VERDICTUM.

IN

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

SECOND APPEAL No.835 of 2008

JUDGMENT:

This Second Appeal is filed against the Judgment and

Decree dated 08.02.2008 in A.S.No.15 of 2005 passed by the

learned Senior Civil Judge, Vikarabad, in which the Judgment

and decree dated 11.08.2005 in O.S.No.21 of 1997 passed by

the learned Junior Civil Judge, Chevella was confirmed.

2. Appellants/plaintiffs are daughters of respondent herein.

They filed a suit in O.S.No.21 of 1997 against the

respondent/defendant for partition and separate possession.

The plaintiff No.1 examined herself as P.W.1 and also got

examined P.Ws.2 and 3 on behalf of the plaintiffs and marked

Exs.A1 to A3. The defendant examined himself as D.W.1 and

also got examined D.W.2 on his behalf and marked Exs.B1 and

B2. The trial Court after considering the entire evidence on

record, dismissed the suit and the same was also confirmed by

the first appellate Court. Aggrieved by the said Judgment,

appellants/plaintiffs preferred the present second appeal.

3. Appellants/plaintiffs raised the following substantial

questions of law:
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“I. Whether the courts below has right in view of the

admission of the mother of the plaintiffs during their
minority their claim to share in the joint family property is
lost as a coparcener as per the amendment Act 39/2005
read with State Amended Act of 1986.
II. Whether in view of the amendment to Section 6 of the
Section 29 of the Hindu Succession Act, 1956 by Act
39/2005, the distinction of married and unmarried as per
Hindu Succession (A.P Amendment) Act, 1986 stands
impliedly repealed.
III. Whether the finding of court below rejecting the share to
daughter inspite of existence of the joint family properties
described in the plaint liable for partition at the instance of
the daughter coparceners as per amended Act 39/2005 as
the devolution of interest in the coparcener property is on the
basis of the survivorship.
IV. Whether the admission by the P.W.1 mother of the
plaintiffs that she received money for maintenance of
daughter will invalidate the right for the partition properties
as per the amendment Act 39/2005 as no partition has
been pleaded by the respondent till the filing of the suit.
V. Whether the daughter/coparcener of Hindu mitakshara
family shall be deemed to have share in the property that
would be allotted to her on the basis of survivorship.”

4. The plaintiffs in the suit are the daughters of the

defendant, but presently they are residing in their maternal

uncle’s house at Parveda village along with their mother. They

stated that defendant necked out their mother from his house

due to some family disputes. The defendant is having ancestral

lands in Sy.Nos.21/U/E, 22/A, 40/A, 103/1A, 103/2/A/E and

48/A admeasuring Ac.0 – 29gts, Ac.0 – 07 gts, Ac.0 – 13 gts,

Acs.2 – 02 gts, Ac.0 – 03 gts and Ac.0 – 20 gts respectively,

totally admeasuring Acs.3 – 34 gts situated at Kesaram Village,

Chevella Mandal, Ranga Reddy District. The defendant as

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pattadar succeeded the suit property after the death of his

father. Plaintiffs and defendant are having joint ownership over

the ancestral properties. Due to family disputes, their mother

T.Anasuya left the house of the defendant during their

childhood and residing separately in their maternal uncle’s

home and they were brought up by their mother. Though the

defendant was the natural father, he did not look after them.

Plaintiffs along with their maternal uncle went to the defendant

and requested him to help for the marriage of the plaintiff No.1,

but he refused. Even their mother also requested him, but he

abused them and warned them with dire consequences, as such

they filed the suit for partition and separate possession and

requested the Court to grant 1/3rd share to each of them.

5. In the written statement filed by the father of the

plaintiffs, he denied all the material allegations and stated that

after the birth of plaintiff No.2, the mother of the plaintiffs left

his company and residing at her parent’s house along with

plaintiffs. He also requested her several times to join him, but

she refused. Subsequently, a Panchayat was held and in the

said Panchayat elders decided to give Rs.30,000/- to the mother

of the plaintiffs towards their maintenance and total settlement

regarding the properties and accordingly he paid the said

 VERDICTUM.IN

amount by disposing of some of the suit lands. After receiving

the amount, the mother of the plaintiffs purchased lands in

Sy.No.114/AA admeasuring four acres and in Sy.No.114/1

admeasuring Ac.1 – 37 gts, situated at Parveda chenchalama

village of Shankerpally and she also constructed a house with

the monetary assistance of the defendant and the plaintiffs

along with their mother living in the said house and also getting

income from the agricultural land. At the instigation of the

maternal uncle of the plaintiffs, the mother of the plaintiffs filed

a complaint before the Mahila Dakshitha Samithi stating that

defendant harassed her for want of more dowry and the said

case was referred to Police, Chevella and after enquiry they

dropped further proceedings, as such the mother of the

plaintiffs and the maternal uncle of plaintiffs falsely filed the

suit against him and thus requested the Court to dismiss the

same.

