IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.173 of 2001 BETWEEN Devalla Peda Venkateshwarlu. …APPELLANT AND Thanneeru Peda Venkataratnam and others. …RESPONDENTS Counsel for the Appellant: MR. V. JAGAPATHI Counsel for the Respondents: MR. KOTA SAMEER KUMAR The Court made the following: JUDGMENT: The first defendant in O.S.No.370 of 1984 is the appellant; the plaintiffs are the original respondents 1 and 2 and the second defendant, brother of the parties, arrayed as the third respondent in this appeal is now represented by surviving legal representatives i.e. respondents 4 and 5. Aggrieved by the judgment and decrees of both the Courts below, the first defendant in the suit preferred this appeal. 2. The parties herein are referred to as they are arrayed in the suit. 3. Plaintiffs, who are two sisters, filed the aforesaid suit for partition of items 1 to 3 of the plaint schedule property claiming that all the parties are children of Devalla Venkataswamy. It was alleged that the items 1 and 2 of the plaint schedule are self-acquired properties of their father and item 3 is the ancestral property of the joint family and that after the death of their father, the defendants 1 and 2 and their mother divided the property equally excluding the plaintiffs, who are entitled to 1/12th share each. The plaintiffs also claimed equal share in the self-acquired properties i.e. items 1 and 2. 4. The first defendant, who alone contested the suit, admitted that items 1 and 2 are self-acquired properties of their father and that item 3 is the ancestral property. He, however, pleaded that another landed property of the father in Nallagarlapadu village was sold and sale proceeds were given to the second defendant for business and items 1 and 2 were allotted to the first defendant by the father to be enjoyed with the absolute rights. He, therefore, claims absolute entitlement to items 1 and 2 and regarding item 3 he claimed that he and his brother i.e. second defendant have equally partitioned and are separately enjoying the property. He denied the share of the plaintiffs by alleging that they were married long back. 5. Based on the above pleadings, the trial Court framed the following issues: 1. Whether the court fee is not correct? 2. Whether the suit schedule property was already partitioned between D1 and D2 even when their father late Venkataswamy was alive and plaintiffs are aware of the same? 3. Whether the defendants have exclusive title and possession to items 1 and 2 of the suit property as contended by him. (Recasted as per order in I.A.425/89, dt.18.1.90 ** Whether the plaintiffs have been in joint possession of suit schedule property along with the defendants within 12 years prior to suit? 4. Whether the plaintiffs are entitled to the share in the plaint schedule property? 5. To what relief? 6. The oral evidence of the parties is that the first plaintiff examined herself as P.W.1 and marked Exs.A1 to A3 and the first defendant examined himself as D.W.1 and two other witnesses a D.Ws.2 and 3 and marked Exs.B1 and B3. 7. The trial Court came to hold that there is no documentary proof to substantiate the first defendant’s contention of absolute allotment of items 1 and 2 to him. The alleged partition by the father by giving items 1 and 2 to the first defendant and sale proceeds to the second defendant, as alleged by the first defendant was disbelieved. Regarding item 3 of the plaint schedule, the trial Court found that the first defendant having admitted items 1 and 2 as self-acquire property of their father and item 3 as ancestral property, in the absence of any partition even with regard to item 3 having been established, the plaintiffs were held entitled to the share as prayed for. The first defendant had also raised a plea of adverse possession on the ground that the first plaintiff was married in 1958 and the second plaintiff was married in the year 1970 and since both of them are living in their marital homes, the first defendant claimed adverse possession after the death of their father in 1965 onwards. The trial Court rejected the said contention of adverse possession as well on the ground that once co-owner cannot set up adverse possession against the other co-owner. The suit was accordingly decreed. 8. The first defendant carried the matter in appeal being, A.S.No.68 of 1998 before the IV Additional District Judge, Guntur. The lower appellate Court once again considered the merits of the case of the first defendant and the plaintiffs and came to hold that except oral and interested testimony of the first defendant, there is no proof of either partition of items 1 and 2 or item 3 of the plaint schedule. The plea of partition with respect to the self-acquired property as well as the ancestral property by the first defendant was disbelieved by the lower appellate Court as well on the ground that the said partition even according to the first defendant did not provide any property or maintenance to the mother of the parties and the father himself and giving the entire self-acquired property only to the first defendant was disbelieved. The lower appellate, therefore, dismissed the appeal and confirmed the decree of the trial Court. Hence, this second appeal. 9. On the substantial questions of law raised at ground No.21, this appeal was admitted on 22.06.2001, which is as follows: a) Whether on the fact and circumstances of the case, the Judgment of the lower appellate Court is in confirmity with the provisions of Order 41 Rule 31 of Civil Procedure Code? b) Whether on the facts and circumstances of the case the court below is justified in sustaining the finding of the trial Court to the effect that there was no partition of the suit schedule property? c) Whether on the facts and circumstances of the case, the court below was justified in upholding the finding of the trial Court to the effect that the appellate herein cannot plead adverse possession specifically in a situation where he was in exclusive possession of the property since the death of his father in 1966 and in the face of the finding given by the trial Court that the plaintiffs are not in physical possession over the property? 10. Heard the learned counsel for the appellant and the learned counsel for the respondents. 11. During the hearing of this appeal, apart from the questions formulated, as above, learned counsel for the appellant raised another question with reference to Section 29A of the Hindu Succession Act (for short ‘the Act’) and contended that both the Courts below have ignored the exclusion of married daughters under the said provision and have committed error in decreeing the suit as prayed for. Learned counsel substantiated the said contention by pointing out that the first plaintiff was, admittedly, married in 1958 and the second plaintiff was married in 1970 and the father of the partied died in 1965. He, therefore, relies upon Section 29A of the Act, as amended in the state of Andhra Pradesh, inserted by the Hindu Succession (Andhra Pradesh) Amendment Act, 1986 and submits that since the plaintiffs were already married long back they are not entitled to any share and the said contention though raised and argued before the lower appellate Court, the same is not dealt with by the lower appellate Court. He also states that this litigation at the instance of the plaintiffs is actually initiated by younger brother of the first defendant i.e. the second defendant. 