Judgment:
ORDER
P.S. Narayana, J.
1. The defendants in O.S. No. 1 of 1989 on the file of the Subordinate Judge, Pithapuram, being aggrieved by the decree and judgment dated 19-4-1991 preferred the present appeal. Respondent, the plaintiff in the suit, died and the legal representatives, were brought on record. Appellants 5 and 6, the then minors, were declared as majors by virtue of an order made by this Court dated 27-11-2006 in A.S.M.P. No. 2335 of 2006.
2. For the purpose of convenience, the parties hereinafter would be referred, to as plaintiff and defendants as shown in O.S. No. 1 of 1989 on the file of the Subordinate Judge, Pithapuram.
3. The plaintiff, Addanki Narayana Murthy, who is no more as already referred to supra, filed the suit for partition of the plaint schedule property into two equal shares and for separate possession of one such share and to grant Rs. 1,833-33 paise as past profits from 10-9-1985 to 1-10-1988 as against the defendants and for future profits and costs. The learned Judge, on the respective pleadings of the parties, settled the issues, recorded the evidence of P.Ws. 1 and 2, D.Ws. 1 to 6, marked Exs. A-1 to A-7 and Exs. B-1 to B-15 and ultimately came to the conclusion that the plaintiff is entitled to a preliminary decree for partition of the plaint schedule property into two equal shares and further the learned Judge also granted decree for past profits at the rate of Rs. 50/- per month from 10-9-1985 to 1-10-1988 totalling to Rs. 1,833-33 paise from the first defendant and the plaintiff also is entitled to future profits at the same rate of Rs. 50/- per month from the date of suit till the date of delivery of possession. The claim of the plaintiff for past and future profits rom the other defendants had been disallowed as they are no way concerned with the half share in the property and accordingly the suit was decreed with costs. Aggrieved by the same, the defendants preferred the present appeal.
4. As already specified above, the plaintiff having left the world, the legal representative is further prosecuting the present litigation as respondent in the appeal.
5. CONTENTIONS OF SRI T.N.M. RANGA RAO:
Sri T.N.M. Ranga Rao, learned Counsel representing the appellants 1 to 3 had taken this Court through the pleadings of the parties, the issues settled and the findings recorded and would maintain that the learned Judge erred in decreeing the suit as prayed for, granting half share in the plaint schedule property. The learned Counsel would submit that the debt itself was not borrowed for the joint family necessity or for the legal necessity of the family, and hence, the same is not binding on the then minor members of the family, who subsequently becarne majors. The learned Counsel also while further elaborating his submissions pointed out that the third appellant being the sister of the first appellant and the daughter of late Ranga Rao is entitled to 1 /3rd share. The learned Counsel also would contend that the mere fact that the second appellant, the wife of the said Ranga Rao, the mother of the third appellant, had not put forth such a plea in the prior litigation, would not alter the situation in any way, since the fact that the property is the self-acquired property of the Ranga Rao is not in serious controversy and further the fact that the said Ranga Rao died intestate also is not in serious controversy. When that being so, when a male member died intestate, leaving the self-acquired property behind him, all these sharers, the first defendant son the second defendant, wife of the deceased i.e., the mother, the third defendant, the daughter of the deceased, could be entitled to equal shares' and in that view of the matter at any rate inasmuch as a Court auction sale would not confer any warranty of title as such the plaintiff is not entitled to claim half share in the property though he ultimately became the successful bidder and also became a Court auction-purchaser. The learned coun- sel also had pointed out to Section 23 of the Hindu Succession Act, 1956, and would further contend that in the present case, the question of male sharers intending to partition, would not arise at all since there is only one male heir, the first defendant, left by the said Ranga Rao. Hence, the view expressed by the learned Judge that Section 23 of the Act aforesaid also may come in the way of claiming partition, cannot be sustained.
6. Contentions of Sri P. Vinayaka Swamy:
Sri P. Vinayaka Swamy. learned Counsel representing the appellants 5 and 6, the then minor children of the first appellant who subsequently were declared as majors made the following submissions.
The learned Counsel would contend that even if the evidence available on record to be taken into consideration, there is no acceptable evidence placed before the Court to show that the debt in question or which the property was brought to sale is supported by any legal necessity, and hence, the minors are not bound by such debt said to have been borrowed by the father, the first appellant. The learned Counsel also further would contend that though the plea of applicability or otherwise or invoking the pro-visions of the Partition Act, had not been urged, this being a dwelling house, liberty can be given to these parties, who are continued to be in possession of the dwelling house, to move appropriate application by invoking the provisions of the said Act. The learned Counsel also placed reliance on certain decisions to substantiate his submissions.
7. Contentions of Sri Gopala-Krishna Kalanidhi:
Sri Gopalakrishna Kalanidhi, learned Counsel representing the present legal representative of the deceased Sri Addanki Narayana Murty, made the following submissions.
