Merla Narayudu (Died) Per L.R. and anr. Vs. M. Bramaramba and anr. - Court Judgment

P.S. Narayana, J.

1. Heard Sri Rama Mohan, Counsel representing the appellants and Sri Nagesh, Counsel representing the respondents.

2. Respondents 1 and 2 herein, plaintiffs in the suit, filed O.S.No.4/89 on the file of Subordinate Judge, Ramachandrapuram praying for the relief of partition. The learned Judge on the strength of the respective pleadings of the parties having settled the Issues recorded the evidence of P.W.1, D.W. 1 to D.W.4, marked Exs.A-1 to A-5 and Exs.B-1 to B-9 and ultimately passed a preliminary decree in favour of the plaintiffs effecting partition of plaint A Schedule property into 180 shares according to good and bad qualities and allotting 16 shares to the 1st plaintiff and 76 shares to the 2nd plaintiff respectively and ordering delivery of the same separately to them and also ordering partition of plaint B Schedule property into 540 shares according to good and bad qualities and allotting 16 shares to the 1st plaintiff and 76 shares to the 2nd plaintiff respectively and delivery of the same to them and also ordering delivery of plaint C Schedule articles as per Ex.B-9 Memo of the Commissioner to the 1st plaintiff as per C Schedule. It was further directed that the plaintiffs are liable to pay Rs. 11,600/-, the amount due under the promissory note Ex.B-7 by the husband of the 1st plaintiff late Ammiraju which was discharged by the 1st defendant from out of the assets of late Ammiraju to be allotted and delivered to them. It was further directed that the plaintiffs are entitled for future profits on shares to be allotted to them till the date of delivery. It was also directed that the 1sl defendant is entitled to the amount of Rs. 11,600/-from the plaintiffs and the 3rd defendant from out of the assets of the deceased Ammiraju, the husband of the 1st plaintiff and after paying the requisite Court fee on the said amount. However, the learned Judge directed the parties to bear their own costs. Aggrieved by the same, the defendants 1 and 3, the grand father and grandson, preferred the present Appeal and inasmuch as the 1st appellant died, the 3rd appellant was brought on record in A.S.MP.No.110/06 by orderdated 1-2-2006.

3. Submissions of Sri Rama Mohan:

Sri Rama Mohan, the learned Counsel representing the appellants would maintain that in fact there was no actual partition but there was only tentative partition or some arrangement and this cannot be treated as partition. The learned Counsel also had taken this Court through the evidence available on record and would maintain that in the light of Ex.B-7 promissory note executed in favour of D.W.4, the stand taken by the 1st defendant should have been upheld. While further making his submissions the learned Counsel pointed out that though some finding had been recorded relating to the identity of the property to the effect that the property covered under Ex.A-5 is not in the plaint schedule, the fact remains that it is Item No. 2 of the plaint A schedule and Item No. 3 of the A schedule specified by the defendant. The wife of the 4th defendant was not impleaded as a party and hence finding that the sale deed was by an incompetent person or the said transaction is invalid cannot be recorded in the absence of such party. The learned Counsel also pointed out to other oral and documentary evidence available on record. The learned Counsel also had pointed out that except the evidence of P.W. 1, there is no other evidence available on record as far as the plaintiffs are concerned.

4. Submissions of Sri Nagesh:

Sri Nagesh, the learned Counsel representing the respondents 1 and 2, the plaintiffs in the suit, would contend that merely because defendants 2 and 4 to 6 remained ex parte before the trial Court they cannot be shown as not necessary parties in this Appeal. Even otherwise, the learned Counsel would maintain that when a finding relating to partition had been recorded by the learned Judge, the learned Judge is well justified in arriving at the conclusion that Ex.A-5 sale transaction is by an incompetent person. The learned Counsel also pointed out to the findings recorded by the learned Judge in relation to the identity of the items. The Counsel also would comment that at any rate in the light of the findings recorded by the learned Judge, the said findings in relation to the invalidity or the nominality of Ex.A-5 need not be seriously considered by this Court. Even otherwise it is not in serious controversy that this item also had fallen to the share of the husband of the 1st plaintiff and the father of the 2nd plaintiff who is no more and only with a view to defeat the rights of the plaintiffs in the said item this transaction might have been thought of by the 1st defendant and nothing more and nothing beyond. The learned Counsel also further explained that the suit was filed on 31-11-1989 and inasmuch as Section 29-A of the Hindu Succession Act, 1956, as amended and introduced by A.P. Act 13/86 came into force with effect from 5-9-1985, the 2nd plaintiff being the unmarried daughter by that time, is entitled to claim a share on par with a coparcener and in the light of the same the findings recorded by the learned Judge may have to be confirmed. The leaned Counsel also would further maintain that even on the ground of equity, the learned Judge in fact directed the promissory note amount due which has been contracted for the sake of the medical expenses of the husband to be compensated or paid to the 1st defendant. Hence, viewed from any angle, the findings recorded by the learned Judge do not suffer from any illegality whatsoever.

