HON’BLE SRI JUSTICE A. GOPAL REDDY
AND
HON’BLE SRI JUSTICE K.S. APPA RAO
A.S. No.3320 of 2000
AND
A.S.No.3321 of 2000
Dated: 20-09-2011
A.S. No.3320 of 2000
Between:
Lalitha Kumari and others
…Appellants
AND
Kirthi @ Gowtham Kumar and others
Respondents.
A.S. No.3321 of 2000
Between:
Ashok Chakravarthi (died)
And others
Appellants
AND
Miryala Ramamoorthy and others
Respondents
This Court made the following:
HON’BLE SRI JUSTICE A. GOPAL REDDY
AND
HON’BLE SRI JUSTICE K.S. APPA RAO
A.S. No.3320 of 2000
AND
A.S.No.3321 of 2000
COMMON JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy)
These two regular appeals by the defendants 3 to 6 and first defendant respectively, are filed against the preliminary decree passed in O.S.No.168 of 1994, dated 14.8.2000 on the file of Additional Senior Civil Judge, Chittoor. Therefore, they are heard together and disposed of by this common judgment.
Facts in nutshell, which gave rise to filing of these appeals, in brief, are as under:
Plaintiffs 1 and 2 are the sons of third plaintiff-Padmaranjani. One Miriyala Naradhamuni, grandfather of plaintiffs 1 and 2 is the common ancestor, who had a son by name Laxmanamurthy through his first wife-Meenakshamma. Upon the death of Meenakshamma, said Naradhamuni married one Kamakshamma as second wife. 6th defendant is the daughter of second wife-Kamakshamma. Upon the death of Kamakshamma, he again married Nagaratnamma (7th defendant) as third wife, through whom, he had two sons-Miriyala Ramamoorthy (first defendant) & Miriyala Parthasaradhi (second defendant) and three daughters, namely, Lalithakumari (3rd defendant), Vanaja (4rh defendant), and Kusumamohan (5th defendant). Plaintiffs 1 and 2 are the sons of Ramamoorthy through his wife-Padmaranjani (plaintiff No.3). On 2.1.1980 partition of the properties was effected between Naradamuni and Laxmanamurthy, his eldest son through first wife under a registered partition deed, marked as Ex.A.3 and that Laxmanamurthy took the property fell to his share and was living separately. 6th defendant, the daughter of Naradamuni through his second wife-Kamakshamma and other two daughters i.e. defendants 3 and 4 through his third wife-Nagaratnamma (7thdefendant) got married prior to amendment of Hindu Succession Act in the year 1985. Naradamuni, father of defendants 1 to 6 and husband of 7th defendant died intestate on 9.5.1988 leaving behind the defendants and Laxmana Murthy as his legal heirs. As the relationship between the third plaintiff and her husband-first defendant were not cordial, the third plaintiff was living separately with her children i.e. plaintiffs 1 and 2. She along with plaintiffs 1 and 2 instituted the above suit for partition of suit ‘A’, ‘B’ and ‘C’ schedule properties into 63 shares and for allotment of 16 shares to the plaintiffs 1 and 2 and for a decree against the first defendant for a sum of Rs.72,000/- towards past maintenance payable to plaintiffs and future maintenance of Rs.24,000/- and for creating charge on the share of first defendant in the properties mentioned in ‘A’, ‘B’ and ‘C’ schedule properties.
Defendants 1,2,4 and 7 filed written statements and defendants 5 and 6 filed a memo adopting the written statement of 4th defendant admitting the relationship among the parties. In the written statement filed by first defendant it is stated that all the defendants are entitled to 1/7th share and apart from 1/7th share, 7th defendant is entitled to items 4 and 5 of plaint ‘A’ schedule exclusively. The various other contentions made in the written statement are not necessary for disposal of the suit.
Basing upon the pleadings of the parties, the trial Court framed the following issues and additional issues for trial:
ISSUES:
1. Whether the plaint ‘C’ schedule property was given to third plaintiff and if not whether this court has jurisdiction to try this suit?
2. Whether Naradhamuni had ancestral properties?
3. Whether the Naradhamuni executed will on 24.12.87 bequeathing the property in favour of D-7 in respect of item No.4 and 5 of plaint ‘A’ schedule?
4. What are the properties available for partition? And whether items 1 to 7 of plaint ‘B’ schedule have disposed of by Naradhamuni long ago?
5. Whether the plaintiffs are entitled for partition as prayed for?
6. To what relief?
ADDITIONAL ISSUES:
1. Whether the suit is bad for non-joinder of necessary parties?
2. Whether the suit is barred by limitation?
3. Whether the court fee paid is correct?
4. Whether the plaintiff schedule property is correct?
5. Whether the plaintiffs are in joint possession and enjoyment of plaint schedule properties and if so, whether they are entitled for maintenance?
6. Whether the 2nd and 3rd wife children of Naradhamuni are entitled to equal shares as pleaded in the written statement of D-1?
7. Whether D-1, D-2 and D-5 got right over the suit schedule properties by birth as a co-parcenars or they are entitled to equal shares along with other legal heirs to the estate of deceased Naradhamuni?