The counsel would maintain that here is an unfortunate decree-holder, a Court auction-purchaser, who had been fighting the litigation for sufficiently a long time and vir-tuallythese parties, the plaintiff and the legal representative, are unable to realize the amount from the appellants. The learned Counsel also would submit that the stand taken by the appellants 5 and 6 and also the stand taken by the third appellant claiming the respective shares either on the ground of want of legal necessity or on the ground that inasmuch as Ranga Rao died intestate, third appellant also is entitled to l/3rd share, are not bona fide claims for the reasons that in the prior litigations the second appellant, the mother of the third appellant, had put forth a claim and virtually half share had been deleted and the rest of half share alone was brought to sale. This is nothing but an after-thought. The learned Counsel also pointed out to the relevant findings, which had been recorded by the learned Judge in this regard. While further elaborating his submissions, the counsel also pointed out to the provisions of Section 23 of the Hindu Succession Act, 1956, and would maintain that prima facie on a reading of the said provision, the third appellant may not be entitled to claim the relief of partition unless and until the conditions specified therein are satisfied. The counsel also had placed reliance on a decision of this Court in Vemavaraur Mallikarjuna Rao v. Chaturvedula Siva Sankara Prasad and Ors. : AIR1981AP84 . While concluding, the counsel submits that the interest of this Court auction-purchaser may have to be safeguarded; both in law and also on the ground of equity.
8. Heard the counsel on record, perused the oral and documentary evidence available on record and also the findings, which had been Recorded by the learned Judge.
9. As already referred to supra, the plaintiff filed the suit for partition and separate possession of his half share in the plaint schedule property along with certain other reliefs. The suit was decreed as already specified above. Before taking up the further discussion it may be appropriate to have a look at the respective pleadings of the parties and the findings recorded by the learned Judge.
10. The averments made in the plaint are as hereunder.
The plaintiff obtained a simple money decree against the first defendant as a Hindu joint family manager in O.S. No. 35 of 1981 on the file of the District Munsifs Court, Pithapuram, and brought the joint half share of the first defendant in the plaint schedule property to sale in E.P. No. 57 of 1983 in O.S. No. 35 of 1981 excluding the other joint half share of the second defendant and the sale was knocked down in favour of the plaintiff since the plaintiff became the highest bidder for Rs. 13,000/- in the auction. The sale was confirmed and the District Munsif, Pithapuram, also issued a sale certificate for the joint half share in the plaint schedule property and the plaintiff obtained symbolical delivery of the property on 10-9-1985. It is further stated that the minor sons of the first defendant, represented by their mother and set up by the first defendant, filed a claim petition in E.A. No. 18 of 1985 in E.P. No. 57 of 1983 and the same was dismissed and it became final. Again, an appeal filed by the first defendant against the sale in C.M.A. No. 5 of 1987 on the file of the Sub-Court, Pithapuram, was also dismissed on 15-7-1988, and thus, the plaintiff was entitled for partition of the plaint schedule property into two equal and equitable shares and for separate possession of one such share and also for past and future profits as specified supra. The plaint schedule property is a portion of the house, which fetches a rent of Rs. 100/- per month.
11. The averments made in the written statement of the first defendant are as hereunder.
It was pleaded in the written statement of the first defendant that the second defendant is mother of the first defendant.D-1 is not the manager of Hindu joint family consisting himself and his two minor spns. He is a father of three sons, one of whom is a major by the date of filing of the written statement. The sons of the defendants are divided in status, since January 1989. It is further stated that the suit schedule property was acquired jointly in the shape of a site by the father of the first defendant late Ranga Rao and one Chelikani Satyanarayan Murthy, who constructed the building jointly and the cost of construction was shared equally and the southern portion of the property was taken by late Satyanarayana Murthy, and the northern portion fell to the share of the father of the first defendant, and thus, it has become an ancestral property so far as defendants 1 and 2 are concerned. It is also stated that the first defendant had got a right and title over 1/4 of the 1/3rd share in the plaint schedule property and the remaining 3/4th belongs to the sons of the first defendant and would not have been touched by the plaintiff. Since the plaint schedule was incorrect and had nothing to do with the schedule in E.P. No. 57 of 1983 on the file of the District Munsif, Pithapuram, the plaintiff cannot ask for partition. It is further stated that the plaintiff filed a suit in O.S. No. 35 of 1981 against D1 on the file of the District Munsif, Pithapuram, and proceeded against the E.P. schedule property by getting the same attached and auctioned and the E.P. schedule property was not the same property as shown in the plaint schedule. The decree obtained by the plaintiff was a personal decree against the first defendant. The plaintiff got the property in the Court auction and did not obtain symbolical delivery to the property, and hence, the plaintiff is entitled for past or future profits as claimed by him.
12. The third defendant, the daughter of the second defendant filed written statement. No doubt, the plaintiff had denied the relationship, but, however a finding had been recorded that the relationship had been established. Be that as it may, the averments in the written statement of third defendant are as hereunder.
The sale in favour of the plaintiff is illegal and invalid under law, and therefore, the plaintiff is not entitled to the relief of partition. Since D1 had no half share in the plaint schedule property and he was having only 1/ 12th share in the l/3rd share that fell to his share after the death of late Ranga Rao, the sale was not valid and the other 3/4th in the l/3rd share belongs to the children of D-1 who were minors. It is further stated that late Ranga Rao died intestate and his property devolved upon D-1 to D-3 and the children of Dl, as the third defendant is the daughter of late Ranga Rao. The plaintiff was aware that the third defendant was the daughter of late Ranga Rao and was entitled to l/3rd share in the plaint schedule property. The plaintiff had no right to file a suit for partition of the dwelling house and the defendants are entitled to the entire property and the sale being void and illegal, it was not binding on D-3 and prayed for allotment of 1 /3rd share in the plaint schedule property.