6. The parties herein are referred as plaintiffs and defendant

as arrayed before the trial Court for the sake of convenience.

7. Plaintiff No.1 in her evidence stated that plaintiff No.2

is her younger sister and defendant is their father. They are

living in Parveda village from her childhood i.e., for the past 20
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years. About 6 to 7 years ago she along with her sister and

mother approached the defendant for deciding about their

future, but he became anger and stated that he is not

responsible for their maintenance and marriages and he did not

allow them to enter into his house. After going to the Parveda

village, in consultation with the elders, she along with her sister

filed the suit for partition as the suit lands are ancestral lands.

As there are no male children to her father, she along with her

sister are successors and coparceners of the joint family. She

filed pahanies of the said land under Exs.A1 to A3. It was

suggested to her that defendant paid Rs.30,000/- to their

mother and she purchased the land in their name and also

constructed a house, but she denied the same. She stated that

presently she is residing at her maternal uncle’s house.

8. In the Cross-examination she stated that she did not

remember the suit Survey numbers as she has not seen the suit

lands. The mother of her father died about 15 years prior to

filing of the suit and her father was not married again. She

along with her mother and sister went to the office of the M.R.O

and obtained the documents, she did not know the boundaries

of the suit lands and the names of the adjacent land owners.

She did not know about the Panchayat conducted before the
 VERDICTUM.IN

elders and payment of Rs.30,000/- by his father to her mother

towards permanent settlement. She admitted regarding filing of

complaint before Mahila Dakshitha Samithi. She stated that her

mother’s name is Anasuyamma, her father’s name is Mallaiah,

her maternal surname is Yenkethala and maternal uncle’s name

is Anjaiah. She also stated that her mother was not having any

employment and she has no source of income. She further

stated that her maternal uncle Anjaiah purchased lands in

Sy.No.114/1 admeasuring Ac.1 – 37 gts, Sy.No.114/AA

admeasuring 4 acres in the name of her mother. She also stated

that the name of her mother was wrongly written and the name

of the wife of her maternal uncle Anjaiah is also Anasuya, but

they had not get it rectified.

9. P.W.2 is the mother of P.W.1. She stated that about 11 or

12 years back, she left the company of the defendant and from

then onwards she was residing in their parent’s house at

Parveda village along with her daughters by doing some Cooli

work. She along with her daughters demanded the defendant for

partition of the ancestral properties admeasuring 4 acres

situated at Kesaram village, but the defendant refused and also

trying to dispose of the same. She stated that defendant never

paid Rs.30,000/- towards her maintenance and she has not

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purchased any properties with the said amount. In the

Cross-examination, she stated that her husband name is

Mallaiah and her parent’s surname is ‘Enkathala’. She also

stated that when she left her husband, plaintiff No.1 was aged

about 3 years and plaintiff No.2 was aged about 1½ year. She

clearly stated that no Panchayat was held before the elders. It

was suggested to her that she purchased a land to an extent of

Acs.5 – 37 gts, land in Sy.No.114/1 admeasuring Ac.1 – 37 gts,

land in Sy.No.114/A admeasuring 4 acres, but she denied it. It

was also suggested that the house in which she was living was

also purchased by her, but she denied it. She further stated as

follows:

“It is true after joining my parents, at no point of

time I have come to defendant and that the defendant
has requested me several times to join him and that on
my failure to join, he held a panchayat and in the said
panchayat myself and the children were given
Rs.30,000/- by the defendant towards our share in the
properties of the defendant and that out of the said
money, I have purchased the lands and house.”

It was also suggested that she along with her daughter has no

right to claim share in the properties of the defendant, as she

has received Rs.30,000/-, but she denied it.

