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Case Number

First Appeal No. 168 of 1973

Attorney(S)

N.V.Ramdas
N.B.K.Murty

Judges

P.C Misra
G.B Patnaik, JJ.

Acts

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Smart Summary

Structured Summary of the Opinion — P.C. Misra, J.

Factual and Procedural Background

This appeal arises from T.S. No. 76 of 1970 in the Court of Subordinate Judge, Berhampur. The plaintiffs sued for declaration of title, confirmation of possession, or alternatively for recovery of possession in respect of properties described in Schedules A and B of the plaint. Defendants 1 and 2 (among others) were respondents in the original suit and are appellants in this appeal against the judgment and decree dated 30-6-1973 and 6-7-1973.

The material family facts, as set out in the opinion, are: the family ancestor Kuti Parasuramudu died in 1958 leaving widow Puti Chitamma, adopted son Ganapati, natural sons (defendants 1 and 2), and a daughter who is plaintiff 1. The plaintiffs assert that a family partition deed (Ex.1 dated 24-6-1955) allotted the disputed properties to Parasuramudu, and that Parasuramudu gave an oral direction during his lifetime that his share should go to his daughter (plaintiff 1) after his wife's death. The plaintiffs say that Chitamma executed a document on 3-4-1968 (Ex.4) in accordance with that oral direction, and that the plaintiffs have enjoyed the suit properties by virtue of Ex.4. They also allege prior protective/criminal proceedings (S.144 converted to S.145 Cr.P.C.) ended in their favour on 20-9-1969.

Defendants denied the plaintiffs' account. They claimed that after Parasuramudu's death the sons and adopted son divided his allotted share among themselves, continued to possess portions separately, sold portions to third parties (defendants 6 and 8 and others), and reduced a mutual partition into a registered deed on 12-2-1968. The defendants alleged Ex.4 was sham and fraudulent and that plaintiffs were not in possession; they also pleaded acquisition of title by adverse possession in some instances. The trial court framed issues, received evidence, and held that Ex.4 was valid only to the extent of the share Chitamma had at her death, thereby giving plaintiffs a 1/5th share; the trial court passed a preliminary decree for partition of the properties and directed adjustments in respect of purchasers on proof of genuineness of their purchases. The present appeal challenges those findings, particularly as to the deed of settlement (Ex.4) and the consequent partition directions.

Legal Issues Presented

Whether the deed of settlement executed by Puti Chitamma in 1968 (referred to as Ex.4 in the trial) was valid and, if so, to what extent it conferred title on the plaintiffs.
Whether the trial court correctly decreed partition of the suit properties (including passing a preliminary decree for partition despite no specific prayer for partition) — the trial judge relied on a decision reported as (1973) 39 Cut LT 635 Sanki Bewa v. Chandra Majhi for this purpose.
Whether Section 23 of the Hindu Succession Act, 1956, precludes partition of a dwelling-house (Schedule B properties) by female heirs before male heirs choose to divide, and thus whether the partition decree for the Schedule B properties could stand.

Arguments of the Parties

Plaintiffs' Arguments

The family properties were allotted to Parasuramudu by the partition deed Ex.1 (24-6-1955), and Parasuramudu orally directed during his lifetime that his share should go to his daughter (plaintiff 1) after the death of his widow Chitamma.
Acting on that oral direction, Chitamma executed Ex.4 on 3-4-1968 conveying the suit properties to plaintiff 1 and plaintiff 2; plaintiffs have been in enjoyment of the properties by virtue of Ex.4.
Plaintiffs' possession of Schedule A properties was interfered with by defendants 1 to 5, leading to criminal protective proceedings under S.144/145 Cr.P.C., which ultimately concluded in favour of plaintiffs and Chitamma on 20-9-1969.
On these bases the plaintiffs sought declaration of title, confirmation of possession, or recovery of possession.

