The High Court · 2025

Counsel for the Appellant: Sri E. Ajay Reddy Counsel forthe Respondents: Sri V. Satyam Reddy The Court delivered the following: JUDGMENT ,/ THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA APPEAL SUIT N0.612 0F 2005 JUDGMENT: eer Iton,ble Smt. Justice Tirumala Deui Eada) This is an appeal filed by the appellant _ plaintiff, being aggrieved bv the judgment and decree, dated 22.O3.2005 passed in O. S. No. 126 ol L999 by the learned Senior Civil Judge at Khammam (for short .,the trial Court,,).

2. The parties are addressed herein as they were arrayed in the suit before the trial Court for the sake of convenience and clarity.

3. The case of the plaintiff before the trial Court is that the 1sL defendant is hcr father, 2"d defendant is her junior paternal uncle, delcndant Nos.3 and 4 are the younger brothers, defendant No.5 is the younger sister of the praintiff and defendant No.6 is the mother of the plaintiff. Defendant Nos.1 and 2 are the sons of one Narsing Prasad. The said Narsing prasad diecl long ago leaving behind him, defendant Nos.l and 2 as his sole legal heirs. Thus, defendant Nos.1 and 2 are entitled to half share each in the entire joint family properties. TI-re marriage of the plaintiff was performed on 30.03.1986. Thus, as per the provisions of Hindu Succession Act, 1956 (for short 'thc Act, 19S6J, the plaintiff is entitled for 1/ l Orrr A(S,I & ETD,] AS No.612 2005 2 '..1 share out of the undivided half of the l"t defendant in the cntrre plaint schedule property as a coparcener' Hence, the plaintiff defendants for partition of the plaint schedule demanded the properties but the defendants have not come forward lor parlition Hence, the suit

4. The defendants hled written statement stating that the defendantNos.land2havealreadypartitionedthepropertiesin 1986 after the death of their father and that item No 3 of the suit schedule property was sold by defendant No 1 in the year 1986 for performing the marriage of the plaintiff and item No 4 r'vas sold by defendant Nos. 1 and 2 and that the plaintiff is aware about these facts. It is their contention that prior to filing the suit, the plaintiff got issued a lega1 notice, wherein it u'as mentioned that thc partition between defendant Nos'1 and 2 has already takcn place' It is further contended that the plaintiff has been separated after marriage and has been living in Hyderabad and that there are no properties available for partition Thus, the plaintiff is not enlitled for partition. 5 Based on the above pleadings, the trial court has framcd the following issues for trial Whether all the plaint schedule properties ar-e the un-divided joint family properties of plaintiff and defendant? v 3 AK5,] & ETD,J AS No.612 2005 2 3 4 5 Whether Dl and D2 partitioned their properties on l-2-1986 except the vacant site located behind the house bearing D.No.3 2-74 to 3 1-16 i.e., Item No.3 of the plaint schedule? Whe[her D I and D2 sold the houses D.No.3-2-15 and 3-2-16 in 1986 itselp bearing Whcther Court fee paid is correct? Whether Plaintiff is entitled for partition separate possession of her 1/1orh share in Plaint schedule property?"

6. AL the time of trial, the plaintiffs got examined pWs 1 and 2 bu[ no documents were marked. On behalf of the defendants, DWs I and 2 q,ere examined and trxs.B1 to BS were marked.

7. Considering the evidence on record, the trial Court has dismissed the suit. Aggrieved by the said judgment and decree, the present appeal is filed by the plaintiff.

8. Heard [he submissions of Sri tr.Ajay Reddy, Iearned counsel for the appellant and Sri V.Satyam Reddy, learned counsel for the respondents.

