HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.991 OF 2011 DATE:18-11-2011 BETWEEN Behtam Babu Rao …Appellant AND Smt.Palle Rahemamma and another …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.991 OF 2011 JUDGMENT: This second appeal by the second defendant is directed against the judgment and decree allowing the appeal filed by the plaintiff in A.S.No.337 of 2006, dated 29.6.2011 by VII Additional District and Sessions Judge (Fast Track Court), Vijayawada setting aside the judgment and decree of the Principal Senior Civil Judge (Fast Track Court), Vijayawada in O.S.No.557 of 1998, dated 18.10.2006 dismissing the suit of the plaintiff filed for partition of the plaint schedule property into two equal shares and for allotment of one such share to the plaintiff. For the sake of convenience, the parties hereinafter will be referred to as per their array before the trial Court. Plaintiff is the daughter of first defendant. First defendant married one Aaseerwadam and during their wedlock the plaintiff was born to them. The father of the plaintiff worked in military and died on 18.12.1961. During the life time of Aaseervadam, the first defendant took the second defendant at the age of 1/ ½ years and grown him up as she had no male issue and she performed his marriage. The second defendant joined in South Central Railway. The first defendant also performed the marriage of the plaintiff. The father of the plaintiff possessed his mother’s (Betham Lingamma) house property (suit schedule property) i.e. to an extent of 169 sq.yds., situated at George Pet, Labbipet, Vijayawada and he died intestate on 18.12.1961 leaving behind him the plaintiff and the first defendant as his legal heirs. The plaintiff is residing in a portion of the schedule property and the other portions were let out to others and the first defendant is collecting the rents. The first defendant is showing adverse attitude over the plaintiff at the instigation of second defendant and collected rents from the schedule property from the tenants but did not pay the half share to the plaintiff. Therefore, the suit for partition of the suit schedule property into two equal shares and for allotment of one such share to the plaintiff. First defendant filed a written statement supporting the claim of the plaintiff. The second defendant filed a written statement denying the relationship contending that the plaintiff is not at all the daughter of late Aaseerwadam born through the first defendant and he is only son of said Aaseerwadam born through his wife- Smt.Ramulamma. His father died on 18.12.1961 and that he had no properties at all much less the plaint schedule property. Originally, the plaint schedule property was held by paternal grand-mother of second defendant i.e. Betham Lingamma, who died during the year 1966 leaving the second defendant, who is the only legal heir of late Lingamma. The plaintiff and the first defendant colluded together to grab the property. The first defendant is residing with Matangi Prakasam and was leading adulterous life with him and through him, the plaintiff and another girl-Santha Kumari were born. The plaintiff and first defendant never had any possession over the suit schedule property and they have no right to seek partition of the property. The plaintiff is not in joint possession of the property and she is utter stranger to this defendant and therefore, the suit is not maintainable. On the above pleadings, the trial Court framed necessary issues for trail. To substantiate the case, on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A.1 to A.4 were marked. On behalf of the defendant, D.Ws.1 to 7 were examined and Exs.B.1 to B.33 were marked. Further Exs.X.1 and X.2 were marked through witnesses. After considering the oral and documentary evidence, the trial Court recorded a finding that the first defendant is the legally wedded wife of Aaseerwadam and that the plaintiff is the daughter of said Aaseerwadam born through her, which has been established by Ex.B.1-marriage certificate coupled with evidence of D.Ws.4 to 7 examined on behalf of first defendant and Ex.X.1-relevant entry with regard to the marriage register of Saint Paul Church. The trial Court also recorded a finding that the plaintiff was born on 24.10.1959 and whereas, Aaseerwadam died on 18.11.1961. But it held that the paternity of the plaintiff is doubtful and the plaintiff miserably failed to establish that she is the daughter of Aaseerwadam through first defendant. Further neither the plaintiff or her mother-first defendant are entitled to the estate of late Aaseerwadam as per the provisions set out in Section 15(1)(a) of the Hindu Succession Act, 1956. On appeal being filed by the plaintiff, the lower appellate Court held that once the marriage of first defendant with Aaseerwadam is subsisting as on the date of birth of the plaintiff, presumption under Section 112 of Indian Evidence Act comes into play and such presumption has to be rebutted by cogent evidence. Therefore, the lower appellate Court set aside the findings of the trial Court that the plaintiff failed to establish that she is the daughter of late Aaseerwadam and allowed the appeal. The property of the Hindu Family dying intestate shall devolve according to the rules set out in Section 16 of Hindu Succession Act, firstly upon the sons and daughters (including the children of pre-deceased son or daughter) and the husband. As rightly observed by the lower appellate Court since the son- Aaseerwadam pre-deceased his mother, both the plaintiff and second defendant being the children of Aaseerwadam are equally entitled to the plaint schedule property. The trial Court lost sight of the said fact and the lower appellate Court rightly reversed the findings of the trial Court. No substantial question of law arises for consideration to admit the second appeal. The second appeal fails and the same is accordingly dismissed at the admission stage. There shall be no order as to costs. _______________ A. GOPAL REDDY, J. NOVEMBER 18, 2011 Tsr.