THE HON’BLE SRI JUSTICE K.C.BHANU CCCA NO.193 OF 2006 DATED:10-12- 2010. Between G.Santha Bai and others … Appellants-Defendants And G.T.Balaji and others …Respondents-Plaintiffs THE HON’BLE SRI JUSTICE K.C.BHANU CCCA NO.193 OF 2006 JUDGMENT: This appeal is filed against the judgment and decree, dated 06-03- 2006 in O.S.No.1684 of 1996 on the file of the V Senior Civil Judge, City Civil Court, Hyderabad, whereunder and whereby in the suit filed for partition of property among the plaintiffs and defendants in respect of the plaint schedule property, preliminary decree was passed determining the shares of parties. 2. The averments of the plaint in brief are as follows: One late Tukkoji had two wives viz., Krishna Bai and Devamma @ Devi Bai. G.Siva Sankar is the son of Tukkoji through his first wife and he had five sons and one daughter through his second wife. He died in the year 1957 and his first wife also predeceased him and second wife died on 10-05-1977. Out of five sons born through second wife, one son by name Satyanarayana pre deceased Siva Sankar having died in the year 1989. Thus as on the date of death of late G.Siva Sankar, four sons and one daughter born through the second wife of Tukkoji were alive. Late Satyanarayana left behind four sons, one daughter and his widow Heera Bai. Heera Bai died in the year 1991. Thus late Satyanarayana left behind only three sons. The plaintiffs and the fourth son by name Balaji and sole daughter Laxmi Bai born through the second wife of Tukkoji. Out of four surviving sons and one daughter, the second and third sons born through the second wife of Tukkoji by name Ganapathi Rao, Sajjan Rao, G.T.Babu Rao also died . D1 is the wife, D2 to D4 and D20 are the children of Ganapathi Rao. D5 is the wife, D6 to D8 and D11 and D22 are the children of Babu Rao. The plaint schedule property is the self acquired property of late Siva Sankar and since he died bachelor, there were no class I heirs by the time of his death and only four step brothers and one step sister i.e., four half brothers an one half sister alive as II Class heirs to be entitled to the shares in the property. The plaint schedule property is under the occupation of about ten tenants and the rents from 7 tenants are being colleted by D1 and other three tenants are paying the rents to the sons of G.Satyanarayana illegally. Since Satyanarayana and his children were not entitled to any right or share or interest in the property as he died on 05-05-1989 i.e., prior to the death of Siva Sankar. Therefore, D1 and the sons of Satyanarayana are responsible to account for the rents received by them. At the time of death of Siva Sankar, his mother and father and his step mother died and also one of his step brother G.Satyanarayana also predeceased him and therefore, four step brothers and one step sister who were alive are entitled for 1/6 th share each in the property as Siva Sankar died issueless and intestate. 3. D9 filed written statement, which was adopted by D5 to D8, D10, D11, D21 and D22. D12, D13, D15, D18 and D19 filed their written statement and the same was adopted by D14, D16 and D17. They denied the averments made in the plaint. It is stated in the written statement filed by D9 that the plaintiffs and the D1 suppressed the details the particulars of other properties and other properties are not included in the schedule. The plaint schedule property is the self acquired property along with other self acquired properties of late Siva Sankar the surveying four half brothers are entitled to succeed to the property as class II heirs of late Siva Sankar. D5 to D11, 21and 22 are the legal heirs of Sajjan Rao, Babu Rao and the first plaintiff. D1 to D4 and D20 are the legal heirs of Ganapathi Rao,, plaintiff. Thus the legal heirs of Sajjan Rao, Babu Rao and Ganapathi Rao along with the first plaintiff are entitled to ¼th share in the property. There was no oral partition among the heirs of Tukkoji with regard to other properties. The legal heirs of Ganapathi Rao, Sajjan Rao and Babu Rao are willing for amicable partition along with first plaintiff according to Hindu Succession Act. Late Siva Sankar never executed a will in the year 1997 bequeathing the other properties in favour of Satyanarayana and Sajjan Rao. Hence, the plaint schedule property is liable to be partitioned among the four half brothers of late Siva Sankar. 4. It is stated in the written statement filed by D12, D13, D15, D18 and D19 that late Siva Sankar had two properties and other property i.e., house bearing No.1-3-32 to 37, Kavadiguda, Hyderabad. The tenants who are tendering rents to the sons of Satyanarayana are validly doing so in accordance with the understanding reached between the parties to share the properties of late Siva Sankar as per the terms of will executed by Siva Sankar in the year 1977 and the said will is in the custody of the first plaintiff. Siva Sankar sold the property to the first plaintiff who purchased the same in the name of his wife with the proceeds realized by him from his brothers. Ganapathi Rao, Sajjan Rao and Babu Rao in lieu of his share as per partition in the year 1969-70 in respect of property bearing Municipal No.1-3-94 to 125 and 128 and 128 to 130, Kavadiguda, Hyderabad. Siva Sankar executed a will in the year 1977 bequeathing the suit property to the heirs of Satyanarayana, Sajjan Rao, Babu Rao and first plaintiff but he did not gave any property to Ganapathi Rao that on the ground that he married first defendant who was a Muslim by birth and Siva Sankar also ignoring the second plaintiff since she has half share in the