9. The learned appellant counsel has submitted that the tnal Court farled to consider the evidence on record in a proper perspective and has dismissed the suit. He further argued that the trial Court failed to obserwe that the plaint schedule properties are ancestral properties and by vir[ue of the amendment to the Act, 4 AKS,] & ETD,I AS No 612 2005 1956, the plaintiff is entitled to 1/ 1Om share in the properties He further argued that defendant Nos l and 2 sold part of item No'4 of the suit schedule property by taking permission of the Courl' thus' the conduct of defendant Nos' 1 and 2 shows that there \rras rlo prior partition as pleacled by them He further argued that as per theavermentsmadebythedefendants,H'No3-2-16wassoldby defendant Nos.1 and 2 in the year lgg2jointly and this shon's that there was no prior partition between defendant Nos' 1 and 2 He further argued that the property sold under trx'82 is not for thc sake of marriage expenses of the plaintiff as the date of the said sale is 25.08.1986 while the marriage of plaintiff took place in March,lg86.Hefurthercontendedthatthereareproperties available at Grain Market area, Khammam which are still in jclint possession and need to be partitioned Therefore, he prayed to sct aside the judgment and decree by allowing this appeal'

10. The learned respondents counsel has submitted that the appellants herein failed to prove the case before the trial Court and that the trial Court has rightly dismissed the suit' A11 the contentions of the appellant herein are proved to be wrong in the light of the evidence that is adduced by them and hence' he therefore, prayed to uphoid the judgment and decree of the trial court and dismiss the aPPeai 5 AKS,J & ETD,J AS No.612 2005 I 1. Based on the above rival contentions, this Court frames the following points for consideration: 1 2 3 4 Whether the suit schcdule properties are available for partition? Whether there was any prior partition between defendant Nos.1 and 2? Whether the plaintiff is entitled for a decree of partition oI the suit schedule properties? If so, to what share? Whether the judgment and decree of the trial Court is sustainable under law and in the facts?

