ITEM NO.15               Court No.3             SECTION XIIA

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                      Petition(s) for Special Leave to Appeal (Civil) No(s).10135-10137/2004 (From the judgement and order dated 25/06/2003 in CCCA No. 173/2009, CMP 19203 and  19360/2002   of  The  HIGH  COURT  OF  JUDICATURE,  ANDHRA  PRADESH  AT  HYDERABAD)

G. VARALAKSHMI & ANR.                 Petitioner(s)

                VERSUS

G.SRINIVASA RAO (D) THRU  LRS. & ANR.                               Respondent(s) (With appln. for directions, prayer for interim relief and office report ) [FOR FINAL DISPOSAL]

Date: 06/08/2009  This Petition was called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE S.B. SINHA         HON'BLE MR. JUSTICE DEEPAK VERMA

For Petitioner(s) Mr. M.N. Krishna Mani, Adv. Mr. Thima Reddy, Adv. Mr. S. Udaya Kumar Sagar, Adv. Ms. Bina Madhavan,  Adv.

                     For Respondent(s) Mr. A.K. Ganguli, Sr. Adv.

Mr. P. Keshav Rao, Adv. Mr. P. Venkat Reddy, Adv. Mr. G. Prabhakar, Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

Leave granted.

The appeal is disposed of in terms of the signed order.

(KALYANI GUPTA) SR. P.A.

(PUSHAP LATA  BHARDWAJ)

COURT MASTER

[SIGNED REPORTABLE ORDER IS PLACED ON THE FILE.]

REPORTABLE       IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5144-5146 OF 2009 ARISING OUT OF SLP(C) No.10135-10137 of 2004

G. VARALAKSHMI & ANR. ....    APPELLANTS

VERSUS

G. SRINIVSA RAO (D) THRU LRS.  & ANR.  .... RESPONDENTS

O R D E R

Leave granted.

The  late  G.  Ramanujulu  Naidu  had  four  sons  –  G.K.  

Kuppu Swamy Naidu,  G.R. Varadaraula,  G.R.  Sripathi  Naidu  

and G.R. Gajapati Naidu, G.K. Kuppu Samy Naidu had two sons  

Mohan Babu and G. Srinivasa Rao (1st Defendant).   Defendant  

No. 2 is the wife of Defendant No. 1  They have four daughters  

namely Vinodini, Vinita, Vibha and Shalini and one son G.S. Ravi  

Kumar who married the first plaintiff in the year 1978 and the 2nd  

plaintiff  was born to them in the year 1980.  G.K. Kuppusamy  

effected the partition as alleged by the plaintiffs, sometime prior  

to  31.12.1964.   He,  before  dying  in  1976  executed  a  Will  on  

25.10.1973, which was in the custody of the first defendant.  After  

the  death  of  G.S.  Ravi  Kumar  in  tragic  circumstances,  the  

plaintiffs  issued  notice  to  the  defendants  to  partition  the  

properties; belonging to the joint family,  but they allegedly did  

not cooperate.  Hence a civil suit was filed.

The defendants admitted relationship between them and

about Kuppu Swamy dying in the year 1976 and leaving behind a  

Will dated 1.11.1975.  As many as 9 issues were framed by the  

trial court and a preliminary decree was passed for partition of  

item No. 7 into three shares of which two belonged to the plaintiff.  

The remaining suit was dismissed on the ground of non-joinder of  

necessary parties.

An  appeal  was  preferred  before  the  High  Court   of  

Judicature  at  Andhra  Pradesh,  relating  to  all  suit  properties  

except item 7  wherein  the point for consideration was whether  

the properties in the plaintiff schedule  are  joint family properties  

of  the  1st Plaintiff  and 1st Defendant.   During  pendency  of  the  

appeal  the minor son attained majority and wanted to implead  

daughters of respondent No. 1 as some of the properties were in  

their names.

The  appeal  was  dismissed,  hence  the  appellants  are  

before us through this appeal by way of special leave.

A Bench  of  this  Court   by  an order  dated  06.05.2004  

issued notice limited only to item Nos. 5 and 7 of Schedule I and  

on the question of the non-production of the Will.   The Will in  

question,  said to be dated 1.11.1973 executed by G.R. Kuppusamy  

Naidu  has  not  been  produced.   In  the  proceeding  sheet  dated  

23.01.2008 it was noticed:

 “One of the contentions raised before us is that the Will  dated 1.11.1975 executed by G.R. Kuppuswamy Naidu purported  to be in favour of his sons Mohan Babu and G. Sreenivasa Rao as  also Ravi Kumar has not been produced so as to enable the Court  to ascertain as to whether by reason thereof only item No. 7 of the  property described in plaint schedule -I was bequeathed in favour  of Ravi Kumar or not.  We direct the respondent sot produce an

authenticated copy of th said Will, if not the original.”  

Shri A.K. Ganguly, the learned senior counsel appearing  

on  behalf  of  the  respondents  when  the  matter  was  called  out  

stated  that  the  Will,  in  question,  is  not  traceable.   We,  thus,  

proceed  on  the  basis  that  the  said  purported  Will  being  non-

existent, the parties did not inherit any property pursuant thereto  

or in furtherance thereof.

