PAREPALLI MANIKYAMMA Vs. PAREPALLI VENKATA SUBBA RAO

JUDGEMENT

(1.) In this second appeal preferred by the defendants 8 to 14 the only question for consideration is whether the plaintiffs could claim a 1/3rd share in the estate of the last full owner Mangamma, as the sons of a pre-deceased son of the said Mangamma within the meaning of section 15 (a) of the Hindu Succession Act. Mangamma the last full owner died intestate on 23rd January, 1934, and the property devolved upon her daughter Nagamma, with a limited estate, and the said Nagamma died on 15th September, 1957. The plaintiffs are the sons of Ramanayya. One of the sons of Mangamma, Ramanayya, died on 25th January, 1937. The plaintiffs claim that they would also be the heirs to the estate of Mangamma, as the sons of the pre-deceased son of Mangamma. Defendants 8 to 14 contend that the plaintiffs could not be deemed to be the sons of a pre-deceased son, as Ramanayya died on 25th January, 1937, subsequent to 23rd January, 1934 on which date Mangamma actually died. But the plaintiffs contend that though Mangamma actually died on 23rd, January, 1934, according to the fiction created under Hindu Law, Mangamma should be deemed to have died on 15th September, 1957, the date on which the limited owner Nagamma died and if, that fictional date is taken as the date of death of Mangamma, Ramanayya must be deemed to have predeceased his mother Maugamma, in which case the plaintiffs would be the sons of a predeceased son, and therefore, they would also be heirs. Sri A. Hanumantha Rao, learned Counsel for the appellants contends that the legal fiction recognised under Hindu Law with regard to the date of death of Mangamma, cannot be extended in order to determine the question whether Ramanayya predeceased Mangamma or not. Both the Counsel have cited rulings in support of their rival contentions. Alternatively it is contended by Sri Hanumantha Rao, the learned Counsel for the appellants, that even assuming that Mangamma the full owner is deemed to have died on the date on which the limited owner Nagamma died, still the plaintiffs would not be the heirs to the estate of Mangamma by reason of sections 15 and 16 read with rule 2 of the Hindu Succession Act. As the questions raised in the second appeal are substantial questions of law of considerable importance, I think that the second appeal should be disposed of by a Division Bench. Hence the second appeal is referred to a Bench of two Judges for disposal. Pursuant to the above order, the appeal came on for hearing before a Division Bench consisting of Sambasiva Rao and Narasinga Rao, JJ. A. Hanumantha Rao, for Appellants. P. Kodandaramayya, for Respondents 1 to 5. Notice to Respondents 6, 7, 10, 12 and 13 dispensed with. Other Respondents not appearing in person or by Advocate. The judgment of the Court was delivered by Sambasiva Rao, J.-The second appeal is before us one reference. A ticklish question of Hindu Law arises in it.

(2.) Let us first notice the material facts: A lady by name Nagamma was the last full owner of certain properties. She died intestate on 23rd of January, 1934. She had three sons and one daughter Nagamma. Nagamma, on whom the properties of her mother Mangamma had devolved with a limited estate died on 15th of September, 1957. The plaintiffs are the heirs of Ramanayya the eldest son of Mangamma. Ramanayya died on 25th January, 1937. The second son Ramayya died issueless. The third son Satyanarayana died leaving behind him his wife 8th defendant and his sons and daughters defendants 9 to 14. Nagamma's own children were defendants 1 to 7.

(3.) The plaintiffs, who are the heirs of Mangamma's eldest son Ramanayya, filed a suit for partition of the properties, of which Mangamma was the last full owner, into three shares and for possession of one such share. Since defendants 8 to 14 the heirs of Satyanarayana, who was one of the sons of the last full owner Mangamma, were in possession, the plaintiffs also sought a decree for accounts by them in respect of the income. According to the plaintiff's they are entitled to a 1/3rd share, defendants 1 to 7 to another 1/3rd share and defendants 8 to 14 to the other 1/3rd share. The 5th defendant had laid O. S. No. 630 of 1957 on the file of the District Munsif's Court, Guntur, for division of these properties into three equal shares contending that the old Hindu Law of Succession was applicable. In this suit he ignored the rights of the plaintiffs and the other defendants saying that it was the old law and not the Hindu Succession Act of 1956 that applied. This suit was dismissed by the trial Court as well as the Appellate Court. In a second appeal the High Court confirmed this view and remanded the case to the trial Court for consideration of the rights of the parties under section 15 of the Hindu Succession Act. The High Court also permitted the amendment of the pleadings by adding proper parties and altering the relicfs.The 5th defendant, however, did not take any steps after remand. The suit was dismissed on 4th February, 1966. Since the plaintiffs were not parties to that suit they had no opportunity to press their claims in that suit and so, the any decision rendered therein was not binding on them. Under the present law the plaintiff's are entitled to a 1/3rd share.