Sec.14,15 of Hindu Succession Act and sec.16 of Hindu Marriage Act - suit for partition = Suit for partition got filed by illegitimate son of Original owner, through his children against him and against the rightful owners who succeeded the same through succession and through registered gift and Reg.will from the Original owner's wife of owner of the property - not maintainable as the partition was taken place in between the original owner and the brothers of her husband prior to 1976 amendment in sec.16 of Hindu Marriage Act - since the illegitimate son entered into compromise decree relinquish his rights if any in the property of original owner - a fresh partition suit by his children not maintainable as it operates as res-judicata - Lower court rightly dismissed the suit =
1. Whether defendant No.1 as illegitimate son has any share in the estate of
late Ramji Patangay and his children namely Plaintiff Nos.1 to 3 are entitled to
share in the suit schedule property as coparceners or class-I legal heirs?
The Hindu
Marriage Act, 1955 was amended by Act 68/76 where in Section 16 was substituted,
it reads as under:
"Section 16. Legitimacy of children of void and voidable
marriages :- (1) Notwithstanding that a marriage is null and void under Section
11, any child of such marriage who would have been legitimate if the marriage
had been valid, shall he legitimate, whether such child is born before or after
the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and
whether or not a decree of nullity is granted in respect of that marriage under
this Act and whether or not the marriage is held to be void otherwise than on a
petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under
Section 12, any child begotten or conceived before the decree is made, who would
have been the legitimate child of the parties to the marriage if at the date of
the decree it had been dissolved instead of being annulled, shall be deemed to
be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in Sub-section (1) or Sub-section (2) shall be construed
as conferring upon any child of a marriage which is null and void or which is
annulled by a decree of nullity under Section 12, any rights in or to the
property of any person, other than the parents, in any case where, but for the
passing of this Act, such child would have been incapable of possessing or
acquiring any such rights by reason of his not being the legitimate child of his
parents."
20. Thus, the provision recognizes, children born either of void or voidable
marriages whether born before or after the commencement of Marriage Laws
Amendment Act, 1976 to certain extent. Sub-Section (3) makes it clear that
nothing contained in Sub-Section (1) & (2) of Section 16, would be construed as
conferring upon such child, any rights in or to the property of any person other
than parents. It is further made clear that if a child was otherwise
incapable, but for the amendment, such incapacity continues, vis--vis by the
properties of persons, other than their parents. Defendant No.1 was born outside
the wedlock. In terms of the provisions of Hindu Succession Act, as it
originally stood, an illegitimate son was not entitled to share in the property
of his parents also. Section 16 as amended in the year 1976 for the first time
recognized the entitlement of illegitimate son to share in the property of his
parents. Defendant No.1 is said to be illegitimate child of Ramji Patangay born
in the year 1939, and prior to 1976, an illegitimate child was not entitled to
claim share in the property of his father.
In Lachman Singh (3rd supra), the point for determination was
whether
expression 'sons' in clause (a) of Section 15(1) of Indian Succession Act
includes 'stepsons' also i.e., sons of the husband of the deceased by another
wife.
Hon'ble Supreme Court, on a detailed consideration of the matter and on
reviewing the judgments rendered by several High Courts held as under :
"5. ................... Under the Act a son of a female by her first marriage
will not succeed to the estate of her 'second husband' on his dying intestate.
In the case of a woman it is natural that a stepson, that is, the son of her
husband by his another wife is a step away from the son who has come out of her
own womb. But under the Act a stepson of a female dying intestate is an heir
and that is so because the family headed by a male is considered as a social
unit. If a stepson does not fall within the scope of the expression 'sons' in
clause (a) of Section 15(1) of the Act, he is sure to fall under clause (b)
thereof being an heir of the husband. ............ We are of the view that the
words 'sons' in clause (a) of Section 15(1) of the Act does not include
'stepsons' and that stepsons fall in the category of the heirs of the husband
referred to in clause (b) thereof.
7. ......... In the absence of any son or daughter of the deceased (including
the children of any predeceased son or daughter),
in a case falling under clause
(a) of Section 15(2) of the Act the property devolves upon the heirs of the
father of the deceased and
in a case falling under clause (b) of Section 15(2)
of the Act the property devolves upon the heirs of the husband of the deceased.
...................When once a property becomes the absolute property of a
female Hindu it shall devolve first on her children (including children of the
predeceased son and daughter) as provided in Section 15(1) (a) of the Act and
then on other heirs subject only to the limited change introduced in Section
15(2) of the Act.
The stepsons and stepdaughters will come in as heirs only
under clause (b) of Section 15(1) or under clause (b) of Section 15(2) of the
Act.
Even assuming
that defendant No.1 has right to claim share of the property owned by late Ramji
Patangay, by instituting suit for partition, the joint family status got
disrupted and on account of the compromise entered by him with late Laxmi Bai
Patangay, he has given up his right to the estate of late Ramji Patangay by
receiving Rs.50,000/- towards full and final settlement. If that be the case,
the children of 1st defendant who were born subsequent to the compromise cannot
contend that they are coparceners and class I heirs and entitled to claim share
in the suit schedule property. Thus by virtue of compromise the suit schedule
property became absolute property of 2nd defendant since the 1st defendant in
the compromise accepted the validity of Registered Partition Deed dated 30-01-
1960. Section 14 of the Hindu Succession Act comes into play and Laxmi Bai
became the absolute owner of the property. Therefore, we hold that the
plaintiffs are not entitled to share in the suit schedule properties either as
Coparceners or as Class I legal heirs. The point is answered against the
plaintiffs.
2. Whether the compromise entered by defendant No.1 with late Laxmi Bai Patangay
in C.C.C.A No.57 of 1963 is binding on plaintiffs and whether the said decree
would operate as res-judicata?
defendant No.1 filed suit in the year
1961 for partition. Having failed in the trial Court during the pendency of
C.C.C.A. No.57 of 1963 he entered into compromise with late Laxmi Bai Patangay.
Terms of compromise recognizes his status as illegitimate son. As on the date
of entering into compromise, he was not entitled to share in the property that
devolved on late Laxmi Bai Patangay. However, late Laxmi Bai Patangay, with a
desire to purchase peace agreed to pay Rs.50,000/- as full and final settlement
and having received said sum, defendant No.1 agreed to relinquish all his claims
against estate of late Ramji Patangay. Plaintiff No.1 was born before 1968 and
plaintiff Nos.2 and 3 were born after 1968. The compromise decree in C.C.C.A.
No.57 of 1963 is binding on defendant No.1 and hence equally binding on the
plaintiffs as well.
In Bishundeo Narain (6th supra), the issue for consideration was binding
nature of a compromise decree on all parties.
The Hon'ble Supreme Court held as
under :
"22. The rule laid down in Mulla's book is expressly stated to be in cases
where the partition is not effected by a decree of a competent Court. In our
opinion, that is correct. It does not matter whether the decree was by consent
or otherwise, for a decree, unless and until it is set aside or avoided in one
or other of the ways in which alone a decree may be attacked, holds its force
and binds all concerned.
23. It is well established that a minor can sue for partition and obtain a
decree if his next friend can show that is for the minor's benefit. It is also
beyond dispute that an adult coparcener can enforce a partition by suit even
when there are minors. Even without a suit, there can be a partition between
members of a joint family when one of the members is a minor. In the case of
such lastly mentioned partitions, where a minor can never be able to consent to
the same in law, if a minor on attaining majority is able to show that the
division was unfair and unjust, the Court will certainly set it aside. The
rule, however, does not apply to decrees if the minor is properly represented
before the Court and the decree is as binding on him as on the adult parties,
unless the minor can show fraud or negligence on the part of his next friend or
guardian ad litem. This contention also, therefore, fails."
25. Thus the compromise decree is also binding on plaintiffs who are claiming
right through defendant No.1. It need not be dilated further since the minor
should impeach compromise decree within 3 years of attaining majority if at all
he is entitled to do so. If plaintiff No 1 was born in the year 1967 he must
have attained majority in the year 1985 and ought to have assailed compromise
decree within three years thereafter. Since he did not do so, it is not open to
him to re-agitate the same issue in this proceedings.
HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE P. NAVEEN RAO
CITY CIVIL COURT APPEAL No.160 OF 2001
7-11-2013
Sri Sanjay Kumar Patengay S/o Satyanarayan Rao....Appellant
Sri Satyanarayana Rao Patangay S/o Sri Ramji Patangay.... Respondents
Counsel for the Appellant : Sri Sunil B Ganu
Counsel for the respondents : Sri K Ramakrishna Reddy
<Gist :
>Head Note:
?Cases referred:
2004 (6) ALT 18
2012 (5) ALT 43
(1987) 2 SCC 547
(1993) 2 SCC 507
(2005) 12 SCC 503
AIR 1951 SC 280
AIR 1947 PC 140
AIR 2003 Karnataka 407
AIR 1954 SC 352
HON'BLE SRI JUSTICE L. NARASIMHA REDDY
AND
HON'BLE SRI JUSTICE P. NAVEEN RAO
CITY CIVIL COURT APPEAL No.160 OF 2001
JUDGMENT: (Per Hon'ble Sri Justice P. Naveen Rao)
The unsuccessful Plaintiffs are the appellants herein. Original Suit No.1006 of
1994 is filed by the plaintiffs for partition of suit schedule property into
four equal shares, allotment of their respective shares as between the
plaintiffs and defendant No.1 and for delivery of possession of the respective
share.
Plaintiff Nos.1 and 3 are the sons and plaintiff No.2 is the daughter of
defendant No.1;
defendant No.2 is the fostered daughter of late Ramji Patangay
and Smt. Laxmi Bai Patangay.
Defendant No.3 is the husband of defendant No.2
and defendant Nos.4 and 5 are children of defendant Nos.2 and 3.
2. For the sake of convenience, the parties are referred to as arrayed in the
suit.
3. The case of the plaintiffs is that their grandfather late Ramji Patangay
was the absolute owner and possessor of suit schedule property, which is a
double storied house, bearing Municipal Nos.4-4-264, 4-4-265
and 4-4-266, admeasuring 2500 Sq. yards situated at Sultan Bazar, Koti,
Hyderabad.
Late Ramji Patangay died in the year 1956.
During his life time, he
married Smt. Laxmi Bai Patangay, who died in the year 1984 issueless.
Late
Ramji Patangay also married Smt. Rajamma and defendant
No.1 was born, out of their wed-lock in the year 1939.
Smt. Rajamma died in the year 1967.
Plaintiffs were born to the defendant No.1 and Smt. Prameela Bai
Patangay.
Plaintiffs were born in the years 1967, 1970 and 1973 respectively.
After the death of late Ramji Patangay, they succeeded to the joint Hindu
ancestral suit schedule property.
It was further averred that suit schedule
property is the joint Hindu ancestral property of plaintiffs and defendant No.1
and Plaintiffs are the coparceners and class-I legal heirs and successors of
late Ramji Patangay.
