HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.433 OF 2001 AND CROSS-OBJECTIONS No.57758 OF 2001 COMMON JUDGMENT: The appeal is filed by the 1st plaintiff and 12th defendant in O.S.No.24 of 1996 on the file of the Additional District Judge, Madanapalle. The suit was one filed for partition of the schedule properties. 2. The case of the plaintiffs is that the schedule properties belongs to one R.Venkata Swamy Naidu, who died on 28.12.1953 leaving behind his wife Achamma and four sons and four daughters. The 1st plaintiff is one of the daughters. The sons are Rama Swamy Naidu whose heirs are defendants 1 to 6 and another son Guru Swamy Naidu, whose heir is the 7th defendant and another son Ranga Swamy Naidu, who is said to have gone in adoption in the year, 1925 and died leaving behind his wife defendant No.11, who also died subsequently, another son is Rama Murthy, defendant No.8. The daughters are Seethamma, the 1st plaintiff, another Sundaramma and defendant No.9. The 2nd plaintiff is said to be the son of Seethamma. The 1st plaintiff and Sundaramma are said to be unmarried and Sundaramma also died unmarried. The suit schedule properties are the family properties. 3. According to the case of the plaintiffs, after the death of Venkata Swamy Naidu on 28.12.1953 as an undivided coparceners, his 1/4th share along with the other three sons excluding the adopted son defendant No.7 Ranga Swamy Naidu devolved on Achamma, the adoption of the 3rd son Ranga Swamy Naidu in 1925 was evidenced by a registered adoption deed and therefore, he has no right in the family properties as he has waived all the rights in the natural family. The 1st son Rama Swamy Naidu died in 1963 even before the death of his mother. The 2nd son Venkata Swamy Naidu died in 1960 and 8th defendant is only surviving son of the late Venkata Swamy Naidu. The eldest daughter Seethamma died on 19.02.1967 and the legal representatives are 2nd plaintiff and defendants 10 to 13. The mother of the 1st plaintiff having inherited to the joint 1/4th share of her husband along with the three sons, her rights have enlarged into absolute rights under Section 14 of the Hindu Succession Act (for short, ‘the Act’) and the plaintiffs and other heirs have become entitled to her property as co-sharers. When the plaintiffs got issued a notice, a reply was given by defendant No.8 with false allegations. A specific allegation was made in para No.9 of the plaint that the plaintiffs are not claiming any share in the suit properties through late Venkata Swamy Naidu, but only through the estate of Achamma whose rights have enlarged into absolute rights. The defendants pleaded a partition, which was not true and the 1st plaintiff is not married. Thereafter, by virtue of an amendment, in I.A.No.531 of 1989 a plea was taken that by virtue of the A.P. Act 13 of 1986 the plaintiff being a daughter, who is unmarried, has got the status of a coparcener and has got equal rights in the family properties along with the male members. Therefore her another sister Sundaramma would get equal rights along with their brothers and consequently, the 1st plaintiff claimed the share of 1/180+140/540 on her behalf and on behalf of the 2nd plaintiff and both of them put together claimed share of 143/540 share, defendant Nos.1 to 6 are entitled for a share of 105/540, defendant No.7 to a share of 90/540, defendant No.8 to a share of 140/540, defendant No.9 to a share of 50/540 and defendants 10 to 13 to a share of 12/540. The legal representatives of the 10th defendant and defendants 11 and 13 were brought on record after their death. The property is not divided and therefore, the plaintiffs filed suit for the share in the estate of her mother for partition of the property. As there was no co-operation for partition, the suit was filed. The plaintiffs also claimed for mesne profits. 4. The 1st defendant filed a written statement contending that the plaintiffs have no right or interest in the schedule property. The relationship is admitted. The adoption of the 3rd son is admitted. The entitlement of the mother to 1/4th share is also admitted. It was also pleaded that after the death of Rama Swamy Naidu, he along with others is entitled for a share in his property. It was further pleaded that after the death of Venkata Swmay Naidu, differences arose between the family members and there was a partition and in that partition, she has given up all her rights in the family properties and intended to stay with 8th defendant. Thereafter, there was a partition between the defendants and the particulars of the shares were mentioned. The factum of partition is known to the plaintiffs. The 1st plaintiff has developed illicit intimacy with one Bhaskar Rao and living with him and in spite of the advice of the elders of the family, she did not change and severed all her connections with the family. The 2nd plaintiff is a seasoned litigant and the suit was instigated at his instance. The shares claimed by the plaintiffs are incorrect and therefore, the suit is liable to be dismissed. 