Leave granted.
The appeal is disposed of in terms of the signed order.
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 5144-5146 OF 2009
Leave granted.
The late G. Ramanujulu Naidu had four sons – G.K.
Kuppu Swamy Naidu, G.R. Varadaraula, G.R. Sripathi Naidu
and G.R. Gajapati Naidu, G.K. Kuppu Samy Naidu had two sons
Mohan Babu and G. Srinivasa Rao (1st Defendant). Defendant
No. 2 is the wife of Defendant No. 1 They have four daughters
namely Vinodini, Vinita, Vibha and Shalini and one son G.S. Ravi
Kumar who married the first plaintiff in the year 1978 and the 2nd
plaintiff was born to them in the year 1980. G.K. Kuppusamy
effected the partition as alleged by the plaintiffs, sometime prior
to 31.12.1964. He, before dying in 1976 executed a Will on
25.10.1973, which was in the custody of the first defendant. After
the death of G.S. Ravi Kumar in tragic circumstances, the
plaintiffs issued notice to the defendants to partition the
properties; belonging to the joint family, but they allegedly did
not cooperate. Hence a civil suit was filed.
The defendants admitted relationship between them and about Kuppu Swamy dying in the year 1976 and leaving behind a
Will dated 1.11.1975. As many as 9 issues were framed by the
trial court and a preliminary decree was passed for partition of
item No. 7 into three shares of which two belonged to the plaintiff.
The remaining suit was dismissed on the ground of non-joinder of
necessary parties.
An appeal was preferred before the High Court of
Judicature at Andhra Pradesh, relating to all suit properties
except item 7 wherein the point for consideration was whether
the properties in the plaintiff schedule are joint family properties
of the 1st Plaintiff and 1st Defendant. During pendency of the
appeal the minor son attained majority and wanted to implead
daughters of respondent No. 1 as some of the properties were in
their names.
The appeal was dismissed, hence the appellants are
before us through this appeal by way of special leave.
A Bench of this Court by an order dated 06.05.2004
issued notice limited only to item Nos. 5 and 7 of Schedule I and
on the question of the non-production of the Will. The Will in
question, said to be dated 1.11.1973 executed by G.R. Kuppusamy
Naidu has not been produced. In the proceeding sheet dated
23.01.2008 it was noticed:
“One of the contentions raised before us is that the Will dated 1.11.1975 executed by G.R. Kuppuswamy Naidu purported to be in favour of his sons Mohan Babu and G. Sreenivasa Rao as also Ravi Kumar has not been produced so as to enable the Court to ascertain as to whether by reason thereof only item No. 7 of the property described in plaint schedule -I was bequeathed in favour of Ravi Kumar or not. We direct the respondent sot produce an authenticated copy of th said Will, if not the original.”
Shri A.K. Ganguly, the learned senior counsel appearing
on behalf of the respondents when the matter was called out
stated that the Will, in question, is not traceable. We, thus,
proceed on the basis that the said purported Will being non-
existent, the parties did not inherit any property pursuant thereto
or in furtherance thereof.
Indisputably, G.R. Kuppuswamy obtained the property
by reason of a Will executed by his father in the year 1921 from
Ramanujulu Naidu. He expired on 16.01.1976. Srinivasa Rao, the
predecessor-in-interest of the parties thereto expired on 30th July,
2006. One of the questions which was raised before us by Mr.
M.N. Krishnamani, the learned senior counsel is that Prabhavati,
widow of Srinivasa Rao and his daughters, Vinodini, Vinita,
Vibha and Shalini could not inherit any property of G.R.
