Allowed

Gade Mamilayya v. Gade Ramalingeswara Rao

Telangana HC6 Jul 2010AS/2140/1993

Case brief

AI extract

What is this about?

The High Court allowed the appeal, setting aside the lower court's judgment which dismissed the plaintiff's suit for partition. The Court held that since the father died as a divided member of an erstwhile coparcenary following a prior partition, Section 6 of the Hindu Succession Act applied, entitling the plaintiff to his share as a Class-I heir.

What did the court decide?

The judgment and decree of the Court below were set aside. The plaintiff was entitled to 1/11th share in Plaint-A lands and 12/88th share in Plaint-B properties, plus rendition of accounts.

Gade Mamilayya Vs Gade Ramalingeswara Rao — Partition | Telangana HC (2010)

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THE HON’BLE SRI JUSTICE C.V. RAMULU

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A.S. No. 2140 of 1993

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JUDGMENT:

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This appeal, under Section 96 of the Code of Civil Procedure, is preferred against judgment and decree made in O.S. No. 75 of 1983 on the file of learned Principal District Judge, West Godavari at Eluru, dated 18.3.1993, whereunder, the suit filed by the plaintiff for partition of plaint-A schedule land into 11 equal shares by metes and bounds and separate of possession of one such share to the plaintiff, for partition of plaint-B schedule house, house sites and godowns into 88 equal shares by metes and bounds and separate possession of 12 shares to the plaintiff and to direct the defendants 1 to 7 to render account of profits realized by them from plaint-A schedule lands since the death of Balaiah and to pay the share of profits to the plaintiff after defraying the land revenue and other expenses, was dismissed.

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Appellant is the plaintiff and respondents are the defendants. For the purpose of convenience, the parties are referred to, as arrayed in the original suit.

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The plaintiff filed the suit – O.S. No. 75 of 1983 – for the reliefs mentioned supra, with the following averments:

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Plaintiff is the son of Late Gade Balaiah through his first wife Late Manikyamma. Late Balaiah got both movable and immovable properties, which were partitioned among his brothers. After death of plaintiff’s mother Manikyamma, Balaiah married 1^st defendant and defendants 2 to7 are sons of 1^st defendant through Balaiah. The sons of plaintiff filed partition suit in O.S. No. 24 of 1972 on the file of Sub-Court, Eluru against Balaiah and others. The said suit ended in compromise decree. As per the terms of compromise decree, plaintiff and his sons were given Ac.7-21 cents of wet land in Vedangi and Madugupolavaram villages. Balaiah was given a share

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of Ac.9-99 5/6 cents of wet land described in plaint-A schedule in the suit. House sites and godowns were taken by Balaiah and defendants 2 to 7 jointly, with an understanding that they should be divided among themselves after five years. The said properties, which were taken by Balaiah and defendants 2 to 7 jointly, are described in plaint-B schedule of the suit. Plaintiff and his sons were not given any share in plaint-B schedule properties as per the said compromise decree.

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While so, Balaiah died intestate on 23.8.1973. Therefore, plaintiff and defendants are entitled to the properties of Late Balaiah equally under the provisions of the Hindu Succession Act, 1956. Plaintiff is entitled to 1/11^th share in plaint-A schedule. Late Balaiah got undivided 1/8^th share in plaint-B schedule properties. Therefore, plaintiff is entitled to 1/11^th share in plaint-B schedule properties besides his share of 1/8^th therein. Thus, plaintiff is entitled to 12/88^th share in plaint-B schedule properties. However, in spite of demands made by the plaintiff personally and through mediators, defendants did not cooperate with the plaintiff for partition of schedule properties. Therefore, he got issued registered notice to the defendants. Defendants 1 and 2 received notices and kept quite and the other defendants refused to receive notices. Defendants 1 to 7 took possession of plaint A and B schedule properties immediately after death of Balaiah and they have been enjoying the yield, since then. Therefore, defendants 1 to 7 are liable to render account for the profits over plaint-A schedule properties. Further, defendants 1 to 10 sold away the land in item No.2 of plaint-A schedule to an extent of Ac.1-70 cents and item No.3 to an extent of Ac.0-30 cents to 11^th defendant under registered sale deed dated 30.12.1979. Defendants 1 to 10 also sold the land in item No.1 to an extent of Ac.1-86 cents and Ac.0-2 41/2 cents in item No.3 of plaint-A schedule, to 12^th defendant under registered sale deed dated 30.12.1979, after plaintiff issued registered notice demanding partition and, therefore, the sale deeds are not

