IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH TUESDAY, THE FIFTH DAY OF AUGUST TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO AS.No.1293 of 2003 Between : M. Lakshmi Kantha Rao …Appellant/Defendant No.1 Vs. Smt. A. Indira Devi and 7 others …Respondents/ Plaintiff, D-4 to 7, D-3 and D-11 & 12 AS.No.1294 of 2003 Between : M. Lakshmi Kantha Rao …Appellant/Defendant No.1 Vs. Smt. A. Indira Devi and 7 others …Respondents/ Plaintiff, D-4 to 7, D-3 and D-11 & 12 Counsel for Appellant : Sri T.V.K. Murthy Counsel for 1st respondent : Sri Challa Dhananjaya Counsel for respondent Nos.11 and 12 : Sri V. Ramesh Kumar The Court delivered the following : [judgment follows] THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO AS.Nos.1293 and 1294 of 2003 COMMON JUDGMENT : As these two appeals relate to the properties of the same family and are interrelated, they are being disposed of by this common judgment. 2. A.S.No.1293 of 2003 and AS.No.1294 of 2003 are filed challenging the common judgment and decree dt.26.03.2003 in OS.No.32 of 1993 and OS.No.282 of 1997 of the Addl. Senior Civil Judge, Rajahmundry respectively. 3. One Nageswar Rao and Chandravathamma had two sons by name M.L. Kantha Rao and Veerabhadra Rao and five daughters by name Nirmala Devi, Kasturi, Dharma Bai, Radha Rani and Indira Devi. Nageswar Rao was a retired Head Master and had died intestate in December, 1973. Veerabhadra Rao died on 09.11.1979 leaving behind his wife Revathi and two sons by name Satish and Rajesh. PLAINT IN OS.No.32 of 1993 : 4. In 1993, Indira Devi filed OS.No.32 of 1993 before the Sub-Judge Rajahmundry for partition of two items mentioned in the Schedule thereto into 8 equal shares by metes and bounds and for allotment of 1/8th share to her with separate possession, future profits with interest at the rate of 12% p.a. and costs. 5. The two items shown in the schedule to this suit are (i) a house bearing D.No.8-24-39 of two floors along with house-site of extent 116 Sq.yds. in Rajahmundry Town and (ii) agricultural land of extent Acs.22.32 cents in Peddapatnam Village, Bantumilli Mandal, Krishna District. 6. The plaintiff Indira Devi contended that these properties are the absolute properties of her father Nageswar Rao; that her brother M.L. Kantha Rao (1st defendant in O.S.no.32 of 1993) was the eldest son of the family; out of trust and confidence reposed in him by herself and other siblings, he was managing the above properties and realising income therefrom by way of rentals from defendant nos.8 to 10 apart from agricultural income from item 2 of the plaint schedule; in the previous three years, his attitude underwent a drastic change and he was appropriating the entire rentals amounting to Rs.4,500/- p.m. and all the produce realised from the agricultural properties; till 1989, the 1st defendant was paying her and the other siblings their share in rents; since the properties are in joint possession, through mediators and personally, she requested him for partition and for separate possession of her 1/8th share therein but he was evading to do so and hence she filed the suit. WRITTEN STATEMENT OF 1ST DEFENDANT : 7. The 1st defendant filed the written statement opposing the suit claim and denied the plaint averments. He alleged that the plaint schedule properties are not self- acquired properties of Nageswar Rao but they are ancestral family properties; Nageswar Rao and his brother Jagannadham had partitioned their joint family properties under a registered partition deed Ex.B.3 dt.19.03.1949; in that partition, Nageswar Rao got item 1 plaint schedule house and Ac.8.11 cents of mango garden in RS.No.5/123, 394 and 395/1 of Rajahmundry; during his lifetime Nageswar Rao worked as a teacher in Krishna District at Machilipatnam and retired in 1962; while working at Machilipatnam he purchased sub-items (i) to (ix) of item 2 which are seashore lands and later sold away the lands at Rajahmundry; they were purchased by Nageswar Rao from out of the income from the house property at Rajahmundry, income from garden and by borrowings; lands shown in item 2 were not assessed to land revenue and did not yield income to the family; and by the time of the death of Nageswar Rao, the family was indebted to Rs.30,000/- which 1st defendant repaid. He further contended that in 1958 Nageswar Rao, while working as a teacher in Krishna District, purchased another house property at Machilipatnam in favour of Veerabhadra Rao, his