property with Heera Bai. Thus the plaintiffs have suppressed the material facts and filed the present collusive suit. The present suit is an outcome of the earlier litigation between the parties in O.S.1109 of 1996 and O.S.20 of 1997 pending on the file of this Court. The plaint schedule property is not liable for partition. In view of the will left behind by late Siva Sankar, any partition contrary to the terms of will is opposed to law. In pursuance of the terms of the will, the legal heirs of Satyanarayana and the legal heirs of another are receiving rents from four tenants from the date of death of Siva Sankar for a period of more than 24 years without any hindrance from any quarter. There is no cause of action to file the suit and the plaintiffs are not entitled for any decree. Hence, they pray to dismiss the suit. 5. Basing on the above pleadings, the following issues were settled for trial: 1. Whether the plaintiffs and D1 to D11 are the only legal heirs to the suit property? 2.Whether the plaintiffs are entitled for partition and separate possession of 1/5th share each in the suit property? 3.Whether the plaintiffs are entitled for suit mesne profits? 4. To what relief? Issue No.1 was recasted as follows: Whether the plaintiffs and D1 to D11 and D20 to D22 Are the only legal heirs of late G.Siva Sankar? The following Addl. Issues were framed; 1.Whether late G.Siva Sankar executed any will and if so whether it is in the custody of plaintiff 1? 2.Whether D12 to D19 are in possession and enjoyment of the suit schedule property as per the will of late Siva Sankar? 6. On behalf of the plaintiffs, P.Ws. 1 and 2 examined and Exs.A1 to A7 were marked. On behalf of the defendants, D.Ws. 1 to 5 were examined, but no documents were marked. Ex.X1 was marked through Court. 7. The trial Court accepting the evidence of the plaintiff, passed preliminary decree. Challenging the said judgment and decree, this appeal has been preferred. 8. Learned counsel appearing for the appellants contended that by virtue of Sections 8 and 9 of the Hindu Succession Act, 1956 (for short ‘the Act’) male persons mentioned in class II in the schedule of the Act are alone entitled for share, that therefore granting a preliminary decree in giving a share to the sisters is not contemplated under law, that the plaintiffs are very effluent persons and therefore, there is no need to allot any share to them. 9. On the other hand, learned counsel appearing for the respondents contended that since in the absence of Class I heirs, all Class II heirs are entitled for share as per Section 8 of the Act and therefore, the judgment under challenge needs no interference by this Court in view of the fact that appreciation of evidence is completely in accordance with law and hence, he prays to dismiss the appeal. 10. Now the point for determination is whether the judgment of the trial Court is correct, legal and proper? 11. The factual matrix is not in dispute. The deceased Siva Shankar was the original owner of the plaint schedule property. He died issueless. It is also not in dispute that the 1st plaintiff is the step brother and 2nd plaintiff is the step sister of the deceased Siva Shankar. It is an admitted fact that late Siva Sankar died on 17-02-1978 as bachelor i.e., he died issueless. It is also an admitted fact that he himself acquired the suit property as evident from Exs.A4 and A5 showing that the plaint schedule property is self acquired property of late G.Siva Sankar and also G.Siva Sankar had five step brothers and one step sister born to his father through his second wife by name Devi Bai and also that one step brother by name G.Satyanarayana pre deceased late Siva Sankar having died on 03-05-1969. Therefore, the remaining four step brothers by name Ganapathi Rao, Sajjan Rao, Balaji and Babu Rao along with one step sister byname Laxmi Bai were surveying as on the date of death of Siva Sankar. Since the step brothers and one step sister were born through the second wife of father of late Siva Sankar, all the step brothers and one stepsister became half brothers and one half sister by blood as defined under Section 3 Clause (e) (i) of the Act came to in force. Hence, the provisions of the Act apply to the present case. As per Section 3 (e) (i) half blood means that two persons are said to be related to each other by half blood when they are descended from a common ancestor but by different wives. Since the five step brothers and one step sister were born to the second wife of father of late Siva Sankar and so those five step brothers and one half sister can safely be called as five half brothers and one half sister. It is also admitted fact by both the plaintiffs and defendants that one half brother G.Satyanarayana pre deceased his step brother late G.Siva Sankar having died on 03-05-1969 since Siva Sankar died on 17-02-1978. Therefore, as late Siva Sankar died issueless and also the suit property is self acquired property of G.Siva Sankar having no class I heirs to succeed to his estate, the provisions of Section 8 of Act came to operation and so the half brothers and one half sister are entitled to succeed to the estate of late Siva Sankar if he died intestate ie., without leaving behind any testament. 