5. To what relieP

12. POINT NOs.1 TO 3 a) I t is rl-re case of the plaintiff that there is no prior partition with regarcl to the suit schedule properties and that they are available for partition. She further claims that defendant Nos. 1 and 2 being the heirs of Narsing prasad, they are entitied to SO% of the share in the entire properties ancl she is entitled to 1/ 10th share as a legal heir of defendant No. I . While, it is the contention of the defendants that there was prior partition, the plaintiff has admitted Lhe same. Ex.B 1 is put forth by them to prove their contention b) A perusal of Ex.B I shows that the plaintiff has got issued the said notice through her counsel and it is mentioned at para No.2 6 AK5,] & EID,J AS No.512 2005 that defendant Nos. 1 and 2 partitioned the property 15 years ago and she has also iisted the properties that fell to the share of defendant No.1 and that as a coparcener she is entitled to 175ti' share out of the said properties. Thus, it rs clear that the plaintiff is not firm on her stand, once in the legal notice she speaks about the prior partition and again in the plaint she says that the properties are stili undivided and she claims 1/ 10fr share. Thus, a suspicion is raised with regard to her version. c) The plaintiff got examined as PW 1 and she reiterated the contents of plaint in her chief examination and she denied the prior partition. In her cross examination, it is admitted by her that, her advocate issued notice under Ex.B1 under her instructions and that she has shown only two properties as joint lamily properties in [he said notice. When PW 1 was confrontcd with Ex.B 1 and its contents about the prior partition, she has just stated that she got it mentioned by mistake. Thus, PW1 fumbled in her evidence, though she asserted that there was no prior partition, she could not overcome the contents of trx.B 1 issued by her about the prior partition. Though, she mentioned about only two properties in the legal notice, she has given four suit schedule properties in the plaint. When she was questioned about the sale of item Nos.3 ands 4 schedule properties, she pleaded ignorance .,4./ I AKS,J & ETD,J A5 No.612 2005 saying that she does not know about the said sales' If at all' this statement is found to be correct, then what made her to mention only two properties in the legal notice has to be explained by her' But she admitted that she has shown only two properties in the notice. Thus, the evidence of PW1 is clouded with st-lspicion with regard to the cxistence of properties for partition' d) PW2 knou's both the parties to the suit' It is elicited from PW2 that the father of defendant Nos l and 2 by name Narsing Prasad died in the year 1945. It is elicited that he is a resident of Hyderabad and he does busincss. Nothing material could be elicited in his evidence to aid the plaintiffs case' e) DW1 is the 2"d defendant, who happens to be the second son of Narsing Prasad and the brother of delendant No i' He stated in his chief examination and slood firm in cross examination by saying thal himself and his brother dcfendant No l got partitioned the suit schedule properties and that trvo houses fell to his share out of which one is located at Mohan Road and another is at Grain marketandthatclefendantNo.lwhoisthefatheroftheplaintiff got one house at Mohan Road and another at Grain market, Khammam. He further stated that 5d' house is located at Grain Market area, Khammam and is still in joint possession and also a vacant site is located at Grain Market area. lt is further elicited AK5,I & EIO,I AS No.512 2005 through him that his name is mutated in municipal records with regard to his share of properties. It is elicited in the evidence of DW1 that the house bearing No.3-2-16 which is shown as item No.4 was sold by delendant No.1 in the year 1993 and house bearing No.2-3-28O which is shown as item No.1 fell to the share of defendant No.2 in the partition and that at present he is residing in it and is paying municipal tax. It is elicited through him that item No.3 was already disposed off by himself and defendant No.1 with the permission of Lhe Court. It is elicited through him that property bearing No.3-2,16 was sold to meet the expenses of the marriage of second daughter of defendant No.l and the marriage of his daughter. The said sale was dated 11.03.1993 and they filed trx.83 in support of his contention. A perusal of Ex.B2 reveals the said lact of sale. 0 It is further elicited from DWl that house bearing No.3-2-15 belongs to defendant No.l and that defendant No.l has sold the said property on 25.08.1986 to meet the marriage expenses of the plaintiff, while it is contended by PW1 that the property sold under Ex.B2 is not for the sake of her marriage expenses as the date of the said sale is 25.08. i 986, while her marriage took place in March, 1986. A perusal of Ex.B2 reveals that the property mentioned under it is sold by defendant No.1 in favour of one - 9 AK5,J & ETD,] AS No.612 2005 Bellamkonda Srinivasa Rao and the contents reveal that it is sold to meet the marriage expenses of his daughter and also for family necessities. Thus, the contention of PWI gets falsified by the contents mentioned therein. g) trx.84 is the ownership certihcate issued by the Munrcipal Commissioner, Khammam in favour of defendant No.2 with regard to the house bearing No.2-3-280, which is the item No.1. Thus, it is elicited that item No.1 fell to the share of defendant No.2 and is not available for partition. F urther, the ta-x receipt under Ex. 85 also proves that the receipt is issued in the name of defendant No.2. It is further elicited that the elder son of dr:fendant No.l signed as attester in trx.82 and Ex.B2 happens to be the sale deed dated 25.08.1996 in respect of house bearing No.3-2-15, which is one of the properties mcntioned in item No.4. Thus, a perusal of the said Ex.82 reveals the said fact and therefore, item No.4 is also not available for partition. It is elicited through DW1 that item No.2 of the suit schedule property bearing No.2-3-281 fell to the share of defendant No.1 and that he is residing there. h) DW2 is defendant No.5. She is the younger sister of the plaintiff. She too has stated that the suit schedule properties were partitioned prior to February, 1986 by their father and defendant No.2 herein. It is also elicited through her about prior partition. -- \ .--.,1 \l AKS,] & ETD,] AS No.612 2005 10 l Nothing material could be elicited ln her cross examination to dislodge her evidence. i) In Vineeta Sharma a. Rakesh Sharrnat, the Apex has held that the daughters would hold equal coparcenary rights in Hindu Undivided Family properties even if they were born before the 2005 amendmcnt to the Hinclu Succession Act, 1956 and regardless of whether their father coparcener had died before the amendment. i) Section 6 of the Hindu Succession Amendment Act, 2005 is extracted hereunder for the sake of reference:

6. D-cvolution of iflterest in coparcenarv property. {l) On and from the commencement of the Hindu Succession (Anlendmenr) Act,2005, in r'loi, ffinar-iurnify govemed by the Mitakshara la\ the daughter ol a coparccncr shall,_ (a) by birth become a coparccner in her ow. right in the same manner as trre son: (D) have the same rights in the coparcenar] prope(y as shc wourd have had if she had been a {.) be suhJcct lo lhe same liabiljL cs in respect ol the said conarcenary propeny as that ofa son. and any rel'ercncc to a Hindu Mirakshara coparcencr shalr be deemed to incrud€ a rcFercnce to a daughter of a coparccner: Providcd (hat nothing contained iD ttis sub_.section shall affect or invalidate dny disno{ition or alicnation incluJ. which hed raken prace o",".",nlioli,oilll;::""j"";.:ilr:l"" disposition or property (2) Any properr) to which a fcmale flindu bccornes cntrrled by virrue of sub_secrion ( I ) shall be held by her rvith rhe incidenrs oIc llffi:#,".Tlji "J:;:fll:: ;:I:::,;1il:Il.::Hi: an)4hins conraincd,,,n,. oo. ofbeing disposed oI her by teslanrentary disposition_ ". (3) Whcre a Hindu dres aFrer rhe 2005. his inreresr in rhe,.;ili,;:TTffiT;Jilliii jj:"*),iixl.ff ,,"ffii]:l]#ii devolvc bv tesLamcntary or intestate succession, ,s th" "^" auy b", rnOaa thia A"t una not by strvisorship, and the coparcenarv prope(y shall bc dcenred to havc bcen dividcd as if a partition had raken place and._ (a) thc daughter rs allotted the sanrc share as is allotted to a son '1zozo1 s scc r 11 AKS,I & ETD,J AS No.512 2005 (b) the share of the pre-deceased son or a pre-dcceascd daughtcr, as they sould havc Bo1 had the] been alive at the time of partilion, shall be allotted 1() the suniving child olsuch pre- deceased son or ofsuch pre-deceased daughter: arrd (c) lhe share ol thc pre-deceased child o[ a pre-dcccased son or ol a prc-deceascd daughtcr, as such child would havc got had hc or she been alilc a! thc linle ofthc parlitio , shall bc allottcd to the child olsuch pre-deceased child olthe pre-dec.ased sor or a pre-deceascd daugltcr, as the case Ind) be. Explonation.-Fot the purposcs o[ {his sub-scction, the irteresl of e llindu Mitakshara coparcencr shall bc deemcd to bc thc sharc in thc propc(] that \\ould have bccn allottcd to hinl il a pa(ition ol the property had taken placc immcdiatol] belbre his death, irrespcctivc ol whether hs \\as entitled to claim parlition or not- (4) After the commencement ol the Hindu Succession (Amcndment) Act, 2005, no court shall rccognise an1 right to proceed against a son, grandson or grcat grandson for the recovery ol'an) debl due tior]r his l'ather, grandfather or great grandlather solely on the grould of the pious obligation under the Hindu law, o. such son, grandson or great-grandson to discharge an1 such debr: Providcd lhat in the case ol any dcbl cortractcd heforc ttre conrnrencerDent ol the Hiudu Successioll (Amendrnent) Act, 2005, nothing contain.d in this sub-scclion shall effect (d) the righl of any c.edito. to proceed against thc son. grandson or greaCgrandson. ari the case may be;or (b) any alienaLbn urade in respect ofor in salislacLiorr of, anv such debt. and any such right or alicoalion shall bc cnforceable under the .ule of pious obligatiorr in thc sanle nranncr and to thc s^me cxtcnt as it would have been enforceable as il the Hindu Succession (Amendmenl) Act. 200i had not been enacted. P,\plondtic'n. F'or the pueoses ol clause (.4. rhc cxpressron -son", -grandson" or'Brcat- Erandson" shall be deemed to refer to the son. grandson or grcat-grandson. as thc case may bc. who rvas born or adoptcd prior to the comm.ncenrcnt ol rhe Hindu Succession (Alnendlncnt) Act- 2005. (5)Nothing containcd in this section shall apply to a partition- \hich has bccn ctlected belore the l0th day oI December. 2004- LrplanatLon. For the purposcs of this scction --fartition" nreaDs a y pa(ition made b] c\ccotion of a deed of part,tion duly registercd rurdcr thc Rcgistrarion Acl, 1908 ( l6 of 1908) or partilior cafected by a decree ofa coun. k) In the light of Section 6 of the Amendment Act, 2005, if there is prior partition as on 20. 12.2OO4 , the same shall not be invalidated and thus, the daughters cannot claim partition as coparcener and in the present case, the prior partition is proved through the evidence adduced b), the dcfendants. Hence, it is held that the sui[ schedule properties arc not joint famil1 properties and I I i I ) I i i 12 AKS,J & ETD,] AS No.612 2005 !-\*-Tt \, '..1 are not available for par[ition. The plain tiff could not prove her case, therefore, she is not entitled to claim any share in the suit schedule properties. point Nos.1 to 3 are answered accordingly.