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binding on the plaintiff and he is entitled for share in the said properties. Defendants 11 and 12 are added, since they came into possession of the respective items basing on the sale deeds in their favour. Plaint-A schedule lands are double crop wet and fertile lands and fetching rent at the rate of 12 bags of paddy for ‘sarva’ and 5 bags of paddy for ‘dalwa’ per acre. Therefore, defendants 1 to 7 are liable to render account for the income derived on plaint-A schedule lands since the death of Balaiah in 1973.

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The 2^nd defendant filed written statement, which was adopted by defendants 1 and 3 to 10, with the following averments:

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The material averments made in the plaint are not true and correct. In the compromise decree in O.S. No. 24 of 1972, plaintiff and his sons were given fertile lands to an extent of Ac.7-21 cents even though they are not entitled to such an extent according to law. An extent of Ac.9-99 5/6 cents was allotted to the share of Balaiah with an obligation to discharge family debts by Balaiah alone. Defendants 1 to 7 have agreed for the said terms of compromise decree. As admitted by all the parties, compromise decree was passed in O.S. No. 24 of 1972. the property described in plaint-C schedule in O.S. No. 24/72 was allotted to the share of Balaiah and defendants 2 to 7. Plaintiff has no share in the said properties. The claim of plaintiff for share in the said property is wrong. The share which was given to Balaiah is shown as plaint-A schedule in the suit. As agreed in the compromise decree, in order to discharge the debts, Balaiah sold Ac.4-10 ½ cents of land and received Rs.4,000/-. However, without executing any document and without discharging the debts, Balaiah died on 23.8.1973. Balaiah had taken an amount of Rs.8,500/- from 8^th defendant and the same was liable to be repaid to 8^th defendant. The husband of 8^th defendant used to spend the money in large-scale and for that reason 8^th defendant entrusted her gold ornaments to Balaiah in 1956. Balaiah pledged those ornaments for family expenses and

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borrowed debts and subsequently sold away those ornaments to discharge the debts and thus he became liable to pay Rs.20,000/- to 8^th defendants. Thus, Balaiah had to pay an amount of Rs.80,000/- to third parties. After the death of Balaiah, plaintiff and defendants, along with elders by name Chunduri Venkanna and others sat together and arrived at a family settlement. As per the terms of the family settlement, plaintiff shall give up his share which he got on the death of Balaiah to defendants 1 to 7 and defendants 1 to 7 alone shall discharge the debts and other amounts due and payable by Balaiah to others including 8^th defendant and they alone shall bear all the expenses relating to the obsequies and other ceremonies of Balaiah. By that date, the value of the share to which the plaintiff was entitled was found to be very less as compared to his liability for payments of debts made by Balaiah. The said family settlement, as proposed by the plaintiff, was accepted by defendants 1 to 7. In view of the said family arrangement, plaintiff has absolutely no right to claim share in the family properties. In order to discharge the debts as agreed in the family settlement, defendants sold Ac.0-81 cents and got Rs.37,050/-. Further, by selling Ac.4-10 ½ cents and Ac.0-81 cents of land, they discharged debts of Rs.82,000/-. As such, they have spent Rs.32,000/more in addition to Rs.50,000/-. Therefore, the plaintiff has no right to claim any share in the schedule properties. The family settlement is binding on the plaintiff and defendants 1 to 7 are entitled to continue in possession of ‘Daba’ house and the plaintiff has no right to claim share therein. After receiving notices, these defendants raised dispute before elders and at that time the plaintiff said that he will be bound by the family arrangement. Therefore, defendants have not given reply to the notice issued by plaintiff. The plaintiff kept quite for 10 years after the death of Balaiah without filing any suit. All these circumstances would show that the family arrangement is true, valid and acted upon. Further, plaintiff never raised dispute before mediators demanding for partition of the schedule properties. Plaintiff and his sons spent away