10. P.W.3 is the resident of Parveda village. He stated that

plaintiffs and their mother are residing at Parveda village for the

past 15 years and the defendant was residing at Kesaram village

 VERDICTUM.IN

and he is the father of the plaintiffs. He also stated that

defendant never came to Parveda village to take back his wife

and children and he has not given any money or land to his wife

and daughters at any point of time. He further stated that he

attended the marriage of the plaintiff No.2. In the

Cross-examination, he stated that the house in which plaintiffs

are residing was constructed by the mother of the plaintiffs. He

also denied regarding receiving of Rs.30,000/- from the

defendant and purchased the property with the said amount.

11. The defendant in his evidence admitted that plaintiffs are

his daughters, plaintiff No.1 was residing with her husband at

Danur village and plaintiff No.2 was residing with her mother at

Parveda village. Since the birth of plaintiff No.2, his wife was

residing in her parent’s house at parveda village. He made his

best efforts to bring her back to the marital home, but she

refused to join him. He along with his wife attended before the

elders in the Panchayat. They have decided and advised him to

pay Rs.30,000/- towards permanent alimony and towards the

share of plaintiff’s property. Accordingly, he paid the said

amount as per the decision of the Panchayat and with the said

amount, she purchased land in Sy.No.114 admeasuring

Acs.5 – 37 gts situated at Parveda village with the surname of

 VERDICTUM.IN

Yenkathala W/o.Mallaiah and also constructed a house with the

said amount. Plaintiffs never resided with him after payment of

Rs.30,000/-. Prior to filing of the suit, she filed a false

complaint before Mahila Dakshitha Samithi, Hyderabad, but it

was closed. He also filed Exs.B1 and B2 to show that his wife

purchased the landed property in her name. In the

Cross-examination, he admitted that the suit schedule property

is the ancestral property and he did not know about the details

of his daughters. He also stated that he has not filed any

document to show that he paid Rs.30,000/- to his wife. He

further stated that he paid sale consideration to one

Dhanunjaya and he in turn paid to his wife, but he has not

obtained any receipt and he has not attested any document. It

was also suggested that his wife was residing in a rented house

and did not construct any house, but he denied it.

12. D.W.2 was aged about 80 years as on the date of

recording his evidence i.e., on 24.02.2005. He stated that he

along with other elders acted as elders in the Panchayat. As per

their decision, defendant paid Rs.30,000/- to the mother of the

plaintiffs in the presence of one Kummari Balaiah, Sale Anjaiah,

Goundla Beeraiah and also in his presence, but no paper was

executed at that time. He also stated that he was a village elder

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10

for all village Panchayats. When Mallaiah/defendant and

Anasuya/P.W.2 approached him, Panchayat was held orally

about 23 yrs back. He stated that the mother of the plaintiffs

took Rs.30,000/- and left the place. The persons in whose

presence the money was paid were no more. There was much

value for Rs.30,000/- about 20 years back. They have not

advised for any receipt after payment of amount to P.W.2. He

also stated that Anasuya left the defendant voluntarily, but they

never tried for settlement between them. It was suggested to

him that Anasuya never received Rs.30,000/- and relinquished

their right in the properties of defendant, but he denied it.

13. Now it is for this Court to see whether the trial Court and

the first appellate Court decided the matter on proper

appreciation of the facts or not.

14. The evidence of P.W.2 was misinterpreted by both the

Courts though she stated that no Panchayat was conducted and

no amount was paid to her. It was taken by both the Courts as

an admission of P.W.2 regarding the receiving of Rs.30,000/-

and purchase of properties under Exs.B1 and B2 with the said

amount. No doubt, D.W.2 who was the elder of the Panchayat

stated that Panchayat was conducted before the elders and

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11

defendant paid Rs.30,000/- to P.W.2, it was an admitted fact

that no document was executed regarding the payment of

Rs.30,000/- by the defendant to P.W.2, but defendant stated

that he paid the said amount towards maintenance and also

towards the share of property. He further stated that with the

said amount, she purchased properties under Exs.B1 and B2

and also constructed a house and presently she was residing in

that house. No doubt, the sale deeds under Exs.B1 and B2 are

in the name of P.W.2 with her surname i.e.,Yenkathala.

15. Now it is for this Court to see whether the said amount

was paid towards permanent alimony or towards her share in

the properties of the defendant. The learned Counsel for the

appellants/plaintiffs argued that P.W.2 cannot relinquish the

share of her minor daughters. Moreover, until and unless

relinquishment deed was not registered, it was not acceptable.