second son; by the date of acquisition of this house, Veerabhadra Rao was only a student; with the family funds, long before retirement, this house was acquired nominally in favour of Veerabhadra Rao; so it must inure to the benefit of the family; and the Machilipatnam house was registered in Veerabhadra Rao’s name on the express understanding between himself, Nageswar Rao and Veerabhadra Rao and item 1 house at Rajahmundry was taken by him (1st defendant). He contended that this understanding was acted upon and after the death of Veerabhadra Rao in 1979, the house property at Machilipatnam was sold away by the wife of Veerabhadra Rao (3rd defendant) and his children (defendant nos.11 and 12) in 1990 without paying anything to their mother Chandravathamma, who is one of the Class-I heirs of late Veerabhadra Rao. He further contended that during the lifetime of Nageswara Rao, a partition took place in which the house at Machilipatnam was given to Veerabhadra Rao and the house at Rajahmundry was given to the 1st defendant with a direction to the 1st defendant to perform the marriages of the unmarried daughters; that he got the marriages of his sisters Dharma Bai and Radha Rani performed in 1978 and 1982 and spent considerable amounts towards their marriages by contracting debts which bind the family members but he himself had discharged them. He further stated that in the partition it was directed that each of the daughters would be given two acres each and the remaining land of Acs.13.34 cents would be taken equally with absolute rights by the 1st defendant and Veerabhadra Rao. He also pleaded that he was enjoying item 1 property in his own right, openly, publicly and peacefully to the knowledge of other defendants and plaintiffs since 1973 and he has perfected his title to this item. He further pleaded that his mother Chandravathamma (2nd defendant) had filed OS.No.28 of 1983 for similar reliefs against the 1st defendant, the plaintiff and other defendants but it was dismissed as adjusted out-of-court on 06.08.1983 and since this was known to the plaintiff, the present suit is barred by time. He contended that plaintiff is estopped since the orders in this suit operate as res judicata. He also contended that the plaintiff and his sisters were given two acres of land each at the time of their marriages in Ramachandrapuram and Kaikaluru during the lifetime of late Nageswar Rao and they had sold them later. He claimed to have joined the Panchayati Raj Department of the State Government as an employee and retired in August, 1992 after thirty years of service and alleged that after retirement, he took possession of item 1 house and improved it with his funds and is enjoying it. He also raised a plea that the plaintiff, the defendant nos.4 to 7 were married before 1982, before the coming into force of the Hindu Succession Amendment Act, 1986 (A.P. Act 13 of 1986) which was given effect to from September 1985 and therefore they are not entitled to claim any share in the joint family properties of their father. He therefore prayed that the suit be dismissed. WRITTEN STATEMENT OF 2ND DEFENDANT : 8. The 2nd defendant filed a written statement stating that 1st defendant is liable to partition the plaint schedule properties and give 1/8th share to the plaintiff and other defendants. WRITTEN STATEMENT OF 3rd DEFENDANT : 9. The 3rd defendant, who is the wife of late Veerabhadra Rao, the brother of plaintiff and 1st defendant, stated that her husband died on 09.11.1979 and the 1st defendant was managing the plaint schedule properties and realising income therefrom on behalf of herself and her two sons; that she and the 1st defendant are co-owners of the plaint schedule properties; that her husband, 1st defendant, 2nd defendant and late Nageswar Rao constituted a joint family; and 1st defendant was the Karta thereof after the death of Nageswar Rao. She denied that there was any partition of the plaint schedule properties during the lifetime of late Nageswar Rao. She contended that the plaintiff had no right in the plaint schedule properties as her marriage took place prior to 1985. She denied knowledge of OS.No.28 of 1983 or of the agreement dt.18.06.1983 pleaded by 1st defendant. She contended that the plaint schedule properties are ancestral properties of late Nageswar Rao and item 1 of the plaint schedule was obtained by late Nageswar Rao in the partition between himself and his brother on 19.03.1949 under Ex.B.3 