Defendants' Arguments

Immediately after Parasuramudu's death, defendants 1 and 2 and Ganapati divided Parasuramudu's allotted share among themselves, with consent of Chitamma and plaintiff 1; each thereafter possessed portions separately and paid costs separately.
Portions of the lands were sold by Ganapati and others to third parties (including defendants 6 and 8) under registered sale deeds, with delivery of possession; some parts were sold by defendant 2 as well.
A mutual partition among the heirs was reduced into a registered deed dated 12-2-1968; prior transfers and possession support defendants' title claims.
The allegation that Parasuramudu orally bequeathed his share to plaintiff 1 after Chitamma's death is denied as false; Ex.4 (3-4-1968) is alleged to be a sham and fraudulent document created with connivance of plaintiff 1's husband and does not convey any title.
Plaintiffs' claim of possession is denied and defendants assert they have valid title, in some cases by long possession beyond statutory periods.
Specific defendants (6, 7, 8) pleaded their own positions: defendant 6 claimed purchase and possession under a registered deed (17-3-1961); defendant 7 denied being a supporter or claiming any interest; defendant 8 claimed his deceased wife's purchase (1-8-1961) and continued possession by his family.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
(1973) 39 Cut LT 635 — Sanki Bewa v. Chandra Majhi	Relied upon by the trial court as authority to pass a decree for partition (and proceed with partition) even though the prayer for partition was not made in the plaint.	The trial court relied upon this decision when it decreed partition of the plaintiffs' ascertained shares despite the absence of an explicit prayer for partition. The appellate court records this reliance when describing the trial court's reasoning; the appellate court ultimately confirmed the trial court's decree as to Schedule A but vacated the partition decree as to Schedule B on statutory grounds (S.23, Hindu Succession Act).

Court's Reasoning and Analysis

The Court proceeded by examining the documentary and oral evidence placed before the trial court and by applying the relevant statutory rule of succession. The court accepted that a family settlement (Ex.1 dated 24-6-1955) existed and that the properties were allotted to Parasuramudu. It also noted it was undisputed that Parasuramudu died on 15-4-1958 after the Hindu Succession Act, 1956, had come into force, so succession to his properties must be governed by that Act.

On the central question of the 1968 instrument (Ex.4) allegedly executed by Chitamma in favour of the plaintiffs per an oral direction of Parasuramudu, the court examined the testimony of the plaintiffs' two witnesses (P.W.1 and P.W.2). The evidence as to the oral declaration was inconsistent: P.W.1 (plaintiff 1's husband) testified that Parasuramudu had expressed the intention two months before his death that his wife and thereafter his daughter would enjoy the property; P.W.2's evidence differed in material respects (for example, P.W.2 said they became separate in mess and property in 1955 though living in one house). On this basis the court agreed with the Subordinate Judge's conclusion that Ex.4 was valid only to the extent of the share that Chitamma herself possessed at her death (i.e., Ex.4 could not extend beyond Chitamma's own share).

The Subordinate Judge had framed and decided shares: plaintiffs were held to have a 1/5th share, defendants 1 and 2 1/5th each, and the remaining 1/5th to defendants 3–5 subject to adjustments for lands already sold. The Subordinate Judge had also passed a preliminary decree for partition of Schedules A and B and directed specific allotments to purchasers (defendants 6 and 8) within the share of their vendors upon proof of genuineness of sale. The trial court did not decide the question of possession because parties' counsel represented that such issue need not be decided.

On appeal the Court examined the statutory bar to partition under Section 23 of the Hindu Succession Act, which provides that where a Hindu intestate leaves both male and female class I heirs and the property includes a dwelling-house wholly occupied by family members, female heirs cannot claim partition of the dwelling-house until the male heirs choose to divide their shares; female heirs retain a right of residence. Applying S.23, the appellate court concluded that the plaintiffs, being female heirs within Class I, could not enforce partition in respect of the dwelling-house comprised in Schedule B; accordingly the decree for partition of Schedule B properties was vacated.

Having vacated the partition of Schedule B, the appellate court nonetheless confirmed the Subordinate Judge's decree so far as Schedule A properties were concerned (i.e., the finding that plaintiffs had a 1/5th share via Ex.4 to the extent of Chitamma's share and the consequent partition directions regarding Schedule A). The court therefore allowed the appeal insofar as Schedule B was concerned and confirmed the decree for Schedule A. In the particular facts and circumstances the court ordered no costs.

Holding and Implications

Core Ruling: The appeal is allowed in part. The appellate court vacated the decree for partition of the Schedule B properties and confirmed the decree of the learned Subordinate Judge so far as the Schedule A properties are concerned. There is no order as to costs.

Implications:

The plaintiffs were found to have acquired a 1/5th share in the suit properties by virtue of the deed executed by Chitamma (Ex.4) only to the extent of the share Chitamma possessed at her death; the trial court's partition decree relating to Schedule A is therefore confirmed.
The partition decree relating to Schedule B (which included the dwelling-house) was vacated because Section 23 of the Hindu Succession Act precludes female Class I heirs from enforcing partition of a dwelling-house while male heirs have not chosen to divide — female heirs instead have a right of residence.
The opinion does not purport to set any new broad precedent beyond applying the statutory provision (S.23) and upholding the trial court's allocation as to Schedule A; the appellate decision directly affects the parties by confirming the Schedule A partition findings and rescinding the Schedule B partition order.