Plaintiffs aver that since defendant No.1 was not acceding
to the requests of the plaintiffs for partition of the suit schedule property,
and for separate possession, the suit is instituted.
It is averred that
defendant No.2 is third party and has no right or authority claiming interest
over the suit schedule property.
Defendant Nos.3 to 5 were added as parties, as
per the orders of the trial Court in I.A. No.2323 of 1997 on 05.12.1998.
4. Defendant Nos.1 and 2 filed separate written statements.
5. Defendant No.1 has admitted all the averments made in the plaint and sided
with his children, the plaintiffs. He pleaded that he is the legitimate son of
late Ramji Patangay and succeeded to the joint Hindu ancestral property of late
Ramji Patangay. The plaintiffs being his children, they have legitimate right to
claim share in the suit schedule property along with defendant No.1. He avers
that defendant No.2 has no right or authority and is in illegal possession of
suit schedule property.
6. Actual contest to the suit, was by defendant No.2.
She denied the
averments made in the plaint, in particular the relationship of the plaintiffs
and defendant No.1 with Ramji Patangay.
She traced the history as to how the
properties have devolved on defendant Nos.2 to 5.
She stated that the ancestral
property devolved on Narayana Rao Patangay, Ramji Patangay and Eshwara Rao
Patangay, who were brothers.
Ramji Patangay died in the year 1956.
After his
demise, partition was effected in the family under a registered partition-cum-
settlement deed dated 30.01.1960.
As per the terms of the said partition deed,
suit schedule property was allotted to the share of wife of late Ramji Patangay
i.e., Smt. Laxmi Bai Patangay.
It was also pleaded that she is daughter of
Narayana Rao Patangay and since Ramji Patangay and Smt. Laxmi Bai Patangay had
no issues they fostered her as their daughter.
It was her case that suit
schedule property bearing Municipal No.8-5-264 was
sub-divided into three parts namely 4-4-264, 4-4-265 and 4-4-266 and that
through two registered settlement deeds bearing document Nos.1064/61 dated
04.04.1961 and 2623/66 dated 22.07.1966, late Laxmi Bai Patangay settled the
premises bearing Municipal Nos.4-4-264 and 4-4-265 in favour of defendant Nos.2 and 3. Laxmi Bai is also stated to have executed a will dated 20.06.1970 bequeathing the house bearing Municipal No.4-4-266 in favour of defendant Nos.2 to 5 and that one
S.B. Chitnis, was appointed as executor.
After the death of Laxmi Bai Patangay
on 15.04.1984, the executor filed O.P. No.179 of 1984 on the file of Chief
Judge, City Civil Court, Hyderabad, and that a letter of administration was
issued in favour of executor for administration of the bequest vide order dated
11.04.1985.
Defendant Nos.2 to 5 are said to have got equal shares to the house
property bearing No.4-4-266, became absolute owners, and are in exclusive
possession of the suit schedule property.
7. It is averred that defendant No.1 instituted O.S. No.30 of 1961 on the
file of I Additional Chief Judge, City Civil Court, Hyderabad for partition of
the suit schedule property and that it was dismissed on 24.04.1962. Defendant
No.1 preferred C.C.C.A. No.57 of 1963 before this Court challenging the said
judgment and decree.
Appeal ended in a compromise, where under, defendant No.1
has relinquished his right and claim to the estate of late Ramji Patangay for a
consideration of Rs.50,000/- in favour of late Smt. Laxmi Bai Patangay, and in
terms of the said compromise, decree was passed on 23.10.1968 and the said
decree has become final. It was pleaded that as heirs of the defendant No.1,
plaintiffs are bound by the compromise decree dated 23.10.1968.
8. It is further averred that after the advent of Hindu Succession Act, 1956, illegitimate son cannot claim share in the properties of his father, and, therefore, the question of children of an illegitimate son, claiming a share does not arise.
It was contended that the plaintiffs and defendant No.1 have no
legal right to re-agitate for partition of the suit schedule property, and that the decree passed in C.C.C. A No.57 of 1963 operates as res-judicata and, thereby the present suit is not maintainable.
9. By the time of filing the written statement, defendant Nos.3 to 5 were not
added and, therefore, it was also pleaded that the suit is liable to be
dismissed on the ground of non-joinder of necessary and proper parties.
Defendant No.2 has also contended that the suit is instituted at the behest of
defendant No.1 and he has set up the plaintiffs with false and untenable claims
with an intention to blackmail defendant No.2 and to gain unsuccessfully under
the threat of litigation.
10. It was also stated that the plaintiffs and defendant No.1 are strangers to
the suit schedule property; and they have no right over the suit schedule
property. Defendant No.2 denied the marriage of mother of defendant No.1 with
late Ramji Patangay. She denied that Ramji Patangay and late Rajamma lived
together in the suit schedule property and that it is not a joint Hindu
ancestral property. She has also taken the plea that the alleged demand for
partition on 01.06.1994 does not give rise to any cause of action to institute
this suit and it is only a story created as a source to generate cause of
action.
11. The trial Court formulated the following issues for consideration :
1. Whether the Court fee paid is correct?
2. Whether the compromise decree in C.C.C.A. No.57 of 1963 operates as Res-
judicata?
3. Whether defendant No.1 as illegitimate son has any share in the estate of
late Ramji Patangay?
4. Whether the schedule property fell to the share of Laxmi Bai Patangay in the
partition cum settlement deed dated 30.01.1960? And if so, whether it is binding
on defendant No.1, and the plaintiffs?
5. Whether the registered settlement deed dated 04.04.1961 and 22.07.1966 and
Will dated 20.06.1970 by Laxmi Bai Patangay in favour of defendant Nos.2 to 5
are true, valid and binding on other parties to the suit?
6. To what relief?
12. On behalf of the plaintiffs, PW.1 was examined and Ex.A-1 was marked. On
behalf of the defendants, DWs.1 and 2 were examined and Exs.B-1 to B-10 were
marked. Ex.A-1 is the Birth Certificate issued by Municipal Corporation of
Hyderabad to PW.1. Ex.B-1 is the C.C. of compromise in O.S. No.230/1/953-54 on
the file of III Judge, City Civil Court, Hyderabad; Ex.B-2 is C.C. of Registered
partition deed between Laxmi Bai Patangay and Narayana Rao Patangay and Eshwara
Rao Patangay; Ex.B-3 is Original settlement deed; Ex.B-4 is original settlement
deed dated 31.08.1966; Ex.B-5 is probated will in O.P. No.179 of 1984; Exs.B-6
to B-9 are paper publications and Ex.B-10 is certified copy of Compromise Memo
filed in C.C.C.A No.57 of 1963. All the issues were held against the plaintiffs
and the suit was dismissed without costs. Aggrieved by the same present appeal
is filed.
13. The points that arise for determination in this Appeal are as under :
1. Whether defendant No.1 as illegitimate son has any share in the estate of
late Ramji Patangay and his children namely Plaintiff Nos.1 to 3 are entitled to
share in the suit schedule property as coparceners or class-I legal heirs?
2. Whether the compromise entered by defendant No.1 with late Laxmi Bai Patangay
in C.C.C.A No.57 of 1963 is binding on plaintiffs and whether the said decree
would operate as res-judicata?
3. Whether the settlement deeds dated 04.04.1961 and 22.07.1961 and the will
dated 20.06.1970 are true, valid and binding on the parties to the suit?
4. Whether the judgment and decree passed by the trial Court
suffers from any legal or factual infirmity and requires interference by this
Court?
14. Heard Sri Sunil B. Ganu, learned counsel for plaintiffs, Sri Saibaba
Pampana, learned counsel for first defendant and Sri K. Ramakrishna Reddy,
learned senior counsel for defendant Nos.2 to 5.
15. Learned counsel for plaintiffs relied on following decisions:
Inkollu Sasikala and another v. Inkollu Venkata Murthy and others1 and M/s.
Gajanan Stores, Rep. by its Managing Partner v. Smt. Shailaja Khadilkar2.
16. Learned senior counsel for defendant Nos.2 to 5 relied on following
decisions:
Lachman Singh v. Kirpa Singh and others3, M/s. Gajanan Stores, Rep. by its
Managing Partner v. Smt. Shailaja Khadilkar (2nd supra), Chiranjilal Shrilal
Goenka v. Jasjit Singh and others4, Balbir Singh Wasu v. Lakhbir Singh and
others5 and Bishundeo Narain and another v. Seogeni Rai and others6.
17. Shorn of details, the brief facts which are relevant for determination of
this appeal are narrated hereunder:
Narayana Rao Patangay, Ramji Patangay and
Eshwara Rao Patangay were three sons of late Kishanji Patangay. Ramji Patangay
died in the year 1956. By registered partition deed dated 30.01.1960 the joint
family property was partitioned among three brothers and share of Ramji Patangay
was allotted to Laxmi Bai Patangay with absolute rights. The suit schedule
property claimed by plaintiffs has fallen to the share of Laxmi Bai Patangay.
Ramji Patangay and Laxmi Bai Patangay were not blessed with children.
By way of
registered settlement deeds bearing document Nos.1064/61 dated 04.04.1961 (Ex.B-
3) and 2623/66 dated 22.07.1966 (Ex.B-4) part of the suit schedule property
bearing Municipal No.4-4-264 and 4-4-265 was given to defendant Nos.2 and 3, by
Laxmi Bai Patangay. By the time of death of late Laxmi Bai Patangay, the house
property bearing Municipal No.4-4-266 alone remained in her name. She
bequeathed the said property in favour of defendant Nos.2 to 5 by executing a
will dated 20.06.1970 (Ex.B-5). The genuineness of the said will is not
assailed. The will was probated by an order of Chief Judge, City Civil Court,
Hyderabad dated 11.04.1985 in O.P.No.179 of 1984. The probate proceedings are
not under challenge.
Defendant No.1 instituted O.S. No.30 of 1961 claiming
partition against late Laxmi Bai Patangay but lost before the trial Court.
During the pendency of Appeal preferred by him in CCCA No 57 of 1963, he entered
into compromise with late Laxmi Bai Patangay relinquishing all his rights in the
entire estate of late Ramji Patangay by receiving Rs.50,000/-; the Appeal was
disposed of in terms of compromise on 23.10.1968 (Ex.B-10). By the time the
said suit was instituted, none of the plaintiffs were born. Plaintiff No.1 was
born during the pendency of the Appeal Suit.
POINT No.1:
18. Learned Counsel for the Appellants would contend that since late Laxmi Bai
Patangay died issueless and intestate and the plaintiffs, being the class-I
legal heirs, they would succeed to her property. He submits that their status
as class-I legal heirs was recognized by late Laxmi Bai Patangay in the
compromise memo filed in C.C.C.A. No.57 of 1963 wherein it is recorded that
defendant No.1 is an illegitimate son of late Ramji Patangay and accordingly,
the plaintiffs become class-I legal heirs; It has to be seen as to how far,
this contention can be accepted.
