THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR A.S.NOS.919 OF 2002 & 2814 OF 2004 DT.27-07-2010 Between: IN A.S.NO.919 OF 2002: Nalluri Narasimhaiah ………….Appellant Vs. Dr.Makineni Padmanarayanamma ………….Respondent IN A.S.NO.2814 OF 2004: Dr.Makineni Padma Narayanamma ……………Appellant Vs. Nalluri Narasimhaiah …………..Respondent COMMON JUDGMENT: Since these two appeals arise out of one and the same judgment and decree, dated 10.04.2002 passed in O.S.No.76 of 1990 on the file of the Additional Senior Civil Judge, Ongole, they are being disposed of by this common order. The brief facts of the case as seen from the record are, as follows:- One Nalluri Venkata Chalamaiah of Ongole Village of Ongole Taluk had vast properties in Mangamuru and Santhanuthalapadu Villages. Nalluri Kistamma, Nalluri Adinarayana and Nalluri Lingaiah are the sons of Nalluri Venkata Chalamaiah. The plaintiff Nalluri Rathamma is the second wife of Nalluri Kistamma. The defendant Nalluri Narsimham is the son and Makineni Amruthavalli Tayaramma is the daughter of Nalluri Kistamma. Nalluri Kistamma died in 1948 leaving behind him his son, wife and daughter. The plaintiff filed the suit for partition, claiming half share in item Nos.2 and 3 in the plaint schedule properties. Her specific case is that she acquired Ac 6.25 cents out of total extent of Ac 9.40 cents towards her Sthridhana property in S.No.312/1 and that by mistake, she did not correct by mentioning the extent of her Sthridhana property in her land ceiling declaration filed before the Land Ceiling Tribunal, Ongole and instead of showing Ac 6.24 cents of land, she had mentioned as Ac 3.89 cents only. According to the plaintiff, the reason for not mentioning the correct extent of land in her land ceiling declaration is that she could not trace out the documents relating to her Sthridhana property. It is also her case that Nalluri Lingaiah who is the third son of Nalluri Venkata Chalamaiah was taken in adoption by one Nalluri Laxminarasaiah of Mangamuru Village. The properties inherited by late Nalluri Lingaiah were pooled together as joint family properties along with the joint family properties of late Nalluri Venkata Chalamaiah. Accordingly, Kistamma, Audinarayana and Lingaiah partitioned their family properties into three equal shares. Adinarayana got his properties separated by taking his share from the joint family, while Kistamma and Lingaiah pooled their respective shares together as joint family properties. Nalluri Lingaiah who married the elder sister of plaintiff by name Rajamma had no issues and died intestate. The plaintiff, and her elder sister Rajamma are the only daughters of late Abburi Singaiah of Mangamuru Villge. Lingaiah settled his properties in the name of his wife with limited rights and vested remainder in the name of the defendant as per the settlement deed dated 26.08.1964. Again on the same day, Lingaiah settled Ac 7.50 cents in favour of the defendant and on 26.08.1964 he settled Ac 4.50 cents in favour of daughter of the plaintiff. The said settlement deed is shown before the Land Ceiling Tribunal, Ongole by the plaintiff as well as by the defendant. The plaintiff in C.C.No.805 of 1975, the defendant in C.C.1151 of 1975 and Nalluri Ragamma in C.C.803 of 1975 wife of Lingaiah filed declarations separately under Section 8 (1) of A.P. Land Reforms Act, 1973, showing the lands held by them on 11.04.1976. The plaintiff got the lands with absolute rights as per the orders of the Land Reforms Tribunal in C.C.805 of 1975 dated 18.02.1978 and as per the orders of Land Reforms Appellate Tribunal in L.R.A.469 of 1977. The plaint schedule lands under the unit of the plaintiff are not separated from the lands of the defendant. The plaintiff got her title, right and interest in the plaint schedule property from 18.02.1978. After 18.02.1978, on several occasions, the plaintiff demanded the defendant for partition but in vain. Even efforts of mediators failed. Though the plaintiff claimed half share and sought allotment of share to her in all other items, but in the prayer portion she prayed to allot Ac 3.87 cents out of Ac 9.40 cents in item No.1 of the plaint schedule property. The defendant filed written statement admitting his relationship with the plaintiff. Though the defendant claimed right in S.No.672/3 admeasuring Ac 5.76 cents and Ac 4.98 cents in S.No.642/1B, since the plaintiff has deleted these lands from the original plaint, there is no discussion about the same. It is denied that the plaintiff acquired Ac 6.24 cents in S.No.312/1 of Pernamitta Village towards her Sthridhana. According to the defendant, the plaintiff did not own any land in S.No.312/1 of Pernamitta Village. Out of Ac 9.40 cents