G.VARALAKSHMI & ANR.versusG.SRINIVASA RAO(D) THROUGH LRS. & ANR

                  ·M.N. Krishna Mani, Thima Reddy, S. Udaya Kumar Sagar,
              Bina Madhavan for the Appellants.

                  A.K. Ganguli, P.Keshav Rao, P. Venkat Reddy,             G
,   t   "7'   G.Prabhakar for the Respondents.

                  The following Order of the Court was .delivered


                                          551                              H
    552      SUPREME COURT REPORTS                   [2009] 12 S.C.R.


A                                   ORDER                                   ~   .
          1. Leave granted.

       2. The late G. Ramanujulu Naidu had four sons - G.K.
  Kuppu Swamy Naidu, G.R. Varadaraula, G.R. Sripathi Naidu
B 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
c 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
D 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.

       3. The defendants admitted relationship between them
E
  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
F the ground of non-joinder of necessary parties.

          4. 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
I'"'
'-=' 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.
H
         G. VARALAKSHMI & ANR. v. G. SRINIVASA RAO (D) 553
                    THROUGH LRS. & ANR.

             5. The appeal was dismissed, hence the appellants are             A
> "'
         before us through this appeal by way of special leave.

              6. 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
                                                                               B
         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                 c
              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         D
  --~.        of Ravi Kumar or not. We direct the respondent sot
              produce an authenticated copy of the said Will, if not the
              original."

               7. Shri AK. Ganguly, the learned senior counsel appearing
                                                                               E
         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.
                                                                               F
              8. 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         G
• ..,,   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           H
    554      SUPREME COURT REPORTS                 [2009] 12 S.C.R.


A 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
B 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
c 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:-
D
        "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:

E              "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
F
               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:
G
               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
H              is a widow."
          G. VARALAKSHMI & ANR. v. G. SRINIVASA RAO (0) 555
                     THROUGH LRS. & ANR.

    • +      26. In a recent judgment of this Court in G. Sekar v. Geeta     A
             (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:              B
                    "21. The said property belonging to Gov[nda 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   c
                    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    D
     -·             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    E
                    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          F
                    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
                                                                             G


             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
                                                                             H
    556       SUPREME COURT REPORTS               [2009] 12 S.C.R.


A          the controversy at rest, we have considered this aspect of   t   •
           the matter also and answered in accordingly hereinabove."

        9. 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
8 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
C 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
D cannot be accepted. We, therefore, direct that the parties shall
  be entitled to equal share also in respect of item Nos. 5 and 7.

           10. The appeal is disposed of in the aforesaid terms.

    R.P.                                       Appeal disposed of.