13. The plaintiff filed a rejoinder with the following averments.
The plaintiff filed the rejoinder, when the first defendant amended the original written statement by changing the shares alleging as hereunder.
The plaintiff purchased the share of the branch of D-1 represented by himself and his Joint sons. D-1 did not substantiate his allegations that he was entitled only to the 1/4th or 1/3th share in the plaint schedule property by explaining how he had got only that much of share. The plaintiff was entitled for half share in the plaint schedule property. D-3 was not the daughter of late Ranga Rao. Assuming that she was the daughter, she never claimed rights in the plaint schedule property and the other properties and her conduct shows that she waived her rights in the said properties and D-3 is not entitled to any share in the plaint schedule properties.
14. D-4 filed written statement alleging as hereunder.
The plaint schedule property was the separate property of late Ranga Rao and after late Ranga Rao died intestate, the property devolved upon defendants 1 to 3 and D-1 is entitled to 1 /3rd share in the share of D-1 and D-4 to D-6 were entitled to 1/4th share each as the property devolved upon D-1 becomes ancestral property to defendants 1 and 4 to 6. It is further stated that the decree obtained against D-1 in O.S. No. 35 of 1981 by the plaintiff was not true, valid and binding on D-4 to D-6 and the debt in favour of the plaintiff was not for any legal necessity of the family. There is no need for D-1 to contract any debt on behalf of the joint family and the debt contracted by D-1 without legal necessity was not true, valid and binding on defendants 4 to 6 and there was no decree against defendants 4 to 6 or against the joint family properties. When no decree was passed against the joint family properties, the share of D-4 to D-6 cannot be sold. It is further stated that when there was no decree against the joint family assets, the alleged sale on 4-2-1985 was illegal and invalid under law. In fact the mother of these defendants filed E.A. No. 18 of 1985 on the file of the District Munsifs Court, Pithapuram, and during the pendency of that application, defendants 4 to 6 were minors and their interest was not properly protected by the mother. After the 4th defendant attaining majority, he filed E.A. No. 112 of 1990 to set aside the sale on coming to know of the fraud of the plaintiff and D1 and the order in E.A. No. 18 of 1985 was not binding on them as it was passed during the minority of defendants 4 to 6 against their interests and the first defendant had got only 1/12th share in the plaint schedule properties and was not entitled for half share. It is further stated that the sale proclamations were not published under the provisions of Order 21 and the alleged attachment being illegal, the sale in pursuance thereof was also illegal and invalid. The share of the defendants 4 to 6 could not be brought to sale since the sale was void. It is also stated that the sale certificate schedule was suppressed and in any view the plaintiff could not claim the property not covered by the sale certificate.
15. The plaintiff made further rejoinder with the following averments.
The first defendant was the manager of the Hindu joint family constituting himself and D-4 to D-6 and the mother of D-1, who is D-2 in the suit, contracted the debt under the suit promissory note covered by O.S. No. 35 of 1987 for legal necessity and family benefit and the decree in the said suit was valid and binding on D-4 to D-6. The plaintiff as the decree-holder of the said suit proceeded against the properties of the joint family. D-4 to D-6, represented by their mother, understood the same and filed a claim petition in O.S. No. 35 of 1981 in E.P. No. 57 of 1983 as EA. No. 18 of 1985 to raise attachment against their shares and the same was dismissed on merits. D-4 to D-6 did not file any appeal against the said order and it became final hence D-4 to D-6 now cannot contend that their shares in the property put up for auction cannot be sold and the sale certificate granted in favour of the plaintiff was not the plaint schedule property. The interest of defendants 4 to 6 in the plaint schedule property was already sold in Court auction and D-4 to D-6 were not entitled to claim partition of the plaint schedule property. The 4th defendant after attaining majority filed a petition under Section 47 C.P.C. in conformity with the petition filed under Order 1, Rule 10 CPC. D-1 solely contested the suit and resisted the execution proceedings and filed a counter and also got filed E.A. No. 18 of 1985 by D-4 to D-6 represented by their mother. He filed a petition to set aside the sale in E.P.57 of 1983 and when the said petition was dismissed, C.M.A. 5 of 1987 was filed which was also dismissed. In this suit he set up D-3 to implead herself and again D-4 to D-6 were got impleaded setting up D-4 to represent D-5 and D-6 at the instance of D-1. D-1, his wife and D-4 to D-6 were living together under the management of D-1. The family of D-1 is entitled to l/3rd share was not correct. The plaintiff purchased the Joint half share in the plaint schedule property covering the interest of D-1 and D-4 to D-6. D-1 and D-4 to D-6 put together had joint half share in the plaint schedule property and cannot question the execution proceedings as the sale was held after following the procedure prescribed by law. It is further stated that the mother of D-4 to D-6 conducted the claim petition and gave a fight to the plaintiff in the said execution proceedings and D-4 to D-6 also engaged an advocate. The allegation that the sale certificate had nothing to do with the present suit schedule is not correct.
