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1979 Supreme(AP) 5

Andhra Pradesh High Court
Judges : A.GANGADHARA RAO
KISHTA BAI - Appellant
Versus
RATNA BAI - Respondent
A.S. No 803/76
Decided On : 01-01-79
Advocates Appeared :
.

Headnote:HINDU SUCCESSION ACT, 1956, Secs, 6. 8,9 and 10 and Hindu Law - Mitakshara Law -Joint family properties - Partition - Death of a person intestate after the Act - Extent of the share of the wife obtaining the death of such person. Explained

       Held : In South India including the State of Andhra Pradesh when a father, who is governed by Mitakshara Law effects a partition with his sons during his life time no share is given to his wife. In the present case, in view of Explanation I to Sec, 6, his interest shall be 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 Hiudu Law rule prevailing in this state, 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 his son, two daughters and mother each take 1/5th share and his two widows together take 1/5th share in his half share It means each of the sharer gets 1/101 and the widow plaintiff gets 1/20th for her share.

       A.I.R. 1978 SC 1239 Distinguished

       A.S. Dismissed

A. GANGADHARA RAO, J.

( 1 ) WHAT is the quantum of share to which a wife is entitled to, in this state, in a partition of Hindu Mitaksbara joint family properties, after the death of her husband intestate, after the Hindu Succession Act, 1956 came into force? That is the main question that falls for consideration in this appeal. I will only state the facts to the extent they are necessary for deciding the questions raised in this appeal. The plaintiff is the appellant. She is the first wife of Lachma Reddy. The 1st defendant is his second wife, the 2nd defendant is the unmarried daughter, and the 3rd defendant is the son of the 1st defendant. The 4th defendant is the daughter of the plaintiff. She is married. The 5th defendant is the mother of Lachma Reddy. Lachma Reddy died in July, 1967. The plaintiff filed the suit for partition of the plaint A, B and C schedule properties and for separate possession of her l/6th share in those properties. a schedule properties are lands at Amdapur, Manthani and Pipri; b schedule is a house and shop at Manthani; and c schedule is cash and Life Insurance Policy amount. Her case is that they are the self-acquired properties of late Lachma Reddy. The 1st defendant contended that they are the joint family properties of Lachma Reddy; besides she stated that survey number 212/4, 5, 6 and 7 of Amdapur village, and survey number 94 of Manthani village of Armoor Taluk, which were not included in the plaint schedule, were also the joint family properties and liable for partition. In addition, she claimed that Rs. 20,000/-should be provided for the marriage expenses of the 2nd defendant. The learned Subordinate judge, on a consideration of the evidence, found that the plaint schedule properties were joint family properties, but not the self acquired properties of late Lachma Reddy, that the lands at Amdapur and Manthani villages mentioned in the written statement, were also joint family properties liable for partition, that Rs. 14,000/-should be provided for the marriage expenses of the 2nd defendant, and that the share of the plaintiff in the joint family properties was l/20th but not l/6th. In this appeal, it is submitted by Sri B. Anjaneyulu the learned counsel for the appellant, that the plaint schedule properties are the self-acquired properties of Lachma Reddy, but not the joint family properties. Lachma Reddy was the Asaldar Mali Patel of the village getting a salary of Rs. 33/-per month and Rs. 300/-a year on revenue collections. He was also doing abkari and beedi leaves contracts now and then. The evidence of D. Ws. 1 to 6 shows that Lachma Reddy inherited about 30 acres of wet land and a bouse from his father, that he sold them and purchased the suit lands, and the only ancestral property left unsold is about 11/2 acres of wet land at Manthani village. The plaintiff had deposed that she was not aware of the extent of the land her husband had inherited from his father, nor as to how and when her husband had acquired the suit lands. The income received by him as Mali Patel was meagre and it would have been hardly sufficient to maintain his family. It is true that he was doing some contracts now and then, but we have no evidence as to the income be had received from them. There was sufficient nucleus of joint family property inherited by him from his father. In these circumstances T have no hesitation in holding that the suit properties are the joint family properties, but not the self-acquired properties of late Lacbma reddy. Tt was submitted that the lands in survey number 212/4, 5, 6 and 7 of amdapur village, and survey number 94 of Manthani village of Armoor Taluk were given on patta to plaintiff s brother, Ganga Reddy as a political sufferer and, therefore, they could not form the subject matter of partition. But, there is evidence to show that they are the properties of Lacbma Reddy. Pahanies, Exs. B-2, B-3 and B-5 mention that Lachma Reddy was the pattadar and was in possession of s

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