13. POINT NO.4: In view of the reasoned findings arrived at point Nos. 1 to 3, it is held that the judgment and decree passed by the trial Courl do not need any interference and the same are held to be sustainabre under the law and in the facts and circumstances of the case.

14. POINT NO.S: In the result, the appeal is dismissed upholding the judgment and decree, daLed 22.03.2005 passed in O.S.No. 126 of 1999 by the learned Senior Civil Judge at Khammam. No costs. Miscellaneous Applications, il any, pending in this appeal shall stand closcd. sd/- K. SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1 2 The Senior Civil Judge at Khammam (with reco One CC to Sri E. Aiay Reddy Advocate [OPUC] One CC to Sri V. Satyam Reddy Advocate [OPUC] S, if any) 3 4. Two CD CoPies VFVPSL (.n- HIGH COURT DATED: 2110412025 z'jl .a;. \ ,r1,,f i,- ",-. --::-:. -i-i----'. .. i -: - i, ',-:1 li r';rl-j: - 'i' ".-'ll r;) l:. j..- !/ -t;. ,::' !.j JUDGMENT+DECREE AS.No.612 of 2005 i,:.-' 1t stt t$15 i, ' .i 'iii- i:.'-'SF; (''.. -..t:\ "' --.i:- - __-_._. _._.--, ' -' DISMISSING THE APPEAL WITHOUT COSTS (, (*- \n \-: IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD MONDAY, THE TWENTY FIRST DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND THE HONOURABLE SMT JUSTICE TIRUMALA DEVI EADA AP PEAL SUIT NO: 612 OF 2005 Between: Smt B. Anuradha, Wo B. Kamal Raj, aged about 38 years, Occ: Household affairs R/o Musarambagh, Hyderabad. ...APPELLANT(PLAINTIFF) ANO 1 2 J 4 Moriya Ram Narayan Prasad (Died) Moriva Jaqadish Prasad, S/o Narasing Prasad, aged 50 yeqrg' !{o ktrarirmam"Town, Khammam Urban Mandal, H.No.2-3-280 and 281, Nr' Railway Gate, Mohan Road, Khammam Town. tvloriva Briz Kishore, S/o Ram Narayan Prasad, aged 40 years, Business R/o Kharirmam Town. Khamhram Urbbn Mandal, H.No.2-3-280 and 281, Nr' Railway Gate, Mohan Road, Khammam Town.(Died) Moriva Juqal Kishore, S/o Ram Narayan Prasad. Aged 38 years, Knarirmam- Town, Khammam Urban Mandal, H.No.2-3-280 and 281, Railway Gate, Mohan Road, Khammam Town. (Died) R/o Nr.

5. Smt Maniu, Wo Jagadish Kumar, Aged 35 years' House Hold affairs R/o 12- 1 5-475, Manikchandnagar, Hyderabad

6. Smt Anjani Devi, Wo Late Moria Ram Narayana Prasad, aged 63 years, Househ-old No 12'15475, Manikchandnagar, Hyderabad Appeal dimsd for default against RR 3,5,6 and Appeal abated against R'4 as pi:i the Hon'ble Court order dated 3.3.16 ...RESPONDENTS(DEFENDANTS) Appeal filed under section 96 of CPC against the Judgement and Decree dated22l03t2005 in o.s.No.'126 0f 1999 0n the file of the court of the senior civil Judge at Khammam. These appeals coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Court and the material papers in the case and upon hearing the arguments of Sri E. Ajay Reddy, Advocate, for the Appellant and of Sri V. Satyam Reddy, Advocate for the Respondents. This Court doth Order and Decree as follows

1. That the Appeal be and hereby is dismissed upholding the judgment and decree, daled 22.03.2005 passed in O.S.No. 126 of 1999 by the learned Senior Civil Judge at Khammam; and

2. That there shall be no order as to costs in this appeal- S . K. SRINIVASA RAO JOINT REGISTRAR SECTION OFFICER //TRUE COPY// To,

1. The Senior Civil Judge at Khammam 2. Two CD Copies VH/PSL (e HIGH COURT DATED: 2110412025 DECREE AS.No.612 ol 2005 DISMISSING THE APPEAL WITHOUT COSTS A l1 q vl