19. Before the trial Court and in the grounds of appeal filed in this Court,
there is no whisper regarding the claim of defendant Nos.2 to 5 that they become
absolute owners of the suit schedule property on account of the registered
settlement deeds dated 04.04.1961 (Ex.B-3) and 22.07.1966 (Ex.B-4) and the will
executed on 20.06.1970 (Ex.B-5).
Since the plaintiffs allege that their father,
defendant No.1 is the illegitimate son of Ramji Patangay and as his children,
they become entitled to share in the suit schedule property either as
coparceners or Class I heirs, the provisions of Hindu Marriage Act, 1955 read
with the provisions of Hindu Succession Act, 1956 become relevant.
The Hindu
Marriage Act, 1955 was amended by Act 68/76 where in Section 16 was substituted,
it reads as under:
"Section 16. Legitimacy of children of void and voidable
marriages :- (1) Notwithstanding that a marriage is null and void under Section
11, any child of such marriage who would have been legitimate if the marriage
had been valid, shall he legitimate, whether such child is born before or after
the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and
whether or not a decree of nullity is granted in respect of that marriage under
this Act and whether or not the marriage is held to be void otherwise than on a
petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under
Section 12, any child begotten or conceived before the decree is made, who would
have been the legitimate child of the parties to the marriage if at the date of
the decree it had been dissolved instead of being annulled, shall be deemed to
be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in Sub-section (1) or Sub-section (2) shall be construed
as conferring upon any child of a marriage which is null and void or which is
annulled by a decree of nullity under Section 12, any rights in or to the
property of any person, other than the parents, in any case where, but for the
passing of this Act, such child would have been incapable of possessing or
acquiring any such rights by reason of his not being the legitimate child of his
parents."
20. Thus, the provision recognizes, children born either of void or voidable
marriages whether born before or after the commencement of Marriage Laws
Amendment Act, 1976 to certain extent. Sub-Section (3) makes it clear that
nothing contained in Sub-Section (1) & (2) of Section 16, would be construed as
conferring upon such child, any rights in or to the property of any person other
than parents. It is further made clear that if a child was otherwise
incapable, but for the amendment, such incapacity continues, vis--vis by the
properties of persons, other than their parents. Defendant No.1 was born outside
the wedlock. In terms of the provisions of Hindu Succession Act, as it
originally stood, an illegitimate son was not entitled to share in the property
of his parents also. Section 16 as amended in the year 1976 for the first time
recognized the entitlement of illegitimate son to share in the property of his
parents. Defendant No.1 is said to be illegitimate child of Ramji Patangay born
in the year 1939, and prior to 1976, an illegitimate child was not entitled to
claim share in the property of his father. Ramji Patangay died in 1956 and
defendant No.1 did not make, in fact, could not have made any claim when Mr.
Patangay was alive. Assuming that the defendant No.1 is entitled to claim share
in the property of his father, the so called right available to him was
relinquished on account of the compromise entered by him with late Laxmi Bai
Patangay in C.C.C.A. No.57 of 1963. By express consent defendant No.1
relinquished whatever right available to him, in the estate of late Ramji
Patangay by receiving Rs.50,000.00. Thus, the claim of the plaintiffs that they
being the class-I legal heirs, succeed to the suit schedule property consequent
to the death of late Laxmi Bai Patangay intestate can not be accepted.
21. In Lachman Singh (3rd supra), the point for determination was
whether
expression 'sons' in clause (a) of Section 15(1) of Indian Succession Act
includes 'stepsons' also i.e., sons of the husband of the deceased by another
wife.
Hon'ble Supreme Court, on a detailed consideration of the matter and on
reviewing the judgments rendered by several High Courts held as under :
"5. ................... Under the Act a son of a female by her first marriage
will not succeed to the estate of her 'second husband' on his dying intestate.
In the case of a woman it is natural that a stepson, that is, the son of her
husband by his another wife is a step away from the son who has come out of her
own womb. But under the Act a stepson of a female dying intestate is an heir
and that is so because the family headed by a male is considered as a social
unit. If a stepson does not fall within the scope of the expression 'sons' in
clause (a) of Section 15(1) of the Act, he is sure to fall under clause (b)
thereof being an heir of the husband. ............ We are of the view that the
words 'sons' in clause (a) of Section 15(1) of the Act does not include
'stepsons' and that stepsons fall in the category of the heirs of the husband
referred to in clause (b) thereof.
7. ......... In the absence of any son or daughter of the deceased (including
the children of any predeceased son or daughter),
in a case falling under clause
(a) of Section 15(2) of the Act the property devolves upon the heirs of the
father of the deceased and
in a case falling under clause (b) of Section 15(2)
of the Act the property devolves upon the heirs of the husband of the deceased.
...................When once a property becomes the absolute property of a
female Hindu it shall devolve first on her children (including children of the
predeceased son and daughter) as provided in Section 15(1) (a) of the Act and
then on other heirs subject only to the limited change introduced in Section
15(2) of the Act.
The stepsons and stepdaughters will come in as heirs only
under clause (b) of Section 15(1) or under clause (b) of Section 15(2) of the
Act.
We do not, therefore, agree with the reasons given by the Allahabad High
Court in support of its decision. We disagree with this decision."
22. It is also appropriate to notice that by the time defendant No.1
instituted O.S. No.30 of 1961, none of the plaintiffs were born.
Even assuming
that defendant No.1 has right to claim share of the property owned by late Ramji
Patangay, by instituting suit for partition, the joint family status got
disrupted and on account of the compromise entered by him with late Laxmi Bai
Patangay, he has given up his right to the estate of late Ramji Patangay by
receiving Rs.50,000/- towards full and final settlement. If that be the case,
the children of 1st defendant who were born subsequent to the compromise cannot
contend that they are coparceners and class I heirs and entitled to claim share
in the suit schedule property. Thus by virtue of compromise the suit schedule
property became absolute property of 2nd defendant since the 1st defendant in
the compromise accepted the validity of Registered Partition Deed dated 30-01-
1960. Section 14 of the Hindu Succession Act comes into play and Laxmi Bai
became the absolute owner of the property. Therefore, we hold that the
plaintiffs are not entitled to share in the suit schedule properties either as
Coparceners or as Class I legal heirs. The point is answered against the
plaintiffs.
POINT No 2:
23. It has already been mentioned that defendant No.1 filed suit in the year
1961 for partition. Having failed in the trial Court during the pendency of
C.C.C.A. No.57 of 1963 he entered into compromise with late Laxmi Bai Patangay.
Terms of compromise recognizes his status as illegitimate son. As on the date
of entering into compromise, he was not entitled to share in the property that
devolved on late Laxmi Bai Patangay. However, late Laxmi Bai Patangay, with a
desire to purchase peace agreed to pay Rs.50,000/- as full and final settlement
and having received said sum, defendant No.1 agreed to relinquish all his claims
against estate of late Ramji Patangay. Plaintiff No.1 was born before 1968 and
plaintiff Nos.2 and 3 were born after 1968. The compromise decree in C.C.C.A.
No.57 of 1963 is binding on defendant No.1 and hence equally binding on the
plaintiffs as well.
24. In Bishundeo Narain (6th supra), the issue for consideration was binding
nature of a compromise decree on all parties.
The Hon'ble Supreme Court held as
under :
"22. The rule laid down in Mulla's book is expressly stated to be in cases
where the partition is not effected by a decree of a competent Court. In our
opinion, that is correct. It does not matter whether the decree was by consent
or otherwise, for a decree, unless and until it is set aside or avoided in one
or other of the ways in which alone a decree may be attacked, holds its force
and binds all concerned.
23. It is well established that a minor can sue for partition and obtain a
decree if his next friend can show that is for the minor's benefit. It is also
beyond dispute that an adult coparcener can enforce a partition by suit even
when there are minors. Even without a suit, there can be a partition between
members of a joint family when one of the members is a minor. In the case of
such lastly mentioned partitions, where a minor can never be able to consent to
the same in law, if a minor on attaining majority is able to show that the
division was unfair and unjust, the Court will certainly set it aside. The
rule, however, does not apply to decrees if the minor is properly represented
before the Court and the decree is as binding on him as on the adult parties,
unless the minor can show fraud or negligence on the part of his next friend or
guardian ad litem. This contention also, therefore, fails."
25. Thus the compromise decree is also binding on plaintiffs who are claiming
right through defendant No.1. It need not be dilated further since the minor
should impeach compromise decree within 3 years of attaining majority if at all
he is entitled to do so. If plaintiff No 1 was born in the year 1967 he must
have attained majority in the year 1985 and ought to have assailed compromise
decree within three years thereafter. Since he did not do so, it is not open to
him to re-agitate the same issue in this proceedings.
26. In Bhagwat Ram and others v. Ramji Ram and others7, one of the issues for
consideration by the Privy Council was whether it was open to defendant No.5
therein, born more than 3 years after the partition suit began, but before the
actual division of the estate, to claim a separate share in the joint family
estate as an "after-born son". The Privy Council held as under :
"19. The only question in the appeal by defendant 5 is whether he is entitled
to get a share equal to that of persons in the same class as himself though he
was born after the suit for partition. It is not disputed that he was begotten
as well as born after the institution of the suit for partition. The
institution of such a suit by a member of a joint Hindu family effects a
severance of the joint status of the family. The plaintiff and defendant 2 had
effected in this case the severance of their joint status in 1932 ; and from
that date they became entitled each to one fifth share of the joint family
properties. If the claim of defendant 5 is accepted, their shares will
necessarily be reduced. The rights of a son born after partition-often referred
to as an "after born son" - under the Hindu law, were much discussed by Hindu
jurists, for the ancient texts bearing on the question are conflicting; but it
is not necessary to examine these tests as the law to be applied is now well
understood by the Courts in India and has also been correctly applied in this
case. It is enough to state that the law is well settled that a son begotten as
well as born after the partition where a share has been allotted to the father,
as, in the present case, is not entitled to have the partition re-opened and to
claim a redistribution of the shares. He is only entitled to succeed to his
father's share and to his separate or self-acquired property to the exclusion of
the divided sons. This is the only point which their Lordships have to decide
in the appeal by defendant 5. The only ground on which his claim is urged by
Sir Herbert Cunliffe is that though born after the suit partition has not been
completed by actual division of the estate. This argument is fallacious."
27. The said principle applies to the facts of the present case.
28. In Siddalingeshwar and others v. Virupaxgouda and others8, the issue for
consideration was whether a compromise decree is binding on a minor who was not
a party to the suit and whether such person can maintain a separate suit. The
Hon'ble Supreme Court held as under :
"14. ..................... Therefore, their right to bring a separate suit
seeking appropriate remedy, remains unaffected. We therefore hold that if Rule
3-B is not complied, with, while passing a decree on a compromise in a
representative suit, any person who is affected by such compromise decree, but
not a party to it may file a separate suit seeking appropriate relief in regard
to such compromise decree, by way of declaration or otherwise. He may also file
a suit for appropriate relief ignoring the compromise decree and such a suit
will not be barred either by the principle of res-judicata or estoppel.
