Back
2017 Supreme(AP) 235
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
M. Satyanarayana Murthy, J.
Moturu Umadevi and Others – Petitioners
Versus
Bandaru Himmath Venkata Kumar and Others – Respondents
Second Appeal Nos. 229 and 230 of 2009
Decided On : 13-03-2017
For the Petitioner: Mr. B. Nalini Kumar.
For the Respondent: Mr. V.V.L.N. Sharma.
Headnote:
Hindu Succession Act - Section 8, 8(a) and 6 - Indian Evidence Act - Section 41 - Transfer of Property Act 1882 - Section 52 - He died intestate on 09.03.1982 leaving behind his wife, seven sons and the married daughter Kolli Jayalakshmi, to succeed his property including petition schedule property. Consequent upon his death his wife married daughter and seven sons of late are entitled to equal right in the property since it is ancestral property - Petitioners came to know that their father and his brothers executed a relinquishment in favour of the respondents relinquishing their share in the schedule property as if they are absolute owners of the same, including the rights of their children though they are exclusive owners of the schedule property and not competent to relinquish the share of their children as such the relinquishment deed executed in favour of the respondents 1 and 2 does not bind the petitioners - Respondents made an attempt to alienate the schedule property covered by relinquishment deed the petitioners filed on the file of the Senior Civil Judge for cancellation of relinquishment and for consequential permanent injunction against the respondents 1 and 2 from alienating the property and obtained decree – respondent also has no right to bring the property for sale. As the petitioners are also entitled to equal share in the property consequently, prayed to raise attachment – Held, Property was the self acquired property who died intestate leaving behind a female relative classified as class-I heir in the schedule, the succession is governed by the provisions of Section 6 of the Hindu Succession Act and not by survivorship. Thus, the property devolved upon is only a separate property of Mahesh babu and the petitioners before the trial Court are not entitled to claim any share in the property by birth as co-parcenars - Executing Court and appellate Court did not advert to rules governing the succession of a property of deceased in total ignorance of proviso to Section 6 of the Act and concluded that the schedule property is the undivided hindu co-parcenary property, the petitioners by birth became co-parcenars and entitled to claim a share therein and committed a grave error in allowing the claim petition - Hindu Succession Act in view of the law declared by the Apex Court in Commissioner of Wealth Tax - Second Appeals are allowed.
M. Satyanarayana Murthy, J.
1. Respondent Nos.4 to 6 in E.A. No. 846 of 2005 in E.P. No. 47 of 1999 in O.S. No. 275 of 1994, filed Second Appeal No. 229 of 2009 challenging the decree and judgment in A.S. No. 37 of 2006 passed by the Senior Civil Judge, Gudivada, dated 02.06.2007, affirming the order and decreetal order passed by the Principal Junior Civil Judge, Gudivada, in EA No. 846 of 2005 in E.P. No. 47 of 1999 in O.S. No. 275 of 1994, on his file allowing the claim petition filed by respondent Nos. 1 and 2, under Order 21, Rule 58 of CPC.
2. Respondent No. 3 in EA No. 574 of 2005 in EP No. 247 of 2004 - plaintiff in O.S. No. 199 1999, filed Second Appeal No. 230 of 2009 challenging the decree and judgment in A.S. No. 55 of 2006 passed by the Senior Civil Judge, Gudivada, dated 02.06.2007, affirming the order and decreetal order passed by the Principal Junior Civil Judge, Gudivada, in EA No. 574 of 2005 in E.P. No. 247 of 2004 in O.S. No. 199 of 1999 on his file allowing the claim petition filed by the respondents 1 and 2, under Order 21, Rule 58 of CPC.
3. The parties to the appeal hereinafter referred as arrayed before the Principal Junior Civil Judge's Court in EP No. 574 of 2005, for convenience and to avoid confusion.
4. The petitioner Nos.1 and 2 filed a petition under Order-XXI Rule - 58 of CPC to raise attachment over the schedule property recognizing their claim. The petitioners are brothers, and sons of one Mahesh Babu. The E.P. schedule property belongs to one Bandaru Venkateswara Rao, the grand father of the petitioners. The said Venkateswara Rao blessed with seven sons, by name, Vital Rao (first respondent), Mahesh Babu (father of the petitioners), Babu Rao, Ramana Murthy, Ramesh Babu, Madhusudhana Rao and Hari Babu and a daughter Kolli Jayalakshmi. He died intestate on 09.03.1982 leaving behind his wife, seven sons and the married daughter Kolli Jayalakshmi, to succeed his property including petition schedule property. Consequent upon his death, his wife, married daughter and seven sons of late Venkateswara Rao are entitled to equal right in the property since it is ancestral property of Mahesh Babu. The petitioners came to know that their father Mahesh Babu and his brothers executed a relinquishment, dated 27.02.1992 in favour of the respondents 1 and 2 relinquishing their share in the schedule property as if they are absolute owners of the same, including the rights of their children though they are exclusive owners of the schedule property and not competent to relinquish the share of their children as such the relinquishment deed executed in favour of the respondents 1 and 2 does not bind the petitioners.
5. When the respondents 1 and 2 made an attempt to alienate the schedule property covered by relinquishment deed, the petitioners filed O.S. No. 41 of 2003 on the file of the Senior Civil Judge, Gudivada, for cancellation of relinquishment, dated 27.02.1992 and for consequential permanent injunction against the respondents 1 and 2 from alienating the property and obtained decree, dated 22.12.2003, canceling the relinquishment deed, dated 27.02.1992, the said decree attained finality and thereby the respondents 1 and 2 have no exclusive title or right over the schedule property, and similarly, the 3rd respondent also has no right to bring the property for sale. As the petitioners are also entitled to equal share in the property, consequently, prayed to raise attachment over the EP schedule property.
6. The 3rd respondent alone has filed counter while the respondents 1 and 2, who obtained relinquishment deed, remained ex-parte.
7. The main contention raised by the 3rd respondent before the executing Court i.e. the Principal Junior Civil Judge's Court is that the EP schedule property is the exclusive property of late Venkateswara Rao and he purchased the same with his own earnings on 16.06.1961 and as such the petitioners cannot acquire any right in the schedule property. She further contended that fath