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Ac.6-00 of land out of Ac.7-00 which they got to their share as per compromise decree in O.S. No. 24 of 1972 and filed this suit in collusion with each other, to gain wrongfully and to harass the defendants, taking advantage of the fact that the family arrangement was not reduced to writing.

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It is further stated that if the plaintiff is found entitled for any share in plaint A and B schedule properties, he should also be made liable for proportionate discharge of debts and those amounts shall be paid by the plaintiff to defendants 1 to 7. Ac.0-81 2/3 cents of land at Kommuchikkala village and Ac.4-10 ½ cents of land at Rayakuluru village were sold to discharge family debts during the lifetime of Balaiah and, therefore, plaintiff is not entitled to claim any share and rendition of accounts for the said items. The lands in PlaintA schedule are not fertile lands and the defendants have not realized any substantial income from the said landed property. There was no income of any nature from plaint-B schedule house and site. Further, the suit is bad for non-joinder of purchasers and tenants of two items of plaint-A schedule. The plaintiff, having admitted that plaint-B schedule properties were allotted to Balaiah and defendants 2 to 7 as per the compromise decree, had no right to contend that he got 1/8^th share in plaint-B schedule properties. The sale transactions by defendants 1 to 7 are binding on the plaintiff. Plaintiff is not entitled for any reliefs in the suit and the suit is liable to be dismissed with costs.

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Defendants 11 and 12 have also filed written statement denying the averments made in the plaint and contending that the plaintiff is not entitled for any relief against them and the suit is liable to be dismissed.

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Subsequent to filing of the suit, 1^st defendant died. As per the memo filed by the plaintiff dated 24.2.1987, defendants 2 to 10, who are already on record, are recognized as the legal representatives of the deceased 1^st defendant.

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On the basis of the above pleadings, the trial Court

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framed the following issues:

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1. Whether the plaintiff is entitled to any share in plaint-A and B schedule properties? If so, to what share?

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2. Whether the settlement in favour of D-8 is true?

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3. Whether the plaintiff is entitled to profits? If so, to what amount?

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4. Whether claim for past profits is time barred?

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5. Whether the suit is bad for non-joinder of G.Laxmana Raju, N. China Soma Raju and K. Krishna Murthy as parties to suit?

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6. Whether the agreement of sale between Panja Narasimha Murthy and G. Balaiah is true, valid and binding?

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7. Whether Panja Narasimhamurthy spent Rs.50,000/- for improvement of the lands?

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8. Whether the defendants are entitled to compensatory costs?

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9. To what equities, if any, defendants 11 and 12 are entitled to?

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10. To what relief?

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In support of his claim, plaintiff was examined as PW-1 and he got marked Exs.A-1 to A-4. On the other hand, on behalf of the defendants, DWs 1 to 5 were examined and Exs.B-1 to B-33 were marked.

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On a consideration of oral and documentary evidence available on record, the Court below held that the plaintiff is not entitled to any share in plaint-A and plaint-B schedule properties and that defendants 2 to 7 are entitled for equal shares in plaint-A schedule properties, being coparceners of joint family by the date of death of

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Balaiah. Since plaintiff is found not entitled for any share in plaint A and B schedule properties, his claim for any profits over any part of the schedule properties is not tenable. Therefore, plaintiff is not entitled for any past or future profits over the schedule properties and defendants 2 to 7 are not liable to render any accounts to the plaintiff etc. Thus, answering the issues framed by it in favour of the defendants and against the plaintiff, Court below dismissed the suit. Hence, this appeal.