of land in S.No.312/1 of Pernamitta Village, the defendant purchased Ac 3.20 cents of land with his own separate funds and Ac 3.20 cents of land is the separate and self acquired property of the defendant. It is also denied that the plaint schedule properties are jointly earned by the plaintiff and the defendant. The defendant admitted about all the declarations given under the Land Ceiling Act. The survey numbers in which his father had no interest at all were wrongly included by the plaintiff in the said declarations. The defendant claimed that he got Ac 4.80 cents in S.No.699, by virtue of the settlement deed executed by Lingaiah in favour of his wife Ragamma and he became entitled to the vested remainder. The trial court gave a finding in favour of the defendant in respect of S.No.699 holding that the wife of Lingaiah was given life interest and vested remainder to the defendant therein. The said finding is not questioned. Therefore, the same appears to have become final. The defendant did not dispute about the declarations given under the Land Ceiling Act. He contended that certain extents of land in which his father had no interest were noted in those declarations, which were given as per the information given by the Village Administrative Officer and subsequently they were found to be incorrect. The specific contention of the defendant is that the declaration given under the Land Ceiling Act and the orders of the Land Reforms Tribunal did not and could not create or vest any right or title either to the defendant or to the plaintiff. They cannot be taken or treated as documents creating or vesting title or right in favour of any person in those lands. The allegation in the plaint that the plaintiff became entitled to the plaint schedule lands by virtue of the order in L.R.A.No.469 of 1977 and that she got right, title and interest in the plaint schedule property from 18.02.1978 is incorrect and wholly unsustainable. The purpose for which the declarations were given under the Land Ceiling Act and the scope of the orders of the Tribunals in those matters are totally different and they had nothing to do with the actual right and title of the parties. The plaint schedule lands were not jointly held by the plaintiff and the defendant. The further case of the defendant is that the plaintiff’s daughter Amruthavalli Tayaramma was married to Dr.Makineni Venkata Narasimha Rao of Katurivaripalelm near Podili. She held responsible position in politics. She was a co-opted member of Prakasam Zilla Parishad General Body from about the year 1971 and that the plaintiff was supplying funds for her daughter without the knowledge of the defendant by borrowing from others. The defendant had also borrowed certain amounts from others from 1979 onwards for the family needs. When the plaintiff insisted that the family properties should be divided, mediation was held in the presence of Nalluri Sundara Ramaiah, Kamepalli Chandramouli and others and accordingly, the plaintiff was allotted Ac 2.72 cents in S.No.337 of Mangamuru Village, Ac 2.31 cents in S.No.665/1, Ac 3.35 cents in S.No.644, Ac 2.55 cents in S.No.643/1, Ac 1.21 cents in S.No.642/3 and Ac 2.40 cents in S.No.669/1 and 4 of Santhanuthalapadu. She was also given gold jewellery of about one hundred sovereigns and half kilogram of silver articles and all these properties were given to her in full satisfaction of her share in the family property and accordingly, she was given possession. It is also the case of the defendant that when the plaintiff sold Ac 2.72 cents in S.No.337 of Mangamuru to B.Raghava Reddy under a registered sale deed, dated 30.10.1979 and utilised that amount for discharging her own debts. The defendant sold Ac 2.88 cents under a sale deed dated 30.10.1979 in S.No.337 of Mangamuru Village for discharging the family debts undertaken by him. It is also the case of the defendant that subsequently, the plaintiff sold Ac 2.31 cents in S.No.665/1 under a registered sale deed, dated 29.09.1980. Since there was no registered partition deed in between the plaintiff and the defendant, the vendee P.Kondaiah insisted that the defendant and his sons should also join in the execution of the sale deed, the defendant joined in the execution of the sale deed as insisted upon by the vendee. He signed both on behalf of himself and also as guardian of his minor sons. The entire amount was taken by the plaintiff. The remaining items of property that were allotted to the plaintiff’s share were leased out to Thakkella Punnaiah by the plaintiff and he is cultivating those items as a lessee under the plaintiff. It is also his case that he is in exclusive possession and enjoyment of suit schedule properties. The