5. Before taking up the further discussion and recording findings in relation to the Points for consideration which may emerge in the light of the rival contentions of the parties, it may be appropriate to have a look at the respective pleadings of the parties.

Averments made in the plaint:

The parties, for the purpose of convenience, would be referred to as arrayed in O.S.No.4/89 on the file of learned Subordinate Judge, Ramachandrapuram.

The plaintiffs filed the suit for partition pleading as hereunder:

The 1st plaintiff is the mother of the 2nd plaintiff and the 3rd defendant. The 2nd defendant is the wife of the 1st defendant. The defendants 1 and 2 are the father-in-law and mother-in-law of the 1st plaintiff. The 1st plaintiff is the wife of late Ammiraju who is the eldest son of defendants 1 and 2. The 2ndplaintiff is the daughter and the 3rd defendant is the son respectively born to the 18' plaintiff and her husband late Meria Ammiraju. The 4th defendant is the second son of defendants 1 and 2. Defendants 5 and 6 are the daughters of defendants 1 and 2. The 1st plaintiff's husband late Ammiraju and his younger brother 4th defendant Merla Veera Venkata Satyanarayana are the two sons and Boddu Nookarathnam w/o. Veera Bhadrarao of Samalkota and Gunnam Durga Lakshmi, w/o. Brahmanandam Chowdary of Samalkota are the two daughters of defendants 1 and 2. Out of the four children of defendants 1 and 2, their eldest son and the husband of the 1st plaintiff died intestate at Yendagandi on 31-8-1971 leaving behind him the plaintiffs and defendants 2 and 3 as his heirs under Law. By the time of the death of the 1st plaintiff's husband, late Ammiraju, his youngest sister Durga Lakshmi was not yet married while all theother children of defendants 1 and 2 were married.

Originally the joint family consisting of the 1st defendant and his two sons viz., late Ammiraju and the 4th defendant, was having immovable properties of about Acs.8-94 cents of double crop wet land situate at two villages viz., Yendagandi and Kurmapuram besides a tiled house and site mentioned in the plaint B Schedule at Yendagandi village. The family being a traditionally agricultural family was having movable properties like ploughing cattle, milching cattle, agricultural implements like ploughs, bandies etc. The joint family possessed of considerable cash assets and had no debts. The family got divided in or about the month of January 1977 and partitioned their lands except the dwelling house at Yendagandi shown in the plaint B Schedule. In the said partition, the first plaintiff's husband got plaint A Schedule lands consisting of Acs.2-00 and the 4th defendant got Acs.1-98 cents of land to his share which was later sold away by him under a registered sale deed dated 5-9-1985 and a possessory sale agreement to one Putta Sri Ganesh Veera Venkata Satyanarayana of Yendagandi village. The eldest daughter Boddu Nookarathnam was given Acs.2-00 of land at the time of partition which are sold away undertwo registered separate sale deeds of even date on 14-8-1982 to two different persons viz. Marina Satyam Saibaba and Marina Surya Bhaskararao of Yendagandi village respectively. The second daughter of defendants 1 and2viz.,Gunnam Durga Lakshmi was given Ac.0-75 cents of land besides cash which was sold away to Marina Govindaraju along with the 1st defendant on 14-8-1982. The 1st defendant got about Acs.2-36 cents of land in partition and he sold away an extent of Ac.1-00 of land to Meria Ammiraju under a registered sale deed dated 20-9-1971 who is his daughter-in-law and retained an extent of Acs.1-36 cents at present in his possession and enjoyment. As the partition was not evidenced by any registered document, the 1st defendant joined as a party in respect of various sale deeds executed by the 4th defendant as well as his two daughters. Shortly after the partition of the lands among the members of the family, the 1st plaintiff's husband late Ammiraju died intestate on 31-8-1977 possessed of plaint A Schedule lands. At the time of his death, his son the 3rd defendant was aged about 6 years while his daughter the 2nd plaintiff was aged about 3 years. As the 1st plaintiff is a widow and as the children, the 2nd plaintiff and the 3rd defendant were young, the 1sl defendant promised to manage the share of properties comprising of plaint A Schedule properties and improve them and believing the same the 1st plaintiff as well as her parents conceded to the wishes of the 1st defendant and the plaint A Schedule property in the hands of the 1st defendant. Later, after some time the defendants 1 and 2 took the 3rd defendant to their house on the pretext that they would educate him and since then the 3rd defendant had been living with defendants 1 and 2 and he was studying Intermediate at Samalkot staying in the house of his paternal aunt Durgalakshmi. Gradually the defendants 1 and 2 and the paternal relations of the 3rd defendant poisoned his mind against the plaintiffs and his maternal grand parents. Due to the bad advice inculcated in the mind of the 3rd defendant he bereaved away completely from the care of the 1st plaintiff, his mother. On the advice of defendants 1 and 2, the 3rd defendant is not willing to share the plaint schedule properties with the plaintiffs. Thus a sort of estrangement was brought about between the mother and the 3rd defendant with a view to avoid giving the share to the plaintiff.