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Learned counsel for the appellant-plaintiff strenuously contended that the Court below failed to see that 2^nd defendant in his written statement admitted categorically that the plaintiff has a share in the properties of his father Late Balaiah. There was absolutely no documentary or satisfactory proof of alleged family arrangement set up by 2^nd defendant, under which the plaintiff is stated to have given up his share in the father’s property. The Court below committed an error in taking the view that no finding is required as to the truth or otherwise of the said family arrangement and the alleged relinquishment of the share by the plaintiff. No issue was framed as to whether there was any oral family arrangement as pleaded by 2^nd defendant and no finding was recorded on the said aspect. The Court below has not properly construed the terms of compromise decree in O.S. No. 24 of 1972. The question of defendants discharging the debts of Late Balaiah had no relevance or any material bearing in adjudicating upon the rights of the plaintiff to a share in his father’s properties and that the discharge of debts, even if it is true, cannot deprive the appellantplaintiff of his share in plaint-A and B schedule properties. There was full and complete partition as per the compromise decree dated 2.7.1972 in O.S. No. 24 of 1972 and there was no joint family or joint family status between defendants 2 to 7 and, on the death of Balaiah intestate, all his properties obtained as per the partition decree, devolved upon his sons and daughters and the widow, including the

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son by the first wife i.e. plaintiff, as Class-I heirs, under the Hindu Succession Act. Balaiah died as a divided member and he did not die having at the time of his death an interest in Mitakshara Coparcenary property and the plaint schedule properties were the properties which he got in the partition as per the compromise decree in O.S. No. 24 of 1972 and, therefore, appellant-plaintiff has got share in the plaint schedule properties. The Court below failed to consider all these aspects and erroneously held that the appellant-plaintiff is not entitled to any share in the plaint schedule properties and not entitled for any rendition of accounts. Therefore, the judgment and decree passed by the Court below is liable to be set aside.

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On the other hand, learned counsel for the respondentsdefendants supported the judgment and decree passed by the Court below and contended that the appellant-plaintiff has no share in the plaint schedule properties since partition had already been effected and the appellant-plaintiff has taken away his share of the property and living separately as per the family settlement. As per the terms of the family settlement, appellant-plaintiff shall give up his share on the death of Balaiah to defendants 1 to 7 and defendants 1 to 7 alone shall discharge the debts and other amounts due and payable by Balaiah to others and they alone shall bear all the expenses relating to the obsequies and other ceremonies of Balaiah. The plaintiff, having admitted that plaint-B schedule properties were allotted to Balaiah and defendants 2 to 7 as per the compromise decree, had no right to contend that he got 1/8^th share in plaint-B schedule properties. The Court below has considered all the aspects elaborately and rightly dismissed the suit filed by the appellant-plaintiff. There are absolutely no merits in the appeal filed by the appellant-plaintiff and the same is liable to be dismissed.

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I have given my earnest consideration to the respective submissions made by the learned counsel appearing on either side and perused the evidence available on record, both oral and

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documentary.

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In this case, the partition and the compromise decree in O.S. No. 24 of 1972 are not in dispute. It is also not in dispute that in the partition all the brothers and father have taken their individual shares. Therefore, the only point that arises for consideration in this appeal is, as to whether a son is not entitled for a share in his father’s property after death of the father, as per Section 6 of the Hindu Succession Act?

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In this case, admittedly there was a partition of coparcenary property between the sons and the father and the individual shares were allotted by metes and bounds. The first son was living separately. After partition, however, the father and other brothers were living jointly. Over a period of time, the father passed away. The present suit is filed by the elder son for his own share. The plea taken by the defendants was that they have discharged the debts of late Balaiah and, therefore, the plaintiff is not entitled for any share in the property of his father. The plea of plaintiff that the discharge of debts of his father has no relevance or any material bearing in the adjudication of the right of the plaintiff to a share in the father’s property, even if admitted to be true, cannot deprive the plaintiff of his share in the plaint A and B schedule properties.