16. Oh the strength of the respective pleadings of the parties, the following issues and additional issues were settled.
1. Whether the plaintiff is entitled for a partition of the plaint schedule property?
2. Whether the plaintiff is entitled to past profits?
3. Whether the plaintiff is entitled to future profits till separate possession has given to him?
Additional issues dated 12-2-1990:
1. Whether Kotagiri Ratnakumari is the daughter of late Vinnapala Ranga Rao?
2. Whether the plaint schedule property was the self-acquired property of the said Ranga Rao?
3. Whether Ratnakumari is entitled to a l/3rd share in it?
4. Whether the first defendant is having only l/12th share in the 1/3rd share that fell to his share on the death of late Ranga Rao?
5. Whether late Ranga Rao died intestate?
6. Whether the plaintiff has no right to file the suit for partition of the dwelling house?
7. Whether the sale is void and illegal and does not bind the third defendant?
8. Whether the plaintiffs claim is barred by limitation?
Additional issue dated 21-1-1991:
1. Whether the decree in O.S. No. 35 of 1981 on the file of the District Munsifs Court, Pithapuram is not binding on D-4 to D-6?
17. On behalf of the plaintiff he had examined himself as P.W. 1 and the Court Amin, who delivered the property by way of symbolical delivery, was examined as P.W. 2. On behalf of the defendants D.Ws. 1 to 6 were examined. Defendants 1, 3 and 4 were examined as D.Ws. 1 and 2 and 6. Exs.A-1 to A-7, Exs. B-1 to B-15 and also Exs. C-1 to C-3 were marked.
18. Elaborate findings had been recorded by the learned Judge and ultimately substantial portion of the reliefs had been granted. In the light of the submissions made by the counsel on record the following points arise for consideration in this appeal.
1. Whether the third appellant is entitled to l/3rd share in the plaint schedule property in the facts and circumstances of the case?
2. Whether the findings recorded by the learned judge in relation to granting of relief of partition in favour of the plaintiff to be disturbed or to be confirmed in the facts and circumstances of the case?
3. Whether the appellants 4 and 5 can agitate the question of the debt being not for the benefit of joint family; and not binding for want of legal necessity in the facts and circumstances of the case?
4. Whether the findings recorded, by the learned Judge in relation to the oral and documentary evidence available on record be sustained or to be disturbed?
5. Whether the provisions of the Hindu Succession Act, 1956 would come in the way of the third appellant from putting forth the plea for partition in the present suit?
6. Whether the appellants are entitled to put forth the plea that they are entitled to invoke the provisions of the Partition Act 1893 in the facts and circumstances of the case?
7. If so, to what relief the parties would be entitled to?
19. Points 1 to 6:
To avoid repetition of appreciation of evidence available on record, all these points are being dealt together. The plaintiff filed the suit for partition of the plaint schedule dwelling house into two equal shares who obtained a simple money decree against the first defendant in O.S. No. 35 of 1981 on the file of the District Munsif, Pithapuram, and in execution of the said decree, the plaintiff brought the plaint schedule property to sale. The second defendant, the mother of the first defendant, filed a claim application claiming half share in the plaint schedule house and the same was allowed. In such circumstances, the learned District Munsif had proceeded with the sale of the undivided half share and the plaintiff decree holder purchased the same having become the highest bidder and subsequent thereto the sale was confirmed and a sale certificate was issued in his favour. After obtaining the sale certificate the plaintiff also obtained symbolical delivery of his share in the said house. In such circumstances, the plaintiff, as decree-holder-auction purchaser, filed the suit for partition.
20. Originally, the suit was filed as against the first appellant herein, the first defendant, in the suit, the judgment-debtor in O.S. No. 35 of 1981 and the second appellant herein, the second defendant in the suit the mother who claimed a share subsequently and as already referred to supra the same was upheld. But third appellant herein, the third defendant filed an application to implead herself as a party on the ground that she is the daughter of the deceased husband of the second defendant and the deceased father of the first defendant and it is the specific case that she is also entitled to 1/3rd share in the plaint schedule house. The plaintiff filed a rejoinder and the contents thereof need not be repeated again. The said third defendant had examined herself as D.W.2. D.W.I is the first defendant. D.W.3 is the husband of D.W.2. Apart from this evidence, D.W.4 one R. Raja Rao, D.W.5-P. Bhanumurthy, advocate-commissioner, D.W.6-V.S.C.S. Ranga Rao were examined on behalf of the defendants. The plaintiff examined himself as P.W. 1 and further examined the Court Amin as P.W.2-K. Venkata Rao. Further Exs. A-1 to A-7 and Exs.B-1 to B-15 had been marked and Exs. C-1 to C-3 also had been marked.
21. The relationship of third defendant and her status as the daughter of the deceased Ranga Rao, was specifically denied by the plaintiff as P.W. 1. D-2, the mother was not examined. Ex.B-10 is the marriage invitation card printed in the year 1959 wherein the name of the senior paternal uncle of the third defendant had been shown and further it was shown that the third defendant is the daughter of late Ranga Rao. This invitation card was marked even in prior litigation between Satyanarayana Murthy and D-1 and D-2 in HRC O.P. 4 of 1969. Ex.A-7 is the order made in the aforesaid HRC. In the light of the said evidence available on record, the learned Judge recorded a positive finding relating to the relationship of the third defendant with the family of the first and second defendants and came to the conclusion that her status as daughter of the deceased Ranga Rao to be upheld. It is also pertinent to note that the plaintiff is not only stranger to the family, but just a decree holder-auction purchaser and he is the creditor of the family. However, there appears to be some controversy in this regard to the effect that the first defendant borrowed the amount for his personal necessity and not for joint family necessity, and hence, the suit debt is not binding on the other members of the family.