The 1st plaintiff was married in or about the year 1967 at Yendagandi according to Hindu Dharma and caste custom and thereafter she joined her husband late Ammiraju and lived with him till his death in the year 1977. As the 1sl plaintiff belonged to Kamma caste and as per their caste customs valuable sari samans were given to her by her parents. The said samans were taken by the 1st plaintiff to her parents-in-laws' house and kept there and they were not taken back till now by the 1st plaintiff. The various metal samans mentioned in plaint C Schedule contained the initials denoting the name either of the paternal or maternal grand fathers or the father of the 1st plaintiff except some small articles. The wooden articles may not contain the names of the 1st plaintiff's relations. Some metal samans may contain the names of the relations of the 1 plaintiff who gifted them to her. In spite of demands made by the 1st plaintiff to deliver plaint schedule properties to her recently through mediators defendants 1 and 2 were evading to give a definite reply or to comply with the demand to deliver them to the 1st plaintiff. The 1st defendant denoted his unwillingness to partition the property between the sharers including the plaintiffs and deliver their shares to them. On the other hand he is trying to sell away the plaint A Schedule to strangers taking the 3rd defendant into confidence so as to defeat the just rights of the plaintiffs by keeping it beyond their reach. In these circumstances, the plaintiffs are constrained to file the suit for partition and separate possession of their respective shares in the plaint A and B schedule properties and for delivery of plaint C Schedule properties.

The 2nd plaintiff is entitled under Law to a share equal with that of a son in the coparcenary property left by her late father in respect of the plaint A and B Schedule properties under the A.P. Act 13 of 1986 amending the Hindu Succession Act, 1956. Under the provisions of the Act, the daughter was deemed to have always a share by birth along with the son in the coparcenary property subject to only two limitations viz., prior partition or marriage of the daughter before the advent of Act 13 of 1986. In this case, the 2nd (sic. 3rd) defendant and the 2nd plaintiff are minors even by today and the property of their father late Ammiraju is not partitioned previously and as the 2nd plaintiff is not yet married, she is entitled to an equal share along with the 3rd defendant by birth as per the amended Hindu Succession Act. In this way, the property covered by plaint A and B schedules property by late Ammiraju has to be divided into three equal shares at the first instance among late Ammiraju, the 3rd defendant and the 2nd plaintiff. The 3rd share of Ammiraju has further to be divided into four equal shares and one share each has to be allotted to both the plaintiffs and defendants 2 and 3. Thus the 2nd plaintiff and the 3rd defendant would get five shares each whereas the 1st plaintiff and the 2nd defendant would get one share each out of the 12 shares. Thus Ac.0-831/2 cents would fall into each of the shares of the 2nd plaintiff and the 3rd defendant and Ac.0-16 2/3 cents each to the 1st plaintiff and the 2nd defendant. The plaintiffs and defendants 2 and 3 are the co-owners and are deemed to be in joint possession of the plaint A Schedule property.