Kuppuswamy Naidu or Srinivasa Rao, the same being a
Mitakshara coparcenery one. The contention of the learned
counsel is not correct, inasmuch as Kuppuswamy got the property
by reason of a Will, it was, therefore, his individual properties
and not, Mitakshara coparcenery property on 30th November,
1921. Furthermore, the execution of the said Will and with effect
thereof is not in question as all the four sons of Ramanujulu
Naidu were beneficiaries in terms thereof. Furthermore, the State
of Andhra Pradesh amended Section 6 of the Hindu Succession
Act by A.P. Hindu Succession Act, 1987 in terms whereof the
daughters also by reason of a legal fiction became coparceners. Similar provision has been introduced by the Parliament by
Hindu Succession (Amendment) Act, 2005 and the effect of such a
State amendment in relation to the State of Tamil Nadu has been
considered by us recently in R. Mahalakshmi v. A.V.
Anatharaman & Ors. in civil Appeal No. 5053 of 2009 disposed of
on 3rd August, 2009 wherein it was held as under:-
“25. Section 23 of the Hindu Succession
Act, 1956 has since been omitted w.e.f. 9.9.2005,
but before omission it stood as thus:
“23. Special provision respecting
dwelling houses :- Where a Hindu intestate has
left surviving him or her both male and female
heirs specified in class I of the Schedule and his
or her property includes a dwelling-house wholly
occupied by members of his or her family, then,
notwithstanding anything contained in this Act,
the right of any such female heir to claim
partition of the dwelling house shall not arise
until the male heirs choose to divide their
respective shares therein; but the female heir
shall be entitled to a right of residence therein:
Provided that where such female heir is
a daughter, she shall be entitled to a right of
residence in the dwelling house only if she is
unmarried or has been deserted by or has
separated from her husband or is a widow.”
26. In a recent judgment of this Court in G.
Sekar V. Geeta (2009) 6 SCC 99 pronounced by
one of us (Hon’ble S.B. Sinha J.), the effect of
amendment in the Hindu Succession Act, 1956 by
reason of the Hindu Succession (Amendment)
Act, 2005 insofar as therein Section 23 has been
omitted was considered. It was held as under:
“21.The said property belonging to Govinda
Singh, therefore, having devolved upon all his
heirs in equal share on his death, it would not be
correct to contend that the right, title and interest
in the property itself was subjected to the
restrictive right contained in Section 23 of the
Act. The title by reason of Section 8 of the Act
devolved absolutely upon the daughters as well as
the sons of Govinda Singh. They had, thus, a
right to maintain a suit for partition. Section 23
of the Act, however, carves out an exception in
regard to obtaining a decree for possession inter
alia in a case where dwelling house was possessed
by a male heir. Apart therefrom, the right of a
female heir in a property of her father, who had
died intestate is equal to her brother. Section 23
of the Act merely restricts the right to a certain
extent. It, however, recognises the right of
residence in respect of the class of females who
come within the purview of the proviso thereof.
Such a right of residence does; not depend upon
the date on which the suit has been instituted but
can also be subsequently enforced by a female, if
she comes within the purview of the proviso
appended to Section 23 of the Act.
27. However, on account of death of Respondent
No. 3, unmarried sister of the parties, the said
question No. 1 had become academic in nature
and it was not necessary for us to answer the
same but as it stood answered in a recent
judgment of this Court in G. Sekar (supra), to
put the controversy at rest, we have considered
this aspect of the matter also and answered in
accordingly hereinabove.”
In that view of the matter, there cannot be any doubt or
dispute that the defendants herein could be entitled to equal share
of the property of Srinivasa Rao in terms of Section 8 of the
Hindu Succession Act. We would however, make it clear that in
these proceedings we are concerned with the properties left at the
hands of G.R. Kuppusamy Naidu. The learned counsel, however,
tried to persuade us to modify the said order of this Court dated
06.05.2004 so as to consider the entire matter afresh and in its
entirety. The contention having not been raised before us earlier
in this Court and all concerned having proceeded on the basis that
the subject matter of this appeal is confined to only Item Nos.5 &
7 of Schedule I to the plaint, we are of the opinion that said
request of the learned counsel cannot be accepted. We, therefore,
direct that the parties shall be entitled to equal share also in respect of item Nos. 5 and 7.
The appeal is disposed of in the aforesaid terms.
[S.B. SINHA]