17. It is well settled that every person who is entitled to a share on
partition is a necessary party to a suit for partition. But, where a family
consists of several branches, it is sufficient if the heads of the branches are
made parties, as the head of a branch represents the members of the branch.
........................ In a suit for partition, where the heads of branches
alone are made parties, any decision rendered would bind not only the heads of
the branches, but also the members of the branches represented by the respective
heads (who have been made parties). Therefore, a partition suit where only the
heads of branches are made parties, without impleading the other members who are
entitled to shares, will be a representative suit for the purpose of Order XXIII
Rule 3-B of C.P.C., having regard to the explanation (d) to the said
Rule. In such a representative suit, no agreement or compromise can be entered
into without the leave of the Court, expressly recorded in the proceedings after
issuing notice to all parties interested in the suit."
29. The plaintiffs in the present suit do not have any independent right of
their own. They have to depend upon the acquisition of right by their father.
Therefore, they cannot travel beyond what defendant No.1 could have, in this
behalf. Hence, the principle of the above precedent is not of any avail to
them.
30. On the principle of res-judicata, with reference to consent decree, the
Supreme Court in Shankar Sitaram Sontakke and another v. Balkrishna Sitaram
Sontakke and others9, held as under :
"9. The obvious effect of this finding is that the plaintiff is barred by the
principle of res-judicata from re-agitating the question in the present suit.
It is well settled that a consent decree is as binding upon the parties thereto
as a decree passed by invitum. The compromise having been found not to be
vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree
passed thereon has the binding force of res-judicata."
31. It is not in dispute that the plaintiffs are claiming their right through
defendant No.1. They are equally bound by the decree in CCCA No. 57 of 1963,
as their father is, as is evident from the plain language of Section 11 of
C.P.C. Despite the fact that the said decree is one on consent, it operates as
res-judicata. Thus point No 2 is answered against the appellants/plaintiffs.
POINT No 3:
32. The defendant No.1 pleaded that he is an illegitimate son and settled the
dispute, raised by him, regarding share in the very same suit schedule property,
by way of compromise with late Smt. Laxmi Bai Patangay. He received Rs.50,000/-
and gave up all claims against estate of late Ramji Patangay. Laxmi Bai
Patangay has become the absolute owner of the suit schedule property as per deed
of partition dated 30.01.1960 (Ex.B-2) and by operation of Section 14 of the
Hindu Succession Act.. Once it is held that she is the absolute owner of the
suit schedule property she is entitled to deal with the property as she desired.
In fact, during her life time she has executed two registered settlement deeds
dated 04.04.1961 (Ex.B-3) and 22.07.1966 (Ex.B-4) in favour of defendants 2 and
3 and will dated 20.06.1970 (Ex.B-5) bequeathing the suit schedule property in
favour of defendant Nos.2 to 5.
33. There is no serious dispute with regard to execution of settlement deeds.
The trial Court has given a finding that these documents are true, valid and
binding. So far as will dated 20.06.1970 (Ex.B-5) is concerned, an executor was
appointed under the will for effective administration and distribution of the
bequeathed properties. The executor filed O.P. No.179 of 1984 on the file Chief
Judge, City Civil Court, Hyderabad to have the will probated. The learned Chief
Judge, conducted detailed enquiry and held that the will is proved and granted
letter of administration by probating the will.
34. Learned counsel for the appellants argued that the plaintiffs were not put
on notice before probate proceedings were concluded and the probate proceedings
are not binding on them. He further contends that in the State of Andhra
Pradesh, it is not essential that probate proceedings must be instituted, for
enforcement of a will executed in the State. According to him, probate
proceedings are not valid in law and the question of devolution of the property
on defendant Nos.2 to 5 on account of the will (Ex. B-5) does not arise. It is
also argued that defendant Nos.2 to 5 are strangers to the family, they are not
entitled to enjoy the property and as class-I legal heirs the plaintiffs and
defendant No.1 alone are entitled to succeed to the suit schedule property. In
support of his contention learned counsel placed reliance on the decision of
learned single judge of this Court (one of us, Hon'ble Justice L. Narsimha
Reddy) in the case of Inkollu Sasikala (1st supra). Opposing the said
contention, learned senior counsel for the defendant No.2 relied on the Division
Bench decision of this court in M/s. Sri Gajanan Stores (2nd supra).
35. In Inkollu Sasikala (1st supra), this court held as under :
"13. From the forgoing discussion, it is evident that O.P. filed by the
petitioner for grant of probate was not maintainable and the decree granted by
the trial Court to that extent is without jurisdiction. As for the adjudication
of rights in relation to securities and debts, under a Will, the trial Court is
specifically conferred with the power. While adjudicating the claims, in an
application filed under Section 370 of the Act for grant of succession
certificate, the trial Court can certainly take into account the contents of a
Will, if it is otherwise proved. However, any finding recorded in relation to
the Will in an O.P. filed under Section 370 of the Act cannot hold good insofar
as it relates to immovable properties. Though the O.P. filed by the petitioner
was not maintainable in law, the adjudication undertaken by the trial Court,
with the participation of the parties, cannot be permitted to go waste.
Further, respondents 2 and 3, the appellants herein, did not raise any objection
as to the maintainability of the O.P. before the trial Court. This Court is of
the view that the adjudication undertaken by the trial Court can be restricted
to the one for grant of succession certificate, duly protecting the rights of
the parties in relation to the other properties."
36. Shortly thereafter, the application of probate proceedings in places other
than the presidency towns was considered by Hon'ble Supreme Court in Balbir
Singh Wasu (5th supra). The question for consideration before the Hon'ble
Supreme Court was whether the High Court was correct in dismissing the
appellants challenge to probate proceedings filed by the respondents on the
basis of Section 10 of Code of Civil Procedure. In the appeal before the
Hon'ble Supreme Court, it was contended that Section 213 of the Succession Act
was not applicable outside the presidency towns. Considering the said
contention, Hon'ble Supreme Court held as under :
"5. .......... We do not read Section 213 as prohibiting the executor from
applying for probate as a matter of prudence or convenience to the Courts in
other parts of the country not covered by Section 213. Those Courts are
competent to entertain such applications, if made."
37. This decision of the Hon'ble Supreme Court is subsequent to the decision
in Inkollu Sasikala (1st supra). The judgment of Hon'ble Supreme Court in
Balbir Singh (5th supra), is followed by Division Bench of this Court in M/s.
Sri Gajanan Stores (2nd supra). One of the points for consideration in M/s. Sri
Gajanan Stores (2nd supra) was "whether the plea of the appellants that the O.P.
filed by the respondents is not maintainable, is sustainable?"
Division Bench of this Court held as under :
"'Thus taking into consideration all these decisions, it can be said that for
wills executed in the State of Andhra Pradesh relating to the properties
situated in the State of Andhra Pradesh, probate proceedings can be filed and
are maintainable. Hence, the contention of the appellants that probate
proceedings are not maintainable cannot sustain"
It is further held :
"Thus, for any wills executed by Hindus, if covered under Section 57(a) and (b)
of the Act, probate has to be obtained mandatorily, otherwise, the right as
executor or legatee under such will cannot be established."
38. It is further held that power under Section 64(2) could not apply to cases
to which Section 57 applies. The Division Bench held that,
"The case of the respondents falls under Section 57(c) because of the wills,
which are subject matter of these appeals, are claimed to have been executed
after 01.01.1927 and the provisions of clauses (a) and (b) of Section 57 do not
apply to these wills. As such when the said Wills come under Section 57(c), the
power under Section 264(2) will not apply".
39. From the above, it is clear that there is no prohibition against the
institution of probate proceedings at places out side the presidency towns. The
plaintiffs did not challenge the letter of probate issued in respect of Ex.B.5.
40. Thus the probated will dated 20-06-1970 (Ex. B5) obtained by the executor
of Lakshmi Bai Patangay in O.P. No.179 of 1984 is true, valid and legal. Once
probate proceedings are held as true, valid and legal judgment rendered by the
probate Court being a judgment in rem and conclusive binds not only the parties
but also the entire world.
41. In view of our finding that the will Ex. B5 is true, valid and binding on
the plaintiffs the case of the plaintiffs, that Laxmi Bai Patangay died
intestate does not deserve any merit. Defendant No.2 specifically pleaded that
she was the child of brother of Ramji Patangay and she was fostered by Ramji
Patangay and Laxmi Bai Patangay. This assertion of defendant No.2 is not
controverted by any specific evidence to the contra. It is specific assertion of
Defendant No. 2 that by way of registered settlement deeds (Exs.B-3 and B-4),
part of the suit schedule property was permanently transferred to defendant
Nos.2 and 3 during the life time of late Laxmi Bai Patangay. Late Laxmi Bai
Patangay executed will on 20.06.1970 (Ex.B-5) bequeathing the remaining portion
of the suit schedule property in favour of defendant Nos.2 to 5.
42. In this context, it is also appropriate to notice that the will was
executed in the year 1970 and was probated in the year 1985. Part of the suit
schedule property was settled in favour of defendant Nos.2 and 3 by way of
registered settlement deeds in the year 1961 and 66 (document Nos.Exs.B-3 and B-
4). Even otherwise these documents are more than 30 years old and were produced
by D2 to D5 and the same were accepted and acted upon. The Trial Court, having
examined the oral and documentary evidence in correct perspective recorded
findings that the Registered Settlement Deeds are true, valid and binding on
other parties to the suit. Even in collateral proceedings, these documents are
not contested. The cause of action, at the most would have arises on 11.04.1985
when probate orders were passed by the Chief Judge, City Civil Court, Hyderabad
in O.P. No.179 of 1984. Defendant No.1 was neither entitled to claim any share
in the property, nor was he holding any share in the suit schedule property.
The so called demand for partition alleged to have been made on 01.06.1994
cannot give rise to any cause of action. There is merit in the contention of
learned Senior Counsel appearing for defendant Nos.2 to 5 that the suit is also
barred by limitation. Thus the point is held against the Appellants/Plaintiffs.
43. No relief is sought against defendant Nos.2 to 5 in this suit. The suit
proceeds as if defendant No.1 is the successor to the suit schedule property and
as children of defendant No.1, the plaintiffs are entitled to claim partition.
Since defendant No.1 relinquished his rights, whatever was available to him in
law, in the estate of late Ramji Patangay, was relinquished under compromise
deed dated 23.10.1968 in C.C.C.A. No.57 of 1963. He cannot be said to be a
member of the joint family property, to claim share in the property of late
Ramji Patangay. The plaintiffs' right for share in the property accrues only
through the defendant No.1 and if the defendant No.1 is not entitled to any
claim, as children of defendant No.1, they cannot stand on a better footing.
Viewed from any angle, the claim setup by the plaintiffs cannot be sustained in
law. Thus, the point No. 3 is held against the Appellants/Plaintiffs.
POINT No.4:
44. In view of our findings on Point Nos. 1 to 3 in favour of Defendant Nos.2
to 5 and against the plaintiffs, we do not find any legal or factual infirmity
in the impugned judgment and decree passed by the trial Court and we confirm the
same.