In respect of the plaint B Schedule property it has to be divided initially into 36 shares as it was not partitioned by the 1st defendant and his two sons as yet and out of the same, the same ratio of 5:5:1:1 shares have to be allotted to the 2nd plaintiff, 3rd defendant and the 1st plaintiff and the 2nd defendant respectively. The plaintiffs and defendants are co-owners in respect of plaint B Schedule property and they are deemed to be in joint possession of the property. If for any reason the Court holds that different quantum of shares under Law have to be allotted the respective sharers in the property, the plaintiffs are entitled to such shares together with future profits as determined by the Court, till delivery of the plaintiffs' shares to them together with interest @ 121/2% p.a. on the profits. If it is held by the Court that the 2nd plaintiff is not entitled to share under Law, she may be provided with an equal extent of land to be allotted to the share of the son towards Pasupukunkuma which the daughters in Kamma community are customarily provided with.

The 2nd defendant died pending the suit. The share inherited by her after the death of her son late Ammiraju devolved into 5 equal shares, one share each to defendants 1,4,5 and 6 and one share to the plaintiffs and the 3rd defendant. Defendants 1 to 4 are already on record and out of the heirs of the deceased 2nd defendant, defendants 5 and 6 are added as per orders dated 2-12-1992 in I.A.No.1006/92.

6. The 2nd defendant died pending the suit and the share inherited by her after the death of her son Ammiraju devolved into five equal shares, one share each to defendants 1,4,5 and 6 and one share to the plaintiffs. In view of the same, defendants 5 and 6 were added as parties as per orders in I.A.No.1006/92 dated 2-12-1992. No separate written statement was filed by the 3rd defendant. Defendants 4 to 6 had not chosen to contest the matter. The 1st defendant filed a written statement in detail which was adopted by the 2nd defendant.

7. Averments made by the 1st defendant in the written statement:

Except the relationship, the material allegations in the plaint are not correct. The ancestral property inherited by the 1st defendant was very small. He got considerable property from his maternal uncle by name Chodey Ramanna. It is not correct to allege that the 1st defendant got ancestral property of an extent of Acs.8-94 cents as alleged in the plaint. Though major part of his property was his self-acquired property, the 1st defendant in the year 1977 effected (partition) of all his properties amongst himself and his two sons. The 1st defendant got to his share Acs.1-10 cents of land detailed as Item No. 1 in the A Schedule annexed to the written statement. The 1st plaintiff's husband was given Acs.2-00 of land detailed as items 2 and 3 of A Schedule of the written statement while the 1st defendant's another son VeeraVenkata Satyanarayanamurthy was given an extent of Acs.1-98 cents as shown in Items 4,5 and 6 of the said A Schedule. The 1st defendant's eldest daughter Nookarathnam was given Acs.2-00, shown as Item No. 1 of the schedule and his 2nd daughter Durga Lakshmi was given Acs.2-00 cents, shown as Items 8 to 11 of the said Schedule during January 1977. The allegation in the plaint that Durga Lakshmi was given only Ac.0-75 cents besides cash had been deliberately pressed into service. She was given Acs.2-001/4 cents of land and no cash was given as alleged. The 1st defendant retained only Acs. 1-10 cents to himself and not Acs.2-36 cents as alleged in the plaint. The 1 ''defendant did not sell away any part of the said Acs.1-10 cents.

