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Andhra Pradesh High Court
Judges : K.MADHAVA REDDY
Yethirajula Neelayya - Appellant
Versus
Mudumuru Ramaswami - Respondent
Decided On : 06-22-72
HINDU SUCCESSION ACT - SECTION 6 - JOINT FAMILY PROPERTY - DEATH OF COPARCENER - DEVOLUTION OF INTEREST - NO DISRUPTION OF JOINT FAMILY STATUS - COPARCENERS ENTITLED TO UNDIVIDED SHARE CAN MAINTAIN SUIT FOR RECOVERY OF POSSESSION FROM TRESPASSER.
Fact of the Case:
Plaintiffs 1 and 2, along with their brother Yerriah, constituted a Hindu joint family. Yerriah got separated in 1962, and the property was partitioned, with Item 4 of the plaint A Schedule property remaining jointly owned by the plaintiffs. In July 1965, defendants 1 and 2 trespassed onto the suit land and dispossessed the plaintiffs. The plaintiffs filed a suit for recovery of possession.
Finding of the Court:
The trial court and the lower appellate court held that the partition pleaded by the plaintiffs was true and that the property did not fall to the share of Yerriah in the 1959 partition pleaded by the defendants. The suit was decreed in favor of the plaintiffs.
Issues: 1. Whether the suit by plaintiffs 1 and 2 was maintainable and could be proceeded with in spite of the legal representatives of the third plaintiff not having been brought on record. 2. Whether the right to sue survived to the 1st and 2nd plaintiffs after the death of the third plaintiff.
Ratio Decidendi: 1. Section 6 of the Hindu Succession Act deals with the devolution of a deceased coparcener's interest alone and has nothing to do with the disruption of the joint family status. 2. The coparcenary will continue notwithstanding the death of a coparcener until partition is effected. 3. The Karta can effectively bring a suit for enforcement of the mortgage security representing all the heirs of the mortgagee. 4. The other coparceners who have interest in the mortgage security are not necessary partners to such action; but there are only proper parties to the same and their non-inclusion or inclusion out of time will not be fatal to the suit. 5. If the proviso of Section 6 of the Act applied on account of the existence of the heirs referred to therein, there will be of course no disruption of joint family status; but the coparcenary property will not include the interest of the deceased coparcener by reason of succession under the Act and it will not then be available to the coparceners and heirs as coparcenary property and the Kartha in relation thereto, therefore, cannot exercise his powers as a Karta. 6. The interest having devolved on various heirs in specified shares and such shares being tenants in common in relation to that property to which the coparceners belong cannot represent the family heirs who are not coparceners, in fact all being tenants in common in relation to the interest of the deceased coparcener, each one of them as already discussed as heirs of the mortgage is a necessary party to the suit of enforcing the mortgage security. 7. Plaintiffs 1 and 2, being co-sharers entitled to an undivided share in the entire property jointly belonging to themselves, i.e., plaintiffs 1 and 2 and the male and female relatives of the deceased third plaintiff to in the proviso to Section 6 of the Hindu Succession Act, can continue the suit in respect of the plaint schedule property.
Final Decision: The second appeal was dismissed, and the decree of the trial court was upheld.
( 1 ) THIS second appeal by the defendants against the judgment and decree in A. S. 3 OF 1970 on the file of the Principal Sub-Judge, Srikakulam confirming the judgment and decree of the trial court in O. S. 55/66 on the file of the District Munsifs Court, Cheepurupalli.
( 2 ) THE first plaintiff is the father and plaintiffs 2 and 3 and one Yerriah are his sons and according to them they constituted a Hindu joint family of which the first plaintiff was the manager. Yerriah got separated as per registered partition deed dated 30/10/1962, the details of which are mentioned in plaint Schedules A and B. The properties mentioned in Schedule B having been allotted to the said Yerriah and the properties mentioned in Schedule A having continued to be joint properties of the rest of the family members viz. , Plaintiffs 1 to 3. Item 4 of the plaint A Schedule property alone is the subject-matter of the suit in this second appeal and as per the plaint averment is jointly owned and enjoyed by all the plaintiffs. It is the plaintiffs case that on account of grudge and ill-will and other factors which it is not necessary to note for the disposal of this case, defendants 1 and 2 trespassed into the suit land unlawfully in July 1965 removed Ragi crop raised by them and thus dispossessed the plaintiffs. The plaintiffs therefore filed the suit for the recovery of possession.
( 3 ) THE defendants claimed that they have purchased this property under Ex B-3 dated 22-12-1964 from the said Yerriah. They contended that partition was in fact effected even in 1959 and in that partition this item of property fell to the share of Yerriah and the subsequent partition pleaded by the plaintiffs is collusive one pleaded for defeating the rights of the defendants.
( 4 ) BOTH the courts below held that partition evidenced by registered partition deed dated 3-10-1962 pleaded by the plaintiffs is true and that the property did not fall to the share of Yerriah at the so-called partition held in 1959 as pleaded by the defendants. The suit was accordingly decreed by the trial court. Even during the pendency of the suit in the trial court, the third plaintiff died and the petition to bring his L. Rs. on record was filed; but for reasons which are not quite clear from the record now placed before me, that petition was dismissed. The appeal was preferred by the defendants before the learned Subordinate Judge only as against plaintiffs 1 and 2 and it was contended that inasmuch as the legal representatives of the third plaintiff were not brought on record, the suit abates as a whole and alternatively at least to the extent of the third plaintiff and therefore the decree of the trial court in favour of all the plaintiffs cannot be sustained. The lower appellate court while confirming the findings of the trial court on all the issues and maintaining the decree passed by it held the suit could not be decreed in favour of all the plaintiffs and directed that wherever the word plaintiffs occured in the operative portion of the decree of the trial court, the figures " 1 and 2 " should be added so that the decree was in favour of plaintiffs 1 and 2 only.
( 5 ) IN this second appeal the only question that was argued and arises for consideration is whether the suit by plaintiffs 1 and 2 was maintainable and could be proceeded with in spite of the legal representatives of the third plaintiff not having been brought on record. Mr. Poornaiah the learned counsel for the appellant contends that the right to sue does not survive to the 1st and 2nd plaintiffs. Thus, the decree cannot be sustained even to the extent of 1st and 2nd plaintiffs and as a result the suit abated as a whole. His contention is that after the commencement of the Hindu Succession Act on the death of the third plaintiff, the coparcenary interest of the third plaintiff in the property did not devolve by survivorship upon the 1st and 2nd plaintiffs; but it devolved upon the female relatives spec
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