8. To what relief?
On the above issues, the parties went into trial. On behalf of the plaintiffs, 3rd plaintiff herself examined as P.W.1 apart from examining P.Ws.2 to 4 and marked Exs.A.1 to A.25. On behalf of defendants, first defendant himself examined as D.W.1 and two more witnesses were examined on their behalf as D.Ws.2 and 3 and marked Exs.B.1 to B.5 apart from marking Exs.C.1 and X.1.
The trial Court by the impugned judgment passed a preliminary decree for partition of schedule ‘A’, ‘B’ and ‘C’ properties to be divided into 63 shares including the properties covered by Ex.A.3 and for allotment of 16 such shares to the plaintiffs 2 and 3 (since first plaintiff died, 3rd plaintiff became his legatee) and directed the defendants to pay a sum of Rs.72,000/- towards past maintenance to the plaintiffs 2 and 3 and future maintenance at the rate of Rs.4,000/- per month to second plaintiff and Rs.1,000/- per month to third plaintiff. A charge was created on the share of first defendant in the properties mentioned in plaint ‘A’, ‘B’ and ‘C’ schedule properties and also the property covered under Ex.A.3. Aggrieved thereby, defendants 3 to 6 filed A.S.No.3320 of 2000 and first defendant filed A.S.No.3321 of 2000.
During the pendency of the appeal, first defendant who preferred A.S.No.3321 of 2000 died on 17.8.2003 and therefore, Nagarathnamma-7th defendant and his brother-Parthasaradhi-2nd defendant, who are respondents 9 and 4 in the appeal, transposed themselves as appellants 2 and 3 as per the orders passed in A.S.M.P.No.2283 of 2006, dated 17.1.2007.
Sri M.S. Ramachandra Rao, learned counsel for the appellants-defendants 3 to 6 contends that 5th defendant, who is the daughter of Naradamuni, whose marriage was performed on 18.6.1987, is entitled to equal share along with defendants 1 and 2 as she being unmarried daughter in view of insertion of Section 29-A of Hindu Succession Act by A.P. (amendment) Act No.13 of 1986 which came into force with effect from 5.9.1985. Therefore, the Court below is not justified in not allotting a share to the 5th defendant and that even though she has not filed any written statement and participated in the enquiry before the Court below, she is entitled to a share along with other heirs. He nextly contends that with regard to the claim of the plaintiffs for maintenance, all the defendants cannot be made liable for maintenance, but it should be confined only to her husband-first defendant as the plaintiffs claimed maintenance only against firsts defendant in the plaint which fact has been ignored by the Court below. Thus charge can be created for maintenance only against the properties that fell to the share of first defendant alone. He lastly contends that inclusion of the properties for partition covered by Ex.A.3 without amending the plaint schedule is not proper and the same cannot be liable for partition.
Sri T.V.S.Prabhakar Rao and Smt.A.Anasuya, learned counsel appearing for appellant No.2 and 3 respectively, in A.S.No.3321 of 2000 adopted the arguments advanced by Sri M.S.Ramachandra Rao, learned counsel for the appellants in A.S.No.3320 of 2000.
On the other hand, Sri G.Bhaskar, learned counsel appearing for respondents-plaintiffs contends that 5th defendant, daughter of Naradamuni is not entitled to a share in the properties unless the person connected with issuance of Ex.X.1-certified copy of marriage register extract is examined and proved that 5th defendant’s marriage was performed after the insertion of Section 29-A of the Hindu Succession Act by the A.P. (Amendment) Act No.13 of 1986 and therefore, she cannot claim a share in the properties. He contends that maintenance has been claimed against the first defendant-husband of P.W.1 (third plaintiff) and father of plaintiffs 1 and 2 and the decree and judgment can be maintained against the estate of first defendant.
In the light of the above submissions, the points that arise for consideration in these appeals are:
(1) whether 5th defendant is entitled to equal share on par with defendants 1 and 2 or not?
(2) whether it is only first defendant or all the defendants are liable for charge in respect of the claim of maintenance sought for by the plaintiffs? and
(3) whether the properties covered by Ex.A.3 are liable for partition or not?
POINT No.1: Sri M.S.Ramachandra Rao, learned counsel for the appellants in A.S.No.3320 of 2000 contended that Ex.X.1, the certified copy of the marriage register extract issued by the Registrar of Marriages, Chittoor clearly discloses that the marriage of 5th defendant was performed on 18.6.1987, which fact has also been admitted by P.W.1 (3rd plaintiff) in her evidence. He contends that though the registration of marriage itself cannot be a proof of valid marriage, if the same is registered, it provides the date on which the marriage has been taken place and it is a rebuttal presumption. Once P.W.1 admitted about the marriage of 5th defendant having taken place on 18.6.1987, the document under Ex.X.1 is held to have been proved. In support of his submission, reliance is placed on Seema v. Ashwani Kumar[1].