The 1st plaintiff deserted her husband in the year 1974 and went to her parents house for delivery and she gave birth to the 2nd plaintiff. The 1st plaintiff also left the 3rd defendant with her husband and did not take him along with her. After that the 1st plaintiff did not return to her husband. The 1st plaintiff's husband Ammiraju thereafter became seriously sick and underwent treatment for a long time at Kakinada for which huge amount was spent. Since there was no improvement in the health of Ammiraju in spite of best treatment given to him, he was taken to Christian Medical Hospital, Vellore and there also huge amount was spent for the treatment. But there was no complete recovery and ultimately he died in June 1977. Though her husband was seriously ailing, the 1st plaintiff or her parents did never even care to come and see him nor did they even attend at the time of his death. For purposes of the treatment of the 1st plaintiff's husband, an amount of Rs. 11,000/- was borrowed by the 1sl plaintiff's husband from one Chundry Subhas Chandra Bose of Yendagandi. After the death of the 1st plaintiff's husband, in spite of the best efforts of the 1st defendant, the 1st plaintiff did not co-operate with him in any manner for discharging the above debt. Under such circumstances, the 1st defendant was constrained to sell one acre of land belonging to the 1st plaintiff's husband i.e., Item No. 3 of the Schedule annexed to the written statement to the 4th defendant's wife by name Ammaji under a registered sale deed dated 20-9-1977 for Rs. 12,000/- and discharged the debt due to Subhas Chandra Bose and also the hand loans incurred by the 1st plaintiff's husband. In the registered sale deed dated 20-9-1977 by mistake the survey number of the land was described as R.S.No.315/3 and the full extent as Acs.1-16 cents for R.S. No. 328/5 with its full extent as Acs. 1 -40 cents and since then the wife of the 4th defendant had been in possession and enjoyment of the said Item No. 3 by paying taxes thereto upto 1983 and sold the same to one Putta Venkataraju of Yendagandi. The 1st plaintiff after deserting her husband, did not care for the welfare of the 3rd defendant and after the death of the 1st plaintiff's husband, the 3rd defendant was under the care and custody of the 1st defendant. The 1st defendant and his wife the 2nd defendant had been bringing up and educating the 3rd defendant. The 1st defendant had been managing Item No. 2 of the said Schedule and utilizing the income for the purpose of bringing up and educating the 3rd defendant. The allegations contra to it in the plaint are false. The allegations in the plaint that the 1st plaintiff and her parents left the plaint A Schedule property in the hands of the 1st defendant and the defendants 1 and 2 took the 3rd defendant to their house on the pretext of educating him had been denied. The 3rd defendant was left by the 1st plaintiff as long back as in the year 1974. It was also denied that the defendants 1 and 2 and the paternal relations of the 3rd defendant poisoned the mind of the 3rd defendant towards the plaintiffs and his maternal grand parents. The 1st defendant or the other defendants did never try to create any estrangement in between the plaintiffs and the 3rd defendant. The 1st plaintiff did never care for the welfare of the 3rd defendant since 1974. The allegation that the 1st plaintiff lived with her husband till his death is absolutely false. So far as the landed property is concerned, the plaintiffs are entitled to a share only in Item No. 2 of the A Schedule annexed to the written statement, corresponding to Item No. 1 of the plaint A Schedule property. In the said extent, the plaintiffs and the 2nd defendant are entitled to 1/8th share each only whereas the 3rd defendant is entitled to 5/8th share. The allegation that the 2nd plaintiff also became entitled to a share equal with that of the 3rd defendant in the properties of his father is not correct. The 1st plaintiff's husband died as long back as in the year 1977 and the A.P. Amendment to the Hindu Succession Act (A.P. Act XIII of 1986) has come into effect long subsequent thereto. By the time of coming into force of the said amendment, the 3rd defendant was the only coparcener and as such the 2nd plaintiff is not entitled to a share equal to that of the 3rd defendant as claimed in the plaint. The plaint B Schedule property is a house property in which the 1st plaintiff's husband had an undivided 1/3rd share and on his death, the 3rd defendant became entitled to 5/24th share while the plaintiffs and the 2nd defendant became entitled to 1/24th share each. It was denied that the 1st plaintiff was given sare samans detailed in the plaint C Schedule and that the said articles are with defendants 1 and 2. The 1st plaintiff possessed only the articles inventoried by the Commissioner excepting the silver and steel articles. The silver and steel articles inventoried by the Commissioner were purchased by the 1st defendant with his monies and given to the 1st plaintiff. The 1st defendant has no objection at any time to deliver to the plaintiff the articles belonging to her. Except the articles inventoried by the Advocate-Commissioner and the articles detailed in B Schedule annexed to the written statement, the 1st plaintiff did not possess any other articles as detailed in the plaint C Schedule. The allegation that the 1st plaintiff demanded the 1st and the 2nd defendants through mediators to deliver the schedule properties to her is not correct. Therefore, the plaintiffs 1 and 2 are not entitled to 1 /12th and 5/12th shares in the plaint A Schedule as claimed in the plaint and so also the 1 st plaintiff is also not entitled to 5/36th share in the paint B Schedule property as claimed. The 3rd defendant was born on 12-6-1971 and he became a major. The plaintiffs filed the suit for partition and separate possession of the plaint A and B Schedule properties and also for delivery of the movable articles to the 1st plaintiff's alleged claim in regard to C Schedule properties. As such the suit is bad for mis-joinder of causes of action. The plaintiffs are entitled to 1/8th share each in Item No. 1 of the plaint A Schedule property and 1/24th share in the B Schedule property. Hence the suit is liable to be dismissed with costs.

8. Issues settled by the learned Subordinate Judge. Ramachandrapuram:

(1) Whether the plaintiffs are entitled to the shares claimed in the plaint A, B and C Schedule properties?

