THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD A.S.Nos.804 of 1991 AND 166 of 2002 A.S.No.804 of 1991 Between: Kuna Sakunthala .. Plaintiff AND Kuna Ramamurthy and 5 others .. Respondents A.S.No.166 of 2002 Between: Kuna Sakunthala .. Petitioner AND Kuna Ramamurthy and 5 others .. Respondents THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD A.S.Nos.804 of 1991 AND 166 of 2002 COMMON JUDGMENT: A.S.No.804 of 1991 is directed against the judgment and preliminary decree in O.S.No.110 of 1983, on the file of the Additional Subordinate Judge’s Court at Srikakulam, dated 29.09.1989, whereas A.S.No.166 of 2002 is directed against the order and final decree in I.A.No.341 of 1989 in O.S.No.110 of 1983, on the file of the Additional Subordinate Judge’s Court at Srikakulam, dated 02.02.1995. 2. The parties are referred to herein as they are arrayed in the suit. 3. The plaintiff who was the wife of the 1st defendant filed the suit for maintenance at Rs.1,000/- per month, value of 35 tolas of gold and charge over the suit schedule properties for such maintenance. She claimed in the alternative, a decree for partition of the plaint A and B schedule properties into four equal shares and possession of one such share. She claimed that as she had no children, the 1st defendant became addicted to vices and developed illicit intimacy with Vijaya, mother of the 6th defendant and wife of Killi Simhadri Naidu. He brought Vijaya to reside in the family house itself and necked out the plaintiff. She was not taken back in spite of her demands and a registered notice and hence, the suit. The 2nd defendant is the father of the 1st defendant. The 3rd defendant was brought on record as legal representative of the 1st defendant on his death during the suit and on her death, defendants 4 and 5, daughters of the 3rd defendant, were brought on record as her legal representatives. 4. The 1st defendant, during his life, contested the suit denying the allegations of the plaintiff about the quantum of gold jewellery and alleging that the plaintiff herself withdrew from the matrimonial home and was living separately without any justification. The correctness of the plaint schedules was also disputed. 5. The 3rd defendant claimed that she was not a necessary party for the suit for maintenance and alleged that the plaintiff had sufficient means to maintain herself. The defendants 2 and 3 contended that the plaint schedules are not correct, that there was no gold in the family and that the Court had no territorial jurisdiction to try the suit. Defendants 4 and 5 also sailed along with the defendants 1 to 3 in their pleadings. 6. The 6th defendant after being impleaded claimed that his mother Vijaya was married to the 1st defendant in February 1981 in the presence of the parents of the 1st defendant and elders without any objection from the plaintiff. The 6th defendant claimed that Vijaya was divorced with her first husband and he was born during the wedlock between the 1st defendant and Vijaya, consequently being entitled to 1/3rd share in the joint family properties. 7. On such pleadings, the trial Court framed issues about correctness of the plaint schedule, the 1st defendant keeping a concubine, the 1st defendant deserting the plaintiff, the entitlement of the plaintiff to maintenance and a charge, the suit being vitiated due to misjoinder of parties, the entitlement of the plaintiff to a share in the plaint A and B schedule properties, the territorial jurisdiction of the Court and the necessity of the 6th defendant being a party to the suit. 8. During trial, P.Ws.1 to 5 and D.Ws.1 to 6 were examined and Exs.A-1 to A-3 and B-1 and B-2 were marked. 9. The trial Court rendered the judgment under challenge in A.S.No.804 of 1991 firstly concluding that it was probabilised that the 1st defendant kept a concubine. It also held that some of the plaint schedule properties are located within the jurisdiction of the Court conferring territorial jurisdiction on it to try the suit. It further concluded that after the death of the 1st defendant, question of any maintenance does not arise and the plaintiff becomes entitled to a share in the plaint A and B schedule properties. It further concluded that the plaintiff was deserted by the 1st defendant and the description of the plaint schedule property was considered probabilised to be correct. The trial Court also held that the suit is not bad for misjoinder of parties and it observed that even if the marriage of Vijaya with the 1st defendant and the birth of the 6th defendant through him is true, he being an illegitimate son is not entitled to claim a share in the properties of the 1st defendant. The trial Court further held that in the suit properties, the 1st and the 2nd defendants have ½ share each and on the death of the 1st defendant, the plaintiff and the 3rd defendant got equal shares in his share. Again, after the death of the 3rd defendant, the defendants 2, 4 and 5 and the plaintiff got 1/4th share each. 10. The illegitimate son, the 6th defendant, even if his illegitimacy is true, was held not entitled to any share and a preliminary decree was passed with costs for partition of plaint A and B schedule properties between the plaintiff, the 2nd defendant, the 4th defendant and the 5th defendant accordingly. 