45. Accordingly, this Appeal is dismissed however without costs. In
consequence there of, the miscellaneous petitions, if any, pending in this
Appeal, shall stand dismissed.
______________________
L. NARASIMHA REDDY, J
____________________ ,,
P. NAVEEN RAO, J
Date:7.11.2013.
1. Whether defendant No.1 as illegitimate son has any share in the estate of
late Ramji Patangay and his children namely Plaintiff Nos.1 to 3 are entitled to
share in the suit schedule property as coparceners or class-I legal heirs?
The Hindu
Marriage Act, 1955 was amended by Act 68/76 where in Section 16 was substituted,
it reads as under:
"Section 16. Legitimacy of children of void and voidable
marriages :- (1) Notwithstanding that a marriage is null and void under Section
11, any child of such marriage who would have been legitimate if the marriage
had been valid, shall he legitimate, whether such child is born before or after
the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and
whether or not a decree of nullity is granted in respect of that marriage under
this Act and whether or not the marriage is held to be void otherwise than on a
petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under
Section 12, any child begotten or conceived before the decree is made, who would
have been the legitimate child of the parties to the marriage if at the date of
the decree it had been dissolved instead of being annulled, shall be deemed to
be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in Sub-section (1) or Sub-section (2) shall be construed
as conferring upon any child of a marriage which is null and void or which is
annulled by a decree of nullity under Section 12, any rights in or to the
property of any person, other than the parents, in any case where, but for the
passing of this Act, such child would have been incapable of possessing or
acquiring any such rights by reason of his not being the legitimate child of his
parents."
20. Thus, the provision recognizes, children born either of void or voidable
marriages whether born before or after the commencement of Marriage Laws
Amendment Act, 1976 to certain extent. Sub-Section (3) makes it clear that
nothing contained in Sub-Section (1) & (2) of Section 16, would be construed as
conferring upon such child, any rights in or to the property of any person other
than parents. It is further made clear that if a child was otherwise
incapable, but for the amendment, such incapacity continues, vis--vis by the
properties of persons, other than their parents. Defendant No.1 was born outside
the wedlock. In terms of the provisions of Hindu Succession Act, as it
originally stood, an illegitimate son was not entitled to share in the property
of his parents also. Section 16 as amended in the year 1976 for the first time
recognized the entitlement of illegitimate son to share in the property of his
parents. Defendant No.1 is said to be illegitimate child of Ramji Patangay born
in the year 1939, and prior to 1976, an illegitimate child was not entitled to
claim share in the property of his father.
In Lachman Singh (3rd supra), the point for determination was
whether
expression 'sons' in clause (a) of Section 15(1) of Indian Succession Act
includes 'stepsons' also i.e., sons of the husband of the deceased by another
wife.
Hon'ble Supreme Court, on a detailed consideration of the matter and on
reviewing the judgments rendered by several High Courts held as under :
"5. ................... Under the Act a son of a female by her first marriage
will not succeed to the estate of her 'second husband' on his dying intestate.
In the case of a woman it is natural that a stepson, that is, the son of her
husband by his another wife is a step away from the son who has come out of her
own womb. But under the Act a stepson of a female dying intestate is an heir
and that is so because the family headed by a male is considered as a social
unit. If a stepson does not fall within the scope of the expression 'sons' in
clause (a) of Section 15(1) of the Act, he is sure to fall under clause (b)
thereof being an heir of the husband. ............ We are of the view that the
words 'sons' in clause (a) of Section 15(1) of the Act does not include
'stepsons' and that stepsons fall in the category of the heirs of the husband
referred to in clause (b) thereof.
7. ......... In the absence of any son or daughter of the deceased (including
the children of any predeceased son or daughter),
in a case falling under clause
(a) of Section 15(2) of the Act the property devolves upon the heirs of the
father of the deceased and
in a case falling under clause (b) of Section 15(2)
of the Act the property devolves upon the heirs of the husband of the deceased.
...................When once a property becomes the absolute property of a
female Hindu it shall devolve first on her children (including children of the
predeceased son and daughter) as provided in Section 15(1) (a) of the Act and
then on other heirs subject only to the limited change introduced in Section
15(2) of the Act.
The stepsons and stepdaughters will come in as heirs only
under clause (b) of Section 15(1) or under clause (b) of Section 15(2) of the
Act.
Even assuming
that defendant No.1 has right to claim share of the property owned by late Ramji
Patangay, by instituting suit for partition, the joint family status got
disrupted and on account of the compromise entered by him with late Laxmi Bai
Patangay, he has given up his right to the estate of late Ramji Patangay by
receiving Rs.50,000/- towards full and final settlement. If that be the case,
the children of 1st defendant who were born subsequent to the compromise cannot
contend that they are coparceners and class I heirs and entitled to claim share
in the suit schedule property. Thus by virtue of compromise the suit schedule
property became absolute property of 2nd defendant since the 1st defendant in
the compromise accepted the validity of Registered Partition Deed dated 30-01-
1960. Section 14 of the Hindu Succession Act comes into play and Laxmi Bai
became the absolute owner of the property. Therefore, we hold that the
plaintiffs are not entitled to share in the suit schedule properties either as
Coparceners or as Class I legal heirs. The point is answered against the
plaintiffs.
2. Whether the compromise entered by defendant No.1 with late Laxmi Bai Patangay
in C.C.C.A No.57 of 1963 is binding on plaintiffs and whether the said decree
would operate as res-judicata?
defendant No.1 filed suit in the year
1961 for partition. Having failed in the trial Court during the pendency of
C.C.C.A. No.57 of 1963 he entered into compromise with late Laxmi Bai Patangay.
Terms of compromise recognizes his status as illegitimate son. As on the date
of entering into compromise, he was not entitled to share in the property that
devolved on late Laxmi Bai Patangay. However, late Laxmi Bai Patangay, with a
desire to purchase peace agreed to pay Rs.50,000/- as full and final settlement
and having received said sum, defendant No.1 agreed to relinquish all his claims
against estate of late Ramji Patangay. Plaintiff No.1 was born before 1968 and
plaintiff Nos.2 and 3 were born after 1968. The compromise decree in C.C.C.A.
No.57 of 1963 is binding on defendant No.1 and hence equally binding on the
plaintiffs as well.
In Bishundeo Narain (6th supra), the issue for consideration was binding
nature of a compromise decree on all parties.
The Hon'ble Supreme Court held as
under :
"22. The rule laid down in Mulla's book is expressly stated to be in cases
where the partition is not effected by a decree of a competent Court. In our
opinion, that is correct. It does not matter whether the decree was by consent
or otherwise, for a decree, unless and until it is set aside or avoided in one
or other of the ways in which alone a decree may be attacked, holds its force
and binds all concerned.
23. It is well established that a minor can sue for partition and obtain a
decree if his next friend can show that is for the minor's benefit. It is also
beyond dispute that an adult coparcener can enforce a partition by suit even
when there are minors. Even without a suit, there can be a partition between
members of a joint family when one of the members is a minor. In the case of
such lastly mentioned partitions, where a minor can never be able to consent to
the same in law, if a minor on attaining majority is able to show that the
division was unfair and unjust, the Court will certainly set it aside. The
rule, however, does not apply to decrees if the minor is properly represented
before the Court and the decree is as binding on him as on the adult parties,
unless the minor can show fraud or negligence on the part of his next friend or
guardian ad litem. This contention also, therefore, fails."
25. Thus the compromise decree is also binding on plaintiffs who are claiming
right through defendant No.1. It need not be dilated further since the minor
should impeach compromise decree within 3 years of attaining majority if at all
he is entitled to do so. If plaintiff No 1 was born in the year 1967 he must
have attained majority in the year 1985 and ought to have assailed compromise
decree within three years thereafter. Since he did not do so, it is not open to
him to re-agitate the same issue in this proceedings.
HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE P. NAVEEN RAO
CITY CIVIL COURT APPEAL No.160 OF 2001
7-11-2013
Sri Sanjay Kumar Patengay S/o Satyanarayan Rao....Appellant
Sri Satyanarayana Rao Patangay S/o Sri Ramji Patangay.... Respondents
Counsel for the Appellant : Sri Sunil B Ganu
Counsel for the respondents : Sri K Ramakrishna Reddy
<Gist :
>Head Note:
?Cases referred:
2004 (6) ALT 18
2012 (5) ALT 43
(1987) 2 SCC 547
(1993) 2 SCC 507
(2005) 12 SCC 503
AIR 1951 SC 280
AIR 1947 PC 140
AIR 2003 Karnataka 407
AIR 1954 SC 352
HON'BLE SRI JUSTICE L. NARASIMHA REDDY
AND
HON'BLE SRI JUSTICE P. NAVEEN RAO
CITY CIVIL COURT APPEAL No.160 OF 2001
JUDGMENT: (Per Hon'ble Sri Justice P. Naveen Rao)
The unsuccessful Plaintiffs are the appellants herein. Original Suit No.1006 of
1994 is filed by the plaintiffs for partition of suit schedule property into
four equal shares, allotment of their respective shares as between the
plaintiffs and defendant No.1 and for delivery of possession of the respective
share.
Plaintiff Nos.1 and 3 are the sons and plaintiff No.2 is the daughter of
defendant No.1;
defendant No.2 is the fostered daughter of late Ramji Patangay
and Smt. Laxmi Bai Patangay.
Defendant No.3 is the husband of defendant No.2
and defendant Nos.4 and 5 are children of defendant Nos.2 and 3.
2. For the sake of convenience, the parties are referred to as arrayed in the
suit.
3. The case of the plaintiffs is that their grandfather late Ramji Patangay
was the absolute owner and possessor of suit schedule property, which is a
double storied house, bearing Municipal Nos.4-4-264, 4-4-265
and 4-4-266, admeasuring 2500 Sq. yards situated at Sultan Bazar, Koti,
Hyderabad.
Late Ramji Patangay died in the year 1956.
During his life time, he
married Smt. Laxmi Bai Patangay, who died in the year 1984 issueless.
Late
Ramji Patangay also married Smt. Rajamma and defendant
No.1 was born, out of their wed-lock in the year 1939.
Smt. Rajamma died in the year 1967.
Plaintiffs were born to the defendant No.1 and Smt. Prameela Bai
Patangay.
Plaintiffs were born in the years 1967, 1970 and 1973 respectively.
After the death of late Ramji Patangay, they succeeded to the joint Hindu
ancestral suit schedule property.
It was further averred that suit schedule
property is the joint Hindu ancestral property of plaintiffs and defendant No.1
and Plaintiffs are the coparceners and class-I legal heirs and successors of
late Ramji Patangay.
Plaintiffs aver that since defendant No.1 was not acceding
to the requests of the plaintiffs for partition of the suit schedule property,
and for separate possession, the suit is instituted.
It is averred that
defendant No.2 is third party and has no right or authority claiming interest
over the suit schedule property.
Defendant Nos.3 to 5 were added as parties, as
per the orders of the trial Court in I.A. No.2323 of 1997 on 05.12.1998.
