IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SECOND DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL NO.643 OF 1999 Between: Bejjanki Rajamma. - - - Defendant No.4/ Respondent No.4/ Appellant. AND 1. Bejjanki Vajramma. - - - Plaintiff/Appellant. 2. Bejjanki Laxmaiah. 3. Bejjanki Lingaiah. 4. Mallavva. - - - Respondents. The Court made the following: HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL NO.643 OF 1999 JUDGMENT: This appeal is preferred by the fourth defendant in a suit for partition. The suit for partition came to be filed in the following circumstances : While the first defendant is the father, fourth defendant is the mother of one Laxmaiah, Defendant No.2, Lingaiah, Defendant No.3 and late Agaiah who was the husband of plaintiff. Defendant Nos.1 and 4 also had a daughter by name Mallavva who is Respondent No.4 in this appeal, but who was not a party in the suit. The first respondent herein filed the said partition Suit O.S. 168 of 1992 alleging that the suit schedule properties are joint family properties and after the death of husband of the plaintiff, the first defendant refused to give 1/4th due share to the plaintiff as a coparcener and thereby the suit was filed. 2. The defendants resisted the suit by disputing status of the plaintiff as daughter-in-law and also alleging that the plaint schedule property does not belong to the joint family of defendants and Agaiah and Item Nos.2 and 3 of ‘B’ plaint schedule properties are exclusive properties of D-1. The similar contentions with respect to the other plaint schedule properties were also raised with which it is not necessary to deal with in detail, inasmuch as the point involved for consideration in this Second Appeal lies in a very narrow compass. After the parties let in oral and documentary evidence, the trial Court considered the matter and was not satisfied in so far as the status of the plaintiff as wife of deceased Agaiah thereby as daughter-in-law of defendant Nos. 1 and 4 is concerned, the same was considered under issue No.2 and held in favour of the plaintiff. So far as non impleading of one of the daughters of Defendant Nos.1 and 4 is concerned, the same was considered under issue No.7 and the trial Court was of the view that since the said Mallavva was married after The A.P. Hindu Succession (Amendment) Act introducing Section 29 (A), (B) and (C) to the Hindu Succession Act and though she being a coparcener, the suit was bad for non-joinder of necessary party and on that ground the suit was dismissed. In the appeal preferred, against the said decree by the plaintiff, first defendant died pending appeal and apart from other legal representatives already on record, so far as D-1 is concerned, Mallavva, the fourth respondent herein, was impleaded and brought on record as legal representative of first defendant. The appeal thereafter was heard by the lower appellate Court and it was of the view that as the said defect of non impleading the fourth respondent gets cured on account of her being already brought on record in the appeal, the defect of non-joinder of necessary party does not any more survive. The appellate Court therefore reversed the decree of the trial Court granting 1/4th share to the plaintiff as prayed for. It is that decree which is questioned by the fourth defendant in this second appeal and while admitting this Second Appeal on 20th January, 2000, this Court admitted the same on the following substantial questions of law : 1) The learned Judge ought to have seen that from the evidence of DWs 1 and 2 after filing of the suit and when 10 years ago according to the suggestions of the DWs. 1 and 2 in cross-examination the marriage of the fourth respondent, daughter of the deceased first defendant took place after enforcement of the Hindu Succession Act introducing Section 29-A, 29-B and 29 (c) and so she is a co-parcener with her brothers and father and so Agaiah’s share in the family properties would be 1/5th? 2) The learned Judge failed to see that on the death of Agaiah, husband of the first respondent, Agaiah’s 1/5th share devolved son Agaiah’s mother, the appellant and his widow the first respondent herein in equal shares i.e., the first respondent’s share be 1/10th only? 3) The learned Judge failed to see that on the death of the first defendant, Rajaiah, his 1/5th share devolved on his widow, the appellant, his pre-deceased son Agaiah’s widow, the first respondent, his sons, the respondents 2 and 3 and daughter of the fourth respondent herein i.e., the second respondent’s share therein comes to 1/25th? 3. Mr. L. Prabhakar Reddy, learned counsel for the appellant has confined his submissions to the aforesaid grounds and raised two specific contentions namely 1) That if Agaiah and Mallavva are entitled to be treated as coparceners then the total number of sharers would be 5 inasmuch as Agaiah, husband of the plaintiff, his two brothers Laxmaiah and Lingaiah i.e. defendants 2 and 3, as well as their parents defendant Nos.1 and 4 together and Mallavva would each get 1/5th share. The appellate Court therefore was not right in granting 1/4th share as it did. The second contention raised by the learned counsel is that, on account of the death of Agaiah, the share to which he is entitled would get further divided between his widow and parents and that has not been accounted for in the appellate Court’s judgment. The learned counsel further contends that the defect of non-joinder so far as Mallavva is concerned, could not have been cured by impleading her in the appellate Court and the said defect which remains in the frame of the suit itself could not have been overlooked by the lower appellate Court. 4. In this Appeal, though the respondents are served, nobody is appearing. I have considered the aforesaid submissions. To the extent of the first contention of the learned counsel is concerned, I find sufficient force in it inasmuch as Defendant Nos.1 and 4 who are parents would be entitled to one share, whereas, their three sons which includes husband of the plaintiff would be entitled to one share each apart from their daughter Mallavva getting one share, in view of the fact that her marriage was performed after the amendment to Hindu Succession Act in Andhra Pradesh. In that view of the matter, each 5 sharers being entitled to one share, they will get 1/5th of the share. The decree of the lower appellate Court granting 1/4th share therefore requires modification by substituting it as 1/5th instead of 1/4th share. 5. To the extent of other contentions, I am not inclined to accept the same inasmuch as even if the share which the plaintiff gets in lieu of her husband’s 1/5th share, the same may get diminished by giving further share therein to the parents of her husband. But pending the appeal, the first defendant died and naturally his 1/5th share will again had to be distributed among all the sharers and thereby to the extent plaintiff’s share gets diminished, on account of Agaiah’s death would again get increased by similar proportion on account of death of first defendant and distribution of his share among the 5 sharers. Thereby, even if the contentions 2 and 3 are accepted, it would not make any difference so far as modification of share accruable to the share to the plaintiff is concerned. 6. Therefore, I am not inclined to disturb the decree granted by the lower appellate Court except to the extent of the modification that instead of 1/4th share decreed in favour of the first respondent-plaintiff, the same shall be modified to 1/5th and final decree proceedings be taken up accordingly by an appropriate application before the trial Court. The substantial question of law raised in ground No.2 accordingly is answered in favour of the appellant and the decree of the lower appellate Court is modified accordingly. Accordingly to that extent, the second appeal is allowed. No order as to costs. ________________________ VILAS V. AFZULPURKAR, J. September, 22, 2010. DSH