11. The 6th defendant challenged the said judgment and preliminary decree in A.S.No.804 of 1991 claiming that the marriage between the 1st defendant and Vijaya and the 6th defendant being born out of such wedlock being unquestioned by the plaintiff or the other family members and being probabilised by the evidence on record, should have led to a grant of a legitimate share to the 6th defendant and hence, he desired the impugned judgment and preliminary decree to be reversed. 12. In the meanwhile, the plaintiff applied for passing of a final decree in terms of preliminary decree before the trial Court in I.A.No.341 of 1989 and the same was contested by the 2nd defendant/2nd respondent claiming that the suit schedules were not correct and that the plaintiff is not entitled to any share as claimed. 13. The trial Court appointed an Advocate Commissioner for the purpose of partition, who filed his report into Court on 30.06.1992. On the objections of the parties, the warrant was re-entrusted to the Commissioner who filed his Additional Report on 30.10.1992. Considering the objections of the parties on the Additional Report also, the trial Court ordered on 02.07.1993 that Ac. 7-75 cents of land was available for partition and the Commissioner was directed to ascertain the mesne profits on such extent of land. The trial Court in the order impugned in A.S.No.166 of 2002 allotted the shares of the parties as per the chits picked up by them before the Court in tune with the Commissioner’s Report and also gave directions concerning the mesne profits as per the Commissioner’s Report. It directed engrossing of the final decree on deposit of the non-judicial stamps. 14. The defendants 4 and 5 challenged the said order and final decree contending that plaint A schedule items 9, 15, 16 and 18 devolved on them under a registered Settlement Deed executed by their brother and father, the defendants 1 and 2 and a registered Sale Deed, dated 08.06.1984. The said properties were given to them towards ‘Pasupu-Kumkuma’ long prior to the suit and did not belong to joint family. They claimed to have perfected their title to the said property even by the date of the suit. Hence, they sought for exclusion of the said items of properties from partition. 15. Sri Nuthalapati Krishna Murthy, the learned counsel for the appellant in A.S.No.804 of 1991, Sri D. Ramalinga Swamy, learned counsel for the appellants in A.S.No.166 of 2002 and Sri M. Ram mohan, learned counsel for the plaintiff are heard. 16. As the subject matter of both the appeals and the parties are common and the questions of fact and law involved are the same, both the appeals are being decided together at request and with consent. 17. Sri Nuthalapati Krishna Murthy, learned counsel for the appellant in A.S.No.804 of 1991 brought to the notice of the Court that the appellant’s mother Vijaya had informed that the 2nd defendant/2nd respondent in A.S.Nos.804 of 1991 and 166 of 2002 died in 1997 and that all his legal representatives are already on record. 18. The points that arise for consideration in these appeals are:- 1. Whether the 6th defendant is entitled to a share in the properties of the 1st defendant? 2. Whether items 9, 15, 16 and 18 of plaint A schedule have to be excluded from partition? 3. What should be the consequential impact on the death of the 2nd defendant during the pendency of the appeals? 4. To what relief? 19. POINT No.1: The plaint itself stated about the illicit intimacy between the mother of the 6th defendant and the deceased 1st defendant and Vijaya, the mother of the 6th defendant living in the family house along with the 1st defendant and others. The desertion of the plaintiff was attributed to the same. 20. The 1st defendant denied such allegations and in the evidence, the plaintiff as P.W.1 herself stated that Badana Vijaya, the mother of the 6th defendant is her junior paternal uncle’s daughter and was the wife of P.W.4-Killi Simhadri Naidu. She also stated that the 1st defendant and Vijaya got a boy about two months prior to her deposition. P.W.2 also spoke about the 1st defendant having a mistress residing with him in his house and P.W.3 also specified that Badana Vijaya was in the house of the 1st defendant when they went. The first husband of Badana Vijaya, mother of the 6th defendant was examined as P.W.4 and he spoke