along with Acs.8.11 cents of mango garden in R.S.No.5/123, 394 and 395/1 of Rajahmundry and that he purchased item 2 by disposing of part of ancestral properties at Rajahmundry. She contended that the plaint schedule properties are joint family properties, no partition had taken place between herself and the 1st defendant and plaintiff and defendant nos.4 to 7 have no right therein. She also pleaded that 1st defendant was deriving agricultural income from item 2 which had been given on lease and is liable to account for it. WRITTEN STATEMENT OF DEFENDANT NO.12 WHICH WAS ADOPTED BY DEFENDANT NO.11 : 10. Defendant nos.11 and 12 who are the sons of late Veerabhadra Rao filed a written statement claiming that they along with 3rd defendant, their mother, are entitled to 1/3rd share in the joint family properties and not 1/8th share since only Nageswar Rao, 1st defendant and Veerabhadra Rao constituted the joint family and each of them would be entitled to 1/3rd share therein. REJOINDER BY PLAINTIFF : 11. The plaintiff filed a rejoinder contending that all properties are self-acquired properties of late Nageswar Rao and therefore, she is entitled to 1/8th share therein. She refuted the contention of 1st defendant that she or defendant nos.4 to 7 have no share in the joint family properties. 12. On the basis of the above pleadings, the trial court framed the following issues : “1. Whether plaintiff is entitled to partition and separate possession as prayed for ? 2. Whether the court fee paid is not correct ? 3. Whether D1 perfected title to item No.1 ? 4. Whether the suit is barred by limitation ? 5. Whether the suit is barred by res judicata ? 6. Whether D1 is entitled to compensatory costs ? 7. Whether the suit is bad for non-joinder of necessary shares? 8. To what relief ?” PLAINT IN OS.No.282 of 1997 13. This suit O.S.No.282 of 1997 was filed by the two sons of late Veerabhadra Rao against the plaintiff and other defendants in OS.No.32 of 1993 for partition of plaint ‘A’ and ‘B’ schedule properties (which are same as items 1 and 2 in the schedule to the plaint in OS.No.32 of 1993) seeking 1/3rd share. Their pleadings are same as those taken by them as defendant nos.11 and 12 in O.S.No.32 of 1993. WRITTEN STATEMENT OF 1ST DEFENDANT : 14. The 1st defendant herein is M.L. Kantha Rao, who is also the 1st defendant in the other suit, and he filed a written statement on the same lines as in OS.No.32 of 1993. WRITTEN STATEMENT OF 7th DEFENDANT 15. Smt. Radha Rani (7th defendant herein) filed a written statement which was adopted by defendant nos.2 to 6 contending that the plaint schedule properties are self-acquired properties of late Nageswar Rao; only the site covered under plaint ‘A’ schedule fell to the share of late Nageswar Rao in the partition between himself and his brother; out of his earnings, he constructed a house therein; the plaint ‘B’ schedule properties were originally the properties of the father of Smt. M. Chandravathi, their mother; when the father of Smt. Chandravathi was selling them away, late Nageswar Rao, at the instance of Smt. Chandravathi and by selling her jewels purchased plaint ‘B’ schedule properties. She therefore contended that in all these properties plaintiffs and defendant nos.1 to 7 are entitled to 1/8th share. Issues : 16. On the basis of these pleadings, the following issues were framed in OS.No.282 of 1997 : “1. Whether plaintiffs are entitled to partition and separate possession as prayed for ? 2. Whether plaintiffs are entitled to past profits ? 3. Whether plaintiffs are entitled to future profits ? 4. Whether the order passed in OS 28/83 operates as res judicata ? 5. Whether the arrangement pleaded by D1 is true and binding on plaintiffs ? 6. To what relief ?” 17. On a joint memo filed by parties in both suits to club them, common evidence was recorded in OS.No.32 of 1993. 18. PWs.1 and 2 were examined and Exs.A.1 to A.4 were marked on behalf of plaintiffs. DWs.1 and 2 were examined and Exs.B.1 to B.20 were marked on behalf of defendants. THE COMMON JUDGMENT IN OS.Nos.32 OF 1993 AND 282 OF 1997 : 19. By judgment and decree dt.26.03.2003, the trial court passed a preliminary decree for partition of the plaint schedule properties giving 1/20th share in item 1 of plaint schedule and 3/20th share of item 2 of plaint schedule to Indira Devi, the plaintiff in OS.No.32 of 1993, directing 1st defendant to pay costs to her. It also granted future and past profits on separate application. 