Note: The opinion refers to the deed executed by Chitamma in 1968 as Ex.4 (the text primarily records the date as 3-4-1968). At one place the opinion refers to a deed dated 3-5-1968 when describing the ground of challenge; the summary above refers to the instrument of 1968 generally and follows the predominant citation (Ex.4 dated 3-4-1968) used in the opinion.

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Putti Ramulu And Another v. Smt. Kotha Gunnamma And Others

P.C Misra, J.:— Defendants 1 and 2 in T.S No. 76 of 1970 of the Court of Subordinate Judge, Berhampur, are appellants against the judgment and decree dated 30-6-1973 and 6-7-1973 respectively passed in the said suit. The plaintiffs' suit was for declaration of their title, confirmation of possession or in the alternative for recovery of possession of the suit properties described in schedules A and B of the plaint.

2. The facts relevant for this appeal are as follows:

One Kuti Parasuramudu was the common ancestor of the plaintiffs and defendants 1 to 5. He died on 15-5-1958 leaving his widow Puti Chitamma, adopted son Ganapati (father of defendants 3 and 4), natural sons defendants 1 and 2 and a daughter who is plaintiff 1 in this suit. Plaintiff 2 is the son of plaintiff 1. Defendant 5 is the son of defendant 1. According to the plaintiffs the said family properties (were settled) by a deed of partition Ex. 1 dated 24-6-1955. In the said family settlement the suit properties fell to the share of Parasuramudu. It is alleged that Parasuramudu died on 15-4-1958 and his widow Chitamma died on 10-4-1970. It is the plaintiffs' case that Parasuramudu during his lifetime gave an oral direction that the properties which fell to his share in the aforesaid partition would be given to his only daughter namely Gunnamma (plaintiff 1). In accordance with such oral direction Chitamma executed a document on 3-4-1968 (Ex. 4) giving the suit properties to plaintiff 1 and her son plaintiff 2. According to the plaintiffs they have been in enjoyment of the suit properties in their own rights by virtue of the said document. The plaintiffs further alleged that their possession with respect to the A schedule properties was interfered with by defendants 1 to 5 for which the plaintiffs along with Chitamma started a proceeding under S. 144, Cr. PC., which was subsequently converted to one under S. 145, Cr. P.C, and this proceeding ultimately ended in favour of the plaintiffs and Chitamma on 20-9-1969. After the death of Chitamma on 10-4-1970 defendants 1 to 5 tried to occupy the suit A schedule lands with the help of their supporters who are defendants 6 to 8 in this suit. The plaintiffs alleged that the defendants have no manner of right, title and interest in the suit properties and this gives a cause of action to them to file this suit for the aforesaid reliefs.

3. Defendants 1, 3, 4 and 5 filed a joint written statement whereas defendants 2, 6, 7 and 8 filed separate written statements. Defence taken by the said defendants was substantially the same. They contended that immediately after the death of Parasuramudu, defendants 1 and 2 along with Ganapati (adopted son of Parasuramudu) divided the share of Parasuramudu which was allotted to him in the partition deed in the year 1955. Chitamma and plaintiff 1 gave their consent to such division. According to the defendants the defendants 1, 2 and Ganapati separately possessed the portions out of the share of Parasuramudu and continued to pay cost separately in their own rights. After the said division of property Puti Ganapati sold away one acre of land at Godagoda Palli village to defendant 6 for valuable consideration and another plot of land measuring about 38 cents in Putigopalpur to defendant 8 and delivered possession thereof to the said purchasers. Similarly, defendant 2 sold 61½ cents of land to one Mahala who is in possession of the same. Ultimately the said mutual partition was reduced into writing under a registered deed of partition dated 12-2-1968. The father of defendants 1 and 2 gave three bharanams of land to plaintiff 1 as dowry at the time of her marriage and he also gave some landed properties to his wife late Chitamma prior to the family partition which took place in the year 1955. The allegation that the late Parasuramudu expired after giving an oral direction that the properties which fell to his share in the family partition should be given to his only daughter plaintiff after the death of his wife Chitamma is denied as false. It is alleged that the settlement deed dated 3-4-1968 executed by Chitamma is a sham and fraudulent document which has been created with active connivance and at the instance of plaintiff 1's husband behind the back of defendants 1, 2 and 3 to 5 and their alienees. According to the defendants the said document is invalid in law and had not conveyed any title in favour of the plaintiffs. The plaintiff's case that they have been in possession of the suit properties was stoutly denied. Their title as claimed was denied. They also alleged that they have otherwise acquired valid title as they have been in possession of the suit properties for more than the statutory period.

