GANGA RAMA RAO Vs. BHARATHI

JUDGEMENT

(1.) THE defendants have challenged the decree for partition granted in favour of the plaintiff their sister of l/5th share by the First Appellate court while the suit was dismissed by the Trial Court. The relationship of the parties are not in dispute and the property is also not in dispute. But the defence set up by the defendants 1 to 4 was that the suit Item no. 1 was self-acquired property of the deceased wife of the first defendant and the mother of the plaintiff and other defendants. The second item was denied. It was further contended that the suit house was put up from and out of the joint acquisition of defendants 1 to 3, neither the plaintiff nor defendant 4 have any sort of right or interest in Item No. 1. The Trial Court found that the suit property was inherited by the plaintiff defendants through the mother of the first defendant and defendants 2 to 4 and also it held that the property is a joint ownership of all the properties. The claim of the defendants that the property is a self acquired property was denied. The further claim that the second defendant is the absolute owner and he is in sole enjoyment of the first item to the exclusion of all of the defendants and of the plaintiff, was raised as an issue and subsequently deleted. Ultimately, holding that the property is indivisible the Trial Court dismissed the suit. On the other hand, the Appellate Court came to the conclusion that the properties are capalde of division and consequently decree for partition was granted. It is now contended before me that the lower Appellate Court erred in fallowing the case vide 1994 (3) SCC 237, to the effect that the intention of the male members to have the partition is enough to apply the exception to Section 23 of the Hindu Succession Act, 1956. The decision in narashimaha Murthy v Smt. Susheelabai and Others, was relied upon by the learned Counsel in particular to the following observation. It is seen in that very judgment that Section 23 will apply only if there is a surviving sole male heir and not otherwise. The position is made clear under the following observation found in paragraph 20:

(2.) I would emphasise the words "it would therefore, be just and proper for the Court to adopt common sense approach peeping at the hack of his mind justice, equity and good conscience and consider the facts and circumstances of the case on hand".

(3.) ADMITTEDLY, in this case there are more than one male heirs and not 'a' male heir, but making the Supreme Court decision applicable to the facts of the case, there is also a clear indication that when the other male heirs ask for partition then Section 23 will become no bar. In this case, it cannot be believed that all the three sons with their respective wives and children will continue to dwell in the same house. They must express their intention in the written statement. In the absence of any pleading in the written statement, it is not open to the defendants to claim otherwise in the second appeal. Therefore, holding that there is no merit in the second appeal to merit admission. The second appeal is dismissed.