In this case, there was no document executed between the

parties at the time of payment of Rs.30,000/- to P.W.2. Even if

it is presumed that Rs.30,000/- was paid by the defendant to

P.W.2, it can be presumed that the said amount was paid

towards permanent alimony and she has no right to relinquish

the shares of her daughters.

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12

16. The defendant has not married again. He himself stated

that he requested his wife to join him for several times. When

she refused, he got conducted Panchayat in the presence of

elders. Plaintiffs stated that the properties under Exs.B1 and B2

were purchased by her maternal uncle in the name of his wife

T.Anasuya, but her mother’s name was wrongly mentioned, but

they could not get it rectified. Admittedly, plaintiffs have not

examined their maternal uncle though he was accompanying

them to the Court whenever there was an adjournment. In fact,

the suit was also filed at his instance. The defendant in his

Cross-examination specifically admitted that the suit property is

the ancestral property, but the learned Counsel for the

respondent/defendant argued that as the plaintiffs approached

the Court for partition of property, it is for them to prove that it

is the ancestral property, but admitted facts need not to be

proved.

17. The learned Counsel for the appellants/plaintiffs

contended that no persons other than Kartha can relinquish the

right in the Hindu Undivided family property. Mother is not the

coparcener and not Kartha, as such she cannot relinquish

shares of her minor daughters. He relied upon the Judgment of

the Hon’ble Apex Court in the case of Prasanta Kumar Sahoo

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13

and others Vs. Charulata Sahu and others, 1 in which it was

held that relinquishment or alienation of undivided coparcenary

interest of a coparcener in favour of another coparcener without

the consent of that coparcener or the other coparcener is null and

void. It was also emphasized by the learned Counsel for the

appellant that under the Hindu Succession Act, oral

relinquishment/partition is not recognized and relied upon the

decision of the Hon’ble Apex Court in the case of Vineeta

Sharma Vs.Rakesh Sharma and others, 2 in which it was held

that a relinquishment or a partition or alienation of coparcener

share in a Hindu Undivided Family property can only be done by

way of the registered instrument and that any plea of oral

partition/relinquishment is untenable and unacceptable. Unless a

registered instrument has been executed and acted upon and the

same has been proven in a Court of law through public

documents no plea of relinquishment or partition can be set up to

deny the share of a coparcener. He further submitted that the

said law has also been held by the Hon’ble High Court of

Andhra Pradesh in Pasagadugula Narayana Rao Vs.

Pasagadugula Rama Murthy, 3 wherein the Court has

categorically held that any relinquishment or release of a

1
2023 SCC Online SC 360
2
2020 (9) SCC 1
3
2015 SCC Online 346
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coparcener share can only be by way of a written instrument and

in the absence, thereof a plea of release or relinquishment of

share cannot be entertained.

18. Both the Courts took a conclusion that the mother of the

plaintiffs in her examination admitted to have conducted

Panchayat, received Rs.30,000/- and relinquished the share of

her daughters. In fact, perusal of Cross-examination clearly

shows that there is no such admission and she expressly denied

the said fact. Though the Panchayat elder was examined as

D.W.2 and he stated regarding receiving of Rs.30,000/- by

P.W.2, no document was executed by P.W.2 regarding the same.

It cannot be presumed that the said amount was paid regarding

the share of properties of the defendant and there is no other

evidence to prove the oral relinquishment of the plaintiffs. Even

if it is presumed that P.W.2 received Rs.30,000/- and

purchased the properties under Exs.B1 and B2, it cannot be

said that she received the said amount towards shares of

plaintiffs and relinquished their right of partition. She cannot

relinquish the right of minors without their consent or

knowledge. The said amount might have received by her

towards permanent alimony. Moreover, defendant has not

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15

performed another marriage and he has no other legal heirs

except the plaintiffs No.1 and 2.

19. There was an amendment to Section 6 of the Hindu

Succession Act, 2005, in which it was clearly stated that

daughters are also having equal rights along with son. The said

amendment is proposed to remove discretion to give equal right

to daughters in the coparcenary property along with sons. The

Hon’ble Apex Court in Vineeta Sharma (supra) held as follows:

“134. The protection of rights of daughters as

coparcener is envisaged in the substituted Section 6 of
the 1956 Act recognises the partition brought about by a
decree of a court or effected by a registered instrument.
The partition so effected before 20-12-2004 is saved.