about the illicit intimacy between the 1st defendant and Vijaya since prior to their marriage and their having a son also. Though he did not see Vijaya living in the 1st defendant’s house, he positively stated about his not taking back Vijaya after leaving her in 1981 and about 1st defendant and Vijaya living together and having a son. P.W.5 also spoke about the illicit intimacy between the 1st defendant and Vijaya and the only evidence on record to the contrary was that of the 2nd defendant himself who denied the illicit intimacy or the 1st defendant being the father of any child of Vijaya. He tried to claim that the 6th defendant was born to Vijaya through P.W.4. Vijaya herself as D.W.2, claimed that she lived with the 1st defendant after undergoing a ceremony of marriage and gave birth to the 6th defendant through such marital relationship. She claimed to have been divorced from P.W.4 earlier. D.Ws.3 and 4 were attestors of the alleged Divorce Deed, Ex.B-1, between Vijaya and P.W.4. 21. On this evidence, the trial Court in its judgment, did not give any specific findings as such and got over the claim of the 6th defendant by concluding that as per the commentary of the Hindu Succession Act, 1956, by Sri. N.R. Raghava Chariar, the 6th defendant, an illegitimate son was not entitled to any share. The discussion by the trial Court nowhere showed that it discarded the claims of Vijaya and the 1st defendant living together and the 6th defendant being born out of such relationship altogether. Irrespective of the perceptions of the trial Court about the evidence, a re-assessment of the evidence on record as referred to above shows absolutely no reason to prefer the solitary testimony of D.W.2 as opposed to the overwhelming evidence otherwise on record. The conclusion is further fortified by Ex.B-2-Extract of the Register of Births showing that the 6th defendant was born on 02.06.1984 with his father’s name being recorded as that of the 1st defendant. The broad human probabilities, therefore, disclose that the 1st defendant and Vijaya, whether they were married or not and whether Vijaya was divorced from P.W.4 or not, were living together, had intimacy and had given birth to the 6th defendant out of that wedlock or relationship. 22. Sri Nuthalapati Krishna Murthy, learned counsel for the 6th defendant relied on a binding precedent in RASALA SURYA PRAKASA RAO AND OTHERS Vs. RASALA VENKATESWARA RAO AND OTHERS[1] wherein a Division Bench of this Court held that the illegitimate son of a Sudra is entitled to the rights of survivorship as he becomes a coparcenar with the son. Reference was made to Section 16 of the Hindu Marriage Act, 1955, and it was concluded that the only limitation is that during the lifetime of the father, the illegitimate son of a void marriage is not entitled to seek a partition and he can seek a partition only after the death of the father. It was made clear that the illegitimate son can be equated with the natural sons and treated as coparcenar of the properties held by the father whether the property being originally joint family property or not. The deceased 1st defendant was not claimed by any party to have died testate and after his death intestate, the 6th defendant, therefore, is entitled to seek partition and get a share in the properties of the 1st defendant, the father. In view of the principles laid down by the Division Bench which are stated to be holding the field, the conclusions to the contrary by the trial Court have to be, therefore, interfered with. 23. POINT No.2 : The defendants 4 and 5 who are the appellants in A.S. No.166 of 2002 admitted in the grounds of appeal itself that they merely adopted the written statements filed by the defendants 1 to 3 in the suit without adverting to their alleged claim that the plaint A schedule items 9, 15, 16 and 18 devolved on them under a registered Settlement Deed executed by the defendants 1 and 2 and also under a registered Sale Deed, dated 08.06.1994, the properties having been given to them towards ‘Pasupu Kumkuma’ long back with perfection of their title to the said properties by the date of the suit. While as admitted, they did not raise this question before the preliminary decree or even in the final decree proceedings leading to the order impugned in A.S. No.166 of 2002, the trial Court had in fact framed specific issues about the correctness of the plaint schedules, the entitlement of the plaintiff to a share in the plaint schedule properties etc., and had also considered with reference to the pleadings of the parties as to what properties were available for partition. Even in the final decree proceedings as seen from the order in I.A. No.341 of 1989, the trial Court and the Advocate Commissioner appointed by it made a detailed exercise of identifying the properties available