(2) Whether the sale deed in favour of the wife of the 4th defendant is binding on the plaintiffs?

(3) Whether the debt contracted by the 1st defendant is binding on the 1st plaintiff?

(4) Whether the plaintiffs are entitled to only 1/24th share?

(5) Whether the properties are liable to partition?

(6) To what relief?

9. Evidence available on record: Oral evidence:

For plaintiffs:

P.W.1 - Merla Bramaramba

For defendants: D.W.1 - Merla Narayudu, (1st defendant)

D.W.2 - Merla Muralikrishna (3rd defendant)

D.W.3 - Merla Suryanarayana (brother of the 1st defendant)

D.W.4- Chundru Subhas Chandra Bose

Documentary evidence relied upon by both the parties:

For plaintiffs:

Ex.A-1/5-9-1985 - Registration extract of sale deed executed by defendants 1 and 4 in respect of land allotted to 4th defendant in favour of Putta Sree GaneshVeeraVenkataSatyanarayana.

Ex.A-2/14-8-1982 - Registration extract of sale deed executed by defendants 1 and 6 in respect of the land given to the 6th defendant in the partition in favour of Marne Satyanarayana.

Ex.A-3/14-8-1982 - Registration extract of sale deed executed by defendants 1 to 6 in respect of the land given to 6th defendant in the partition in favour of Marne Surya Prabhakara Rao.

Ex. A-4/14-8-1982 - Registration extract of sale deed executed by defendants 1 and 5 in respect of land given to 5lh defendant in the partition in favour of Marne Govindaraju.

Ex.A-5/20-9-1977 - Registration extract of sale deed executed by 1st defendant in respect of Ac. 1 -00 of land in favour of Meria Ammiraju, wife of 4th defendant.

For defendants:

Ex.B-1/17-1-1971 - Notice issued by the father of P.W.1 to 1sl defendant calling upon him to pay the debt due under pronote,

Ex.B-2/25-3-1972 - Receipt given by Choda Ramarao to Merla Narayudu i.e., 1st defendant for the amount received from 1st defendant due under pronote.

Ex.B-3/7-12-1979 - Registered notice issued by P.W.1 through her Counsel to Merla Narayudu (1st defendant).

Ex.B-4/7-1-1980 - Acknowledgement issued by the Counsel of P. W. 1 receiving Ex.B-3.

Ex.B-5/7-1-1980 - Reply notice issued by 1st defendant to the Counsel of plaintiffs.

Ex.B-6/31-5-1980- Gift deed executed in favour of 1st defendant and his three brothers by Choda Venkanna and others.

Ex.B-7/20-3-1977 - Pronote executed by late Ammiraju, husband of P.W.1 for a sum of Rs. 11,000/-.

Ex.B-8/20-9-1977 - Payment endorsement made on Ex.B-7 for a sum of Rs. 11,660/- showing that debt was discharged by D.W.1.

Ex.B-9/31-1-1989 - Receipt issued by the Commissioner -Advocate in respect of movable properties relating to 1st plaintiff (P.W.1).

10. Findings in nutshall recorded by the learned Subordinate Judge. Ramachandrapuram:

The learned Subordinate Judge, Ramachandrapuram on appreciation of the evidence of P. W.1, Exs. A-1 to A-5 and D.W.1 to D.W.4 and Exs.B-1 to B-9 had arrived at the conclusion that Ex.A-5 transaction, sale deed by the 1st defendant, in relation to an extent of-Ac.1-00 of land in the name of the wife of the 4th defendant is an invalid transaction and at any rate not binding on the plaintiffs and the same would not affect the rights of the plaintiffs to have share in any of the immovable properties of late husband of the 1st plaintiff and the father of the 2nd plaintiff. A further finding was recorded that in the light of the oral evidence and also certain admissions made by D.W.1, the 1st defendant, in fact there was partition and the properties in relation to which now shares are being claimed by the plaintiffs had fallen to the share of the deceased husband of the 1st plaintiff and the father of the 2nd plaintiff. On further discussion, the learned Judge relied upon the evidence of D.W.1 and also D.W.4 and came to the conclusion that Ex.B-7 amount was borrowed for the purpose of medical treatment of the husband of the 1st plaintiff and hence a direction was given that the same to be adjusted in favour of the 1st defendant. The evidence of D.W.2, the 3rd defendant, who is none other than the son of the 1' plaintiff and D.W.3, the brother of the 1st defendant, also was appreciated at length end findings had been recorded.