135. A special definition of partition has been carved

out in the Explanation. The intendment of the provisions
is not to jeopardise the interest of the daughter and to
take care of sham or frivolous transaction set up in
defence unjustly to deprive the daughter of her right as
coparcener and prevent nullifying the benefit flowing from
the provisions as substituted. The statutory provisions
made in Section 6(5) change the entire complexion as to
partition. However, under the law that prevailed earlier,
an oral partition was recognised. In view of change of
provisions of Section 6, the intendment of the legislature
is clear and such a plea of oral partition is not to be
readily accepted. The provisions of Section 6(5) are
required to be interpreted to cast a heavy burden of proof
upon proponent of oral partition before it is accepted such
as separate occupation of portions, appropriation of the
income, and consequent entry in the revenue records and
invariably to be supported by other contemporaneous
public documents admissible in evidence, may be
accepted most reluctantly while exercising all safeguards.
The intendment of Section 6 of the Act is only to accept
the genuine partitions that might have taken place under
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16

the prevailing law, and are not set up as a false defence

and only oral ipse dixit is to be rejected outrightly. The
object of preventing, setting up of false or frivolous
defence to set at naught the benefit emanating from
amended provisions, has to be given full effect.
Otherwise, it would become very easy to deprive the
daughter of her rights as a coparcener. When such a
defence is taken, the court has to be very extremely
careful in accepting the same, and only if very cogent,
impeccable, and contemporaneous documentary evidence
in shape of public documents in support are available,
such a plea may be entertained, not otherwise. We
reiterate that the plea of an oral partition or memorandum
of partition, unregistered one can be manufactured at any
point in time, without any contemporaneous public
document needs rejection at all costs. We say so for
exceptionally good cases where partition is proved
conclusively and we caution the courts that the finding is
not to be based on the preponderance of probabilities in
view of provisions of gender justice and the rigour of very
heavy burden of proof which meets the intendment of
Explanation to Section 6(5). It has to be remembered that
the courts cannot defeat the object of the beneficial
provisions made by the Amendment Act.”

20. Admittedly, there is no dispute regarding the relationship

between plaintiffs, defendant and P.W.2. No doubt, defendant

was residing away from his wife and children from the past 20

years and as per his Cross-examination, he has no knowledge

about the particulars of his children, he has not supported for

the marriage of P.W.1 and he has not married again and has no

other legal heirs. Plaintiffs filed suit for partition and as per the

amendment to Section 6 of the Hindu Succession Act,

daughters are also equally entitled for the share in the

properties of father along with sons. In this case, as defendant

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17

has no other sons, plaintiffs are equally entitled for share in the

properties of their father. The contention of the defendant that

he already paid Rs.30,000/- to P.W.2 towards maintenance and

also towards share of the plaintiffs in his properties cannot be

accepted. It can be presumed that he might have paid amount

to P.W.2 towards permanent alimony. P.W.2 has no right to

relinquish the share of her minor children. Until and unless

there is registered relinquishment deed, it cannot be relied

upon. In this case, no document was executed at the time of

payment of Rs.30,000/- to P.W.2, as such the contention of the

defendant that he paid the amount towards share of the

plaintiffs cannot be believed and also his arguments that P.W.2

relinquished the share of her minor child is not acceptable, as

such both the Courts misread the evidence of P.W.2. In the

Cross-examination of P.W.2, though there was no admission on

her part, they stated that she admitted regarding conducting of

Panchayat, receiving of the amount and relinquishment of the

shares of her minor children and dismissed the suit filed by the

plaintiffs and thus the Judgments of both the Courts is patently

erroneous and are liable to be set aside.

21. In the result, the second appeal is allowed, setting aside

the Judgment of the first appellate Court dated 08.02.2008 in

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A.S.No.15 of 2005 and also the Judgment of the trial Court

dated 11.08.2005 in O.S.No.21 of 1997. Appellants/plaintiffs

are entitled for 1/3rd share in the properties of

respondent/defendant. There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________
JUSTICE P.SREE SUDHA

DATE: 05.09.2023
tri
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19

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

SECOND APPEAL No.835 of 2008

DATE: 05.09.2023

TRI