D.H. Nasir, J.
1. This appeal arises from the judgment and preliminary decree dated 31-8-1984 in O.S. No. 51 of 1981 on the file of the Court of the District Judge at Adilabad.
2. By the impugned judgment, the learned District Judge held that the female sharers were not entitled to force the partition of joint family properties and that the houses in the suit schedule were ancestral properties. They could be partitioned only at the choice of the defendant who was the sole male heir. The learned Judge further held that the plaintiffs 1 and 2 were entitled to 1/4th share each in the lands, houses and the movebles and directed a preliminary decree to be prepared accordingly.
3. The appellant before this Court who was defendant in O.S.51/81 has challenged the same by this appeal on several grounds such as -
(1) Sy. No. 5/A of the schedule ought to have been held as the self acquired property of the defendant appellant and not liable for partition;
(2) According to Pahanis A-1 to A-4, the land in Sy. No. 5/A stood in the name of Alluri Ram Reddy, who had nothing to do with the family of the parties to the suit and by no stretch of imagination the said property can be termed as ancestral land available for partition;
(3) There was no basis for the trial Court to hold that Exs.B-2 to B-9 were got up for the purpose of the case;
(4) The mere fact that the appellant was earning only Rs. 50 to Rs. 60 could not have been taken as insufficient for constructing houses in items 4, 6 and 7 by the lower Court;
(5) No source of ancestral property was established to believe that the houses were ancestral properties;
(6) The decree for partition was unsustainable in law.
4. The learned Counsel for the defendant - appellant submitted that the respondents were the step sisters who had married long back and, therefore, they could not have been in possession of the disputed property. He further submitted that while there could be a presumption of joint family in a given case, the fact of actual possession was required to be established, which the respondents miserably failed to prove. Further according to him, the Will Ex.B-1 was proved and the respondents as daughters were each entitled to 1/3rd share only. After taking into account the father's share, it would be only 1/6th each and not 1/2 share to them and 1/2 to the appellant as held by the trial Court.
5. The trial Court raised the following issues:
(1) Whether Item No. 3 i.e., land bearing S. No. 5/A of Palsdhari and Item Nos. 4, 6 and 7 and movable properties are the joint coparcenary properties of defendant and his father late Pedda Ramulu and liable for partition?
(2) Whether late Pedda Ramulu executed a Will on 5-2-1980 bequeating his share in the coparcenary properties, in favour of defendant, if so, whether the same is true and binding on plaintiffs?
(3) Whether the plaintiffs are in joint possession of the suit schedule properties and Court fee paid is proper?
(4) To what relief the plaintiffs are entitled?
6. The plaintiffs' case before the trial Court was that Plaintiff No. 2 was the sister of Plaintiff No. 1 and the defendant was their step brother. Their father's name was Pedda Ramulu. The defendant was the son of his first wife. Plaintiff No. 1 was the daughter of the second wife and Plaintiff No. 2 was the daughter of his third wife. All the three mothers had died. The father of the parties had 30 acres of land in three survey numbers. He had four houses bearing Nos. 4-10, 4-20, 4-18 and 4-19. The Sy. Numbers of the agricultural lands were 31-B dry measuring 11-39 guntas, S. No. 5-B dry measuring 6-32 guntas and S. No. 5-A dry measuring 10-00 acres. Their father also had one cart, one bufallo, three pairs of bullocks and one cow. He died 5 or 6 years before the suit was instituted. At the time of his death, he was in possession of all the aforementioned properties. The Plaintiff No. 1 got 1/4th share in the property. She demanded her share, but the defendant refused to part with her share. Plaintiff No. 2 did not dispute that the plaintiff No. 1 was her step sister and the defendant was her step brother. She also said that the schedule properties were the properties of her father and they were ancestral properties. The lands were situated at Palsdhari (K) village. Houses were situated at Kuchalapur. No share was given to them from the said properties. Legal notice was, therefore, issued to the defendant, but the defendant did not give any reply. Further according to her, their father did not bequeath any property by a Will.
