*HON’BLE SRI JUSTICE R.KANTHA RAO + Second Appeal No.498 of 1999 % Date: 08.07.2011 Between: # Rangaswamy …Appellant And $ Meenakshi and others …Respondents ! Counsel for appellant: Sri O.Manohar Reddy ^ Counsel for respondent: N.Ranga Reddy < GIST: >HEAD NOTE: ? Cases referred: THE HON’BLE MR JUSTICE R. KANTHA RAO S.A.No.498 OF 1999 DATE: 08.07.2011 BETWEEN: Rangaswamy .. Appellant And Meenakshi and others .. Respondents HON’BLE SRI JUSTICE R.KANTHA RAO S.A.No.498 OF 1999 JUDGMENT: The respondents instituted O.S.No.90 of 1996 for partition of the schedule properties and for separate possession of their share. The Subordinate Judge, Hindupur passed a preliminary decree in favour of the respondents by his judgment dated 23.09.1997 in O.S.No.90 of 1996. In the appeal ﬁled by the ﬁrst defendant therefrom, the Additional District Judge, Hindupur by his judgment and decree dated 07.04.1999 in A.S.No.80 of 1997 conﬁrmed the preliminary decree passed by the Subordinate Judge, Hindupur. The ﬁrst defendant ﬁled the present second appeal challenging the concurrent ﬁndings recorded by both the Courts below and the same has been admitted by this Court considering the involvement of following substantial questions of law: 1) Whether the Courts below having held that Ex.B.2 Will dated 20.12.1967 executed by late Dasanna in favour of the ﬁrst defendant /appellant is valid, whether acted legally in passing a preliminary decree in the suit for partition ﬁled by the respondents/plaintiﬀs on the ground that Dasanna had no right to execute the Will in respect of the entire schedule property. 2) Whether the Courts below acted legally in holding that on the relevant date the daughters are also coparceners to the property and are entitled for share in the ancestral property. 3) Whether the provisions of A.P. Act 13 of 1986 (Amended Act 13 of 1956) are only prospective in- operation, whether the Courts below acted legally in treating the plaintiﬀs as coparceners even though the property was bequeathed in favour of the ﬁrst defendant in the year 1967. 4) Whether the provisions of the A.P. Act 13 of 1986 Will apply to the properties partitioned long prior to coming into force (the Act 13 of 1986). 5) Whether the Courts below are right in holding that Dasanna, the father of the appellant had only 1/3rd share in the plaint schedule properties on the date of execution of the Will and whether said ﬁnding is legally sustainable. 6) Whether the provisions of Hindu Succession Act will come into operation only in case a person dies intestate, if so, whether the Courts below acted legally in decreeing the suit for partition even though late Dasanna had executed Ex.B.2-Will in favour of the appellant which was held to be true and valid by the Courts below. 7) Whether the reasoning adopted by the Courts below in decreeing the suit for partition, holding that the plaint schedule properties are joint family properties is legally sustainable and is supported by evidence on record. 2. I have heard Sri O.Manohar Reddy, learned counsel appearing for the appellant and Sri N.Ranga Reddy, learned counsel appearing for the respondents. 3. For the sake of convenience, I would like to refer the parties as “the plaintiffs and the defendants.” 4. The brief facts necessary for disposing of the second appeal are that the plaintiﬀs ﬁled the suit for partition of schedule mentioned properties claiming 8/15th share and for separate possession. They pleaded in the plaint that all the schedule mentioned properties are the ancestral properties of late Dasanna and the 3rd plaintiﬀ is the wife of Dasanna. Dasanna died 20 years back. Plaintiﬀs 1 and 2 and the defendants are the children of late Dasanna and the 3rd plaintiﬀ. The ﬁrst plaintiﬀ is unmarried and the second plaintiﬀ and second defendant are the married daughters. According to the plaintiﬀs, Dasanna had 1/3rd share in the suit schedule properties and after his death they are entitled for 8/15th share in the properties. 5. In the course of his written statement, the ﬁrst defendant contended as follows: That the ﬁrst plaintiﬀ is aged 24 years but not 20 years as mentioned in the plaint. The ages of the parties given in the plaint are not correct. During his life time, Dasanna executed unregistered Will dated 20.12.1967 in a sound and disposing state of mind bequeathing his half share in the schedule mentioned properties in favour of the ﬁrst defendant who is his son and making a provision therein towards maintenance of his wife and daughters and obligating the ﬁrst defendant to perform the marriages of the unmarried daughters. Late Dasanna also got recited in the said Will that in the event of the third plaintiﬀ who was pregnant by then begetting a male child, the said male child is also entitled for half share in the properties bequeathed under the Will along with the ﬁrst defendant. Subsequent to the execution of the Will, a female child was born and the version of the ﬁrst defendant is that Dasanna died in the year 1968 after bequeathing his properties under Ex.B-2 Will dated 20.12.1967 and after his death, the ﬁrst defendant became the absolute owner of the entire properties i.e. half share of Dasanna by virtue of the Will and also for the remaining share for which the ﬁrst defendant is entitled, as a coparcener. 6. The ﬁrst defendant further contended that there was a family arrangement between the ﬁrst and third plaintiﬀ which was registered in the form of an agreement marked as Ex.B-1. As per the said family arrangement under the agreement entered into before the elders, the third defendant agreed to enjoy nut garden (Poka Thota) in an extent of 75 cents of land towards her maintenance and she did not make any claim in the schedule mentioned properties. 