5. The 8th defendant also filed a written statement reiterating most of the contentions raised by the 1st defendant. The 2nd plaintiff has no right along with defendants 10 to 13 as their mother Seethamma gave up her rights by keeping fight for several years during her life time. It was late Ranga Swamy Naidu and the 2nd plaintiff, who have partitioned the properties between the family members. Therefore, they claimed as there was no partition of the family properties is not correct. Atchamma never enjoyed 1/4th share in the schedule properties and she lived with the 8th defendant till her death and kept quiet for several years. The plaintiffs are estopped from claiming any share in the properties. The 1st plaintiff is also aware of the partition. Therefore, the suit is to be bad. The 8th defendant filed additional written statement contending that since the 1st plaintiff is a married woman, she cannot claim the benefit of Act 13 of 1986. Further more, as there was already a division of the property, she cannot be treated as a coparcener. 6. The 11th defendant filed a written statement claiming that though her husband Rama Swamy Naidu went in adoption his rights in the natural family are not lost and therefore, the 11th defendant is entitled for the share. Additional written statement was also filed disputing the benefits under A.P. Act 13 of 1986. The 10th defendant filed a written statement adopting the written statement of the 11th defendant. The 13th defendant also adopted the same written statement. 7. On the basis of the above pleadings, the following issues have been framed for trial: 1) Whether the plaintiff has title to any share in the plaint schedule property? 2) Whether the defendants have perfected their title by ousting the plaintiffs and their predecessors in title? 3) Whether the partition pleaded by the defendants is true, valid and binding on the plaintiffs? 4) To what relief? 8. On behalf of the plaintiffs, PWs.1 was examined and marked Exs.A.1 to A.22. On behalf of the defendants, DWs.1 to 3 were examined and marked Exs.B.1 to B.35. 9. After considering the evidence on record, the learned Additional District Judge, Madanapalle, found that the 1st plaintiff is unmarried daughter, but by the date of death of Venkata Swamy Naidu and after his death no coparcenary existed, the plaintiff is not entitled to the benefits of the A.P. Act 13 of 1986. The claim of the 1st plaintiff was only restricted to the share in the 1/4th properties of her mother. The earlier partition pleaded by the defendants is not believed and also the fact that the plaintiff was unmarried was accepted. Accordingly, a preliminary decree was passed for allotment of 1/28th share and 1/144th share to the 1st plaintiff and also 1/140+1/720 share to the plaintiffs 3 to 6, who are the legal representatives of the 2nd plaintiff. Aggrieved by the said judgment and decree, the present appeal is filed by the 1st plaintiff as she was not given the benefits of A.P. Act 13 of 1986 and also 12th defendant. 10. Respondent No.26, who is the legal heir of Ranga Swamy Naidu, who is said to have gone in the adoption, has filed the cross- objections contending that even after adoption, the rights in the joint family are not divested. 11. The points that arise for consideration are: 1) Whether the 1st plaintiff is entitled to the benefits of A.P. Act 13 of 1986 and entitled to an independent share apart from the share she succeeds from her mother? 2) Whether the unmarried sister of 1st plaintiff by name Sundaramma is also entitled for share? 3) Whether the adopted son Ranga Swamy Naidu and his heirs are entitled for any share in the joint family properties? 4) Whether the Judgment and decree passed by the learned Additional District Judge, Madanapalle, is legal and sustainable? 