7. The defendant also did not dispute the relationship between the parties. He also admitted that S. No. 31/B was the ancestral property. S. No. 5/A, according to him was purchased jointly by his father and his paternal uncle from one Keshava Reddy. The lands in S. No. 31/B and 5/A fell to the share of his father in the partition. S. No. 5/B, was the self acquired property which was purchased by his father from one Baskar Reddy in 1963-64 for a consideration of Rs. 3,500/-. He was employed in Beedi factory of Madanlal and his income was Rs. 200 to Rs. 250/- per month. He used to sell and purchase the cattle, and was earning about Rs. 150/- per month from the same. He was cultivating S.Nos. 31/B and 5/B as the same were bequeathed to him under a Will in 1980 two or three days after Holi Purnima. One Mera Narsimulu was the scribe, but he was not alive. He wrote the Will according to the dictation given by his father in the presence of Vadla Kishtanna, Mukkeru Malleshu, Challa Kistanna. His father put his signature after the Will was read over to him. Ex.B-1 was the Will. His father did not give any rent to the plaintiffs. The plaintiffs were given gold and cattle after marriage. At the time of his father there was only a hut. He (defendant-appellant) made all the developments. There was one pucca house and two sheds. The cattle sheds were the self acquired properties. At the time of his death, his father had two bullocks and two carts, and the rest were purchased by him. Further according to the defendant appellant, the plaintiffs had no share by virtue of the Will executed by his father in his favour.
8. After examining the oral and documentary evidence, the learned Trial Judge held that only two bullocks and two cows constituted the joint family property as admitted by D.W.I, and thus held the first issue partly in favour of the plaintiffs and partly in favour of the defendant. He also held that the house property being items 4, 6 and 7 were also ancestral properties. There was no dispute that S. No. 31/B and 5/A which were listed as items 1 and 2 in the schedule properties were the ancestral property.
9. However, among the lands which the defendant claims S. No. 5-B situated at Palsadhari was the self acquired property and that he purchased this land from one Baskar Reddy for Rs. 3,500/- in 1963-64. However, the learned Trial Judge held that there was no reliable oral or documentary evidence supporting the defendant's contention that S. No. 5/B was his self acquired property and held that the defendant's case on this aspect was not correct.
10. As far as Will Ex.B-1 is concerned, it is recorded in paragraph 11 of the impugned judgment that the circumstances under which the Will was allegedly executed were suspicious. The burden was on the defendant-appellant to remove the doubts as regards suspicious circumstances. The witnesses examined by the defendant in support of the Will, according to the Trial Judge, were tutored witnesses. He too into consideration other facts and circumstances concerning the Will and finally held that the Will dated 5-2-1980 was a got up document for the purpose of the suit and could not be read in evidence. The learned Trial Judge thus answered the first issue in favour of the plaintiffs-respondents.
11. During the course of arguments in this appeal, the finding of the Trial Court with regard to the Will was not disputed. However, the question which was emphatically sought to be projected was the proposition of law that the female sharers were not entitled to enforce partition of the joint family properties by virtue of the bar imposed Under Section 23 of the Hindu Succession Act. It was argued before the lower Court on behalf of the defendant - appellant that the right was conferred upon Hindu widow Under Section 23 Sub-section (3) of the Hindu Women's Right of Property Act to seek partition of dwelling house and, therefore, the female heir was not entitled to enforce partition of dwelling house even though there was a sole male heir. This submission was made on the basis of the ratio laid down in the case of Bheemavarapu Malikarjuna Rao v. S. Chaturvedula Shivashankara Prasad, 1980 (1) ALT 30. The learned Trial Judge also took into consideration the commentary on page 1034 of 15th edition of "Hindu Law" by Mulla, which postulated that "there was nothing repugnant in the subject or context to prevent the operation of the rule laid down in Section 13(2) of the General Clauses Act to the effect that the plural shall include the singular and restriction will apply even where there is only one male heir who does not choose to divide his respective share in the dwelling house. It would seem that the right of a female heir to demand partition may be deferred and remain in abeyance under this section till the life time of the male heirs enumerated in Class I of the schedule or the last surviver of them unless a partition of the dwelling house is sought by any of them before such time. The restriction will cease to operate on the death of the last of such male heirs of the intestate".