22. As can be seen from the overall picture of the case much water had flown in between the plaintiff becoming the successful bidder-Court auction purchaser and the filing of the present suit for partition. These aspects had been taken into consideration by the learned Judge and findings had been recorded. P.W. 1 deposed that he was not aware whether the third defendant is the daughter of the second defendant, but he further deposed that he was acquainted with the first defendant for the last 15 years and he never told him that he had got a sister. The first defendant and his sons are living jointly and the first defendant is the manager of his family and as the first defendant borrowed the money from him, he filed a suit O.S. No. 35 of 1981 on the file of the District Munsif, Pithapuram, and in the said suit he had shown him as manager of the family. The, first defendant contested the suit and the same was decreed and in pursuance of the decree, he filed execution petition E.P. No. 57 of 1983 for bringing the plaint schedule property for sale. This witness also deposed that D-2 filed an application claiming half share in the property for which P.W. 1 agreed since he was not able to fight the litigation in Court. P.W. 1 also deposed that he brought the rest of the property excluding the property claimed by D-2. The certified copy of the claim petition filed in E.A. No. 148 of 1984 is Ex. A-1. When the remaining property came up for sale once again the first defendant had set up his children claiming that property also and filed E.A. No. 18 of 1985 and the same was dismissed. The certified copy of the order is Ex.A-2. Then the property came up for auction and he became the highest bidder in the said auction for Rs. 13,000/-. P.W. 1 specifically deposed that the property sold represents the property of the first defendant and his minor sons as well. It is needless to say that at the relevant point of time these sons were minors and they were declared majors subsequently.
23. P.W. 1 also deposed that the Court issued sale certificate, which was marked as Ex.A-3, and he filed an application for delivery of the property and got symbolical delivery through Court in E.A. No. 173 of 1985 and he had given a receipt to Amin that the property was delivered to him. Delivery receipt was marked as Ex.A-4 and the Court recorded the delivery. P.W. 1 further deposed that he was demanding the property to be divided as per the sale certificate, but the same was not done, and hence, he filed the suit for partition to divide the same into two equal shares and allot one such share to him. P.W. 1 also deposed relating to the profits and the claim made by him in this regard. The certified copy of the claim petition in Ex.A.No.18 of 1983 in E.P. No. 57 of 1983 in O.S. No. 25 of 1981 was marked as Ex.A-6. In the cross-examination this witness deposed that he does not know how many brothers are there to Ranga Rao. The said Ranga Rao, father of the first defendant, used to work as Assistant Engineer, P.W.D. in Nagarjuna Sagar Project. He knows Chelikani Satyanarayana Murthy of Pithapuram and he does not know whether the said Satyanarayana Murthy got printed invitations for the marriage. This witness; no doubt, denied certain suggestions. This witness also deposed that he does not know whether D-3 has got right in the plaint schedule property and he does not know whether D-3 is daughter of Ranga Rao. He does not know whether he filed certified copy of O.P. into Court and the same was marked as Ex.A-5 and he does not know whether the application was dismissed because Ratnakumari was not added as a party to the said O.P. P.W. 1 also deposed that Ratnakumari was not known about the auction. This witness also deposed that D-1 executed promissory note in his favour for the purpose of his business and cultivation. This witness also deposed in cross-examination that he added only first defendant in the earlier suit and in the E.P. and he did not add his mother or children in the said proceedings and he did not file any document to show that the first defendant was managing all the properties. This witness also was cross-examined in relation to the symbolical delivery and several suggestions put to this witness had been specifically denied. After this witness was recalled Ex.A-7, the certified copy of the order in HRC O.P. No. 4 of 1969 dated 25-2-1970, was marked. In the rebuttal evidence some further facts had been elicited and further this witness was cross-examined.
24. P.W. 2-Court Amin, was examined who had deposed about Ex.A-3 sale certificate and Ex.A-4, the warrant and delivery receipt. The first defendant as D.W. 1 had deposed that the plaintiff filed the suit O.S. No. 35 of 1981 against him only and the plaint copy was marked as Ex.B-1. This witness also deposed that his mother and sons were not added as parties in the said suits. D.W. 1 further deposed that the plaintiff did not state in the suit that they borrowed the amount for the benefit of the joint family. The decree copy was marked as Ex.B-2 and the judgment was marked as Ex.B-3. As per the decree the plaintiff filed E.P. No. 57 of 1983 and the sale proceedings in E.P. were marked as Ex.B-4. This witness also explained certain boundaries in relation to Exs.B-4 and B-5. D.W. 1 further deposed that a claim petition was filed by his mother in which he filed counter. D.W. 1 also stated that he filed C.M.A. No. 5 of 1987 as in the sale set aside petition in Ex.A. No. 148 of 1984 the amount mentioned in the E.P. is not correct and that it was purchased for no value. He got one acre of land and except that he does not have any further land in his name. One Kalluru Srirama Rao filed O.S. No. 39, of 1983 on the file of the Munsif Court, Pithapuram, and in that suit he had contested that he is a small farmer. The suit was dismissed observing that he was a small farmer. The said judgment was marked as Ex.B-6. Further specific stand is taken by this witness that he is entitled to only 1/12th share in the plaint schedule property. In the cross-examination of D-3, D.W. 1 made an admission relating to the relationship that the third defendant is his sister and his parents got only two issues and he got three children who are the sons and the third defendant has nothing to do with the decree debt. Again, D.W. 1 reiterated his stand that the amount was not borrowed for the benefit of joint family.
