N VENKATESHWARLU Vs. P PULLAMMA

JUDGEMENT

(1.) This second appeal arises out of partition suit filed by the respondent. One Narasimham died on 22-8-1974 leaving the plaintiff-daughter, two sons- defendant 1 and defendant 2 and the wife-defendant No. 3 as his heirs. After the death of the said Narasimham, the plaintiff filed O.S. No. 167 of 1975 on the file of District Munsif, Tiruvuru, for partition and separate possession of 1 14th share of plaint schedule properties. There are two schedules in the plaint. Plaint 'A' Schedule contains two items-item-1 consists of agricultural lands and item-2 comprises of thatched house and land appurtenant thereto and plaint 'B' Schedule contains moveables said to have been left by the deceased.

(2.) The plaintiff's case is that her father and brothers effected partition of the joint family properties on 5-11-1963. Under the partition, the plaintiff got immovable property mentioned in the plaint 'A' schedule. The plaintiff demanded partition of the plaint schedule properties. But, as the defendants, who are in possession of the property did not effect the partition, she filed this suit. The first defendant contested the suit on the ground that on 5-11-1963, late Narasimham executed will, Ex. B-l, pursuant to which he had bequeathed properties in favour of his wife-defendants and defendant No. 1, and as he did not die intestate, the question of effecting partition of his property did not arise. It was further contended that item-2 of plaint 'A' schedule is a residential house, which cannot be partitioned at the instance of the plaintiff. The lower Court framed necessary issues. The plaintiff examined three witnesses and documents were marked Ex. A-1 to Ex. A-6, the contesting defendants examined four witnesses D.W.1 to D.W. 4, and marked Ex. B-l to Ex. B-3, Considering the evidence on record, the trial Court found that no B-Schedule property was available for partition. It is also found that Ex. B-1 - the will said to have been executed by late Narasimham on 5-11-1963, was concocted and antedated; in the result the trial Court passed preliminary decree and granted her 1 /4th share in the plaint 'A' Schedule property to the plaintiff by judgment and decree dated 2nd September, 1977. The defendants 1 and 3 filed A.S. No. 16 of 1984 on the file of Subordinate Judge, Nuzvid against the said judgment and decree of the trial Court. It may be pointed out here that the second defendant was not impleaded as party to the appeal. The Appellate Judge confirmed the findings of the trial Court and dismissed the appeal. With regard to item-2 of the plaint 'A' schedule, the learned Appellate Judge agreed with the trial Court that partition sent by female was not maintainable in view of Section 23 of The Hindu Succession Act, 1956, and that the appeal was without any merit. On 31st August, 1984, the learned Subordinate Judge dismissed the appeal of defendants 1 and 3. Aggrieved by the judgement and decree of the first appellate Court, the first defendant alone filed the Second Appeal.

(3.) Sri E.V.S. Charyulu, the learned Counsel for the appellant, contended that in view of Section 23 of The Hindu Succession Act, the daughter - a female heir cannot claim partition of the property of a dwelling-house and item-2 of plaint 'A' schedule is a dwelling-house; both the Courts erred in granting partition of item 2 of the plaint 'A' schedule property. Sri Suresh Babu, appearing for the respondent-plaintiff contends the Section 23 of the Hindu Succession Act has no application, as one of the brother remained ex parte. Therefore, in the suit only one son of the deceased, who is contesting, cannot claim the benefit of Sec. 23. He further contends that the second appeal itself is incompetent and is liable to be dismissed as necessary party to the appeal, namely the second defendant is not impleaded and so far as the third defendant was concerned, she was impleaded, but, it was written in the memo of grounds that she was not a necessary party whereas in fact, she is a necessary party. Therefore, insofar as the defendants 2 and 3 are concerned, this appeal is liable to be dismissed.