Judgment:
Ramesh Madhav Bapat, J.
1. The appellant herein was the original defendant No. 2 in O.S. No. 27 of 1981 which was pending on the file of the Subordinate Judge, Peddapuram, East Godavari District. The plaintiffs-respondents 1 and 2 herein had instituted the aforesaid suit with a prayer to set aside the partition deed, which is alleged to have been executed by defendants 1 and 2 allotting unequitable shares to the plaintiffs. It was alleged by the plaintiffs that the said partition deed dated 27-5-1977 is unconscionable.
2. On presentation of the suit, summons were issued to the defendants. On appearance, they filed their written statements. The learned Subordinate Judge allowed both the parties to lead evidence. On hearing both sides, the learned Judge found that the partition deed dated 27-5-1977 was unequal and inequitable and therefore directed that the partition be re-opened. The learned Judge further directed that on re-opening the partition, the 2nd defendant is entitled to 1/4th share. The plaintiffs and the first defendant are entitled to 1/3rd share each in the remaining 3/4th share of the plaint B and C schedule properties in the plaint.
3. Aggrieved by the aforesaid judgment and decree of the Court below, the original 2nd defendant has preferred this appeal.
4. The learned Counsel Mr. G. Krishnamurthy appearing on behalf of the appellant-2nd defendant submitted at the Bar that the plaint schedule properties were held by one Satyam, who happened to be the father of first defendant and husband of 2nd defendant-appellant herein and grand-father of the plaintiffs. The mother of the plaintiffs had deserted by her husband i.e., 1st defendant-3rd respondent herein and was living separately along with her children away from the joint family. The plaintiffs filed the suit in forma pauperis through their mother as guardian for reopening the partition.
5. The learned Counsel further submitted that the learned Judge had given a finding that Satyam died in the year 1952. The said finding has become final as the cross-objections are not filed by the respondents herein. Once it is held that Satyam died in the year 1952 leaving behind him the defendants 1 and 2 i.e., son and wife respectively, then after his death, the 2nd defendant i.e., the wife of Satyam, will be entitled to equal share with that of her son. The learned Counsel invited my attention to Hindu Women's Right to Property Act, 1938. The learned Counsel especially invited my attention to Sub-section (2) of Section 3 of the said Act which reads as under:
'When a Hindu governed by any school of Hindu Law other than Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had.'
Sub-section (3) of Section 3 reads as under:
'Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest; known as a Hindu Woman's estate, provided that she shall have the same right of claiming partition to a male owner.'
With these provisions on record, the learned Counsel for the appellant submitted that after the death of Mr. Satyam defendants 1 and 2 will get equal share. Admittedly the partition deed in question was executed in the year 1977 i.e., after the commencement of Hindu Succession Act, 1956. In that event, whatever share fell into the share of 2nd defendant became absolute as per the provisions of Section 14 of Hindu Succession Act. The plaintiffs in the suit are not entitled to claim any right in the share which fell into the share of 2nd defendant as it has become her absolute property. The plaintiffs are entitled to claim the partition only in the share which is allotted to their father i.e., 1st defendant in the suit.
6. It appears from the judgment of the learned Judge as stated earlier, the learned Judge felt that the partition deed Ex. A-1 dated 27-5-1977 is not equitable partition and that the issue has become final and therefore the learned Judge had set aside the partition deed and the partition was reopened but the shares allotted by the learned Judge to the plaintiffs and first defendant were not properly ascertained.
7. I have already discussed in the above paragraphs of my judgment that the property allotted to the 2nd defendant has become her absolute property in which the plaintiffs are not entitled to claim any share. They can claim share only in the property which fell in the share of first defendant. Therefore if the partition is opened, then the plaintiffs 1 and 2 and defendant No. 1 will be entitled to have 1/3rd share in the property which fell in the share of first defendant and as such the share of co-parcenery stands defined. The plaintiffs together are entitled to claim 2/3rd share of the property which fell in the share of first defendant and the remaining 1/3rd will be the absolute property of first defendant. As per the above shares, the property be divided between the plaintiffs and defendants 1 and 2 equitably with reference to the quality of the land. The partition to be effected in respect of the property mentioned in the partition deed Ex. A-1.
8. With this modification, the appeal is partly allowed. No costs.