4. Defendant Nos.1 and 2 filed separate written statements.
5. Defendant No.1 has admitted all the averments made in the plaint and sided
with his children, the plaintiffs. He pleaded that he is the legitimate son of
late Ramji Patangay and succeeded to the joint Hindu ancestral property of late
Ramji Patangay. The plaintiffs being his children, they have legitimate right to
claim share in the suit schedule property along with defendant No.1. He avers
that defendant No.2 has no right or authority and is in illegal possession of
suit schedule property.
6. Actual contest to the suit, was by defendant No.2.
She denied the
averments made in the plaint, in particular the relationship of the plaintiffs
and defendant No.1 with Ramji Patangay.
She traced the history as to how the
properties have devolved on defendant Nos.2 to 5.
She stated that the ancestral
property devolved on Narayana Rao Patangay, Ramji Patangay and Eshwara Rao
Patangay, who were brothers.
Ramji Patangay died in the year 1956.
After his
demise, partition was effected in the family under a registered partition-cum-
settlement deed dated 30.01.1960.
As per the terms of the said partition deed,
suit schedule property was allotted to the share of wife of late Ramji Patangay
i.e., Smt. Laxmi Bai Patangay.
It was also pleaded that she is daughter of
Narayana Rao Patangay and since Ramji Patangay and Smt. Laxmi Bai Patangay had
no issues they fostered her as their daughter.
It was her case that suit
schedule property bearing Municipal No.8-5-264 was
sub-divided into three parts namely 4-4-264, 4-4-265 and 4-4-266 and that
through two registered settlement deeds bearing document Nos.1064/61 dated
04.04.1961 and 2623/66 dated 22.07.1966, late Laxmi Bai Patangay settled the
premises bearing Municipal Nos.4-4-264 and 4-4-265 in favour of defendant Nos.2 and 3. Laxmi Bai is also stated to have executed a will dated 20.06.1970 bequeathing the house bearing Municipal No.4-4-266 in favour of defendant Nos.2 to 5 and that one
S.B. Chitnis, was appointed as executor.
After the death of Laxmi Bai Patangay
on 15.04.1984, the executor filed O.P. No.179 of 1984 on the file of Chief
Judge, City Civil Court, Hyderabad, and that a letter of administration was
issued in favour of executor for administration of the bequest vide order dated
11.04.1985.
Defendant Nos.2 to 5 are said to have got equal shares to the house
property bearing No.4-4-266, became absolute owners, and are in exclusive
possession of the suit schedule property.
7. It is averred that defendant No.1 instituted O.S. No.30 of 1961 on the
file of I Additional Chief Judge, City Civil Court, Hyderabad for partition of
the suit schedule property and that it was dismissed on 24.04.1962. Defendant
No.1 preferred C.C.C.A. No.57 of 1963 before this Court challenging the said
judgment and decree.
Appeal ended in a compromise, where under, defendant No.1
has relinquished his right and claim to the estate of late Ramji Patangay for a
consideration of Rs.50,000/- in favour of late Smt. Laxmi Bai Patangay, and in
terms of the said compromise, decree was passed on 23.10.1968 and the said
decree has become final. It was pleaded that as heirs of the defendant No.1,
plaintiffs are bound by the compromise decree dated 23.10.1968.
8. It is further averred that after the advent of Hindu Succession Act, 1956, illegitimate son cannot claim share in the properties of his father, and, therefore, the question of children of an illegitimate son, claiming a share does not arise.
It was contended that the plaintiffs and defendant No.1 have no
legal right to re-agitate for partition of the suit schedule property, and that the decree passed in C.C.C. A No.57 of 1963 operates as res-judicata and, thereby the present suit is not maintainable.
9. By the time of filing the written statement, defendant Nos.3 to 5 were not
added and, therefore, it was also pleaded that the suit is liable to be
dismissed on the ground of non-joinder of necessary and proper parties.
Defendant No.2 has also contended that the suit is instituted at the behest of
defendant No.1 and he has set up the plaintiffs with false and untenable claims
with an intention to blackmail defendant No.2 and to gain unsuccessfully under
the threat of litigation.
10. It was also stated that the plaintiffs and defendant No.1 are strangers to
the suit schedule property; and they have no right over the suit schedule
property. Defendant No.2 denied the marriage of mother of defendant No.1 with
late Ramji Patangay. She denied that Ramji Patangay and late Rajamma lived
together in the suit schedule property and that it is not a joint Hindu
ancestral property. She has also taken the plea that the alleged demand for
partition on 01.06.1994 does not give rise to any cause of action to institute
this suit and it is only a story created as a source to generate cause of
action.
11. The trial Court formulated the following issues for consideration :
1. Whether the Court fee paid is correct?
2. Whether the compromise decree in C.C.C.A. No.57 of 1963 operates as Res-
judicata?
3. Whether defendant No.1 as illegitimate son has any share in the estate of
late Ramji Patangay?
4. Whether the schedule property fell to the share of Laxmi Bai Patangay in the
partition cum settlement deed dated 30.01.1960? And if so, whether it is binding
on defendant No.1, and the plaintiffs?
5. Whether the registered settlement deed dated 04.04.1961 and 22.07.1966 and
Will dated 20.06.1970 by Laxmi Bai Patangay in favour of defendant Nos.2 to 5
are true, valid and binding on other parties to the suit?
6. To what relief?
12. On behalf of the plaintiffs, PW.1 was examined and Ex.A-1 was marked. On
behalf of the defendants, DWs.1 and 2 were examined and Exs.B-1 to B-10 were
marked. Ex.A-1 is the Birth Certificate issued by Municipal Corporation of
Hyderabad to PW.1. Ex.B-1 is the C.C. of compromise in O.S. No.230/1/953-54 on
the file of III Judge, City Civil Court, Hyderabad; Ex.B-2 is C.C. of Registered
partition deed between Laxmi Bai Patangay and Narayana Rao Patangay and Eshwara
Rao Patangay; Ex.B-3 is Original settlement deed; Ex.B-4 is original settlement
deed dated 31.08.1966; Ex.B-5 is probated will in O.P. No.179 of 1984; Exs.B-6
to B-9 are paper publications and Ex.B-10 is certified copy of Compromise Memo
filed in C.C.C.A No.57 of 1963. All the issues were held against the plaintiffs
and the suit was dismissed without costs. Aggrieved by the same present appeal
is filed.
13. The points that arise for determination in this Appeal are as under :
1. Whether defendant No.1 as illegitimate son has any share in the estate of
late Ramji Patangay and his children namely Plaintiff Nos.1 to 3 are entitled to
share in the suit schedule property as coparceners or class-I legal heirs?
2. Whether the compromise entered by defendant No.1 with late Laxmi Bai Patangay
in C.C.C.A No.57 of 1963 is binding on plaintiffs and whether the said decree
would operate as res-judicata?
3. Whether the settlement deeds dated 04.04.1961 and 22.07.1961 and the will
dated 20.06.1970 are true, valid and binding on the parties to the suit?
4. Whether the judgment and decree passed by the trial Court
suffers from any legal or factual infirmity and requires interference by this
Court?
14. Heard Sri Sunil B. Ganu, learned counsel for plaintiffs, Sri Saibaba
Pampana, learned counsel for first defendant and Sri K. Ramakrishna Reddy,
learned senior counsel for defendant Nos.2 to 5.
15. Learned counsel for plaintiffs relied on following decisions:
Inkollu Sasikala and another v. Inkollu Venkata Murthy and others1 and M/s.
Gajanan Stores, Rep. by its Managing Partner v. Smt. Shailaja Khadilkar2.
16. Learned senior counsel for defendant Nos.2 to 5 relied on following
decisions:
Lachman Singh v. Kirpa Singh and others3, M/s. Gajanan Stores, Rep. by its
Managing Partner v. Smt. Shailaja Khadilkar (2nd supra), Chiranjilal Shrilal
Goenka v. Jasjit Singh and others4, Balbir Singh Wasu v. Lakhbir Singh and
others5 and Bishundeo Narain and another v. Seogeni Rai and others6.
17. Shorn of details, the brief facts which are relevant for determination of
this appeal are narrated hereunder:
Narayana Rao Patangay, Ramji Patangay and
Eshwara Rao Patangay were three sons of late Kishanji Patangay. Ramji Patangay
died in the year 1956. By registered partition deed dated 30.01.1960 the joint
family property was partitioned among three brothers and share of Ramji Patangay
was allotted to Laxmi Bai Patangay with absolute rights. The suit schedule
property claimed by plaintiffs has fallen to the share of Laxmi Bai Patangay.
Ramji Patangay and Laxmi Bai Patangay were not blessed with children.
By way of
registered settlement deeds bearing document Nos.1064/61 dated 04.04.1961 (Ex.B-
3) and 2623/66 dated 22.07.1966 (Ex.B-4) part of the suit schedule property
bearing Municipal No.4-4-264 and 4-4-265 was given to defendant Nos.2 and 3, by
Laxmi Bai Patangay. By the time of death of late Laxmi Bai Patangay, the house
property bearing Municipal No.4-4-266 alone remained in her name. She
bequeathed the said property in favour of defendant Nos.2 to 5 by executing a
will dated 20.06.1970 (Ex.B-5). The genuineness of the said will is not
assailed. The will was probated by an order of Chief Judge, City Civil Court,
Hyderabad dated 11.04.1985 in O.P.No.179 of 1984. The probate proceedings are
not under challenge.
Defendant No.1 instituted O.S. No.30 of 1961 claiming
partition against late Laxmi Bai Patangay but lost before the trial Court.
During the pendency of Appeal preferred by him in CCCA No 57 of 1963, he entered
into compromise with late Laxmi Bai Patangay relinquishing all his rights in the
entire estate of late Ramji Patangay by receiving Rs.50,000/-; the Appeal was
disposed of in terms of compromise on 23.10.1968 (Ex.B-10). By the time the
said suit was instituted, none of the plaintiffs were born. Plaintiff No.1 was
born during the pendency of the Appeal Suit.
POINT No.1:
18. Learned Counsel for the Appellants would contend that since late Laxmi Bai
Patangay died issueless and intestate and the plaintiffs, being the class-I
legal heirs, they would succeed to her property. He submits that their status
as class-I legal heirs was recognized by late Laxmi Bai Patangay in the
compromise memo filed in C.C.C.A. No.57 of 1963 wherein it is recorded that
defendant No.1 is an illegitimate son of late Ramji Patangay and accordingly,
the plaintiffs become class-I legal heirs; It has to be seen as to how far,
this contention can be accepted.
19. Before the trial Court and in the grounds of appeal filed in this Court,
there is no whisper regarding the claim of defendant Nos.2 to 5 that they become
absolute owners of the suit schedule property on account of the registered
settlement deeds dated 04.04.1961 (Ex.B-3) and 22.07.1966 (Ex.B-4) and the will
executed on 20.06.1970 (Ex.B-5).