It is not in dispute that defendants 1 to 5 are the sons and daughters of Naradamuni through 7th defendant. To prove that the marriage of 5th defendant was performed after insertion of Section 29-A to the Hindu Succession Act, Ex.X.1-marriage register extract registering the marriage has been produced by the parties. Further D.W.1, brother of 5th defendant also in the chief-examination deposed that the marriage of 5th defendant was performed in the year 1987 at Dodipalle Sathram, Chittoor and she is also entitled to equal share along with him and second defendant. He was not cross-examined on the said aspect by the counsel for the plaintiffs. But in the cross-examination he stated that his sister (5th defendant) is in Madras and she was married to one Pratap. In the cross-examination of P.W.1 by first defendant, P.W.1 admitted that defendants 1 and 2 are married and that on 18.6.1987 marriage of 5th defendant was performed at Doddipalle Satram with one Mohan. Therefore, there is no dispute with regard to the marriage of 5th defendant after coming into force of Section 29-A of Hindu Succession Act. The lower Court on additional issue No.7 accepted the argument advanced by the counsel for the plaintiffs holding that P.W.1 due to confusion stated that the marriage of 5th defendant took place in the year 1987 and that as 5th defendant was not examined into the Court nor any elders were examined on her behalf, it cannot be believed that marriage of 5th defendant took place after A.P. (Amendment) Act 13 of 1986 came into force and holding so deprived the 5th defendant a share in the property, which is erroneous in view of the clear admission of P.W.1 and also not cross-examining D.W.1. As observed above, 5th defendant got married on 18.6.1987 and was remained unmarried as on 5.9.1985 the day on which the Hindu Succession (Andhra Pradesh Amendment) Act, 1956 came into force. Under Section 29-A of the said Act, she being a daughter would become a coparcener and has the same rights in the property as if she is a son. In fact, P.W.1 admitted in her evidence that marriage of 5th defendant took place in 1987. Further Ex.X.1, copy of marriage register extract maintained under the Hindu Marriage Act also proves that 5th defendant got married only in 1987. Thus she would be entitled to equal share along with other shareholders. Point No.1 is answered accordingly in favour of 5th defendant.
POINT No.2: Plaintiffs pleaded in the plaint that plaintiffs 1 and 2 are entitled for maintenance and proper provision for their education, residence etc. First plaintiff died in a motor accident on 16.9.1995 leaving behind him the third plaintiff, his mother as his sole legal representative. On the death of first plaintiff, third plaintiff has succeeded to the estate of first plaintiff and therefore, she prayed for passing a decree for a sum of Rs.72,000/- towards past maintenance and for future maintenance at Rs.24,000/- against the first defendant and to create a charge on the share of first defendant in the properties to be allotted to him in ‘A’, ‘B’ and ‘C’ schedule properties. Learned counsel for the plaintiffs has not disputed that the entire claim for maintenance is only against first defendant and a charge to be created against the properties that would be allotted to his share for recovery of said maintenance amount. Thus though the plaintiffs sought a decree for maintenance only against the first defendant, the Court below erroneously directed the defendants including the appellants in A.S.No.3320 of 2000 also to pay both past maintenance and future maintenance along with costs to the plaintiffs. This is clearly erroneous as only the husband of plaintiff No.3 and father of plaintiffs 1 and 2 i.e. first defendant would be legally liable to pay maintenance and the other defendants cannot be made liable to pay maintenance. The judgment and decree of the Court below to the said extent is accordingly modified making first defendant liable for the past and future maintenance of plaintiffs. Since the first defendant died, the said amount can be recovered from his estate.
POINT No.3: Learned counsel for the appellants contends that the properties covered by Ex.A.3 were fell to the share of Naradhamuni when partition was effected between himself and his eldest son through first wife-Laxmanamurthy in the year 1980 on 2.1.1980. Since the said properties fell to the share of Naradamuni have not been included to the suit schedule properties, a decree cannot be passed for division of the said properties.
It is not in dispute that Naradhamuni died intestate on 9.5.1988. Therefore, all his legal heirs i.e. the plaintiffs and defendants 1 to 7 are entitled to equal share in the properties that were fell to the share of Naradhamuni. In a suit for partition, if any properties are left out from the suit schedule, the suit schedule can always be amended before passing a final decree by bringing those properties under the schedule. Since Naradhamuni died intestate, the properties inherited by him under Ex.A.3 dated 2.1.1980 are liable for partition among the legal heirs. Therefore, the Court below rightly included the properties covered by Ex.A.3 for partition among the legal heirs and the decree passed to the said effect does not require any interference by this Court. At this juncture, it is to be observed that in the grounds of appeal in A.S.No.3320 of 2000, ground No.4 was raised as under:
“4. The Court below erred in holding on issue No.2 that Naradhamuni had ancestral properties.”
However, the appellants therein by filing A.S.M.P.No.1685 of 2008 sought permission to withdraw the said ground. The said application was already ordered on 5.9.2008. Therefore, the properties inherited by Naradhamuni are also liable for partition among the legal heirs.
Accordingly, the appeals are allowed in part as indicated above. The lower Court shall re-allot the shares among the parties in the light of the observations made by this Court and also allot the share of deceased first defendant among the legal heirs. No order as to costs.
________________
A. GOPAL REDDY, J.
__________________
SEPTEMBER 20, 2011 K.S. APPA RAO, J.
Tsr.
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