20. It also granted a preliminary decree for partition in favour of the plaintiffs in OS.No.282 of 1997 granting them 1/8th share each in plaint ‘A’ schedule property and 1/24th share in plaint ‘B’ schedule property apart from past and future profits and directed 1st defendant to pay costs to them. 21. It held that OS.No.29 of 1983 was dismissed as adjusted out-of-court and the judgment therein would not operate as res judicata. It held that although the 1st defendant contended that there was a settlement between all the parties on 18.06.1993 (in which all parties except plaintiff signed admitting that he is in exclusive possession and enjoyment of the properties), but the said document itself was not marked in the evidence except the signature portions as Exs.B.1 and B.2; the plaintiff Indira Devi did not sign it or admit it and any such settlement was not with her knowledge. It held that since the plaintiff Indira Devi was not served with summons in OS.No.29 of 1983 and since she was not a party to the alleged family settlement and was not aware of the suit or the family settlement, and she issued Ex.B.15 notice on 26.04.1991 and filed the suit in 1993, the suit is not barred by limitation. It held that the 1st defendant cannot plead acquisition of title by adverse possession since he could not plead and prove ouster. It held that item 1 of plaint schedule is ancestral property which devolved on Nageswar Rao under a partition between himself and his brother; since he died intestate, the 1/3rd share of Veerabhadra Rao would devolve on his wife, the 3rd defendant and his sons defendant nos.11 and 12; the 1/3rd share of Nageswar Rao would devolve upon his wife and children i.e., plaintiff, defendant nos.1, 2, 4 to 7, 11 and 12 and each would get 1/8th share therein; and the share of 2nd defendant has to be divided among plaintiff, defendant nos.4 to 7 into 5 equal shares as per Ex.A.1 and A.2 Wills. Since item 2 of plaint schedule was admitted to be the self-acquired property of late Nageswar Rao, it has to be divided into 8 shares and the share of 2nd defendant has to be given to plaintiff, defendants nos.4 to 7 equally and thus the plaintiff would get 3/20th share therein. It rejected the plea of the 1st defendant that the plaintiff would be barred from getting a share in the joint family properties of her father since her marriage was performed prior to 1986. 22. Challenging the same, AS.No.1293 of 2003 is filed against the judgment in OS.No.32 of 1993 by 1st defendant. He also filed AS.No.1294 of 2003 against the judgment and decree in OS.No.282 of 1997. 23. Heard Sri V. Venkataramana, Senior counsel for the appellant in both appeals, Sri Challa Dhananjaya for Smt. A. Indira Devi and Sri V. Ramesh Kumar for M. Satish and M. Rajesh, the sons of Veerabhadra Rao, in both appeals. 24. Smt. M. Revathi (the 6th respondent in AS.No.1293 of 2003 and 3rd respondent in AS.No.1294 of 2003, who is the wife of late Veerabhadra Rao) died pending appeals and her sons M. Satish and M. Rajesh were recorded as her legal representatives. Smt. Dharma Bai (the 7th defendant in AS.No.1294 of 2003 and 4th defendant in AS.No.1293 of 2003) also died and her legal representatives were impleaded as respondent nos.9 to 11 only in AS.No.1294 of 2003. 25. The sole contention of the counsel for appellants is that the house property (which is item 1 of the plaint schedule in OS.No.32 of 1993 and ‘A’ schedule property in OS.No.282 of 1997) is the ancestral property of late Nageswar Rao; since the marriage of the plaintiffs had taken place prior to 1985, in view of the amendment to the Hindu Succession Act by the A.P. State Legislature vide Act 13 of 1986 with effect from 05.09.1985, she is not entitled to a share in the coparcenery property; that the amendment made by Parliament to Section 6 of the Hindu Succession Act, 1956 by Hindu Succession (Amendment) Act, 2005 has no retrospective operation and the plaintiff cannot take benefit of it. He further contended that item 1 being a dwelling house, Section 23 of the Hindu Succession Act, 1956 did not permit partition thereof at the instance of daughters; and its deletion by the Hindu Succession (Amendment) Act, 2005 would not come to the aid of the plaintiff and she cannot claim a share therein. 26. The counsel for the respondents refuted the same and supported the decision of the trial court. 