1. In this appeal by the plaintiff against the judgment and decree dated 11.7.1984 in OS No. 86 of 1977 on the file of the Court of the Additional Subordinate Judge (now, Additional Senior Civil Judge), Chittoor, the dispute is about movable and immovable property between the sister, her blood brothers and her cousins. By judgment dated 17.7.1997, learned Single Judge of this Court allowed the appeal, set aside the judgment in OS No. 86 of 1977 and decreed the partition as prayed for by the plaintiff. Letters Patent Appeal Bench reversed the judgment of learned Single Judge and remanded the matter for fresh consideration. That is how the matter is, again set down for yet another hearing before this Court. For a better understanding of the factual background, the following genealogy may be noticed. The parties hereinafter referred to as they are arrayed in the suit.

2. The plaintiff, Rajamma, filed the suit for partition and separate possession of 1/12th share in the suit schedule property. Her case is as follows. She alleged that her father, Nadipanna, was member of joint family along with Narayana Reddy and his sons. Joint family possessed of plaint ‘A’, ‘B’ and ‘C’ schedule properties. The plaintiff's father and the third defendant were entitled to ⅓rd share each in all the properties on the date of the death of Nadipanna. After the death of the father, fourth defendant was in joint possession of the property. In 1963, there was a division between the two branches of Narayana Reddy and Nadipanna. Plaint ‘A’ schedule properties and other movable properties were allotted towards the share of plaintiffs branch. After such partition, defendants 1 to 3 are in joint possession of properties allotted to their branch as co-owners. The properties in plaint ‘B’ schedule were acquired with the income of plaint ‘A’ schedule properties were in joint possession of plaintiff and defendants 1 to 3. The mother of plaintiff, Atchamma, died in 1969. After her death, she and other siblings of Nadipanna are entitled to 1/12th share in the property while defendants 1 and 2 are entitled to 5/12th share. The plaintiff and third defendant continued to be in joint possession after 1969. The fourth defendant is the daughter of the first defendant in whose favour the latter executed a document purporting to alienate the properties. Thereafter differences arose between defendants and plaintiff when she questioned the alienation. As it is no longer desirable for the plaintiff to continue in the joint family, she filed the suit for partition and possession. The first defendant filed written statement and additional written statement opposing the suit. The same was adopted by the second defendant. The fourth defendant filed separate written statement alleging that the first defendant executed the registered settlement deed for an extent of Ac. 0.66 in Survey No. 366 and also ⅛th share in the Will at the time of her marriage.

3. The suit was mainly opposed contending that there was no partition in 1963 between the two branches of the joint family, that none of the properties in plaint ‘B’ schedule was purchased from the funds derived from plaint ‘A’ schedule properties, that there was a registered partition between the defendants 1 and 2 and sons of Narayana Reddy, and that on 24.5.1960 Nadipanna executed a Will bequeathing entire property to the defendants 1 and 2. They also denied the right of plaintiff towards her share in the joint family properties, contending that her marriage was performed long back and she is not entitled for a share in the joint family properties.

4. The trial Court framed as many as seventeen (17) issues. The plaintiff examined PW1 to PW4 and marked Exs. A1 and A2. The first defendant gave evidence as DW1 and marked Exs. B1 to B8 including the Will as Ex. B1 and the registered partition deed as Ex. B8. The two attestors of the Will were examined as DW2 and DW3. The brother-in-law of the DW1 also gave evidence as DW4 to prove the defendants' version that some of the items of plaint ‘B’ and ‘C’ schedule properties were gifted by DW1 to his sister at the time of her marriage. On considering the evidence, the trial Court believed Ex. B1 Will and concluded that in view of the bequeath by Nadipanna in favour of defendants 1 and 2, plaintiff stands excluded from the succession. A finding was also recorded that the properties were originally held by Narayana Reddy and Nadipanna (heads of the two branches) and that by virtue of Ex. B1 Will, the share of Nadipanna went to the defendants 1 and 2 exclusively. The suit was accordingly dismissed.

5. The Counsel for the appellant made submissions. He also made reference to various judgments of the Supreme Court and this Court. In spite of service of the notice on the respondents, none appears and, therefore, the matter is being decided ex parte under Order XLI Rule 17(2) of the Code the Civil Procedure, 1908 (CPC).