Since the plaintiffs allege that their father,
defendant No.1 is the illegitimate son of Ramji Patangay and as his children,
they become entitled to share in the suit schedule property either as
coparceners or Class I heirs, the provisions of Hindu Marriage Act, 1955 read
with the provisions of Hindu Succession Act, 1956 become relevant.
The Hindu
Marriage Act, 1955 was amended by Act 68/76 where in Section 16 was substituted,
it reads as under:
"Section 16. Legitimacy of children of void and voidable
marriages :- (1) Notwithstanding that a marriage is null and void under Section
11, any child of such marriage who would have been legitimate if the marriage
had been valid, shall he legitimate, whether such child is born before or after
the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and
whether or not a decree of nullity is granted in respect of that marriage under
this Act and whether or not the marriage is held to be void otherwise than on a
petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under
Section 12, any child begotten or conceived before the decree is made, who would
have been the legitimate child of the parties to the marriage if at the date of
the decree it had been dissolved instead of being annulled, shall be deemed to
be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in Sub-section (1) or Sub-section (2) shall be construed
as conferring upon any child of a marriage which is null and void or which is
annulled by a decree of nullity under Section 12, any rights in or to the
property of any person, other than the parents, in any case where, but for the
passing of this Act, such child would have been incapable of possessing or
acquiring any such rights by reason of his not being the legitimate child of his
parents."
20. Thus, the provision recognizes, children born either of void or voidable
marriages whether born before or after the commencement of Marriage Laws
Amendment Act, 1976 to certain extent. Sub-Section (3) makes it clear that
nothing contained in Sub-Section (1) & (2) of Section 16, would be construed as
conferring upon such child, any rights in or to the property of any person other
than parents. It is further made clear that if a child was otherwise
incapable, but for the amendment, such incapacity continues, vis--vis by the
properties of persons, other than their parents. Defendant No.1 was born outside
the wedlock. In terms of the provisions of Hindu Succession Act, as it
originally stood, an illegitimate son was not entitled to share in the property
of his parents also. Section 16 as amended in the year 1976 for the first time
recognized the entitlement of illegitimate son to share in the property of his
parents. Defendant No.1 is said to be illegitimate child of Ramji Patangay born
in the year 1939, and prior to 1976, an illegitimate child was not entitled to
claim share in the property of his father. Ramji Patangay died in 1956 and
defendant No.1 did not make, in fact, could not have made any claim when Mr.
Patangay was alive. Assuming that the defendant No.1 is entitled to claim share
in the property of his father, the so called right available to him was
relinquished on account of the compromise entered by him with late Laxmi Bai
Patangay in C.C.C.A. No.57 of 1963. By express consent defendant No.1
relinquished whatever right available to him, in the estate of late Ramji
Patangay by receiving Rs.50,000.00. Thus, the claim of the plaintiffs that they
being the class-I legal heirs, succeed to the suit schedule property consequent
to the death of late Laxmi Bai Patangay intestate can not be accepted.
21. In Lachman Singh (3rd supra), the point for determination was
whether
expression 'sons' in clause (a) of Section 15(1) of Indian Succession Act
includes 'stepsons' also i.e., sons of the husband of the deceased by another
wife.
Hon'ble Supreme Court, on a detailed consideration of the matter and on
reviewing the judgments rendered by several High Courts held as under :
"5. ................... Under the Act a son of a female by her first marriage
will not succeed to the estate of her 'second husband' on his dying intestate.
In the case of a woman it is natural that a stepson, that is, the son of her
husband by his another wife is a step away from the son who has come out of her
own womb. But under the Act a stepson of a female dying intestate is an heir
and that is so because the family headed by a male is considered as a social
unit. If a stepson does not fall within the scope of the expression 'sons' in
clause (a) of Section 15(1) of the Act, he is sure to fall under clause (b)
thereof being an heir of the husband. ............ We are of the view that the
words 'sons' in clause (a) of Section 15(1) of the Act does not include
'stepsons' and that stepsons fall in the category of the heirs of the husband
referred to in clause (b) thereof.
7. ......... In the absence of any son or daughter of the deceased (including
the children of any predeceased son or daughter),
in a case falling under clause
(a) of Section 15(2) of the Act the property devolves upon the heirs of the
father of the deceased and
in a case falling under clause (b) of Section 15(2)
of the Act the property devolves upon the heirs of the husband of the deceased.
...................When once a property becomes the absolute property of a
female Hindu it shall devolve first on her children (including children of the
predeceased son and daughter) as provided in Section 15(1) (a) of the Act and
then on other heirs subject only to the limited change introduced in Section
15(2) of the Act.
The stepsons and stepdaughters will come in as heirs only
under clause (b) of Section 15(1) or under clause (b) of Section 15(2) of the
Act.
We do not, therefore, agree with the reasons given by the Allahabad High
Court in support of its decision. We disagree with this decision."
22. It is also appropriate to notice that by the time defendant No.1
instituted O.S. No.30 of 1961, none of the plaintiffs were born.
Even assuming
that defendant No.1 has right to claim share of the property owned by late Ramji
Patangay, by instituting suit for partition, the joint family status got
disrupted and on account of the compromise entered by him with late Laxmi Bai
Patangay, he has given up his right to the estate of late Ramji Patangay by
receiving Rs.50,000/- towards full and final settlement. If that be the case,
the children of 1st defendant who were born subsequent to the compromise cannot
contend that they are coparceners and class I heirs and entitled to claim share
in the suit schedule property. Thus by virtue of compromise the suit schedule
property became absolute property of 2nd defendant since the 1st defendant in
the compromise accepted the validity of Registered Partition Deed dated 30-01-
1960. Section 14 of the Hindu Succession Act comes into play and Laxmi Bai
became the absolute owner of the property. Therefore, we hold that the
plaintiffs are not entitled to share in the suit schedule properties either as
Coparceners or as Class I legal heirs. The point is answered against the
plaintiffs.
POINT No 2:
23. It has already been mentioned that defendant No.1 filed suit in the year
1961 for partition. Having failed in the trial Court during the pendency of
C.C.C.A. No.57 of 1963 he entered into compromise with late Laxmi Bai Patangay.
Terms of compromise recognizes his status as illegitimate son. As on the date
of entering into compromise, he was not entitled to share in the property that
devolved on late Laxmi Bai Patangay. However, late Laxmi Bai Patangay, with a
desire to purchase peace agreed to pay Rs.50,000/- as full and final settlement
and having received said sum, defendant No.1 agreed to relinquish all his claims
against estate of late Ramji Patangay. Plaintiff No.1 was born before 1968 and
plaintiff Nos.2 and 3 were born after 1968. The compromise decree in C.C.C.A.
No.57 of 1963 is binding on defendant No.1 and hence equally binding on the
plaintiffs as well.
24. In Bishundeo Narain (6th supra), the issue for consideration was binding
nature of a compromise decree on all parties.
The Hon'ble Supreme Court held as
under :
"22. The rule laid down in Mulla's book is expressly stated to be in cases
where the partition is not effected by a decree of a competent Court. In our
opinion, that is correct. It does not matter whether the decree was by consent
or otherwise, for a decree, unless and until it is set aside or avoided in one
or other of the ways in which alone a decree may be attacked, holds its force
and binds all concerned.
23. It is well established that a minor can sue for partition and obtain a
decree if his next friend can show that is for the minor's benefit. It is also
beyond dispute that an adult coparcener can enforce a partition by suit even
when there are minors. Even without a suit, there can be a partition between
members of a joint family when one of the members is a minor. In the case of
such lastly mentioned partitions, where a minor can never be able to consent to
the same in law, if a minor on attaining majority is able to show that the
division was unfair and unjust, the Court will certainly set it aside. The
rule, however, does not apply to decrees if the minor is properly represented
before the Court and the decree is as binding on him as on the adult parties,
unless the minor can show fraud or negligence on the part of his next friend or
guardian ad litem. This contention also, therefore, fails."
25. Thus the compromise decree is also binding on plaintiffs who are claiming
right through defendant No.1. It need not be dilated further since the minor
should impeach compromise decree within 3 years of attaining majority if at all
he is entitled to do so. If plaintiff No 1 was born in the year 1967 he must
have attained majority in the year 1985 and ought to have assailed compromise
decree within three years thereafter. Since he did not do so, it is not open to
him to re-agitate the same issue in this proceedings.
26. In Bhagwat Ram and others v. Ramji Ram and others7, one of the issues for
consideration by the Privy Council was whether it was open to defendant No.5
therein, born more than 3 years after the partition suit began, but before the
actual division of the estate, to claim a separate share in the joint family
estate as an "after-born son". The Privy Council held as under :
"19. The only question in the appeal by defendant 5 is whether he is entitled
to get a share equal to that of persons in the same class as himself though he
was born after the suit for partition. It is not disputed that he was begotten
as well as born after the institution of the suit for partition. The
institution of such a suit by a member of a joint Hindu family effects a
severance of the joint status of the family. The plaintiff and defendant 2 had
effected in this case the severance of their joint status in 1932 ; and from
that date they became entitled each to one fifth share of the joint family
properties. If the claim of defendant 5 is accepted, their shares will
necessarily be reduced. The rights of a son born after partition-often referred
to as an "after born son" - under the Hindu law, were much discussed by Hindu
jurists, for the ancient texts bearing on the question are conflicting; but it
is not necessary to examine these tests as the law to be applied is now well
understood by the Courts in India and has also been correctly applied in this
case. It is enough to state that the law is well settled that a son begotten as
well as born after the partition where a share has been allotted to the father,
as, in the present case, is not entitled to have the partition re-opened and to
claim a redistribution of the shares. He is only entitled to succeed to his
father's share and to his separate or self-acquired property to the exclusion of
the divided sons. This is the only point which their Lordships have to decide
in the appeal by defendant 5. The only ground on which his claim is urged by
Sir Herbert Cunliffe is that though born after the suit partition has not been
completed by actual division of the estate. This argument is fallacious."
27. The said principle applies to the facts of the present case.
28. In Siddalingeshwar and others v. Virupaxgouda and others8, the issue for
consideration was whether a compromise decree is binding on a minor who was not
a party to the suit and whether such person can maintain a separate suit. The
Hon'ble Supreme Court held as under :
"14. ..................... Therefore, their right to bring a separate suit
seeking appropriate remedy, remains unaffected. We therefore hold that if Rule
3-B is not complied, with, while passing a decree on a compromise in a
representative suit, any person who is affected by such compromise decree, but
not a party to it may file a separate suit seeking appropriate relief in regard
to such compromise decree, by way of declaration or otherwise. He may also file
a suit for appropriate relief ignoring the compromise decree and such a suit
will not be barred either by the principle of res-judicata or estoppel.
17. It is well settled that every person who is entitled to a share on
partition is a necessary party to a suit for partition. But, where a family
consists of several branches, it is sufficient if the heads of the branches are
made parties, as the head of a branch represents the members of the branch.