plaintiff filed I.A.No.2622 of 2001 seeking amendment of the plaint. After the plaintiff got amended the plaint, certain other properties have been included in the plaint. Then the defendant filed additional written statement and denied the allegations made in the amended plaint. The main ground that was taken by the defendant is that the relief prayed for by the plaintiff in pursuance of the amended plaint is hopelessly barred by limitation and therefore, the plaintiff is not entitled to the said relief. It is also averred that the original suit is barred by time, since it is filed four decades after the death of the plaintiff’s husband. The trial court framed the following issues: 1) Whether the plaintiff had any land of her own in S.No.312/1 of Pernamitta Village and if so how much extent and with what funds? 2) Whether the father of the defendant and plaintiff had any land in S.Nos.672/3, 642/1B and 699 of Santhanuthalapadu? 3) Whether (what) is the extent owned by the father of the defendant and plaintiff in S.No.675/1 and 2 of Santhanuthalapadu Village? And in S.No.286/1A and 1B of Mangamuru Village? 4) Whether the father of plaintiff and defendant owned any land in S.No.274/3, 334/1. 238 and 280 of Mangamuru Village? 5) Whether the sale of the land in S.No.286/1A and 1B by this defendant was for the necessity of the joint family and binding upon plaintiff? 6) To what relief? The trial court framed the following additional issues: 1) Whether the suit in so far the items got included by way of award in I.A.No.2622 of 2001 is barred by limitation? 2) Whether the plaintiff cannot be permitted to take inconsistent pleas? 3) Whether the properties got impleaded in I.A.No.2622 of 2001 are available and not liable for partition? 4) Whether the court fee paid on the added relief is proper? 5) To what relief is proper? On behalf of the plaintiff, the plaintiff herself was examined as PW-1 and PWs.2 to 5 were examined and Exs.A-1 to A-10 were marked. On behalf of the defendant, the defendant himself was examined as DW-1 and DWs.2 to 4 were examined and Exs.B-1 to B-3 and Exs.X-1 to X-5 and Ex.C-1 were marked. The learned Additional Senior Civil Judge, Ongole, having considered the oral and documentary evidence, and basing on the report submitted by the Advocate Commissioner held that the suit schedule properties are in one contiguous part and there are no bunds or ridges demarcating the divisions. The learned trial Judge also disbelieved the version of the defendant that there was an earlier partition and certain lands were allotted to the plaintiff in the said partition. On issue No.1, it is held that the plaintiff failed to prove that S.No.312/1 was acquired by her towards her pasupu kumkuma. On issue No.2, taking into consideration the admission made by the plaintiff, it is decided in favour of the defendant. On issue No.4, taking into consideration Exs.A-2 to A-5, it is held that the plaintiff and the defendant along with wife of Lingaiah are shown to be having title in the said survey numbers and hence, the contention of the defendant that his father had no right in the said lands is not accepted. Issue No.5 is decided in favour of the defendant. As far as additional issues are concerned, it was held that the claim of the plaintiff is barred by limitation in respect of items that are sought to be included as per the orders in I.A.No.2622 of 2001. The trial court finally held that the plaintiff is entitled to a decree to some extent and for separate possession in respect of same and accordingly decreed the suit partially. Sri V.Sudhakar Reddy, learned counsel for the appellant submitted that admittedly, the plaintiff and defendant have filed declarations before the Land Reforms Tribunal and in those declarations, half of the lands were shown to be held by the plaintiff and therefore, it has to be deemed that the plaintiff was holding those lands on the date of filing of the declaration. It is also his submission that by virtue of Section 3 (1) of the Hindu Women’s Right to Property Act, 1937 when a Hindu dies intestate leaving separate property, his widow or if there is more than one widow, all his widows together, shall, subject to the provisions of Sub-section 3 of Section 3 of the Act, be entitled to a share as a son. Referring to sub- section 3 of Section 3 of the said Act, it is his submission that any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu women’s estate, provided however that she shall have the same right of claiming partition as a son. The learned counsel has relied on the decisions reported in V.Tulsamma and others Vs. Sesha Reddy (Dead), by L.Rs.,[1] Kantipudi Manikyam Vs. Kantipudi Ramakrishna and others [2], Thoppa Naicker