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Andhra Pradesh High Court
Judges : S.V.MARUTHI
Srinivas Kumar Mowle - Appellant
Versus
Chandra Shekharmowle - Respondent
Decided On : 03-25-96
HINDU SUCCESSION ACT, 1956 - SECTION 26 - CONVERT'S DESCENDANTS DISQUALIFIED - APPLICABILITY - SUCCESSION OPENED BEFORE CONVERSION - NO DISQUALIFICATION.
Fact of the Case:
The appellant challenged the preliminary decree for partition passed by the trial court, contending that the first defendant was not the legally wedded wife of the deceased, the fourth defendant was not entitled to a share in the property after changing his religion, the sixth defendant was not the daughter of the deceased, and the appellant was entitled to reimbursement for expenses incurred in releasing gold jewellery from attachment and prosecuting an appeal in the Supreme Court.
Finding of the Court:
1. The first defendant was the legally wedded wife of the deceased and entitled to a share in the property. 2. The fourth defendant, who changed his religion after the succession opened, was not disqualified from inheriting the property. 3. The sixth defendant was the daughter of the deceased and entitled to a share in the property. 4. The appellant failed to establish that he spent money from his pocket or borrowed from a financial institution to release the gold jewellery and prosecute the litigation, and he failed to prove that he handed over the jewellery to the first respondent.
Issues: 1. Whether the first defendant was the legally wedded wife of the deceased and entitled to a share in the property? 2. Whether the fourth defendant, who changed his religion, was disqualified from inheriting the property? 3. Whether the sixth defendant was the daughter of the deceased and entitled to a share in the property? 4. Whether the appellant was entitled to reimbursement for expenses incurred in releasing gold jewellery from attachment and prosecuting an appeal in the Supreme Court?
Ratio Decidendi: 1. The finding that the first defendant was the legally wedded wife of the deceased was based on the admission of the appellant and the lack of evidence disputing it. 2. Section 26 of the Hindu Succession Act, 1956, which disqualifies children born to a person who converted to another religion, does not apply to the fourth defendant because the succession opened before his conversion. 3. The finding that the sixth defendant was the daughter of the deceased was based on a school leaving certificate and the lack of evidence disputing it. 4. The appellant failed to establish that he spent money from his pocket or borrowed from a financial institution to release the gold jewellery and prosecute the litigation, and he failed to prove that he handed over the jewellery to the first respondent.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS appeal arises out of a judgment in O. S. No. 287/78. The second defendant in the suit is the appellant. The plaintiff filed the suit for partition of a and B schedule properties and for allotment of 1/8th share.
( 2 ) THE brief averments in the plaint are that Late Prabhakara Rao Moule was the original owner of the properties mentioned in the plaint schedule. He left behind him the first defendant his widow, defendants 2 to 4 his sons and defendants 5 to 7 his daughters. Prabhakar Rao Moule died on 8-2-75. According to Hindu Law, the plaintiff and defendants 1 to 7 are entitled to get 1/8th share each in the schedule properties both movable and immovable properties left by Late Prabhakar Rao Moule. The plaintiffand defendants 1 to 7 are in possession of the entire suit properties both movable and immovable. In spite of repeated requests,defendants 1 to 7 refused to effect partition of the entire estate of Late Prabhakar Rao Moule. Therefore, the suit for partition.
( 3 ) THE first defendant filed a written statement contending that she is the second wife of Late Prabhakar Rao Moule and she is entitled to 1/3rd share in the properties belonging to the deceased Prabhakar Rao Moule. She also stated that she requires at least Rs. 300/- per month for maintenance and defendants 2 to 4 are responsible to pay the said amount. She denied that the plaintiff is entitled to 1/8th share and stated that the plaintiff is entitled to 1/12th share in the properties.
( 4 ) THE second defendant filed a written statement admitting the relationship between the plaintiff and Prabhakar Rao Moule. However, he stated that the first defendant is not the widow of Prabhakar Rao Moule and she was only a cook. He further stated that the 4th defendant changed his religion and became muslim. Therefore, he is not entitled to claim any share in the Joint family property. Defendants 5 and 7 are daughters of late Prabhakar Rao and the real sisters of the plaintiff and this defendant. The plaintiff deleted the name of the 5th defendant from the array of defendants. Deleting the name of the 5th defendant from the array of the defendants will affect the suit and the plaint is bad for non-joinder of necessary party. The presence of Defendant No. 5 is necessary in order to enable the Court effectively and completely to adjudicate upon and to settle all the questions involved in the suit. The 6th defendant is not the daughter of Prabhakar Rao Moule and therefore, she is not entitled to a share in the property. Defendants 1, 2 (sic.), 4 and 6 are not entitled to inherit the joint family property left by Prabhakar Rao Moule. The third defendant is also not entitled to any share in the joint family property due to his conduct. He stated that there is no gold jewellery even to the extent of needle s head. The gun has been deposited with the International Arms and Armoury, M. G. Road, secunderabad as per law. He being the Karta of the family is in possession of a schedule property and he was managing the property even during the life time of late Prabhakar Rao Moule. He received A-schedule property from the execution proceedings (E. P. No. 16 of 1977) on the file of the first Additional judge, City Civil Court, Hyderabad between Dinshawji Italia vs. Prabhakar Rao moule. To save the property from the said attachment, he paid a sum of rs. 40,000/- towards the full and final settlement of the said decree and thus he saved the property from being auctioned. He also spent more than rs. 20,000/- for filing an appeal in the Supreme Court against D. D. Italia. He borrowed an amount of Rs. 60,000/- from financers and Banks towards the satisfaction of the decrees and he is paying the same with heavy interest
( 5 ) THERE are E. P. No. 45/74 on the file of IV Addl. Judge, City Civil Court, hyderabad and E. P. No. 22/74 and E. P. No. 23/74 on the file of II Addl. Judge, city Civil Court, Hyderabad towards the debts of late Prabhakar Rao Moule. He is facing t
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