25. In the lengthy cross-examination made by the plaintiff D.W. 1 deposed several facts. D.W. 1 admitted that the property was sold in public auction since he was unable to discharge the debt and he did not file any application to set aside the auction and in the main E.P. he filed counter. This witness deposed that he is cordial with his wife. In the further cross-examination this witness deposed that he did not state in the counter that his sister is also having share in the house and in his father's property and no share was given to his sister by him. This witness also deposed that his sons had not filed any suit for partition against him after 1979. Certain facts relating to other particulars also had been elicited. This witness also deposed about Ex.B-9, the paper publication. D.W. 2 is the third defendant, who had deposed about the family affairs and about her marriage, deposed that Ex.B-10 is invitation card. In the cross-examination certain questions were put to this witness and attempt was made to show that she has no knowledge about certain family affairs.
26. D.W. 3 is the husband of D.W. 2 who supports the version of D.W. 2. D.W. 4 deposed that he is having a photo studio and he knows D.W. 1. In the month of August 1990 at the request of D-1 he had taken some photographs at his house. Exs.B-11 to B-14 are the photographs with their corresponding negatives. He was paid charges for taking the photographs and he passed a receipt Ex.B-15. This witness was cross-examined to the effect that Exs.B-11 to B-14 do not contain the door number of the house.
27. D.W.-5 P. Bhanumurthy, a practising advocate, who was appointed as commissioner to inspect the suit schedule property, had deposed that he had inspected the suit property on 14-10-1990 after giving notice to both sides, executed the warrant and filed his report along with the rough sketch. Ex.C-1 is the report, Ex.C-2 is the plan and Ex.C-3 is the notes prepared by him and he cannot say whether Exs. B-11 to B-14 relate to the suit property. This witness was cross-examined in relation to certain boundaries.
28. The 4th defendant was examined as D.W.6. This witness deposed that defendants 5 and 6 are his brothers and he is looking after the affairs on their behalf also and first defendant is their father and second defendant is his paternal uncle's grandmother. This witness also deposed that D-3 is only sister of D-1 and he studied up to intermediate. This witness had taken a specific stand that there is no decree passed against joint family in O.S. No. 35 of 1981 on the file of District Munsif, Pithapuram, and D-1 is having 1/12th share in the plaint schedule property. This witness also was cross-examined. This evidence was let in most probably to establish that the debt is not a joint family debt and at any rate the same is not binding on the sons of the first defendant.
29. The learned Judge, on appreciation of the evidence available on record, recorded findings and principally rejected the defence of the third appellant, the third defendant in the suit D.W.2. and the defence of appellants 4, 5 and 6. The stand taken by D.W. 6 in the light of the prior proceedings and the conduct of the parties, it is no doubt true that the mother made a claim claiming half share in the plaint schedule property and the same was allowed and the rest of the half share alone was put to sale. P.W. 1, the decree holder became the successful bidder-auction purchaser. It is also true that at no stage till the third defendant came on record in the present suit there was any whisper on the part of other family members that there is yet another sharer in the plaint schedule property i.e. the third defendant. However, though P.W. 1 denied about the relationship, the answers given by P.W. 1 on the aspect of relationship being very vague in the light of the clear evidence available Ex.B-10, the evidence of D.W. 1, D.W.2, D.W.3 and D.W.6 as well, there cannot be any two opinions relating to the status of this third defendant as the daughter of the deceased Ranga Rao. It is also needless to say that there is no warranty of title to a Court auction purchaser. The mother, with fond hope of saving the property, initially could have taken the stand that she was entitled to half share and her son was entitled to the rest of the half share being the legal heirs of the deceased Ranga Rao. The fact that Ranga Rao left behind him yet another sharer to succeed to the self-acquired property for the reasons best known had been suppressed till the third defendant came forward for filing an application to implead herself as a party in the present proceeding. This appears to be the broad scenario.
30. Section 23 of the Hindu Succession Act, 1956 dealing with special provision respecting dwelling-houses reads as hereunder.
Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.
31. Certain findings had been recorded by the learned Judge in relation to applicability or otherwise of Section 23 of the Act aforesaid. Reliance was placed on the decision of this Court wherein the learned Judge of this Court had dissented from this view, AIR 1963 Calcutta 22 and observed at Paragraphs 5, 8 and 7 in Vemavarapur Mallikarjuna Rao v. Chaturvedula Siva Sankara Prasad and Ors. as hereunder.
The question therefore is whether there are no cogent grounds for departing from the normal rule of general partition in the instant case. The plaintiff has not given any explanation or reasons why he has not filed a suit for partition of all the joint family properties. He has only filed a suit, for partition of the B-Schedule cannot be gone into since the defendants 1 and 2 have interest in every square yard of B-Schedule property. Therefore the suit for partial partition is not maintainable.