12. POINTS: Before deciding the issues involved in this appeal, it is to be noted that the relationship between the parties is not in dispute. The date of death of the deceased Venkata Swamy Naidu, from whom all the parties claiming the partition of property, is not in dispute. It is also not in dispute that Venkata Swamy Naidu died on 28.12.1953 and as the law stood then, the wife Achamma has become entitled to his 1/4th share after excluding the son Ranga Swamy Naidu, who is said to have gone in adoption. It is also not in dispute that by virtue of the Hindu Succession Act, 1956 under Section 14(1), the rights of Achamma have enlarged into absolute estate and she became the owner of the properties. The 1st plaintiff claims that she is unmarried. Though there was some proof about her living with another person Bhaskar Rao, the lower Court found that there was no valid marriage between them and therefore, she shall be recognized as an unmarried daughter of Venkata Swamy Naidu. It is also to be noted that though defendants 1 and 8 have contended that there was a partition of the properties and Achamma has given up her interest in the 1/4th share, she got from her husband, which was divided amongst other sharers, the lower Court has not accepted both the facts and consequently, the finding of the lower Court is that the 1st plaintiff is an unmarried daughter and there was no partition, whereunder Achamma relinquished her interest in the properties succeeded by her from her husband. These are substantial questions of fact having a bearing on the decision in the suit and against those findings, the defendants have not preferred any appeal and consequently, there is no scope for considering the above issues again by exercising the power under Order 41, Rule 33 of the Civil Procedure Code (for short, ‘CPC’), which by itself restricts and shall be read along with Order 41, Rule 22 CPC. 13. Keeping in view the judgment reported in Banarsi and others Vs. Ram Phal[1], relied on by the counsel for the appellant, I feel any attempt to disturb those findings is not warranted. 14. It is to be mentioned that originally, the 1st plaintiff has confined her share as a heir of Achamma after her death. But, after the amendment of Hindu Successions Act by our State and introducing Section 29(A) in Act 13 of 1986, which is effective from 05.09.1985, the 1st plaintiff has developed the theory that she being an unmarried daughter, she along with her brothers is a coparcener and she shall have an independent right of share in the property apart from the share which she succeeds to the property of her mother and also another unmarried sister Sundaramma. In fact, the lower Court has not dealt with the scope of Section 29(A) at length and only has gone to the conclusion that the acceptance of the contention raised by the 1st plaintiff will be giving her undue benefit of giving more share and therefore, she is not entitled for the benefits of the Act. 15. The learned counsel for the appellants tried to attack the judgment of the lower Court particularly with reference to para No.32, which evidently deals with the contention of the parties and it is not a finding as such. Therefore, in view of the above circumstances, the question before the Court is as to whether the 1st plaintiff has got a right equally along with the brothers and the share granted by the lower Court is not correct. 16. In order to appreciate the contentions, it would be useful to extract Section 6 of Hindu Succession Act, which stood prior to the amendment by the Central Government: 6. Devolution of interest in coparcenary property.- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2.- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. 17. It is also useful to extract Section 29(A) as amended by the State under Act 13 of 1986: 29A. Equal rights to daughter in co-parcenery property:- Notwithstanding anything contained in Section 6 of this Act, (i) In a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son. (ii) At a partition such a joint Hindu family the co- parcenery property shall be so divided as to allot to a daughter the same share as is allotable to a son. (iii) ……….. (iv) Nothing in clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986. 18. It is also to be noted that by virtue of Act 39 of 2005 the Central Government has amended and substituted Section 6 as follows: [6. Devolution of interest in coparcenary property:- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner a the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub- section 1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu Family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre-deceased daughter, and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the parition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation:- For the purposes of this sub-section, the interest of a Hindu Mitaksha coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) …………. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation-For the purposes of this section “partition’ means any partition made by execution of a dead of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.] 