12. The contention raised based on Section 29A of the Act, as above, though appears to have not been raised before the Courts below but keeping in view that it is a substantial question of law, I have permitted the learned counsel for the appellant to make submissions and as no substantial question of law is formulated on that aspect, under Section 100(5) of the Code of Civil Procedure, 1908, I have formulated additional substantial question of law and answered the same as under: (d) Whether the judgment and decrees of both the Courts below are sustainable in view of exclusion of married daughters from the benefit of Section 29A of the Act, though their marriage is prior to the enactment of Section 29A of the Act? 13. Learned counsel for the respondents, on the other hand, contends that the decrees of both the Courts below were fully justified in view of the fact that in the written statement itself the first defendant admitted that items 1 and 2 are self-acquired properties and item 3 is ancestral property of the parties. He, further, submits that the plea of partition raised by the first defendant was not substantiated and consequently, the presumption of continuance of the joint family arises. He places reliance upon a decision of the Supreme Court in CHINTAMANI AMMAL v. NANDAGOPAL GOUNDER[1] and particularly, paragraph 17 thereof, which is as follows: “17. In law there exits a presumption in regard to the continuance of a joint family. The party who raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefore.” 14. I have carefully considered the contentions aforesaid and the findings of the Courts below. The written statement of the first defendant admits that items 1 and 2 are self-acquired property of the father and item 3 is ancestral property. He has, however, pleaded that the second defendant i.e. the other brother of the parties was already provided capital for the business by disposal of landed property by the father and at the same time, the father allotted items 1 and 2 to the first defendant absolutely. He, therefore, pleads partition during the lifetime of the father so far as items 1 and 2 are concerned. So far as item 3 is concerned, he pleads that after the death of the father as per the wish of the father the said house has been divided equally between the first defendant and the second defendant. The evidence in support of the aforesaid plea of partition, however, is very scanty. In the cross-examination, he stated that his father sold some properties during 1948 to 1952 but none of the documents are available regarding sales. He, further, states that by the time of sale, the second defendant has already abandoned school education and he was living like a vagabond and the second defendant was, therefore, provided capital for starting Modern Cycle stores and his father spent more than Rs.5,000/- for purchasing the cycle shop and setting it up for the second defendant. He, further, stated that in 1960, his father gave items 1 and 2 to the first defendant orally. He has, however, answered in the negative to the questions put about mutation and the taxes paid for items 1 and 2. He was, therefore, given suggestion that the partition set up by him is not true, which he denied. 15. The Courts below disbelieved the partition set up by the first defendant firstly on the ground that there is no evidence by the first defendant in support of the said claim and secondly, on the ground that it was highly unnatural that the father himself settles all the self-acquired property in favour of the first defendant but has not kept any item even for residence for himself or his wife, particularly, as the ancestral property was also divided equally between the defendants 1 and 2, as per the version of the first defendant. In the absence of any evidence with respect to partition and the admitted plea of the first defendant that items 1 and 2 being self-acquired property of their father, the decree for partition to the extent of items 1 and 2 granted by the Courts below cannot be said to suffer from any error or perversity and since both the Courts below have considered the evidence on record and reached the findings, I am unable to see any error of appreciation as well. The questions (a) and (b) formulated are, therefore, answered against the appellant. Question (c), which deals with adverse possession, is also liable to be answered against the appellant, as in the absence of partition, all the parties are co-owners and adverse possession cannot be pleaded by one against the other, particularly, in the absence of any plea of the first defendant claiming ouster of the plaintiffs. The said question also, therefore, is answered against the appellant. 16. It is relevant to extract Section 29A of the Act to answer the additional substantial question of law as under: 29A Equal rights to daughter in coparcenary property.- Notwithstanding anything contained in Section 6 of this Act:- (i) 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 and have the same rights in the coparcenary 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 in such a joint Hindu family the coparcenery property shall be so divided as to allot to a daughter the same share as is allottable to a son: Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such predeceased son or of such predeceased daughter: Provided further that the share allottable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of the predeceased daughter, as the case may be: (iii) any property to which female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenery 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 by her by will or other testamentary disposition. (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. 17. So far as the contention with regard to Section 29A of the Act is concerned, the learned counsel for the appellant is partly justified in raising the said contention. It would be noticed from clause (iv) of the said provision, which specifically states that nothing in clause (ii) shall apply to a daughter married prior to or to a partition which has been effected before the commencement of Hindu Succession Act (Andhra Pradesh Amendment) Act, 1986. Admittedly, as the plaintiffs were married long prior to the said amendment, the exclusion clause under the above provision would disentitle them from claiming any share in the coparcenery property, as the said provision grants equal rights to daughters in a coparcenery. Item 3 of the plaint schedule being admitted ancestral property, in my view the plaintiffs will not be entitled to item 3 in view of exclusion of the plaintiffs under clause (iv) of Section 29A. They are, however, entitled to share in the self-acquired properties i.e. items 1 and 2. Second appeal accordingly succeeds in part to the extent of modifying the decrees of the Courts below and sustaining the said decree only with respect to items 1 and 2 of the plaint schedule, while the suit of the plaintiffs with regard to item 3 of the plaint schedule shall stand dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 22, 2011 DSK [1] 2007 (2) CCC 262 (SC)