6. The two points that arise for consideration are: (1) whether Ex. B1 Will set up by defendants 1 and 2 is proved and is binding on the plaintiff? and (2) whether the plaintiff is entitled to seek partition from the property of her father, late Nadipanna?

Point No. 1

7. To prove the Ex. B1 Will, the defendants examined DW1, DW2 and DW3. The first witness (first defendant) is one of the propounders of the Will. He deposed that Nadipanna executed a Will in 1960 and that for the first time he came to know about the same through the husband of the plaintiff. According to DW1, Nadipanna bequeathed his share in the joint family properties in favour of second defendant and son of DW1. According to him, he saw the Will a week after death of his father. He also admitted that when the Advocate Commissioner visited for taking inventory of the movables and documents, the Will was kept by him in a trunk box whereas the other documents seen by the Commissioner were in a steel almyrah. He wanted to safeguard the unregistered Will whereas the registered documents and cist receipts were kept in the almyrah. In his chief examination, he deposed that Ex. B1 Will was not given to him, that after performing obsequies he found the Will in the trunk box which he read and gave to second defendant. Under Ex. B1 Will, defendants 1 and 2 were to take care of their mother, till her death and also to give Rs. 100/- per month to the plaintiff.

8. The DW2 and DW3 are attestors of the Will. DW2 is cousin of DW1. He deposed that till partition under Ex. B8, himself, his brother and defendants 1 and 2, were living jointly. He deposed that after the scribe, Mogili Reddy, finished the writing of the Will, it was executed by Nadipanna and thereafter himself and DW3 attested the Will. He also admitted that upto two years after death of Nadipanna, all the people of two branches were living jointly. DW3 is an illiterate person. He also deposed on the same lines of having attested Ex. B1 Will after the testator signed the document. To a specific question as to whether Nadipanna executed the Will, he deposed that, “he does not know” and that, “he also does not know whether there was any other Will prepared subsequently”. He also stated that he was summoned by the testator through one Gangi Reddy at the time of execution of the Will and Ex. B1 Will was prepared before the midday. The Counsel for the plaintiff contends that the Will is surrounded by suspicious circumstances. He also relies on the report of Handwriting Expert (PW4) and Ex. C1 read with Exs. C2 to C4, to contend that the Will itself was forged and brought into existence to defeat the legitimate claim of the plaintiff. He also relied on the report of the Advocate Commissioner in support of the same. Before noticing the suspicious circumstances, it is necessary to mention about the report of the Advocate Commissioner and opinion of Handwriting Expert.

9. The plaintiff sought appointment of Advocate Commissioner to make inventory of the house of the first defendant. The Advocate Commissioner was appointed in IA No. 616 of 1977. He visited the house of the first defendant on 26.8.1977 at 08.00 a.m and prepared a list of the articles and the documents found there. The Ex. B1 is conspicuous by its absence in inventory of the articles and the documents prepared by the Advocate Commissioner vide his report dated 15.10.1977 At the instance of the plaintiff, Ex. B1 was sent to a Handwriting Expert for opinion as to genuineness of the signature of Nadipanna. After comparing the disputed signature in Ex. B1 with the admitted signatures in Ex. B4 (registered mortgage deed dated 19.8.1927), the expert gave report, Ex. C1, along with the reasons, Ex. C4, to the effect that a person, who wrote signatures in Ex. B4, did not write signature on Ex. B1. The Handwriting Expert was summoned and examined as PVV4. He gave reasons in support of his opinion, Ex. C1. PW4 was cross-examined at length but his evidence could not be impeached. After perusing Ex. C1 and Ex. C4 and the evidence of PW4, this Court does not find strong reasons to reject expert evidence. The trial Court seems to have rejected Ex. C1 and the evidence of PW4 only on the ground that the reasons for opinion were received on the eve of examination of PW4 in the Court. It is rather curious that an expert opinion can be rejected only on such a ground. A perusal of Sections 45 and 47 of the Indian Evidence Act, 1872, no doubt, does not compel the Court to accept expert opinion. But when expert opinion is not relied on, the Court ought to give convincing reasons. The delay in sending the reasons for opinion by itself cannot be a valid ground for discarding expert opinion. On this aspect, this Court holds that reading Ex. C1, C4 and the evidence of PW4, would lead to conclusion that Ex. B1 Will is not true and valid and, therefore, it is not binding on the plaintiff.