Vs. Smt. Chinnammal & another[3], Vemuganti Venkata Kalyani Vs. Nyayapathi Padmavathamma and others[4] Kallakuri Pattabhiramaswamy and others Vs. Kallakuri Kamaraju and others[5] (2009 (5) ALT 150 and Garlapati Prakasam Vs. Garlapati Jaggaiah[6], Satrughan Isser Vs. Sabujpari & others [7], Raghubar Singh & others Vs. Gulab Singh & others[8], Mangal Singh and others Vs. Rattno (died)[9], S.Bhaskar Reddy & others Vs. S.Ramachandra Reddy and another[10], Garlapati Prakasam Vs. Garlapati Jaggaiah (died) and others[11], Neelavathi and others Vs. N.Natarajan & others[12], Battula Lakshmi Vs. Battula Malaiah[13], K.V.Ranga Dass and others Vs. K.V.Krishna Rao and others[14] and A.Diakrupamani Vs. Sakuntalal Devi[15]. It is also his submission that under Section 14(1) of the Hindu Succession Act, 1956, any property possessed by a female Hindu, whether acquired before or after the commencement of the Hindu Succession Act, 1956 shall be held by her as full owner thereof and not as a limited owner. Thus a Hindu Women’s limited right gets enlarged under Section 14 of the Act. It is also his submission that since the Hindu Succession Act has not come into force on the date of death of the father of the plaintiff, his daughter would not get any right. It is his submission that under Sub-Section 3 of Section 3 of the Hindu Women’s Right to Property Act, the plaintiff is entitled to file a suit for partition as if she is a son. It is also his submission that the defendant cannot change his version from time to time to suit his evil intentions and that the defendant having accepted that the plaintiff has half share in the properties at the time of filing of the declarations before the Land Reforms Tribunal and having accepted those declarations as true and correct and having not filed any objections to those declarations, now cannot claim that the plaintiff has no half share in the plaint schedule properties. His main submission is that a party having taken a specific plea before the Land Reforms Tribunal to save their lands from the clutches of the Land Ceiling Act, now cannot turn back for the purpose of gaining some advantage and say that the declarations were filed for some other purpose and the said declarations do not create any right to the plaintiff. In support of his contention, he placed reliance on a decision reported in Garlapati Prakasam Vs. Garlapati Jaggaiah (Supra-6). It is also his submission that due to lack of some knowledge and information, the plaintiff did not include certain lands in the schedule at the time of filing of the suit, but subsequently, she realized the mistake and filed amendment application in I.A.No.2622 of 2001 and subsequently, the said I.A. was allowed and accordingly, the plaintiff amended her pleadings and included certain lands. His main submission is that when the partition of joint family properties has been sought, the question of limitation does not arise. A party who is having a right in the joint family property, can file a suit for partition at any time and may even bring certain properties at a subsequent stage and merely because at a subsequent stage certain properties have been added to the plaint and that too within a limitation of 12 years from the date of filing of the suit, the rights of the plaintiff will not be defeated on that ground alone. His main submission is that law of limitation does not apply to the claims of the parties seeking partition of the joint family properties. In support of his contention, he has relied on a decision of this court reported in Garlapati Prakasam Vs. Garlapati Jaggaiah (died) and others (Supra-11). It is also his submission that the plaintiff is entitled to half share in item No.1 and the lower court committed a mistake in allotting only Ac 3.87 cents in the said property instead of granting Ac 4.70 cents towards her half share. It is his contention that merely because the plaintiff could not prove that Ac 6.24 guntas of property was acquired by her as Sthridhana property, her right over the joint family properties, which she has acquired through her husband, cannot be defeated. It is his submission that the plaintiff is entitled to ½ share in item No.1 of the schedule property. It is also his submission that the lower court ought to have allotted ½ share in all the joint family properties including the items, which have been subsequently included. It is also his submission that though the plaintiff and defendant submitted separate declarations under A.P. Land Reforms Act of 1973 for the lands held by them as owners, the plaintiff is entitled to ½ share in all the joint family properties. It is also his submission that merely because the plaintiff did not show certain lands