27. It is not in dispute that the house property (Item 1) at Rajahmundry had fallen to the share of late Nageswar Rao under the partition deed Ex.B.3 dt.19.03.1949 between himself and his brother. Therefore, in his hands it would be joint family property and Nageswar Rao, 1st defendant and Veerabhadra Rao would be the coparceners of the joint family. 28. The family settlement deed dt.18.06.1983 under which the 1st defendant claimed to have been given this house property was not marked in the evidence. So the plea of 1st defendant based on it cannot be accepted. Admittedly, the plaintiff Indira Devi did not sign it and there was no evidence to show that she was aware of it. Therefore, the 1st defendant cannot claim exclusive ownership of the house property under the alleged family settlement dt.18.06.1983. 29. The point for consideration is whether the provision of the Hindu Succession (Andhra Pradesh) Amendment Act, 1986 (Act 13 of 1986) bars the plaintiff Indira Devi from getting the relief of partition of the house property mentioned above. 30. Section 29A introduced by Act 13 of 1986 by the A.P. State Legislature in the Hindu Succession Act, 1956 declared that in a joint Hindu family governed by Mithakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son; and at a partition in such a joint Hindu family, the coparcenary property shall be so divided as to allot to a daughter, the same share as is allowable to a son. The amendment however imposed two restrictions, subject to which alone the daughter can claim equal share i.e (i) that she should not have been married prior to the commencement of the Amendment Act, ie., 05.09.1985 and (ii) that no partition should have been affected before the commencement of the Amendment Act. 31. The Parliament amended the Hindu Succession Act, 1956 by Act 39 of 2005 w.e.f. 09.09.2005. Section 6 of the Hindu Succession Act, 1956 was one of the provisions amended by Act 39 of 2005. Sub-section (1) provided that on and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son, have the same rights in the coparcenary as she would have add if she had been a son, be subject to the same liabilities in respect of the said coparcenery property as that of a son; any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. The only restriction was that this provision would not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20.12.2004. The term “partition” for the purpose of this section was defined in the Explanation to sub-section (5) of Section 6 as “any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition affected by a decree of a Court.” 32. I n Damalanka Gangaraju and another v. Nandipati Vijaya Lakshmi[1], a learned single Judge of this Court held that the Central Amendment had removed the stipulation that the marriage of a daughter of a coparcener in a Hindu joint family, who is seeking partition, should not have been performed before 05.09.1985; irrespective of the date of marriage, all daughters would be deemed to be coparceners; with one exception that partition should not have taken place before 20.12.2004. It held that since both Parliament and the A.P. State Legislature had made laws relating to the same concurrent subject, a question of conflict arises between the two enactments; and that the conflict is resolved by Article 254 (1) of the Constitution of India by providing that in such a case, the State law shall be void to the extent it is repugnant to or inconsistent with the Central Act. This Court held that the Central enactment prevails over the State Act and the latter is deemed to have been repealed and after 09.09.2005 all daughters have to be treated as coparceners entitled to equal shares, irrespective of the fact whether they are majors or minors, or their marriages were performed before 05.09.1985 or subsequent to 05.09.1985. 33. In Ganduri Koteswaramma and another v. Chakiri Yanadi and another[2], the Supreme Court held that even after the passing of a preliminary decree in a partition suit, before the final decree is passed, the preliminary decree can be amended and modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such a preliminary decree; and the benefits of the Hindu Succession (Amendment) Act, 2005 can be sought by the daughters of a Hindu coparcener in a partition suit even if a preliminary decree was passed therein prior to the coming into force of the said Act, provided the final decree is not yet passed. 34. Section 23 of the Hindu Succession Act, 1956 states : “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