The next question that is raised is whether Section 23 of the Hindu Succession Act is a bar to claim partition of the family dwelling house. Section 23 of the Hindu Succession Act provides:
23. Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class-I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.This is a special provision made in respect of division of dwelling houses of a joint family. The section lays down that in the case of a dwelling house left behind by the Hindu Intestate, his or her female heirs can claim partition thereof only if the male heirs choose to effect a division of their respective shares. Thus the choice of partition of a dwelling house is confined to the male heirs, and divested from the female heirs. The object of the statutory rule is obviously to ensure easement of disruptive influences which would operate if the right of a female heir to claim partition of the family dwelling house were left unrestricted. The statutory provision is designed to defeat the disturbance of the family dwelling house and infliction of misery on the male heirs by the female members such as daughters and daughters' daughters whose mooring and interests are elsewhere on account of their marriage and are staturated with separate ownership. There is no dispute that the B-Schedule property is a family dwelling house and is, therefore, liable to partition only at the choice of the male heirs, namely, D-1 and D-2. But the learned Counsel for the plaintiff submits that the husband of the third defendant died in 1949 long prior to the Hindu Succession Act came into force and that Section 23 has no retrospective operation and, therefore, does not apply to the case of an intestate who died before the commencement of the Hindu Succession Act. It is true that on the death of her husband, the third defendant became entitled to 1/3rd share and while her sons, defendants 1 and 2 became entitled to l/3rd share each. But the disposal of her right was done in 1967 and partition of the dwelling is sought long after the Hindu Succession Act came into force. As already observed, the object of the statutory provision is to prevent the female heirs from forcing a situation resulting in the sale of the family house and cause distress and hardship to the sons of the intestate.
The learned Counsel, however, placed reliance on the decision of the Calcutta High Court in Upendra Nath Das v. Chintamoni Devi : AIR1963Cal22 and submitted that where Hindu dies intestate before the Act of 1956 came into operation, leaving a widow and two sons, the succession of his estate, so far as the widow is concerned, is governed by the Hindu Womens' Right to Property Act (XVIII of 1937) and she becomes heir, to her husband along with his sons in equal shares with regard to all his properties other than agricultural land under the Act XVIII of 1937. The learned Judges also held that the widow has unrestricted power of claiming partition of all the properties which she inherits including dwelling houses left by her husband and that right is not taken away by Section 23 or other provisions of the Act of 1956. It is true that on the death of her husband she succeeded as the heir under Act (XVIII of 1937) in respect of a dwelling house and properties other than agricultural lands. Section 3(3) of the Act provides any interest devolving on a Hindu widow shall be limited interest known as a Hindu Women's Estate provided however, that she shall have the same right of claiming partition as a male owner. By that provision, a Hindu widow gets an unrestricted right of claiming partition of all the properties which she inherited including dwelling houses, But Section 4 of the Hindu Succession Act, 1956 gives an overriding application to the provisions of the Act on the Law at it obtained previously, The Act supersedes all prior law and the law of succession as laid down in the Act alone shall govern intestate succession among Hindus. Under Section 4(b) any law in force applicable to Hindu immediately before the commencement of Act shall cease to apply to a Hindu in so far as it is inconsistent with the provisions contained in the Act. The right conferred on a Hindu Widow under Section 3(3) of the Hindu Women's Right to Property Act to seek partition of a dwelling house is inconsistent with the provisions of Section 23 of the Act and so stands nullified. With great respect I am unable to record my accord with the view expressed by the learned Judges of the Calcutta High Court in the ruling referred to above.
32. In Narashimaha Murthy v. Smt. Susheelabai and Ors. : AIR1996SC1826 the Apex Court held that Section 23 of the Act applies and prohibits partition of dwelling house of the deceased Hindu male or female intestate, who left surviving sole male heir and female heir/heirs and the right to claim partition by female heir is kept in abeyance and deferred during the life of the male heir or till he partitions or cease to occupy and enjoy it or lets it out or till at a partition action, equities are worked out.
33. In Srilekha Bhosh (Roy) v. Partha Sarathi Ghosh : [2002]SUPP1SCR45 it was held as hereunder.
The condition for application of the statutory provision is that a dwelling house belonging to an undivided family must have been transferred to a person who is not a member of such family and such transferee sues for partition. If this pre-condition is satisfied then if any member of the family being a shareholder undertakes to buy the share of such transferee the Court is to make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder.
Applying the ratio in the aforementioned decided cases to the case in hand the position that emerges is that the last owner of the suit property left one male heir (son) and three female heirs (widow and two daughters) who succeeded to the suit property, The widow transferred her interest in the suit property by gift in favour of her two daughters, who in course of time got married! the two daughters filed the suit for partition of the suit property which was a family dwelling house the partition suit was decreed preliminary at the stage of execution proceedings the petition has been filed by the male heir i.e., the brother of the plaintiffs claiming right of pre-emption to purchase the share of one of the sisters (plaintiff No, 2), In stricto sensu the provision of Section 4 of the Partition Act has no application in the case. Neither can the plaintiffs who are daughters be said to be strangers to the family nor is there any material to show that they have expressed their Intention not to reside in the suit property or to transfer their interest in the same to a person who is a stranger to the family. It is also to be kept in mind that the plaintiffs have acquired interest in the property by gift from their mother. Therefore, they have stepped into the shoes of their mother. Under the circumstances the petition filed by the defendant under Section 4 of the Partition Act was not maintainable and was liable to be dismissed as premature. At the same time keeping in view the object and purpose of preserving unity of the family dwelling house for occupation of members of the family the plaintiffs cannot be given a right to transfer their interest in the family dwelling house in favour of a stranger. If they decide not to reside in the suit dwelling house and desire to transfer their interest then they must make an offer to the defendant and if he is willing to purchase the interest of the sisters then he will be entitled to do so on payment of the consideration mutually agreed or fixed by the Court.