in her declaration and the defendant alone had shown certain lands in her declaration, by that itself, the defendant would not get any right in those lands shown by him and the plaintiff would not loose her right in the lands that are not shown in her declaration and the finding of the lower court on this aspect is not correct and liable to be set aside. Sri G.Krishna Murthy, learned counsel appearing for the respondent submits that admittedly, the husband of the appellant died in the year 1948 before the Hindu Succession Act, 1956 came into force and the plaintiff cannot be treated as co-parcener and that she cannot claim for partition. His main submission is that on the death of the husband of the plaintiff, the defendant got notionally half share in the joint family properties and whatever half share that is deemed to have been allotted to the husband of the plaintiff would be available for division and in that half share, the plaintiff may get ½ share, i.e., in total 1/4th share in the joint family properties. His main submission is that allotting half share in the plaint schedule properties is against law and even if the entire case of the plaintiff is accepted, the lower court did not consider that the plaintiff had only 1/4th share. His next submission is that the plaintiff herself claimed only Ac 3.87 cents from out of Ac.9.40 cents in S.No.312/1 i.e., item No.1 of the plaint schedule property situated at Pernamitta of Santhanuthalapadu Mandal and when she herself claimed only Ac 3.87 cents, now she cannot claim more than that. It is also his submission that the defendant purchased Ac 3.20 cents out of Ac 9.40 cents in S.No.312/1 and acquired the property with his own separate funds and that Ac 3.20 cents of land is the self acquired property of the defendant and that subsequently the defendant had sold away this property and it is not available with the joint family from the date of filing of the suit and therefore, even allotting Ac 3.87 cents by the lower court is not correct. It is also his submission that though the plaintiff claimed Ac 3.87 cents out of Ac 9.40 cents, Ac 6.24 cents is of her Sthridhana property and when she failed to show that she acquired the property towards her Sthridhana property, the lower court ought not to have allotted share to the plaintiff in the said property. His next submission is that when the grand-daughter of the plaintiff claimed her right by virtue of the sale deed said to have been executed by the plaintiff, this court directed the lower court to give a finding as to who is the true legal representative of the deceased and submit a report. His main submission is that when a direction was given to the lower court to issue notice to all the concerned, including the parties to the lis, the lower court failed to issue notice to all the concerned and thereby did not comply with the directions of this court. It is also his submission that the deceased Nalluri Rathamma had executed G.P.A.; that G.P.A. is filed in I.A.No.904 of 2003 in the lower court and that though the original G.P.A. was available, the grand-daughter of the plaintiff M.Padma Narayanamma filed an affidavit stating that as the original G.P.A. was not available, she filed xerox copy of the G.P.A., and that the lower court without comparing the thumb impression appearing on the alleged will and that the thumb impression that was available in the original G.P.A., came to a wrong conclusion that Nalluri Rathamma executed a will in favour of M.Padma Narayanamma and that the will is a valid will and thus, gave a finding contrary to the evidence on record and therefore, such a finding is not sustainable. The points that arise for consideration are to the following effect: 1) Whether the suit is bad for non joinder of daughter of Nalluri Venkatachalam? 2) Whether the plaintiff is entitled to 1/4th share in the properties as contended by the defendant? 3) Whether the plaintiff is entitled to ½ share in item No.1? 4) Whether the plaintiff is entitled to ½ share in the lands subsequently included in the plaint schedule properties as per the orders in I.A.No.2622 of 2001? 5) Whether the objections filed by the defendant and the order of the learned Senior Civil Judge can be accepted? 6) Whether the Law of Limitation applies while seeking partition of the joint family properties as held by the lower court? Point No.1: It is not in dispute that the husband of the plaintiff died on 13.12.1948. It is not in dispute that late Nalluri Venkatachalamaiah is the original owner of most of the plaint schedule properties. N.Kistamma, N.Audinarayana and N.Lingamaiah are the sons of N.Venkata Chalamaiah. Plaintiff is the wife and the defendant is the only son and one