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Andhra Pradesh High Court
Judges : S.V.MARUTHI
Musini Leela Prasad - Appellant
Versus
Musini Bhavani - Respondent
Decided On : 01-20-95
PARTITION - HINDU SUCCESSION ACT, 1956 - SECTION 8 - ANCESTRAL PROPERTY INHERITED BY SON ON FATHER'S DEATH - TREATED AS SEPARATE PROPERTY - SON BORN TO HIM NOT ENTITLED TO SHARE BY BIRTH - MAINTENANCE - WIFE ENTITLED TO MAINTENANCE ON ACCOUNT OF ILL-TREATMENT AND KEEPING A WOMAN.
Fact of the Case:
Plaintiff, the wife of the first defendant, filed a suit for partition of ancestral joint family properties and possession of her share, as well as maintenance due to ill-treatment and keeping of a Muslim woman by the first defendant. The first defendant denied the plaintiff's claims and contended that the properties in question were purchased with his funds in the name of the third defendant benami and for the benefit of himself and the second defendant. The third defendant claimed that the properties were her stridhana properties and that she was the absolute owner.
Finding of the Court:
The trial court found that the properties in question were the separate properties of the third defendant and not available for partition. It also found that two sons were born to the plaintiff and the first defendant, who died immediately after birth, and that the plaintiff was entitled to a share in the ancestral properties. The court awarded maintenance to the plaintiff at the rate of Rs. 50/- per month with a charge on the first defendant's share in the ancestral property.
Issues: 1. Whether the properties in question were purchased with joint family funds benami in the name of the third defendant and whether they are the joint family properties of the first and second defendants? 2. Whether a son was born to the first defendant on 6-2-1971 and whether the son died immediately and whether the plaintiff became entitled to the share of the alleged deceased minor? 3. Whether a son was born to the first defendant on 19-9-1974 and whether such son died immediately after birth and whether the plaintiff became entitled to the share of the alleged deceased minor son? 4. Whether the plaintiff is entitled to seek for partition of "a and b" schedule properties and if so, to what share she is entitled . 5. Whether the abandonment, legal cruelly and illtreatment and keeping of a muslim woman by D1 are true? 6. Whether the plaintiff is entitled to claim maintenance and if so. at what rate? 7. Whether the "c" schedule property is true and existing and whether the plaintiff is entitled to recover possession of the same".
Ratio Decidendi: 1. The court relied on the judgment of the Supreme Court in W. T. Commr. Kanpur v. Chander Sen, which held that ancestral property inherited by a son on the death of his father shall be treated as his separate property and a son born to him is not entitled to a share by birth. 2. The court found that the plaintiff gave birth to two sons who died immediately after birth, and that she was entitled to a share in the ancestral properties as the heir of her two sons. 3. The court held that the first defendant was justified in fixing the maintenance at the rate of Rs. 50/- per month, and that there should be a charge on the first defendant's share in the ancestral property.
Final Decision: The appeal was allowed in part. The decree for partition was modified to exclude the 1/9th share inherited by the first defendant on the death of his father, and the plaintiff was awarded a 1/6th share plus a 1/12th share as the heir of her two sons. The maintenance order was upheld.
( 1 ) THE first defendant is the appellant. The plaintiff is the wife of the first defendant. She filed a suit in forma pauperis for partition of the plaint a Schedule properties by metes and bounds and as per good and bad qualities into three equal shares and for possession of one such share to the plaintiff after ejecting the defendants therefrom and forcosts of the suit. The averments of the plaint, in brief, are as follows -
( 2 ) THE plaintiffis the legally wedded wile of the first defendant. The second defendant is the undivided brother of defendant No. 1, while defendant No. 3 is the mother of defendants 1 and 2. Sri Musini Narasimhamurty, is the father of defendants 1 and 2 and the husband of the third defendant. The immovable properties described in the plaint "a" schedule arc the ancestral joint family properties of the said joint family. The said Narasimhaimirty, died intestate and undivided from his sons in or about 1960. He left behind him his two sons i. e. defendant No. 1 and defendant No. 2 and his widow defendant No. 3 as his sole heirs under law. Therefore his undivided 1/3rd share in plaint a schedule properties devolved on defendants 1 to 3 in equal shares. Subsequently, defendant No. 1 and defendant No. 2 purchased the properties described in the plaint b schedule with the income derived out of the ancestral properties, in the name of the mother i. e. the defendant No. 3 benami and for the benefit of defendant No. 1 and defendant No. 2. The first defendant is thus having an undivided 1/3rd share in the plaint "a" schedule properties on his own right and has another undivided 1/3rd share out of his father s 1/3rd share in the same i. e. 1/3rd plus 1/9th =4/9th share in the plaint a schedule properties and an undivided half share in plaint b schedule properties. While so, a son was born to defendant no. l through plaintiff on 6-2-1971 and immediately thereafter he died. Consequently, the said child s half share acquired by birth in defendant No. 1 s 4/9th share in plaint a schedule properties and half share in plaint b scheduled properties i. e. 4/18th, 2/9th share in plaint a schedule properties and 1/4th share in plaint b schedule properties devolved on his mother, the plaintiff. Subsequently, another son was bom to the first defendant through the plaintiff on 19-9-1974 and he also immediately died. Consequently his undivided half share outof the remaining 2/9th share in plaint "a" schedule and th share in plaint b schedule properties devolved on the plaintiff. The first defendant is an employee in the Postal department working as a Postman drawing about Rs. 450/- per incnsuni. He developed illicit intimacy with a Muslim woman by name gulzar and started ill-treating the plaintiff as she protested against his ways of life. Ultimately during April, 1976 the plaintiff was driven out by the first defendant and the plaintiff had no option but to return to her parents house at Pedalanka, Hamlet of Kesarakurru. where her father was working as a Mile Cooli in Public Works Department. All samans of the plaintiff and her movables described in the plaint c schedule arc with defendant No. 1 and the plaintiff was not allowed even to take them with her. Hence the plaintiff claimed partition of plaint "a" and "b" schedule properties and possession of her share in the said properties and also claimed return of her movable properties described in plaint c schedule or costs of the same to be paid to her. She also claimed payment of Rs. 200/- per mensum towards her separate residence and maintenance hence the suit for partition and separate possession of her share and also for maintenance at the rate of Rs. 200/- per month.
( 3 ) DEFENDANT No. 1 filed a written statement which was adopted by the second defendant. Defendant No. 1 admitted the relationship between the plaintiff and himself and also the plaint "a" schedule properties are ancestral joint family properties. He denied the aver
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