10. To the naked eye, the tenor of the document also does not inspire any confidence. In the first page, the lines are not straight whereas in the second page the lines are almost straight. The submission of the Counsel that such a style was adopted by the scribe to give space to signatures at the end, appears to be plausible. Intrinsically, there are defects in the Will. It is not smooth flow writing and there are number of blots. The explanation offered by the DW2 that the scribe, Mogili Reddy, used a quail pen is not supported by DW3. Admittedly the partition deed, Ex. B8 was scribed by the Village Karanam whereas Ex. B1 Will was scribed by Mogili Reddy, who studied upto Vth class. There is no explanation as to how a semi-literate person scribed the Will nor the scribe was examined to dispel any doubt.

11. In addition to the above intrinsic suspicions in Ex. B1 Will, the fact that DW2 is none other than the cousin of DW1, and DW3 is an illiterate person and an admission made by him that he does not know whether the Will was prepared later would also lead to suspicion. Importantly DW1 himself deposed that he learnt about the Will from the husband of the plaintiff to the effect that Nadipanna bequeathed the property to his son and second defendant, and that he saw the Will one week after the death of Nadipanna show that the Will is surrounded by suspicious circumstances.

12. A Will is a solemn document. The executant would not be alive to testify to its correctness. The law therefore demands trustworthy, unimpeachable and convincing evidence to establish genuineness and authenticity of the Will. Mere proof of Will as required under Section 68 of the Evidence Act and Section 63 of the Indian Succession Act, 1925, by itself would not suffice the legal requirements, when suspicious circumstances are alleged. The Court shall consider the circumstances brought out in the evidence, the contents of the document itself and the pre and post execution conduct of the parties to appreciate the probabilities (or improbabilities) of the Will being suspicious or otherwise. In a case of suspicious circumstances the lis ceases to be one between the propounder and challenger. The Court, then shall assume proactive role to pierce the events to satisfy itself the plausibility of the Will (see H. Venkatachala Iyengar v. B.N Thimmajamma, AIR 1959 SC 443, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 and Pinnka Hanumantha Rao (died per L.R) v. Garlapati Dhanalakshmi @ Andallu, 2007 (2) ALD 435). Importantly, in this case, the Will, Ex. B1, was executed on 24.5.1960 and partition deed, Ex. B8, was executed on 22.1.1963 In an understandable manner, the latter does not refer the former which itself creates the suspicion. This Court considered the issue, keeping the above principles, and holds that defendants 1 and 2 failed to discharge the burden of removing the suspicious circumstances surrounding the execution of the Will.

Point No. 2

13. The plaintiff claimed share in her father's property. According to her, after death of her mother, Atchamma, in 1969, she is entitled to 1/12th share in the property and defendants 1 and 2 are entitled to 5/12th share each and that plaintiff and third defendant continued to be in joint enjoyment of plaint schedule property even after 1969. She also challenged alienation made by first defendant in favour of fourth defendant, contending that the first defendant, who was managing the property, is not protecting interest of herself and her sister, Virupakshamma and, therefore, the suit property be partitioned. The first defendant in his written statement admits that the property originally belonged to their grandfather, that after his death Nadipanna and Narayana Reddy lived jointly enjoying the property, that after death of Narayana Reddy in 1947 Nadipanna, defendants 1 and 2 and sons of Narayana Reddy continued to be joint family having common kitchen and common worship and that it was only after 1963 there was partition between the branches of Narayana Reddy and Nadipanna. In his evidence, DW1 deposed to the effect that his paternal grandfather had Acs. 25.00 of dry and wet land and that Nadipanna also purchased Acs. 5.00 of land which was added to the joint family kitty. There is no evidence that as to how paternal grandfather of the plaintiff and defendants 1 and 2 acquired the property. The same however is not relevant because commencing from the grandfather of DW1, coparcenary is in existence. If that be so, all the coparceners by birth would inherit the property in equal shares and nobody can be excluded from the property. To that extent, it is undisputed by defendants 1 and 2. They however rely on Ex. B1 and Ex. B8 to exclude plaintiff and other sister from getting a share. On Point No. 1, this Court already held that Ex. B1 is not valid, binding and that it is surrounded by suspicious circumstances. In such a case, the question is whether the plaintiff and the legal heirs of late Virupakshamina are entitled to a share in the property as coparceners.