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In fact, there was full and complete partition as per compromise decree dated 2.7.1972 in O.S. No. 24 of 1972 on the file of learned Subordinate Judge, Eluru and there was no coparcenary status between defendants 2 to 7 and their father. As on the date of death of Balaiah, all the properties obtained by him as per the compromise decree devolved upon all his sons, daughters and the widow, including the plaintiff, as Class-I heirs, under Section 6 of the Hindu Succession Act, 1956, which reads as under:

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“6 Devolution of interest in coparcenary property:

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(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law,

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the daughter of a coparcener shall,

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(a) by birth become a coparcener in her own right in the same manner as the son;

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(b) have the same rights in the coparcenary property as she would have had if she had been a son;

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(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a

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daughter of a coparcener.

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Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the dt. 20.12.2004.

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(2) Any property to which a female Hindu becomes entitled by virtue of sub-sec. (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

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(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,

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(a) the daughter is allotted the same share as is allotted to a son;

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(b) the share of the pre-deceased son or a predeceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre-deceased daughter; and

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(c) the share of the pre-deceased child of a predeceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the predeceased son or a pre-deceased daughter, as the case may be.

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Explanation. For the purposes of this subsection, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

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( 4 ) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

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Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect

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(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

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(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

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Explanation. For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu

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Succession (Amendment) Act, 2005.

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Learned counsel for the appellant in this regard relied upon a decision reported in Ganta Appalanaidu v. Ganta

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Narayanamma & Others^[1] , which reads as under:

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( 3 ) A plain reading of the two sections shows that Section 8 is a general provision and Section 6 is in the nature of an exception to Section 8. Section 8, therefore, applies to all cases of intestacy of a male Hindu except those to which Sec. 6 applies. Section 6 applies to the case of a male Hindu having at the time of his death an interest in a Mitakshara coparcenary property and provides that his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary. Since Section 6 contemplates devolution by survivorship of coparcenary property, it is clear that it postulates the existence of a coparcenary. Now there cannot be a coparcenary consisting of a single individual even if the property in his possession is coparcenary property. The coparcenary contemplated by Section 6 is a coparcenary consisting of more than one individual, where on the death of one coparcener the property can devolve on the others by survivorship. That is clear from the fact that Section 6 provides for devolution by survivorship upon the surviving members of the coparcenary. There can be no question of devolution by survivorship unless there are two or more members of the coparcenary. It is significant that the word used to describe the property is coparcenary and not joint family. That is a departure from the expression joint family property used in the Hindu Womens Right to Property Act of 1937. It is well known that a coparcenary is not the same thing as a joint family. A coparcenary is a narrower body than a joint family and consists of only those persons who have a present interest in the property and who can enforce a partition, if they desire. The test of coparcenary is the right to enforce a partition. On the other hand, a joint family includes not merely coparceners but their mothers, wives or widows and unmarried daughters. The existence of a number of female relatives none of whom is entitled to claim partition does not convert a joint family into a coparcenary such as the one contemplated by Section

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6 of the Hindu Succession Act.

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The above judgment deals with coparcenary nature of the property after one son left the coparcenary. That means, there was no partition of coparcenary property among all the other sons. Only one son had taken away a share in the coparcenary property and was living separately. Thus, the rest of the property among other defendants was not partitioned.

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Learned counsel for the appellant submitted that in the present case all the defendants are co-owners and not coparceners. The ancestral property of the father Late Balaiah was partitioned by metes and bounds as per the compromise entered into in O.S. No. 24 of 1972 among plaintiff, his sons, brothers and father Balaiah. Therefore, after the death of the father of the plaintiff, plaintiff-appellant is entitled for share as Class-I heir under Section 6 of the Hindu Succession Act, even though the defendants were living jointly, since there was partition of coparcenary property and the property lost its status as coparcenary. In this regard, he relied upon a decision of Madras High Court in Tirupurasundari Ammal and others v.