11. Points for consideration: In the light of the contentions which had been advanced by both the Counsel on record, the following Points arise for consideration in this Appeal:

1. Whether the findings recorded by the learned Judge in relation to the shares of the plaintiffs in plaint A, B and C schedule properties are to be confirmed or the said findings are liable to be disturbed in the light of the oral and documentary evidence available on record and the findings recorded by the learned Judge?

2. If so, to what relief the parties would be entitled to?

12. Point No. 1: On behalf of the plaintiffs, the 1sl plaintiff was examined as P.W.1. P.W.1 deposed in detail in relation to the family affairs and also Ex.A-1 - registration extract of the sale deed dated 5-9-1985, Ex.A-2 -registration extract of the sale deed dated 14-8-1982, Ex.A-3 - registration extract of another sale deed, Ex.A-4 - registration extract of yet another sale deed of the same date 14-8-1982, Ex. A-5 - registration extract of the sale deed dated 20-9-1977 were marked. Though the discussion in relation to Exs.A-1 to A-4 may not be very relevant, as far as Ex.A-5 is concerned, there is some serious controversy between the parties but however in relation to the identity of this property, whether this self-same property covered by the plaint schedule, findings in detail had been recorded and hence the said findings are liable to be confirmed. In view of the same, the question whether the non-impleading of the purchaser under Ex.A-5 would in any way vitiate or affect the findings in relation to the said extent of Acs. 1-00 of land said to be covered by the said transaction may fall into insignificance. At any rate, even if to be taken as a transaction executed by the 1st defendant, in the light of the findings recorded in relation to partition the property which had fallen to the share of a divided son should not have been alienated by the father.

Even otherwise, in the light of the findings recorded in relation to identity, no further discussion need be made in this regard. It is needless to say that the said findings are hereby confirmed.

13. D.W.1 is the 1st defendant. D.W.2 is the 3rd defendant. D.W.3 is the brother of the 1st defendant and D.W.4 was examined to speak about the debt contracted by the husband of the 1st plaintiff. Ex.B-1 is the notice issued by the father of P.W.1 to 1st defendant calling upon him to pay the debt due under the promissory note. Ex.B-2 is the receipt dated 25-3-1972. Ex.B-3 is the registered notice issued by P.W.1 dated 7-12-1979. Ex.B-4 is the acknowledgement. Ex.B-5 is the reply notice, Ex.B-6 dated 31 -5-1980 is the gift deed executed in favour of 1 st defendant and his three brothers by Venkanna and others. Ex.B-7 is the promissory note executed by late Ammiraju in favour of D.W.4. Ex.B-8 is the payment endorsement and Ex.B-9 is the receipt issued by the Commissioner in respect of movable properties relating to the 1st plaintiff.

14. The relationship between the parties is not in serious controversy. The specific stand taken by the plaintiffs is that the husband of the 1st plaintiff and the father of the 2nd plaintiff died intestate leaving the plaint schedule properties behind him and hence the said properties are liable for partition. The stand taken by the 1st defendant is that the husband of the 1st plaintiff suffered with cancer and in that connection huge amounts were spent and the 1st plaintiff went to the parents house for delivery of 2nd plaintiff and she did not return to the house of the father-in-law and she had even neglected and at least did not see the ailing husband. It was also the specific case of the 1sl defendant that Ex.B-7 promissory note for Rs. 10,000/- was executed in favour of D.W.4 and the said amount may have to be compensated. Though the 1st defendant had taken the stand that there was no partition by metes and bounds and the same was only a tentative arrangement between the parties, on appreciation of the evidence available on record, the learned Judge recorded positive findings relating to the prior partition between the parties. Even otherwise, this question was not seriously canvassed by either of the parties in the present Appeal.