34. In the present case the Court auction-purchaser filed a suit for partition. It is not in serious controversy that the sole coparcener or male member of the family is the only son left by the deceased Ranga Rao. It is needless to say that normally in such a case such sole male member dividing the property or partitioning the property may not arise. However, in a suit for partition filed by a Court auction purchaser when the Court auction purchaser as decree holder brought the property to sale being kept in darkness of the existence of yet another sharer, the question of getting such share also by virtue of the Court auction, in the considered opinion of this Court, cannot be sustained, since a Court auction sale as such does not confer any warranty of title whatsoever, but however here is a peculiar situation where the daughter had not approached the Court praying for any relief of partition, but in action initiated by the Court auction purchaser-decree holder the defence is put forth. Merely because in the prior claim proceedings, the second defendant, the mother of the first defendant), and children of the first defendant had not put forth about the respective shares, in the light of the clear facts placed before this Court that the plaint schedule property is self-acquired property of the deceased Ranga Rao and he died intestate leaving behind three sharers entitled to equal shares, the right of the third defendant cannot be defeated by putting forth defence of Section 23 of Hindu Succession Act, 1956. At the best such right would be postponed or it would be kept in abeyance and nothing beyond thereto. Hence, this Court is of the considered opinion that neither prior proceedings nor the operation of Section 23 of the Hindu Succession Act, 1956 would come in the way of declaring the respective shares despite the fact that at present one may have right or not and the right may be kept in abeyance or postponed accordingly it is hereby declared that the respondent, the legal representatives of the plaintiff are entitled to l/3rd share in the plaint schedule properly for the reason that the first appellant had contracted the debt for the sake of family which would be binding on his sons as well and at this distant point of time they cannot be permitted to agitate the binding nature of the debt on the ground of want of legal necessity or that the debt was not contracted for the sake of Joint family. The controversy does not end there.
35. Further reliance was placed on the decision in Smt. Kailash Pati Devi v. Smt. Bhubneshwari Devi : AIR1984SC1802 wherein it was held that the purchaser of Joint family property from a member of family may have right to file general suit for partition against all members and that may indeed be the proper remedy to effectuate his purchase. However, property purchased being the only Joint family property available for being partitioned and there being therefore no equities to be adjusted, question as to remedy of purchaser was of academic importance only.
36. Further strong reliance was placed on the decision in Harmat Bibi v. Prodosh Kumar Bajpayee 1988 (Supp) SCC 507 wherein the Apex Court while explaining the object of Section 4 of the Partition Act, 1893 held as hereunder:
On a plain reading of the provision of Section 4 it is clear and evident that when an application is made by co-sharer for buying up the share of the stranger purchaser in a dwelling house belonging to undivided family the Court shall make valuation of such share in the manner it thinks just and proper and direct the sale of such share to shareholder and may give all necessary directions in that behalf. The object of Section 4 is to enable the members of a family to buy out a stranger transferee from one of the members, who seeks partition of dwelling house. Section 4 was enacted having in mind the consideration of corporate property existing as a rule with special reference to joint property and social desire to preserve the unity of such property. It was also enacted with a view to maintain indivisibility and integrity of the property. We fail to see why his intention should not be given effect to in this case.
We have given our anxious consideration to the provisions of Section 4 of the Partition Act and we may state that the provisions of Section 4 do not create any bar for making a second application to buy the shares of a stranger purchaser provided at the, time, of making such application the property has not been divided by metes and bounds and the possession of the share of the stranger purchaser has not been delivered to him.
37. Some feeble attempt had been made, that by virtue of interim order of this Court some amount had been deposited, No doubt, the same is controverted by the counsel representing the legal representatives of the plaintiff, the respondents in the appeal. This Court is not inclined to go into the said factual controversy between the parties. However, inasmuch as this is a dwelling house and a declaration is being made relating to the 1/3rd share of the plaintiff, now who is no more, the legal representatives of the plaintiff, the respondents in the appeal, on appreciation of over all facts and circumstances taking into consideration the provisions of the Partition Act, 1893, and also the provisions of the Hindu Succession Act, 1956, as well, this Court is inclined to remand the matter enabling the parties to move appropriate applications under the provisions of the Partition Act, 1893 and it is also made clear that the parties are at liberty to have adjustment by making appropriate payments of the amounts if the parties are inclined to arrive at any such adjustments whatsoever in this regard, in default the learned Judge is at liberty to pass such appropriate orders both in law and also on the ground of equity.
38. Point No. 7:
Accordingly it is declared that the respondents-plaintiff and the legal representatives are entitled to a preliminary decree to 1/3rd share in the plaint schedule property and the other reliefs granted by the learned Judge relating to the mesne profits are hereby confirmed. But, however, the matter is remanded to the learned Judge in the light of the directions and observations specified supra. In the event of appellants on taking any steps to move appropriate applications as specified supra, the learned Judge is at liberty to entertain final decree proceedings and make appropriate orders in such final decree proceedings in the light of the views expressed by this Court.
39. Accordingly the appeal is partly allowed to the extent indicated above. The parties to the litigation to bear their own costs.