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Srinivasam Pilial and others^[2] wherein it is held:

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“ 4. The argument of Mr. A. Sundaram Iyer, learned counsel for the appellant is that since the property obtained by Sabapathi Pillai at the partition was originally coparcenary property, Section 6 will apply and therefore by virtue of Explanation II to that section, the first defendant will have no right to a share in Sabapathi Pillai's half share. As far as the 18th defendant is concerned, the argument is based upon Explanation II itself on the misconception that the 18th defendant was claiming as an heir to kalyanasundaram Pillai, her husband. But once the learned counsel realised that the 18th defendant is an heir of Sabapathi Pillai, himself as his mother, he did not pursue this argument further. Hence, the only question for consideration is, whether by virtue of Explanation II the first defendant is excluded from inheriting the share of Sabapathi Pillai. Explanation II expressly

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refers to the proviso and the proviso itself will come into operation only if the case is covered by the main part of Section 6. If the main part of Section 6 does not apply, the proviso cannot apply and consequently Explanation II will have no operation. Therefore, the only question is whether the main part of Section 6 applies to the present case.

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5. We are clearly of the opinion that the said section has no application. We have referred to the fact that there was a partition between Kalyanasundaram Pillai, Sabapathi Pillai and the first defendant and consequently at the time when Sabapathi Pillai died, he did not die having an interest in the Mitakshara coparcenary property. The very words of the section show that the section has application only to a case where at the time of the death of the person concerned, he happened to be an undivided member of a coparcenary and he had an interest in the coparcenary property, which interest will go by survivorship to the surviving members of the coparcenary, according to the Hindu Law.

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The object of the section is to preserve this right of survivorship subject to the important and wide limitations enacted in the proviso. Once the coparcenary has come to an end by partition, there is no question of one member of the erstwhile coparcenary taking the property obtained by another member of that coparcenary at the partition, by survivorship. Therefore, if the propositus at the time of the death was a divided member of an erstwhile coparcenary, the section itself by its very language will have no application Our conclusion flows from the very language of the section which contemplates the existence of a coparcenary consisting of the propositus and one or more males at the time of the death of the propositus. In our opinion, the language of the section is too plain and clear to admit of an argument like the one advanced before us. In this case, admittedly Sabapathi Pillai died as a divided member and consequently he could not be said to have had an interest in a Mitakshara coparcenary property at the time of his death and therefore Section 6 has no application. Our construction of Section 6 derives support from a decision of this Court in Arunachalathammal v. Ramachandran Pillai,: AIR1963Mad255, which has been affirmed by the Supreme Court in its judgment dated 20-2-1970, in

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C.A. No. 115 of 1967. The Supreme Court pointed out:--

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"Section 6 of the Act has no application to property received by a member of a joint family on partition."

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Under these circumstances, the conclusion of the learned Subordinate Judge is correct and there are no merits in the contention of the learned counsel for the appellant”.

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Thus, it is seen that a joint family status is altogether different from that of coparcenary status of the property. Once the coparcenary has come to an end by partition, there is no question of one member of the erstwhile coparcenary, taking the property obtained by another member of that coparcenary at the partition, by survivorship. At the time of death of the father, the property was divided and the plaintiff’s father was a divided member of the erstwhile coparcenary, along with his share. Therefore, when he died, plaintiff and other sons of Late Balaiah through second wife are entitled for equal share in the divided share of the father, under the Hindu Succession Act.