12. In view of the fact that there is no dispute about the factual matrix, the only point to be decided in this appeal is whether the 2nd plaintiff who is the step sister of the deceased is entitled for the share or only the male persons as noted in the Class II of Scheduled annexed to the Act are only entitled for the share. On this aspect, learned counsel for the appellants relied on a decision reported in SATYA CHARAN DUTTA V URMILA SUNDARI DASSI AND OTHERS [1],, wherein it was held thus: “WE are unable to accede to the argument that the use of arabic numerals is decisive of the point whether or not the heirs specified in Entry II of Class II succeed simultaneously and equally. It is inconceivable that a matter of such importance should have been left to the employment of numerals alone. If the intention of the Legislature was that each class of relatives shown against the arabic numerals constituted an entry express and specific provisions to that effect would have been made in the substantive sections of the Act. Indeed, S. 11 says quite clearly that the property of an intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally. That language would not be consistent with the view that the heirs shown against the arabic numerals constitute an entry within the meaning for S. 11. The Act was meant to lay down a comprehensive and uniform system of inheritance and its scheme is to prescribe a set of rules for succession to the property of male and female Hindus dying intestate. Sections 8 to 13 contain the general rules relating to succession to the property of a male Hindu including the matter of ascertainment of shares. S. 15 and 16 contain the general rules affecting succession to the property of a female Hindu. The rules relating to preferential heirs are given in S. 10. If the intention was to give preference among the heirs in Class II according to arabic numerals treating the same as a separate entry some provision would undoubtedly have been made in S. 11 for that purpose. As noticed before, it is that section which deals with the distribution of property among heirs in Class II of the Schedule. Indeed S. 11 would be wholly unnecessary if each one of the heirs mentioned in each entry of Class II were to take preference to the next one in the same entry. It is also significant that in Class I male and female heirs have been treated as equal. There is no reason why any distinction should have been made among the heirs in Class II on the ground of the heir being male or female. For instance, in Entry II in Class II, a brother would have preference over the sister and in his presence the latter would succeed if the submission on behalf of the appellant is to be accepted. No reason or justification has been suggested for making such a distinction. Similarly, on the appellant's argument the son's daughter's son should have preference over the son's daughter's daughter. That again would run counter to the whole scheme of the Act that male and female heirs should get equal treatment. It must be remembered that the Act incorporated one of the principal reforms which had become a pressing necessity owing to the changed social and economic conditions in Hindu society that in succession there should be equal distribution between male and female heirs. Even the above decision will not come to the rescue of the appellants because in that decision, it is clear that in succession, there should be equal distribution between male and females members. 13. He further relied on a decision reported in APARTI BEWA V SUNA SREE [2], wherein it was held thus: “Under Section 9 of the Act, among the heirs specified in the schedule those in class I shall take simultaneously and to the exclusion of all other heirs, those in the first entry in Class II shall be preferred to those in the second entry, those in the second entry shall be preferred to those in the third entry, and so on in succession” Even the above decision shows that in the absence of legal heirs in the category of Class I, all Class II heirs are entitled for the share in the property by virtue of succession under Section 9 of the Act. 14. Section 8 of the Act reads that the property of a male Hindu dying intestate shall devolved firstly, upon the heirs, being the relatives specified in class I of the Schedule, secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule. Therefore, clause (b) of Section 8 of the Act would squarely covers. Section 9 of the Act reads that among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs, those in the first entry in class II shall be preferred to those in the second entry, those in the second entry shall be preferred to those in the third entry and so on in succession. In the absence of heirs for Class I those in the first entry in Class II shall be preferred. The word ‘those’ in the second entry would clearly go to show that all the heirs who are mentioned in the entry and consequently they are entitled for the share in the property. 15. Learned counsel for the appellants contended that the 2nd plaintiff already married in the year 1968 and therefore, there is no need to allot any share, but either Section 8 or 9 of the Act does not differenciate male or female Class II heirs. Irrespective of the marriage, female is entitled for a share as per Class II of the schedule. Hence, the contention of the learned counsel for the appellants is untenable and devoid of merit. Therefore, the judgment under challenge is completely in accordance with Sections 8 and 9 of the Act. In view of the fact that the deceased died intestate leaving behind no Class I heirs, naturally all the heirs mentioned in Class II are entitled for equal share. Hence, there are no grounds to interfere with the impugned judgment. 16. Accordingly, the Appeal Suit is dismissed, but in the circumstances of the case, no order as to costs. -------------------- K.C.BHANU, J DATED:10-12- 2010 Hsd [1] AIR 1970 SC 1714 [2] AIR 1963 ORISSA 166