14. Section 6 of the Hindu Succession Act, 1956, as it stood prior to 9.9.2005, recognized Mithakshara Law of Succession. It is to the effect that when a male Hindu dies after commencement of 1956 Act having a share in the joint family property at the time of his death, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary, namely, grandfather, father, son or grandson. In State of Andhra Pradesh, Section 29-A was inserted with effect from 5.9.1985, which ensured gender justice and revolutionized Law of Succession giving equal rights to the daughter in coparcenary property. The same is to the effect that notwithstanding anything contained in Section 6(as it stood prior to 9.9.2005) in a joint family governed by Mithakshara Law, the daughter of coparcenar by birth shall become a coparcener in her own right in the same manner as son and have the same rights in the coparcenary property as if she had been a son and that at a partition in a Hindu family, a share in the coparcenary property shall be divided and allotted to daughter, as is allotted to a son. Section 29-A(iv) of Hindu Succession Act, however, makes Section 29-A(ii) inapplicable to a daughter married prior to or to a partition, which had been effected before A.P Amendment Act No. 13 of 1986. This means, equal right conferred on the daughter in a coparcenary by A.P Amendment Act would be of no avail to reopen a partition and it will be a right conferred on the unmarried daughter as on 5.9.1985 from which date A.P Amendment came into force. This was so held in B. Chandrasekhar Reddy v. State of A.P, (2003) 5 SCC 585 : AIR 2003 SC 2322.

15. In Chandrasekhar Reddy, the appellant filed two separate declarations under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. The Land Reforms Tribunal determined surplus land of 4.3360 Standard Holdings (SH) over and above one (1) SH. His appeal was partly allowed by Land Reforms Appellate Tribunal. He then filed revision before the High Court. During its pendency, he died and his legal representatives-appellants 2 and 4 to 7, before the Supreme Court, came on record. When the revision was pending, amended Section 29-A of Hindu Succession Act came into force. The appellant therefore contended that they were entitled to the benefit thereunder. However, the High Court did not accept the plea and rejected the civil revision petition. Before the Supreme Court, reliance was placed on Section 29-A and the relevant provisions dealing with family unit in Land Reform Laws. The Supreme Court while dismissing the appeal, held that Section 29-A can be invoked only by major daughters if they are not married by the time of coming into force of amendment. The relevant observations are as follows:

The provisos to sub-sections (iv) and (v) of Section 29-A are important in the sense that it is specifically mentioned that the benefit of Section 29-A can be invoked only by major daughters if they are not married prior to the commencement of Section 29-A of the Act. The said provision came into effect from 15.5.1986 Appellants 4 and 5 married prior to 15.5.1986 The sixth appellant was married on 29.8.1986 i.e, after the commencement of Section 29-A. Appellants 6 and 7 were minor daughters as on 1.1.1975, the date of the commencement of the Act. Appellant 6 Kumudini Devi was born on 1.5.1962 and Appellant 7 Sridevi was born on 2.3.1971 Appellants 4, 5 and 6 were major daughters and they were married at the time of commencement of the Ceiling Act and Appellants 6 and 7 were minors on that date, and were unmarried. They were treated as members of the family and the declarant must have derived benefit of such fixation of the ceiling. So, in any view of the matter, Section 29-A has no impact on the fixation of the ceiling as far as these appellants are concerned. It is true that by Section 29-A of the Hindu Succession Act, the daughters acquired a right by birth as they were deemed to be treated as coparceners of the joint family and they have got a right to seek partition of the joint family property but as regards the fixation of the ceiling, in the instant case, Section 29-A does not confer any additional benefit to Appellants 6 and 7.

(emphasis supplied)

16. In view of the decision of Supreme Court, the plaintiff would not succeed even if she relies on Section 29-A of Hindu Succession Act because her marriage was performed much prior to the death of Nadipanna in 1961 and the execution of registered partition deed between the defendants and other agnates of the family. The Counsel for the plaintiff relies on the Hindu Succession (Amendment) Act, 2005, which came into force with effect from 9.9.2005 The amendment Act deleted existing Section 6 of Parent Act and inserted new Section 6. Sub-sections (1), (2) and (3) of Section 6 of Hindu Succession Act are relevant, which read as under.