........................ In a suit for partition, where the heads of branches
alone are made parties, any decision rendered would bind not only the heads of
the branches, but also the members of the branches represented by the respective
heads (who have been made parties). Therefore, a partition suit where only the
heads of branches are made parties, without impleading the other members who are
entitled to shares, will be a representative suit for the purpose of Order XXIII
Rule 3-B of C.P.C., having regard to the explanation (d) to the said
Rule. In such a representative suit, no agreement or compromise can be entered
into without the leave of the Court, expressly recorded in the proceedings after
issuing notice to all parties interested in the suit."
29. The plaintiffs in the present suit do not have any independent right of
their own. They have to depend upon the acquisition of right by their father.
Therefore, they cannot travel beyond what defendant No.1 could have, in this
behalf. Hence, the principle of the above precedent is not of any avail to
them.
30. On the principle of res-judicata, with reference to consent decree, the
Supreme Court in Shankar Sitaram Sontakke and another v. Balkrishna Sitaram
Sontakke and others9, held as under :
"9. The obvious effect of this finding is that the plaintiff is barred by the
principle of res-judicata from re-agitating the question in the present suit.
It is well settled that a consent decree is as binding upon the parties thereto
as a decree passed by invitum. The compromise having been found not to be
vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree
passed thereon has the binding force of res-judicata."
31. It is not in dispute that the plaintiffs are claiming their right through
defendant No.1. They are equally bound by the decree in CCCA No. 57 of 1963,
as their father is, as is evident from the plain language of Section 11 of
C.P.C. Despite the fact that the said decree is one on consent, it operates as
res-judicata. Thus point No 2 is answered against the appellants/plaintiffs.
POINT No 3:
32. The defendant No.1 pleaded that he is an illegitimate son and settled the
dispute, raised by him, regarding share in the very same suit schedule property,
by way of compromise with late Smt. Laxmi Bai Patangay. He received Rs.50,000/-
and gave up all claims against estate of late Ramji Patangay. Laxmi Bai
Patangay has become the absolute owner of the suit schedule property as per deed
of partition dated 30.01.1960 (Ex.B-2) and by operation of Section 14 of the
Hindu Succession Act.. Once it is held that she is the absolute owner of the
suit schedule property she is entitled to deal with the property as she desired.
In fact, during her life time she has executed two registered settlement deeds
dated 04.04.1961 (Ex.B-3) and 22.07.1966 (Ex.B-4) in favour of defendants 2 and
3 and will dated 20.06.1970 (Ex.B-5) bequeathing the suit schedule property in
favour of defendant Nos.2 to 5.
33. There is no serious dispute with regard to execution of settlement deeds.
The trial Court has given a finding that these documents are true, valid and
binding. So far as will dated 20.06.1970 (Ex.B-5) is concerned, an executor was
appointed under the will for effective administration and distribution of the
bequeathed properties. The executor filed O.P. No.179 of 1984 on the file Chief
Judge, City Civil Court, Hyderabad to have the will probated. The learned Chief
Judge, conducted detailed enquiry and held that the will is proved and granted
letter of administration by probating the will.
34. Learned counsel for the appellants argued that the plaintiffs were not put
on notice before probate proceedings were concluded and the probate proceedings
are not binding on them. He further contends that in the State of Andhra
Pradesh, it is not essential that probate proceedings must be instituted, for
enforcement of a will executed in the State. According to him, probate
proceedings are not valid in law and the question of devolution of the property
on defendant Nos.2 to 5 on account of the will (Ex. B-5) does not arise. It is
also argued that defendant Nos.2 to 5 are strangers to the family, they are not
entitled to enjoy the property and as class-I legal heirs the plaintiffs and
defendant No.1 alone are entitled to succeed to the suit schedule property. In
support of his contention learned counsel placed reliance on the decision of
learned single judge of this Court (one of us, Hon'ble Justice L. Narsimha
Reddy) in the case of Inkollu Sasikala (1st supra). Opposing the said
contention, learned senior counsel for the defendant No.2 relied on the Division
Bench decision of this court in M/s. Sri Gajanan Stores (2nd supra).
35. In Inkollu Sasikala (1st supra), this court held as under :
"13. From the forgoing discussion, it is evident that O.P. filed by the
petitioner for grant of probate was not maintainable and the decree granted by
the trial Court to that extent is without jurisdiction. As for the adjudication
of rights in relation to securities and debts, under a Will, the trial Court is
specifically conferred with the power. While adjudicating the claims, in an
application filed under Section 370 of the Act for grant of succession
certificate, the trial Court can certainly take into account the contents of a
Will, if it is otherwise proved. However, any finding recorded in relation to
the Will in an O.P. filed under Section 370 of the Act cannot hold good insofar
as it relates to immovable properties. Though the O.P. filed by the petitioner
was not maintainable in law, the adjudication undertaken by the trial Court,
with the participation of the parties, cannot be permitted to go waste.
Further, respondents 2 and 3, the appellants herein, did not raise any objection
as to the maintainability of the O.P. before the trial Court. This Court is of
the view that the adjudication undertaken by the trial Court can be restricted
to the one for grant of succession certificate, duly protecting the rights of
the parties in relation to the other properties."
36. Shortly thereafter, the application of probate proceedings in places other
than the presidency towns was considered by Hon'ble Supreme Court in Balbir
Singh Wasu (5th supra). The question for consideration before the Hon'ble
Supreme Court was whether the High Court was correct in dismissing the
appellants challenge to probate proceedings filed by the respondents on the
basis of Section 10 of Code of Civil Procedure. In the appeal before the
Hon'ble Supreme Court, it was contended that Section 213 of the Succession Act
was not applicable outside the presidency towns. Considering the said
contention, Hon'ble Supreme Court held as under :
"5. .......... We do not read Section 213 as prohibiting the executor from
applying for probate as a matter of prudence or convenience to the Courts in
other parts of the country not covered by Section 213. Those Courts are
competent to entertain such applications, if made."
37. This decision of the Hon'ble Supreme Court is subsequent to the decision
in Inkollu Sasikala (1st supra). The judgment of Hon'ble Supreme Court in
Balbir Singh (5th supra), is followed by Division Bench of this Court in M/s.
Sri Gajanan Stores (2nd supra). One of the points for consideration in M/s. Sri
Gajanan Stores (2nd supra) was "whether the plea of the appellants that the O.P.
filed by the respondents is not maintainable, is sustainable?"
Division Bench of this Court held as under :
"'Thus taking into consideration all these decisions, it can be said that for
wills executed in the State of Andhra Pradesh relating to the properties
situated in the State of Andhra Pradesh, probate proceedings can be filed and
are maintainable. Hence, the contention of the appellants that probate
proceedings are not maintainable cannot sustain"
It is further held :
"Thus, for any wills executed by Hindus, if covered under Section 57(a) and (b)
of the Act, probate has to be obtained mandatorily, otherwise, the right as
executor or legatee under such will cannot be established."
38. It is further held that power under Section 64(2) could not apply to cases
to which Section 57 applies. The Division Bench held that,
"The case of the respondents falls under Section 57(c) because of the wills,
which are subject matter of these appeals, are claimed to have been executed
after 01.01.1927 and the provisions of clauses (a) and (b) of Section 57 do not
apply to these wills. As such when the said Wills come under Section 57(c), the
power under Section 264(2) will not apply".
39. From the above, it is clear that there is no prohibition against the
institution of probate proceedings at places out side the presidency towns. The
plaintiffs did not challenge the letter of probate issued in respect of Ex.B.5.
40. Thus the probated will dated 20-06-1970 (Ex. B5) obtained by the executor
of Lakshmi Bai Patangay in O.P. No.179 of 1984 is true, valid and legal. Once
probate proceedings are held as true, valid and legal judgment rendered by the
probate Court being a judgment in rem and conclusive binds not only the parties
but also the entire world.
41. In view of our finding that the will Ex. B5 is true, valid and binding on
the plaintiffs the case of the plaintiffs, that Laxmi Bai Patangay died
intestate does not deserve any merit. Defendant No.2 specifically pleaded that
she was the child of brother of Ramji Patangay and she was fostered by Ramji
Patangay and Laxmi Bai Patangay. This assertion of defendant No.2 is not
controverted by any specific evidence to the contra. It is specific assertion of
Defendant No. 2 that by way of registered settlement deeds (Exs.B-3 and B-4),
part of the suit schedule property was permanently transferred to defendant
Nos.2 and 3 during the life time of late Laxmi Bai Patangay. Late Laxmi Bai
Patangay executed will on 20.06.1970 (Ex.B-5) bequeathing the remaining portion
of the suit schedule property in favour of defendant Nos.2 to 5.
42. In this context, it is also appropriate to notice that the will was
executed in the year 1970 and was probated in the year 1985. Part of the suit
schedule property was settled in favour of defendant Nos.2 and 3 by way of
registered settlement deeds in the year 1961 and 66 (document Nos.Exs.B-3 and B-
4). Even otherwise these documents are more than 30 years old and were produced
by D2 to D5 and the same were accepted and acted upon. The Trial Court, having
examined the oral and documentary evidence in correct perspective recorded
findings that the Registered Settlement Deeds are true, valid and binding on
other parties to the suit. Even in collateral proceedings, these documents are
not contested. The cause of action, at the most would have arises on 11.04.1985
when probate orders were passed by the Chief Judge, City Civil Court, Hyderabad
in O.P. No.179 of 1984. Defendant No.1 was neither entitled to claim any share
in the property, nor was he holding any share in the suit schedule property.
The so called demand for partition alleged to have been made on 01.06.1994
cannot give rise to any cause of action. There is merit in the contention of
learned Senior Counsel appearing for defendant Nos.2 to 5 that the suit is also
barred by limitation. Thus the point is held against the Appellants/Plaintiffs.
43. No relief is sought against defendant Nos.2 to 5 in this suit. The suit
proceeds as if defendant No.1 is the successor to the suit schedule property and
as children of defendant No.1, the plaintiffs are entitled to claim partition.
Since defendant No.1 relinquished his rights, whatever was available to him in
law, in the estate of late Ramji Patangay, was relinquished under compromise
deed dated 23.10.1968 in C.C.C.A. No.57 of 1963. He cannot be said to be a
member of the joint family property, to claim share in the property of late
Ramji Patangay. The plaintiffs' right for share in the property accrues only
through the defendant No.1 and if the defendant No.1 is not entitled to any
claim, as children of defendant No.1, they cannot stand on a better footing.
Viewed from any angle, the claim setup by the plaintiffs cannot be sustained in
law. Thus, the point No. 3 is held against the Appellants/Plaintiffs.
POINT No.4:
44. In view of our findings on Point Nos. 1 to 3 in favour of Defendant Nos.2
to 5 and against the plaintiffs, we do not find any legal or factual infirmity
in the impugned judgment and decree passed by the trial Court and we confirm the
same.
45. Accordingly, this Appeal is dismissed however without costs. In
consequence there of, the miscellaneous petitions, if any, pending in this
Appeal, shall stand dismissed.
______________________
L. NARASIMHA REDDY, J
____________________ ,,
P. NAVEEN RAO, J
Date:7.11.2013.
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