are not coparcenary properties' the plaintiffs I to 3 by birth cannot claim any right over the same'"

35.Thus,boththetrialcourtaswellasthelowerappellatecourtconsidered items I and 2 ol- plaint "A" schedule properties as not coparcenary properties, for which the plaintiffs could claim any right over the same by birth and could seek partition as of right. Thus, this Court does not find any error in the appreciation of evidence or any error in the appreciation of law or any eror in applying the law to the facts of the case.

36. As such. this Court considers that the judgment of the lower appellate court is valid an<l is in consonance with the provisions of Order XLI Rule 3l of ,/ 23 Dr.GRR, J s^ 745 2004 CPC and not vitiated by any perverse reasoning or non-consideration of relevant evidence or consideration of irrelevant documents. This Court is ofthe view that the provisions of Section 8 of the Hindu Succession Act, 1956 is only applicable to items I and 2 of plaint "A" schedule property and that the piaintiffs were not entitled for any share in the said items of properly during the \ lifetime of defendant No.1 .

37. As no appeal was filed by the defendants in respect of decreeing the suit with regard to item No.3 of plaint "A" schedule and item No.2 of plaint "B" schedule, the same attained finality.

38. As the appellants had not challenged the shares allotted to them by way of applying notional partition of item No.1 of "A" schedule properry in the First Appeal, the same could not be a matter of challenge in this Second Appeal. Even otherwise, this Court does not find any error in allotting a share to Somaiah, who was not alive and granting his share to his class-I legal heirs under Section 6 ofthe Hindu Succession Act, 1956 in notional partition, as the same is only for ascertaining the share of the deceased coparcener survived by a female heir of class-I.

39. In the result, the Second Appeal is dismissed confirming the judgments of the courts below. - 24 Dr.GR& J sz 745 2O04 No order a:i to costs. As a sequel. miscellaneous applications pending in this appeal, if any shall stand closec. //TRUE COPY// Sd/. K. SAILESHI DEPUTY REGISTRAR /I \.-- SECTION,OFFICER To, The Senior Civil Judge, at Bhongir. (With records) The Principal Junior Civil Judge, Bhongir' One CC to Sri Yellapragada Srinivasa Murthy, Advocate IOPUC] One CC to Sri J. Kanakaiah, Advocate [OPUC] Two CD Copies 1

2. J. 4. 5 DL/gh \* . I 1HE S rd '.6 * o (.) 2 1 ilAR m * oC -{CT E( (('( .r' HIGH COURT DATED:2410112O25 JUDGMENT SA.No.745 of 2004 DISMISSING THE SECOND APPEAL * -gqna \4-.# I t32151 IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD FRIDAY, THE TWENTY FOURTH DAY OF JANUARY TWO THOUSAND AND TWENW FIVE PRESENT THE HONOURABLE DR. JUSTICE G.RADHA RANI SECOND APP EAL N O:745 OF 2004 Between: 1 . ltha Shobhan Babu, S/o.Srisailam, Aged .18 years, Student 2 ltha Santhosh Kumar, S/o.Srisailam, Aged 17 years, Student 3. ltha Shashidhar @ Suresh, S/o.Srisailam, Aged 16 years, Student [!e Appellants 2 and 3 aretninors, rep. by their naturar mother and lyuardian, SMt. ltha Rajeshwari, s/o, sri sairam.'ag6o aborils v""it, Hor.uriJi,li]ol -d/;;i;i p;;.;;it Pohireddyp.a.ly, H/o Rahimkhanpet vilale of Ath;;kui_rvt residing at Motkur Village and Mandal, trtltgonOJ O,s1rict.; AND ...Appellants (Ap pe I I a nUPl a i ntiffs ) 1 lIhq Srisailam, S/o. Late Somaiah, Agriculture and Business R/o. 2 ltha- sathemma, wo-somaiah, House-hord R/o. pothireddypaily of Athmakur- Pothireddypatly, H/o. Rahimkhanpet (V), Athm-akur (M), M Mandal of Nalgonda District. Appeal against R2 is abated vide Court order dated 22.10.2014. Office. Hanmanwada. Bhongirl 3 Kancharla Jayamma, _Wo.Jagan (Capod), House-hold, R/o. Behind MRO 4 Kokkonda Pqslrpamma, Wo.chandra Sekhar, House-hold R/o.R.B.Nagar, Bhongir. NALGONDA DISTRTCT

5. Nerela. Pushp?mql?, Wo.padmanabham House-hotd O/o,Dr.Raja Sekhar eye specialist, Veligadda Bazar, Jangoan, Warangai Oistiicl. - - ' Appeal under section 100 of C.p.C. against the Judgment and decree dated 19-03-2004 passed in A.S.No. 2g of 1999, on the file of the Court of the Senior Civil Judge, at Bhongir, preferred against ..,RESPONDENTS 7 .Judgment and Decree dated 18.02.1999 in OS.No23. of 1997 passed by Principal Junior Civil Judge, Bhongir. This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of Sri Yellapragada Srinivasa Murthy, Advocate for the appellants and Sri J. Kanakaiah, Advocate for the Respondents. This Court doth Order and Decree as follows:

1. That the Second Appeal be and hereby is dismissed confirming the judgments of the courts below; and

2. That there shall be no order as to costs in this appeal //TRUE COPYII Sd/- K. SAILESHI DEPLITY REGISTRAR SECTIOObFFICER To, '1. The Senior Civil Judge, at Bhongir. 2. The Principal Junior Civil Judge, Bhongir 3. Two CD Copies DL YY HIGH COURT DATED:241O112025 DECREE SA.No.745 oI 20O4 DISMISSING THE SE,:}OND APPEAL

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