19. A reading of the above provisions clearly go to show so far as the provisions of the Central Act are concerned, they clearly show that on and from the commencement of the said Act, the daughter shall be treated as a coparcener, whereas under Section 29(A) of the State Act, such restriction is not there. Under Section 29(A) of the State Act the only restriction is that under clause (iv) where-under a daughter married prior to the amendment or to a partition which had been effected before the commencement of the Act, the provision of Section (ii) of the State Act will not apply. 20. The substance of the contention of the learned counsel for the appellants is that the 1st plaintiff by birth becomes a coparcener and as she was born even by the date of death of Venakata Swamy Naidu, she along with her another sister Sundaramma will be entitled to a share in the property equivalent to the brothers and consequently the benefit of Section 29(A) of the State Act cannot be denied. Though the learned counsel for the appellant has relied upon several decisions as to when a right of Hindu Woman, who got right under the Hindu Women’s Right to Property Act, confers right of separation or division and as to how she should be treated if she has not asked for partition, the said decisions have no relevancy to this case. The only judgment, which has got relevancy for a decision in this case is the decision relied on by the counsel for the appellant reported in S.Sai Reddy Vs. S.Narayana Reddy and others[2] dealing directly with the Section 29(A) of the State Act. In that case, it was held that the right of the daughter for a share in the coparcenary property must be determined on the date of the passing of the final decree for partition by meats and bounds. Even after the preliminary decree is passed in view of the amendment, the daughter was held entitled to a share in the coparcenary property. But, however, in that case, it was a case filed by the plaintiff against the father and others for passing of a decree for partition, which clearly goes to show that the father was alive by then. Therefore, the facts of the case will have no application to the present case. Unlike explanation to the amended Hindu Succession Act passed by the Central Government as to the purport of partition being any partition made by execution of a deed of partition duly registered under the Registration Act, or partition effected by a decree of a Court, there is no such explanation in the Section 29(A) of the State Act. Therefore, the question is whether a notional partition can be recognized under Section 29(A) sub clause (iv) of the amended Act. It is to be borne in mind that prior to the amendment of the Central Act under Section 6 explanation (1) of the Act, it was specifically provided that the interest of Hindu Mitakshara, Coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. Therefore, it is quite clear that if the male had left behind him a female class one heir, it shall be treated as a interest of his share by his making a notional partition of the properties. Therefore, by virtue of the Hindu Succession Act and by virtue of the right, Achamma has got from her husband, it shall be deemed under Section 6 of the Act that there was a notional partition and the share of her husband shall devolve on her. In such a circumstance, there shall be deemed to be a partition amongst the other members of the family and the sons will get their shares and the wife will get the share of her husband, irrespective of the fact whether earlier to it, till she seeks partition the family is held to be joint. The purpose of Section 14(1) of the Succession Act is also to confer such absolute rights and it can only be by notional partition. 21. The learned counsel for the respondents relied upon the following decisions reported in 1) Smt.Bagirathi and others Vs. S.Manivanan and another[3]. 2) Sheela Devi and others Vs. Lal Chand and another[4]. 3) M.Yogendra Vs. Leelamma N[5] All these cases deal with the Central Act as amended and it was held that it has no retrospective effect and it does not apply to the cases where the father died prior to the commencement of the amended Act. But, in those decisions, the theory of notional partition, which is incorporated under Section 6 of the Act has been taken into consideration. 22. It is also useful to refer to a decision reported in Anar Devi Vs. Parmeshwari Devi[6], where-under the notional partition to determine the share consequent on the death of a deceased male under Section 6 of the Act was considered. Evidently, when Venkata Swamy Naidu died in 1953, it is not in dispute that as per the law, the wife would be entitled to his share in the coparcenary property and such share can only be by virtue of a notional partition to be effected. She has got an option to sue for partition or to continue in the joint family but not as a