12. Upon considering the ratio laid down by this High Court in Bheemavarapu's case, 1980 (1) ALT 30 as well as the aforesaid commentary from "Hindu Law' by Mulla, the learned Trial Judge arrived at a conclusion that the female sharers were not entitled to enforce the partition of their joint family houses and held that by virtue of the fact that the houses in the suit schedule were the ancestral properties, they could not be partitioned. The partition could be made only at the instance of the defendant-appellant, who was the sole male heir. With this situation in view, the Trial Court held that the plaintiffs 1 and 2 each were entitled to 1/4th share in the lands, houses and the movables. A preliminary decree was accordingly directed to be prepared in respect of the lands and the movables.
13. It was argued before the lower Court on behalf of the defendant-appellant as stated earlier that the female sharers were not entitled to seek partition of the joint family properties by virtue of the bar imposed Under Section 23 of the Hindu Succession Act. This submission was made on the basis of the ratio laid down in Bheemavarapu's case1.
14. However, Sub-section(3) of Section 3 of the Hindu Women's Rights to Property Act, 1937 provides that 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 however that she shall have the same right of claiming partition as a male owner.
15. The above provision is confined to the right of the widow inrespect of a dwelling house only. In the case before us, there are two daughters whose right to claim partition falls for our consideration, which is not confined to dwelling house only, it includes agricultural lands also and the females concerned are not widows.
16. Reverting to Section 23 of the Hindu Succession Act, 1956 which lays down that the right of any female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein, pre-supposes a situation where there are more than one son so that the undivided family dwelling-house is kept intact. The object of the section seems to be to prevent fragmentation of disintegration of a family dwelling house at the instance of a female heir to the prejudice of the male heirs. This section appears to have been based on the analogy of Section 4(1) of the Partition Act, 1893, which provides as under :
"Where a share of a dwelling house belonging to an undivided family had been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder undertakes to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholders and may give all necessary and proper directions in that behalf".
17. In the case before us, the defendant - appellant is the only son and, therefore, an undesirable situation as stated above which is sought to be avoided by the provision made in Section 23 of the Act is not likely to arise. The expression used "until the male heirs choose to divide their respective shares therein" makes it quite clear that the restriction on the right of the female heir to claim partition of the dwelling house looses all its meaning and emphasis by virtue of the fact that the male heir is defendant-appellant alone. Section 23 does not extinguish the right of the female heir to claim partition of a dwelling house, but merely postpones that right when there is more than one male heir until they choose to divide their property (Bhumidi Goverdhan v. Subhadramma 1994 A.P. 87). A superficial reading of the Section may lead to an impression that a female heir is not entitled to claim partition until all the male heirs choose to divide their respective shares. If this is to be followed by letter of law, the female heir will be constrained to wait until all the male heirs divide the properties before enforcing the partition which would cause considerable hardship to the female heir. If liberty can be given to the male heir to separate and disrupt the joint family, there is no reason why the female heir should be compelled to continue to enjoy the property along with the family without claiming partition. The same result can be achieved by saying that as soon as a member divides his share, he ceases to be a member of the family within the meaning of the section and the house ceases to be one wholly occupied by members of the family.
18. The principle that a joint family cannot be exposed to disruption by the act of a female heir to partition the dwelling house forming part and parcel of the joint family property is not likely to adversely affect the joint family status in our case by virtue of the fact that the deceased is survived by one male and two female members only; and in any case on account of the death of the father, the intestate property comprising the residential houses, agricultural lands and other movable properties have got to be divided between the heirs of the deceased even if no specific direction is given for partitioning the dwelling house property. In that view of the matter, therefore, the question of partitioning the property at the instance of the female heirs pales into insignificance.
19. The main thrust of the arguments advanced by the learned Counsel for the defendant-appellant was on the proposition of law that the daughters were only entitled to 1/3rd share each and after taking into account the father's share the daughters' share would stand reduced to only 1/6th each. It is, however, not true to say so. Under Section 8 of the Hindu Succession Act, 1956 ('Act' for short), the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II of the said Act:-
(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
Class I heirs specified in the Schedule Under Section 8 covers-
"Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son."