15. P.W.1 deposed in detail about all the family affairs and also she had narrated the details of the properties also and the shares allotted to the respective parties. P.W.1 also deposed that the 1st defendant kept her son i.e.,his grandson, 3rd defendant, representing that he would educate him and the grand father D.W.1 had not allowed the 3rd defendant-D.W.2 to join her with the fond hope of protecting the properties and also avoiding delivery of the properties. No doubt she denied the borrowing of amount of Rs. 11,000/- and the other aspects. But however, on appreciation of evidence, the said stand was not believed. D.W.1 had narrated all the details which in fact he had averred in the written statement. This witness also deposed about the partition in between himself and his brothers. The evidence of D.W.1 and D.W.3 was appreciated at length and the admissions made by this witness also had been taken into consideration apart from the documentary evidence available on record and findings had been recorded that there was partition between the 1st defendant and his sons. The evidence of D.W.2 also was appreciated. D.W.2 had deposed about certain general aspects in relation to the family. In view of the age of D.W.2 his evidence need not be given much importance in relation to the family affairs. D.W.4 deposed that the 1st plaintiff's husband borrowed a sum of Rs. 11,000/- under Ex.B-7. The learned Judge had taken into consideration the evidence of D.W.4 coupled with the evidence of D.W.1 and believed the promissory note transaction Ex.B-7 and in fact he had given a direction that the said amount to be adjusted. This direction in the considered opinion of this Court is a just and equitable direction. The learned Judge also had taken into consideration Section 29-A of the Hindu Succession Act 1956 as amended by A.P. Act 13 of 1986 and in view of the fact that the 2nd plaintiff was an unmarried daughter on the date of institution of the suit i.e., 31-1-1989 positive finding had been recorded that she is also entitled to claim share on par with a co-parcener i.e., the son of the 1st plaintiff. Section 29-A aforesaid which was introduced by A.P. Act 13 of 1986, dealing with Equal rights to daughter in coparcenary property reads as hereunder:

Notwithstanding anything contained in Section 6 of this Act, -

(i) in a Joint Hindu Family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son, inclusive of the rights to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son.

(ii) at a partition in such a Joint Hindu Family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:

Provided that the share which a predeceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the petition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;

Provided further that the share allotable to the pre-deceased child of a predeceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be alloted to the child of such pre-deceased child of the pre-deceased son or of the predeceased daughter as the case may be.

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) 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 inforce, as property capable of being disposed of by her by will or other testamentary disposition;

(iv) Nothing in Clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986.

In I. Pulla Reddy v. I Seshi Reddy 1987 (2) ALT 210 the learned Judge held:

By operation of Sub-section (iv) of Section 29-A of the Amendment Act, an unmarried daughter is entitled as a coparcener to seek partition. The Amendment Act provides that notwithstanding Section 6 of the Hindu Succession Act, Section 29-A resurrects the lost place to a daughter declaring that in a Joint Hindu Family governed by Mitakshara Law, the daughter by birth became a coparcener in her own right as a son and shall have the same rights in the coparcenary in her own right in the same manner as a son; in the coparcenary property she shall be entitled by survivorship to an equal share along with the son with the same liabilities and disabilities enjoined in that regard on the son; that she is entitled at a partition of coparcenary property to be allotted an equal share with the son and shall in terms of Sub-section (iii) thereof, she holds the property obtained at a partition as a full owner.

In G. Hanumanatha Rao v. G. Prakasham 1989 (3) ALT 646 it was held that a plain reading of Clause (iv) of Section 29-A shows that the right conferred under Clause (ii) does not apply to a daughter married prior to or to a partition which had been effected before the commencement of the Act i.e., if any one of these conditions is there, the daughter will not be entitled to a share in the property. It was also further held that since Clause (iv) of Section 29-A says that nothing an Clause (ii) shall apply to a daughter married prior to the commencement of the Act, she will not get the rights conferred under Clause (ii).

16. In the light of the clear language of Section 29-A of the Act aforesaid and also in view of the fact that the 2nd plaintiff, daughter, was an unmarried daughter as on the date of institution of the suit i.e., 31-1-1989 inasmuch as the said provision came into effect long prior thereto, the daughter also is entitled to a share on par with the other coparcener, the brother. Hence the findings recorded by the learned Judge in this regard also cannot be found fault and the said findings are hereby confirmed.

17. Viewed from any angle the learned Judge had appreciated the evidence of P.W. 1, D.W.1 to D.W.4 and also Exs.A-1 to A-5 and Exs.B-1 to B-9 in all thoroughness and the learned Judge not only granted the preliminary decree for partition relating to the respective shares, the learned Judge also just confined the division in relation to the movables as specified in Ex.B-9 Memo of the Commissioner and a further direction in equity was granted relating to the adjustment of the debt contracted by the husband of the 1st plaintiff under Ex.B-7. Hence the findings are well considered findings and hence they need not be disturbed and accordingly all the findings recorded by the learned Judge are hereby confirmed.

18. Point No. 2: In the light of the foregoing discussion, the Appeal is devoid of merit and accordingly the same shall stand dismissed. However, in view of the close relationship between the parties, the parties to the litigation to bear their own costs.