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2024 Supreme(Online)(AP) 22124
HIGH COURT OF ANDHRA PRADESH
B S Bhanumathi, J
Thynala Musalayya & Another – Appellant
Versus
Mrs Mary Sarojini 13 Others – Respondent
SECOND APPEAL NO: 897/2001 | CONTEMPT CASE NO: 818/2008 | CIVIL MISCELLANEOUS SECOND APPEAL NO: 65/2007 | CIVIL REVISION PETITION NO: 3764/2004 | CIVIL REVISION PETITION NO: 3768/2004 | CIVIL REVISION PETITION NO: 4230/2004 | SECOND APPEAL NO: 584/2007 | SECOND APPEAL NO: 1273/2008 | SECOND APPEAL NO: 1274/2008 | SECOND APPEAL NO: 1275/2008 | SECOND APPEAL NO: 1276/2008 | SECOND APPEAL NO: 1277/2008 | SECOND APPEAL NO: 1275/2008
For the Appellants/Petitioners: UTTARA LEGAL, M RADHAKRISHNA, P RAJASEKHAR, Y CHANDRASEKHAR, M K RAJ KUMAR
For the Respondents: KOTHA LEELA GANESH RAGHAVENDRA, B SAI KALYAN CHAKRAVARTHI, V N ANAGANI, S RAJAN, V V RAVI PRASAD
Children of a living property owner cannot claim rights to inheritance or challenge a partition during their lifetime based on the provisions of the Indian Succession Act.
Headnote:(A) Indian Succession Act, 1925 - Sections 32, 33, 37, 38, 39, and 40 - Property dispute - Plaintiff claims entitlement to 1/24th share in suit property - Courts held partition valid despite plaintiff's challenge - Appeal addressed the validity of partition and rights based on the Act - Court emphasized children of a living owner cannot claim rights during their lifetime. (Paras 2, 51)
(B) Partition - The court ruled that a partition cannot be challenged by descendants during the lifetime of the intestate, asserting that rights in the property only devolve posthumously. (Paras 30, 46)
Facts of the case:
The dispute originated with a suit from the plaintiff seeking partition and declaration of her share in property but faced opposition claiming valid historical partition and adverse possession. The trial court awarded her share; however, this was challenged on multiple appeals regarding validity and proper parties involved.
Findings of Court:
The Court ruled that the plaintiffs have no right to claim during the lifetime of intestate and set aside the preliminary decree for partition earlier granted.
Issues: 1) Entitlement of the plaintiff to the claimed share; 2) Validity of earlier completed partition.
Ratio Decidendi: The court concluded that the legal rights to property do not allow for claims by descendants while the direct owner remains living, adhering strictly to the provisions of the Indian Succession Act, notably Sections 37 and 40.
Result: Appeals allowed; preliminary decree set aside.
| Table of Content |
|---|
| 1. jurisdiction and nature of appeals. (Para 2 , 3 , 4 , 12) |
| 2. background of property dispute. (Para 6 , 7 , 8) |
| 3. execution of partition proceedings. (Para 21 , 22) |
| 4. substantial questions of law. (Para 25 , 26 , 27) |
| 5. right to claim property under succession law. (Para 28 , 29 , 30 , 32) |
| 6. conclusions on property rights. (Para 46 , 48 , 50) |
COMMON JUDGMENT
S.A.No.897 of 2001 is filed to set aside the decree & judgment, dated 28.03.2001,dismissing the appeal in A.S.No.386 of 2000 on the file of the Court of I Additional Senior Civil Judge, Visakhapatnam, filed praying to dismiss the suit by setting aside the judgment and (preliminary) decree, dated 24.04.1995, in O.S.No.755 of 1979 on the file of the Court of I Additional District Munsif, at Visakhapatnam.
C.C.No.818 of 2008 is filed for disobedience of the orders, dated 18.04.2003, passed by this Court in C.M.P.No.8753 of 2003 in S.A.No.897 of 2001. C.M.S.A.No.65 of 2007 is filed by the appellant/claim petitioner (T.Vijaya Kumar S/o Musalayya) aggrieved by the common judgment and decree, dated 19.04.2007, dismissing the appeal in C.M.A.No.38 of 2004 on the file of the Court of the District Judge, Visakhapatnam, against the orders in E.A.No.1225 of 2003 in E.P.No.1336 of 2002 in O.S.No.755 of 1979 on the file of the Court of I Additional District Munsif, at Visakhapatnam, filed by Tyanala Vijaya Kumar under Order XXI, rule 97 CPC to declare the title of the petitioner and not to dispossess him from the EP schedule property.
C.R.P.No.3764 of 2004 is filed by JDrs 2 and 4 (viz., Tyanala Dalamma and Tynala Musalayya) against the decree and order, dated 06.05.2004, dismissing E.A.No.255 of 2004 in E.A.No.1212 of 2003 in E.P.No.1336 of 2002 (vide final decree in I.A.No.749 of 2016) in O.S.No.755 of 1979 on the file of the Court of I Additional Junior Civil Judge, Visakhapatnam, filed under Order VI, rule 17 read with Section 151 CPC and rule 28 of the Civil Rules of Practice.
C.R.P.No.3768 of 2004 is filed by JDrs 18, 19, 20 & third party against the order, dated 29.06.2004, dismissing E.A.No.19 of 2004 in E.P.No.1335 of 2002 in O.S.No.755 of 1979 on the file of the Court of I Additional Junior Civil Judge, Visakhapatnam, filed under Section 47 CPC to declare the petitioner’s title and to restrain the respondents from executing or anyway causing disturbance to the petitioner’s peaceful possession and enjoyment of the schedule property covered by E.P.No.1336 of 2002.
C.R.P.No.4230 of 2004 is filed by JDrs 2 & 4 against the order, dated 29.6.2004, dismissing E.A.No.1212 of 2003 in E.P.No.1336 of 2002 in O.S.No.755 of 1979 on the file of the Court of I Additional Junior Civil Judge, Visakhapatnam, filed under Section 47 CPC to declare the final decree, dated 09.08.2002, passed in I.A.No.749 of 1996 in O.S.No.755 of 1979 is a nullity and unexecutable.
S.A.No.584 of 2007 is filed by appellants/defendants 2 & 4 aggrieved by the judgment, dated 19.04.2007, dismissing the appeal in A.S.No.440 of 2004 on the file of the Court of the District Judge, Visakhapatnam, filed against the common order, dated 09.08.2002, in I.A.No.749 of 1996 in O.S.No.755 of 1979 on the file of the Court of I Additional District Munsif, at Visakhapatnam.
S.A.No.1273 of 2008 is filed aggrieved by the judgment, dated 19.04.2007, dismissing the appeal in A.S.No.417 of 2004 on the file of the Court of the District Judge, Visakhapatnam, filed by respondents 18, 19, 20 and 21 against the common order, dated 09.08.2002, in I.A.No.749 of 1996 in O.S.No.755 of 1979 on the file of the Court of I Additional District Munsif, at Visakhapatnam.
S.A.No.1274 of 2008 is filed aggrieved by the judgment, dated 19.04.2007, dismissing the appeal in A.S.No.442 of 2004 on the file of the Court of the District Judge, Visakhapatnam, filed against the common order, dated 09.08.2002, in I.A.No.585 of 2001 in O.S.No.755 of 1979 on the file of the Court of I Additional District Munsif, at Visakhapatnam, filed by defendants 11 to 13 to a
