THE HONOURABLE SRI JUSTICE N. TUKARAMJI SECOND APPEAL No.121 OF 2018 AND CROSS-OBJECTIONS (SR) No.39322 of 2018

JUDGMENT:

1. This appeal has been filed aggrieved by the decree and judgment dated 24.08.2017 in AS No.47 of 2015 passed by the Judge, Family Court -cum- VIII Additional District and Sessions Judge, Mahabubnagar.

2. The appellants are the defendant Nos.3 to 7 in the suit filed by the respondent/plaintiff seeking partition of schedule property i.e., Ac.37.09 situated at Urkonda village, Midjil Mandal, Mahabubnagar District (hereinafter referred to as ‘suit schedule property’).

3. Pending the second appeal, the respondent/plaintiff filed objections vide Cross-Objections (SR) No.39322 of 2018.

4. Heard Sri B.Bhavani Sankar, learned counsel for the appellants/defendant Nos.3 to 7 and Sri K.Muralidhar Reddy, learned counsel for the respondent/plaintiff.

5.(a) Briefly stated the respondent’s/plaintiff’s case is that one Gajjal Reddy @ M.Gajjalaiah was the absolute owner of the suit schedule property and after his death, the property devolved on his son C.Ram Reddy, after his death, the property ceded on to his wife/Smt.Laxmamma (defendant No.2), son/Hanmanth Reddy (defendant No.1) and daughter/Kalamma (plaintiff).

5.(b) The plaintiff’s case is that without her knowledge, her brother/defendant No.1 got mutated his name in the revenue records and refused to share the property, hence, filed the suit for partition vide OS No.60 of 2008 seeking 1/3^rd part in the suit schedule property. During pendency of the suit, their mother Laxmamma/defendant No.2 passed away and the legal heirs i.e., wife and children of defendant No.1 were brought on record as defendant Nos.3 to 7.

5.(c) The trial Court, after considering the materials, passed preliminary decree holding that the plaintiff and her deceased brother are entitled equal share in the suit schedule property. Challenging the judgment, defendant Nos.3 to 7 i.e, wife and children of Hanmanth Reddy filed appeal vide A.S No.47 of 2015. The Appellate Court having reconsidered the case facts and by referring to the Hindu Succession (Amendment) Act, 2005 and the propositions laid down by the Hon’ble Supreme Court in Prakash and others v. Phulavati and others, [AIR 2016 SUPREME COURT 769], held that upon the death of her father, succession opens and the daughter/plaintiff is entitled to a share along with the defendant No.1/father of defendant Nos.3 to 7 and also equal half on the notional share of their father. Therefore, the plaintiff is entitled to 1/4^th share in the property of her father. Whereby held that the plaintiff would be entitled to 1/4^th share and defendant No.1 would be entitled to 3/4^th share upon survivorship. Challenging this judgment, defendant Nos.3 to 7 preferred the Second Appeal.

6. Per contra, respondent/plaintiff submits that the Appellate Court had erred in properly accounting her share, filed Cross-

objections.

7. Learned counsel for the appellants/defendant Nos.3 to 7 would contend that the Appellate Court had erred in granting 1/4^th share to the plaintiff and she is not entitled for any part in the suit schedule property for the reason that after the death of their grandfather, partition took place in the year 2003 and accordingly, the name of defendant No.1 was mutated in the revenue records. After five years, without any right, the plaintiff came up with the claim for partition. The plaintiff’s right for seeking partition was exhausted as she was married way back in the year 1975 and she is not part of the joint family and has no right to claim share in the property.

8. In regard to contentions in Cross-objections filed by the respondent/plaintiff, in addition to the pleadings in their appeal, the appellants pleaded that even if their claim in the appeal is rejected, granting 1/4^th share to the plaintiff is reasonable as it was granted on proper consideration of facts and re-allotment of the shares among the plaintiff and her brother including the appellants. As such,