6. Devolution of interest in coparcenary property.—(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall,—

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu Family governed by the Mitakshara Law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.—For the purposes of this subsection, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

17. A plain reading of the above three sub-sections would show that Legislature makes distinction between the daughters of a male Hindu prior to coming into force of the amendment Act and after coming into force of the amendment Act. Subsection (2) of Section 6 of Hindu Succession Act is categorical that after commencement of new section, the property of a male Hindu shall devolve by testamentary or intestate succession and not by survivorship. The coparcenary shall be deemed to have been divided as if partition has taken place and the daughter is allotted the same share as is allotted to a son. In view of amended Section 6, a daughter no doubt becomes by birth a coparcener having the same rights in the coparcenary property but the status of being coparcener shall not affect or invalidate (i) any disposition; (ii) alienation; (iii) partition and/or (iv) testamentary disposition that had taken place prior to 20.12.2004 From this, it becomes clear that in respect of married daughters if the coparcenary property had not been partitioned among heirs also consisting a married daughter, she would be entitled for a share in the coparcenary. If the property has already been sold, alienated, partitioned or disposed of by the testamentary disposition by a male Hindu, no such right accrues to a married daughter that can be enforced in a Court of law.

18. There is no serious challenge to Ex. B8 partition deed. The property that would have fallen to the share of Venkata Reddy and Nadipanna had already been subject-matter of partition under Ex. B6 and, therefore, it is covered by proviso to amended Section 6 of Hindu Succession Act. The plaintiff would not therefore be entitled to any share. The Common Law Court, while deciding the question whether any person is entitled to any legal character, cannot ignore pendente lite change in law. Indeed, the appellate Court under Order XLI Rule 33 of Code of Civil Procedure, 1908 (CPC) is empowered to mould the relief taking into consideration such changes in legislation, regulating rights and duties of contestants to a suit.

19. In Veerappa v. Sivagami, AIR 1942 Mad. 291, Madras High Court held that, “the authority of an appellate Court is not limited to determining the question whether the original Court was right according to the law in force at the time of its judgment. It is entitled to pass such a decree as would be in accordance with any later enactment which came into operation subsequent to such date.

20. To avoid anomalies and multiplicity of proceedings a party ought to make the application to the appellate Court for the relief he is entitled to under an enactment which came subsequent to the passing of the decree of the original Court and get the necessary relief in accordance with that enactment.” It was also held that, “the pendency of the appeal suspends the finality of the decree of the original Court and before a final decree is passed by it, all the relief which a party is entitled to and which would have been given by the original Court had the later enactment been in existence on the date on which it passed the decree should be urged before the appellate decree is passed.”

21. In Kotturuswami v. Setra Veerawa, AIR 1959 SC 577, the Supreme Court held as under:

When this appeal came on for hearing the learned Advocate for the respondents took a preliminary objection that the suit field by the plaintiff must in any event fail, having regard to the provisions of Section 14 of the Hindu Succession Act, 1956 (30 of 1956), hereinafter referred to as the Act. Hence, the present appeal arising out of that suit must also fail. It was contended on behalf of the respondents that either there was a valid adoption or there was not. If there was a valid adoption and the decisions of the High Court and the District Judge on this question were correct, then obviously the suit of the appellant must be dismissed. If, on the other hand, it was found that the adoption of the second defendant by Veeravva was either invalid or, in fact, had not taken place then under the provisions of Section 14 of the Act Veeravva became the full owner of her husband's estate and was not a limited owner thereof. Consequently, the appellants suit was not maintainable. In view of this submission we are of the opinion that the point raised by way of preliminary objection must first be considered and decided. It is well settled that an appellate Court is entitled to take into consideration any change in the law.

(emphasis supplied)

22. The plaintiff and the defendants admit that the property is coparcenary joint family property. If that be so, the petitioner gets coparcenary rights with effect from 5.9.1985 by reason of Section 29-A of Hindu Succession Act inserted by A.P (Amendment) Act No. 13 of 1986. In addition to Section 29-A (iv), the plaintiff could not have enforced the right in the Civil Court, as held by Supreme Court in Chandrasekhar Reddy, after coming into force of the Hindu Succession Act, as amended by Central Act No. 39 of 2005.

23. No doubt, the plaintiff by birth is a coparcener but the proviso to Section 6(1) of Hindu Succession Act does not confer any right on the plaintiff to have a share in the coparcenary property of her father, Nadipanna. Therefore, her suit must fail. Though for different reasons, the impugned judgment and decree have to be confirmed.

24. Accordingly, the appeal suit is dismissed, without any order as to costs.