20. 'Daughter' means a married daughter or an unmarried daughter, who takes absolutely along with other heirs in Class I. In all schools of Hindu Law prior to the Hindu Succession Act the unmarried daughter excluded the married daughter. No such distinction is made under the Hindu Succession Act, 1956. Married and unmarried daughters take together. No distinction is made under the Act between the married daughters without means and those with means, whereas under the old law the former excluded the latter. Since the daughters are included in Class I heirs, they share equally with other heirs, who in the instant case is the appellant son only and, therefore, the two respondent daughters would take 1/3rd share each and the appellant son would be entitled to the remaining 1/3rd share only. The property in the instant case has devolved upon the two daughters and one son by intestate succession and not by a Will or by a partition of the property during the life time of the father. The Will, of course is pleaded by the appellant son, but the learned Trial Judge has recorded a finding that the same was not found to be admissible in evidence. The learned Counsel for the appellant fairly conceded the inadmissibility of the Will.
21. Since the entire property in the hands of the deceased father is held to be the ancestral property, it is true that each one of them namely, the deceased father, the appellant son and two respondent daughters were entitled to equal share, meaning thereby that each one of them was entitled to 1/4th share; but it is not true as submitted by the learned Counsel for the appellant that on the death of the father, the appellant son alone was entitled to inherit the entire share of the deceased father in addition to his own 1/4th share. In addition to the appellant son, in my view, both the respondent daughters would be entitled to an equal share from the 1 /4th share of the deceased father.
22. Under Section 9 of the Act, among the heirs specified in the Schedule, those in Class I are entitled to take simultaneously and to the exclusion of all other heirs, those in the first entry in Class II are preferred to those in the second entry; those in the second entry are preferred to those in the third entry; and so on in succession.
23. Under Section 10 of the Act, the property of an intestate had to be divided as heirs in Class I of the Schedule in accordance with the following rules-
Rule 1 - The intestate's widow, or if there are more widows than one, all the widows together, shall take one share-
Rule 2 - The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3 - The heirs in the branch of each predeceased son or each predeceased daughter of the intestate shall take between them one share-
Rule 4 - The distribution of the share referred to in Rule 3 -
(i) among the heirs in the branch of the predeceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his predeceased sons gets the same portion;
(ii) among the heirs in the branch of the predeceased daughter shall be so made that the surviving sons and daughters get equal portions.
24. Hindu Succession Act, 1956 has been given an over riding effect Under Section 4 thereof in the following terms:
"4. (1) Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings".
25. Section 6 of the Hindu Succession Act deals with devolution of interest in coparcenary property and provides as follows:-
6. "When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased has left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara copracenary property shall devolve by testamentary or intestate succession as the case may be, under this Act and not by survivorship".
26. By Hindu Succession (Andhra Pradesh) Amendment Act, 1986, Chapter II-A was inserted, to be effective from 5-9-1985. Under the said Chapter, Section 29-A deals with equal rights to daughter in coparcenary property and lays down as follows :-
29-A. "Notwithstanding anything contained in Section 6 of this Act:-
(a) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(ii) (a) at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same as is allowable to a son:
27. In the case of Kishta Bai v. Ratna Bai, 1979 (1) ALT 250, decided on 2-2-1979, Gangadhara Rao,}., held that in view of Explanation I to Section 6 of the Hindu Succession Act, 1956 the father's interest is deemed to be the share in the property which would have been allotted to him, if a partition had taken place immediately before his death. If such a partition had taken place, he would have been entitled, according to the Mitakshara Hindu Law Rule prevailing in the State of Andhra Pradesh, to half a share and his son to the remaining half a share. No share would have been given to his wives. After his death, in view of Sections 8, 9 and 10 of the Act, his half share devolves upon his heirs, that is his son, two daughters, two widows and mother.