7. Both the Courts below recorded a concurrent ﬁnding to the eﬀect that Ex.B-2 is genuine, which was executed by late Dasanna in a sound disposing state of mind and it is binding on the parties. However, both the Courts below though some witnesses have spoken about the execution of Ex.B-1 agreement held that the said agreement was not acted upon. 8. The substantial question of law which involves for consideration in the present second appeal is whether the plaintiﬀs have 1/3rd share in the properties of late Dasanna as claimed by them in the plaint or whether they are not entitled for any share in view of both the Courts below holding that Ex.B-2 Will executed by late Dasanna is true, valid and binding on the parties to the suit. 9. Both the Courts below proceeded on the premise that there was no division of properties between the parties prior to ﬁling of the suit and therefore the plaintiﬀs are entitled for share as claimed by them in the scheduled properties. It may be noticed that both the Courts below held that Ex.B-2 Will dated 20.12.1967 executed by late Dasanna in favour of the ﬁrst defendant is true, valid and genuine and it was executed by Dasanna in a sound and disposing state of mind. The contention of the plaintiﬀs is that they are not aware of any such Will executed by late Dasanna and the properties having not been partitioned at any point of time, they are entitled for share in the properties as claimed in their plaint. The crucial question requires to be considered is whether Dasanna had only 1/3rd share in the property or he had half share in the property on the date of execution of Ex.B-2 Will. It is an admitted fact that Dasanna died in the year 1968 i.e. one year after executing the Will. As rightly contended by the ﬁrst defendant, the provisions of A.P. Act 13 of 1986 are only prospective in operation and on the date of execution of Ex.B-2 Will or on the date of death of late Dasanna, the female heirs had no shares in the coparcenary property since they were not considered as coparceners by then. Ex.B-2 Will was executed on 20.12.1967 and it became operative from 1968 i.e. from the date of death of Dasanna. The provisions of A.P. Act 13 of 1986 i.e. the Amended Hindu Succession Act have no application to the situation existed in 1967 or 1968. On the date of executing Ex.B-2 Will, Dasanna and the ﬁrst defendant who is his son were only the coparceners of a Hindu Joint Family in which Dasanna had half share. Dasanna is entitled to bequeath his half share in the suit schedule properties. Since he bequeathed his half share under Ex.B-2 Will in favour of the ﬁrst defendant and died in the year 1968, it cannot be said that the properties are still joint after the death of late Dasanna. After the death of late Dasanna, the ﬁrst defendant became the absolute owner of half share in the properties bequeathed under Ex.B-2 Will and also for the remaining half share of properties as a coparcener. 10. By virtue of Section 6 of Hindu Succession (Amendment) Act, 2005 (39 of 2005) which became eﬀective since 9th September, 2005, in Hindu joint family governed by the 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 shall have the same rights in the coparcenary property as she would have had if she had been a son. But the proviso to the section lays down that nothing contained in sub-section 1 shall aﬀect or invalidate any disposition of property which had taken place before the 20th day of December, 2004. 11. In the instant case, therefore by virtue of Ex.B-2 Will executed by Dasanna in favour of the ﬁrst defendant, the half share of Dasanna which he had as a coparcener of Hindu Mithakshara joint family vested with full rights in the ﬁrst defendant in 1968 after the death of Dasanna. This apart as already said the ﬁrst defendant is entitled to the remaining share in his own right as a coparcener. As such, there is no substance in the contention that there was no partition of properties till the date of ﬁling of the suit. The reason being after the death of Dasanna in the year 1968 Ex.B.2 Will became operative and since then it is deemed that the properties have been partitioned and it is no longer open for the plaintiﬀs to contend that the properties are still joint. Dasanna bequeathed his half share in favour of the ﬁrst defendant under the Will and the ﬁrst defendant in his own right became entitled to the remaining half share as coparcener. As per the proviso (2) of sub-section 1 of Section 6 of Hindu Succession (Amendment) Act, 2005 since the testamentary disposition took place prior to 20th December, 2004, the female heirs cannot claim to have acquired the status of coparceners on the date of ﬁling of the suit. Both the learned Courts below took an erroneous view that Dasanna had only 1/3rd share in the coparcenary property and he can only execute the Will in respect of his 1/3rd share only. The fact is that he had half share in the coparcenary property which is the plaint schedule property on the date of execution of Ex.B-2 Will and the Will is eﬀective in respect of half share bequeathed by late Dasanna. The plaintiﬀs are therefore not entitled to any share in the schedule mentioned property. 12. For the reasons aforementioned, the suit ﬁled by the plaintiﬀs fails and is accordingly dismissed setting aside the decree and judgment dated 23.09.1997 passed by the Subordinate Judge, Hindupur in O.S.No.90 of 1996 which was conﬁrmed by the Additional District Judge, Hindupur by his judgment dated 07.04.199 in A.S.No.80 of 1997. 13. The second appeal succeeds and the same is allowed. There shall be no order as to costs. _______________ Date: 08.07.2011 R. KANTHA RAO, J Note: L.R. copy to be marked b/o Ccm/kvrm THE HON’BLE MR JUSTICE R. KANTHA RAO S.A.No.498 OF 1999 DATE: 08.07.2011