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At this juncture, it may be necessary to notice paragraphs 10 to 12 of the decree made in O.S. Nos. 24 of 1972, which read as follows:

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“10. that the properties as per schedule I hereto attached be kept joint among defendants 1 and 3 to 8 for five years from this date and that thereafter they do effect division of the same and enjoy their shares therein absolutely;

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11. that the plaintiffs and the 2^nd defendant have incurred any debts for the benefit of the joint family and the defendants 1 and 3 to 8 are not liable for the debts incurred by plaintiffs and the 2^nd defendant;

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12. that the 1^st defendant having some debts for himself and for the benefit of the joint family and some property having been allotted to him in excess, the 1^st defendant be solely liable himself to discharge the said debts with personal liability; and that the plaintiffs and the 2^nd defendant be not in any way liable for the debts raised by the 1^st defendant and defendants 3 to 8 for their benefit or

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the benefit of the joint family”.

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The above para 10 of the decree in O.S. No. 24 of 1972 would make it clear that the shares held by defendants 1, 3 to 8 in O.S. No. 24 of 1972 shall be kept jointly for five years and thereafter they can enjoy their shares absolutely. Therefore, it cannot be said that the coparcenary status still continues and, therefore, the plaintiff is not entitled for any share. It is altogether different had the plaintiff taken his share out of the coparcenary and left the rest of the coparcenary property to father and brothers. In the absence of any supporting and convincing evidence, the defence set up by the defendants that there was a family arrangement in which the appellant-plaintiff agreed to give up his share in his father’s property after the demise of his father and that the plaintiff is bound by the said family arrangement, cannot be believed.

¶82

The plea that as per the compromise decree in O.S. No. 24 of 1972 the defendants were to discharge the debts of late Balaiah and, therefore, even otherwise the plaintiff is not entitled for any share under the Hindu Succession Act, is not true in view of paragraphs 11 and 12 of the said decree, as noticed above. On the other hand, there was no burden cast on the plaintiff and defendants 1, 3 to 8 in O.S. No. 24 of 1972 for discharge of debts incurred by 1^st defendant therein (father) for himself and for the benefit of joint family and, some property having been allotted to him in excess, 1^st defendant was solely liable himself to discharge the said debts with personal liability and plaintiff and 2^nd defendant in O.S. No. 24 of 1972 were not in any way liable for the debts raised by 1^st defendant and defendants 3 to 8 for their benefit or the benefit of the joint family.

¶83

Therefore, looking from any angle, it cannot be said that the property in question is a coparcenary property and its status as coparcenary has not lost and there was burden of discharging the debts incurred by Late Balaiah by the defendants herein. In fact, it

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appears, some excess land was given to the father for the purpose of discharging the debts incurred by him. Further, in the compromise decree made in O.S. No. 24 of 1972, there is no clause that after death of the father Balaiah, the plaintiff is not entitled for any share in whatever property remained in the name of Balaiah.

¶85

From the above discussion, it is clear that a son, though separated in a partition, is entitled for equal share in the property left by the father at the time of his death, along with other Class-I heirs. In the present case, there was no undivided son living with the father as a coparcener, after the compromise decree in O.S. No. 24 of 1972. May be, the other sons and father were living jointly, but there was no coparcenary property available for partition. The father’s property being an individual property, after his death, all the sons and other Class-I heirs are entitled for equal share in it.

¶86

For all the above reasons, I am of the opinion that the Court below grossly erred in dismissing the suit filed by the plaintiff and, therefore, the judgment and decree passed by the Court below is liable to be set aside and is accordingly set aside. The plaintiffappellant is entitled for 1/11^th share in plaint-A schedule properties and 1/11^th share in 12/88^th share in plaint-B schedule properties. The plaintiff is also entitled for the relief of rendition of account of the realizations made by defendants 1 to 7.

¶87

The appeal is allowed and there shall be a decree, accordingly.

¶88

JUSTICE C.V. RAMULU.

¶89

Date: 6-7-2010. MVB.

¶90

[2] AIR 1972 Madras 264

¶91

[1] AIR 1972 AP 258

Gade Mamilayya v. Gade Ramalingeswara Rao

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Gade Mamilayya v. Gade Ramalingeswara Rao

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