28. In Pavitri Devi v. Darbari Singh, 1993 (3) SCALE 671, the Supreme Court was confronted with a case where one Brahmadeo Singh filed a partition suit against his brothers and their heirs claiming 1/6th share in the coparcenary properties mentioned in schedules attached to the plaint. The trial Court dismissed the suit. While F.A. No. 582/68 was pending in the High Court of Patna, he died on June 8, 1981. The appellant, Pavitri Devi filed an application for substitution of her and her son as legal representatives. Her claim was founded on two grounds, namely as the daughter of Brahmadeo Singh as well as the registered gift deed E.2 dated August 5,1980 executed by her father giving his entire share in the joint family property and put them in possession of 9.96 acres of land. The question before the Supreme Court was whether Brahmadeo Singh had power to dispose of his undivided share in the joint family property by testamentary disposition including by way of gift to his daughter and whether the interest held by him in the coparcenary property could be bequeathed by the gift deed and whether the gift over of the interest in the coparcenary property by Brahmadeo Singh was valid in law. Allowing the appeal, the Supreme Court held that having made the demand for partition and having filed the suit in that behalf claiming a specific share in the Mitakshara Coparcenary, Brahmadeo Singh stood divided in status from other members of the coparcenary, though partition by metes and bounds had not taken place, on the date of his death; he was a dividing member of the joint family. By operation of Section 30 of the Hindu Succession Act, he was entitled to dispose of his undivided share and the interest in the coparcenary property by testamentary disposition. It was further held that the evidence established that Pavitri Devi was the daughter of Brahmadeo Singh. She being the Class I heir succeeded to the estate of the deceased by intestate succession Under Section 6 of the Act and was entitled to represent the estate in the partition action. Accordingly by operation of Section 6 of the Act read with Order 22 Rule 3 of C.P.C, she was entitled to represent the estate of the deceased. The application for substitution succeeded. She was brought on record as legal representative of the deceased appellant and the order of the High Court was accordingly set aside and the matter was remanded to the High Court for disposal on merits.
29. In Nalla Venkateshwarlu v. Porise Pullamma, , a view was taken that Section 23 of the Hindu Succession Act does not extinguish the right of female heir to claim partition, but only postpones that right to enforce partition to claim a share in the dwelling house till such time as the male heirs choose to divide their shares.
30. It emerges clearly from the oral and documentary evidence read with the authorities considered above that neither the Will nor the appellant's claim of self acquired property could be considered for the purpose of partitioning the property. The proposition of law advanced on behalf of the appellant that the female sharers were not entitled to enforce the partition of the joint family properties can also not be upheld because in Bheemavarapu's case referred to above, it has been clearly held that the right of the female heir to demand partition may be deferred and may be kept in abeyance Under Section 23(3) of the Hindu Women's Right of Property Act to seek partition of dwelling house Under Section 23 of the Act. In any case this is not a material question confronting the Court. The real question relates to the extent of the property falling to the share of two sisters and one brother. The daughter is included in Class I heirs in the schedule to the Hindu Succession Act, 1956, irrespective of the fact whether any one of the daughter, was married prior to or subsequent to the death of their father. Under Section 9 of the Act, Class I heirs are entitled to take simultaneously and to the exclusion of all other Acts. Under Section 10 of the Act, Rule 2, the surviving sons and daughters and the mother of the intestate are each entitled to take one share under the proviso to Section 6 of the Act. If the deceased left behind him a female relative specified in Class I of the Schedule, the interest of the deceased in the Mitakshara coparcenary devoles by testamentary or intestate succession as the case may be under the Hindu Succession Act and not by survivorship.
31. Section 29-A incorporated into the Hindu Succession Act, to be effective from 5-9-1985 confers upon the daughter of a coparcener to be a coparcener in her own right, and on partition the coparcenary property is required to be so divided as to allot to a daughter the same as is allowable to a son. True, the amendment came into force from 5-9-1985, while the father of the three heirs before us died on 14-4-1980. The provision made in Section 29-A therefore cannot straightaway be applied to the facts of the present case. But one cannot be oblivious to the fact that the same intention as discussed in the above provision of Hindu Succession Act and the allied statutes are reflected precisely and unambiguously in Section 29-A of the Act.
32. A preliminary decree, therefore, shall be drawn in accordance with the observations made at page 17 of this judgment that each one of the parties shall be entitled to 1/4th share. In addition to such 1/4th share, the appellant son and each one of the two respondent daughters would be entitled to an equal share from the 1/4th share of the deceased father. To that extent the decree passed by the lower Court shall stands altered and modified. The appeal is dismissed, however, subject to the modification in the shares as aforementioned. No costs.