Indisputably,  G.R. Kuppuswamy obtained the property  

by reason of a Will executed by his father in the year 1921 from  

Ramanujulu Naidu.  He expired on 16.01.1976.  Srinivasa Rao, the  

predecessor-in-interest of the parties thereto expired on 30th July,  

2006.  One of the questions which was raised before us by Mr.  

M.N. Krishnamani, the learned senior counsel is that Prabhavati,  

widow  of  Srinivasa  Rao  and  his  daughters,  Vinodini,  Vinita,  

Vibha  and  Shalini  could  not  inherit  any  property  of  G.R.  

Kuppuswamy  Naidu  or  Srinivasa  Rao,  the  same  being  a  

Mitakshara  coparcenery  one.   The  contention  of  the  learned  

counsel is not correct, inasmuch as Kuppuswamy got the property  

by reason of  a Will,  it  was,  therefore,  his  individual  properties  

and  not,  Mitakshara  coparcenery  property  on  30th November,  

1921.  Furthermore, the execution of the said Will and with effect  

thereof  is  not  in  question  as  all  the  four  sons  of  Ramanujulu  

Naidu were beneficiaries in terms thereof.  Furthermore, the State  

of Andhra Pradesh amended Section 6 of the Hindu Succession  

Act  by  A.P.  Hindu  Succession  Act,  1987  in  terms whereof  the  

daughters also by reason of  a legal  fiction became coparceners.

Similar  provision  has  been  introduced  by  the  Parliament  by  

Hindu Succession (Amendment) Act, 2005 and the effect of such a  

State amendment in relation to the State of Tamil Nadu has been  

considered  by  us  recently  in  R.  Mahalakshmi v.  A.V.  

Anatharaman & Ors. in civil Appeal No. 5053 of 2009 disposed of  

on 3rd August, 2009  wherein it was held as under:-

“25. Section 23 of the Hindu Succession  Act, 1956 has since been omitted w.e.f. 9.9.2005,  but before omission it stood as thus:

“23.  Special  provision  respecting  dwelling houses :- 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:

Provided that where such female heir is  a  daughter,  she  shall  be  entitled  to  a  right  of  residence  in  the  dwelling  house  only  if  she  is  unmarried  or  has  been  deserted  by  or  has  separated from her husband or is a widow.”

26.   In  a  recent  judgment  of  this  Court  in  G.  Sekar V.  Geeta  (2009) 6 SCC 99 pronounced by  one of  us  (Hon’ble  S.B.  Sinha  J.),  the effect  of  amendment in the Hindu Succession Act, 1956 by  reason  of  the  Hindu  Succession  (Amendment)  Act, 2005 insofar as therein Section 23 has been  omitted was considered.  It was held as under:

“21.The  said  property  belonging  to  Govinda  Singh,  therefore,  having  devolved  upon  all  his  heirs in  equal share on his death, it would not be  correct to contend that the right, title and interest  in  the  property  itself  was  subjected  to  the  restrictive  right  contained  in  Section  23  of  the  Act. The title by reason of Section 8 of the Act  devolved absolutely upon the daughters as well as  the sons of  Govinda Singh.   They had, thus, a  right to maintain a suit for partition.  Section 23

of the Act, however, carves out an exception in  regard to obtaining a decree for possession inter  alia in a case where dwelling house was possessed  by a male heir.  Apart therefrom, the right of a  female heir in a property of her father, who had  died intestate is equal to her brother.  Section 23  of the Act merely restricts the right to a certain  extent.   It,  however,  recognises  the  right  of  residence in respect of the class of females who  come within the purview of the proviso thereof.  Such a right of residence does; not depend  upon  the date on which the suit has been instituted but  can also be subsequently enforced by a female, if  she  comes  within  the  purview  of  the  proviso  appended to Section 23 of the Act. 27.  However, on account of death of Respondent  No.  3,  unmarried sister  of  the parties,  the  said  question No. 1 had become academic in nature  and  it  was  not  necessary  for  us  to  answer  the  same  but  as  it  stood  answered  in  a  recent  judgment of  this  Court  in G. Sekar (supra),  to  put the controversy at rest, we have considered  this  aspect  of  the  matter also  and  answered in  accordingly hereinabove.” In that view of the matter, there cannot be any doubt or  

dispute that the defendants herein could be entitled to equal share  

of  the  property  of  Srinivasa  Rao  in  terms of  Section  8  of  the  

Hindu Succession Act. We would however, make it clear that in  

these proceedings we are concerned with the properties left at the  

hands of G.R. Kuppusamy Naidu. The learned counsel, however,  

tried to persuade us to modify the said order of this Court dated  

06.05.2004 so as to consider the entire matter afresh and in its  

entirety. The contention having not been raised before us earlier  

in this Court and all concerned having proceeded on the basis that  

the subject matter of this appeal is confined to only Item Nos.5 &  

7  of  Schedule  I  to  the  plaint,  we are  of  the  opinion  that  said  

request of the learned counsel cannot be accepted.  We, therefore,  

direct  that  the  parties  shall  be  entitled  to  equal  share  also  in

respect of item Nos. 5 and 7.

 The appeal is disposed of in the aforesaid terms.

.....................J [S.B. SINHA]

.....................J [DEEPAK VERMA]

NEW DELHI, AUGUST 06, 2009.