for partition leading to the trial Court arriving at the extent of the physical availability of the properties for partition. Therefore, the defendants 4 and 5 may be barred by principles of res judicata or constructive res judicata or estoppel from raising any such questions for the first time in the grounds of appeal in A.S. No.166 of 2002. The provisions of Section 97 of the Code of Civil Procedure, 1908, which preclude a party aggrieved by a preliminary decree, from disputing the correctness of the preliminary decree if he did not appeal from such decree in any appeal which may be preferred from the final decree also, further stand in the way of defendants 4 and 5 from questioning the inclusion of these items of properties in the properties liable for partition. When the said items of properties were not excluded from the preliminary decree passed on merits and any entitlement of the defendants 4 and 5 to the said items was neither pleaded nor proved and when there was no challenge to the preliminary decree by the defendants 4 and 5, Section 97 should clearly operate as a bar against maintainability of A.S. No.166 of 2002. 24. POINT No.3 : In view of my findings on Points 1 and 2, in the properties available for partition, the respective shares of the members of the family have to be redefined. The conclusion of the trial Court that the suit schedule properties are joint family properties in which the 1st defendant and the 2nd defendant were entitled to equal shares is not seriously disputed. If so, the 1st defendant and the 2nd defendant were entitled to equal shares in the schedule properties. In the properties of the 1st defendant who died intestate and whose legal representatives were brought on record as per orders in I.A. No.350 of 1984 on 21.09.1984, the plaintiff, the 3rd defendant and the 6th defendant became entitled to equal shares, i.e., 1/6th share each in the suit properties. On the death of the 3rd defendant also intestate during the pendency of the suit, the defendants 2, 4 and 5, the husband and the daughters and the heirs of the son, the 1st defendant became entitled to equal shares in the 3rd defendant’s share, i.e., 1/24th share each in the suit properties. In the 1/24th share that should come to the heirs of the 1st defendant, the plaintiff and the 6th defendant will be entitled to equal shares, i.e., 1/48th share each. In other words, the plaintiff and the 6th defendant will be entitled to 1/6th + 1/48th share each, while the defendants 4 and 5 will be entitled to 1/24th share each. While the 2nd defendant was entitled to ½ +1/24th share in the suit properties, as the 2nd defendant also died during the pendency of these appeals, the shares to which the remaining members of the family/parties to the suit will be entitled out of the share of the 2nd defendant may have to be left open to be determined by the trial Court in the proceedings that may be taken for the passing of a final decree as the claim that all the legal representatives of the deceased 2nd defendant are already on record has to be tested and verified by the trial Court before the determination of the respective shares in the share of the 2nd defendant. 25. POINT No.4 : In view of my conclusions on the other points, the judgment and preliminary decree in the suit, dated 29.09.1989, have to be modified and the final decree passed in accordance with the original preliminary decree has to be set aside and the final decree proceedings have to be remanded for a fresh enquiry and determination in accordance with the findings herein. 26. Therefore, the judgment and preliminary decree in O.S.No.110 of 1983, on the file of Additional Subordinate Judge’s Court, Srikakulam, dated 29.09.1989, are modified by declaring that the properties available for partition among the plaint A and B schedule properties should be shared between the parties to the suit with 1/6th + 1/48th i.e., 9/48th share each for the plaintiff and the 6th defendant, 1/24th share each to the defendants 4 and 5 with 13/24th share of the deceased 2nd defendant being divided among the legal heirs of the 2nd defendant in accordance with law on determination of the same by the trial Court in the final decree proceedings. The order and final decree passed in I.A. No.341 of 1989 in O.S.No.110 of 1983, on the file of Additional Subordinate Judge’s Court, Srikakulam, dated 02.02.1995, are set aside and the said I.A. No.341 of 1989 is remanded to the trial Court for fresh determination on merits in accordance with law, after giving every reasonable opportunity of hearing to the parties, in terms of the preliminary decree as modified by this judgment. 27. A.S.Nos.804 of 1981 and 166 of 2002 are ordered, accordingly, without costs. _________________________ JUSTICE G.BHAVANI PRASAD 09.02.2011 KSM/KL [1] 1992(2) ALT 346 (D.B.)