4. Defendant 6 in his written statement while adopting the written statement of defendants 3 and 4 claims to have purchased 60 cents of land out of item 1 and 40 cents of land out of item 4 of the schedule A of the plaint from defendants 3 and 4 and their father under a registered sale deed dated 17-3-1961 for a consideration of Rs. 500/-. He further claims that he is in possession of the aforesaid one acre area as owner thereof. He denies the plaintiffs' case that the plaintiffs or Chitamma was in possession of the suit lands.

5. Defendant 7 in his written statement denied to be supporter of defendants 1 to 5 and does not claim any interest in any of the suit properties.

6. Defendant 8 while adopting the written statement filed by defendants 3 and 4 claims that his wife has purchased O. 33 cents out of item 14 of the plaint A schedule under a registered sale deed dated 1-8-1961 from defendants 3 and 4 and their father Ganapati for consideration and continued in possession till her death in 1964. After her death defendant 8 and his son and daughters claim to be in possession of the said properties.

7. The learned Subordinate Judge framed issues which arose for consideration and after receiving evidence adduced before him held that the deed of settlement dated 3-4-1968 is valid only to the extent of 1/5th share which Chitamma had at the time of death and consequently the plaintiffs have acquired 1/5th share in the suit properties, by virtue of the said document. The learned Subordinate Judge did not decide the question of possession as the lawyers appearing for the parties represented that such question is not required to be decided in this suit. Having found that the plaintiffs have 1/5th share according to the deed of settlement dated 3-4-1968, the learned Subordinate Judge decreed the suit for partition of the said share, even though the prayer for partition was not made. He relied upon a decision reported in (1973) 39 Cut LT 635 Sanki Bewa v. Chandra Majhi for the aforesaid purpose. His further finding is that plaintiff 1 is further entitled to 1/5th share and defendants 1 and 2 are entitled to 1/5th share each and from out of the remaining 1/5th share which defendants 3 to 5 are entitled to, there will be an adjustment of the lands sold by them along with their father. The further direction of the trial court is that in the final decree proceeding defendants 6 and 8 will be entitled to separate allotment to the extent of their purchased areas not exceeding the share of their vendor upon proof in the genuineness of their purchase.

8. The learned counsel for the appellants mainly challenges the finding of the learned Subordinate Judge with respect to the deed of settlement dated 3-5-1968.

9. It has not been disputed before this Court that there was a family settlement as per Ex. 1 dated 24-6-1955 and that the said properties were given to Parasuramudu. There is no dispute that Parasuramudu died on 15-4-1958 after coming into force of the Hindu Succession Act in 1956. Therefore on the death of Parasuramudu his properties are to devolve on his heirs in accordance with the provisions of the said Act. The plaintiffs claimed full title to the suit properties. It is alleged by the plaintiffs that Parasuramudu during his lifetime had given his share of the properties as per deed of partition to his daughter plaintiff 1 after the death of Chitamma.

10. The plaintiffs have examined P.Ws 1 and 2 to prove this fact P.W 1 is the husband of plaintiff 1 who has deposed to the effect that 2 months prior to his death of Parasuramudu he expressed his intention before his wife that after his (death?) she would enjoy the property and after her the daughter would get it. According to P.W 2 Parasuramudu expressed his intention as aforesaid. The evidence of P.W 2 is discrepant with that of P.W 1. According to P.W 2 they became separate in mess and property in 1955, but they all lived in one house. We are, therefore, in agreement with the learned Subordinate Judge that Ex. 4 is valid only to the extent of the share of Chitamma.

11. The learned Subordinate Judge has passed a preliminary decree for partition of the schedules A and B properties. The shares of the parties have been ascertained as noted above. The direction of partition of the schedule B properties cannot, however, be maintained in view of the provisions of S. 23, Hindu Succession Act. Section 23, Hindu Succession Act provides that:—

“Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:

Of course a female heir shall be entitled to a right of residence in such dwelling house. Thus, the plaintiffs being female heirs specified in Class I of the Schedule they cannot enforce a partition so far as dwelling house is concerned. We, therefore, vacate the decree for partition of the schedule B properties at the instance of the plaintiffs.

12. In the result, the appeal is allowed with respect to Schedule B properties and the decree passed by the learned Subordinate Judge so far Schedule A is concerned is confirmed. In the peculiar facts and circumstances of this case there would be no order as to costs.

G.B Patnaik, J.:— I agree.

Order accordingly.

Putti Ramulu And Another v. Smt. Kotha Gunnamma And Others

Structured Summary of the Opinion — P.C. Misra, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiffs' Arguments

Defendants' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Putti Ramulu And Another v. Smt. Kotha Gunnamma And Others

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