GANGA HANUMANTHARAO Vs. GARLAPATI PRAKASHAM

JUDGEMENT

(1.) This revision petition is filed against the order in IA. No. 107/89 in O S. No 24/16 on the file of the Subordinate Judge Bhongir. The 1st respondent herein filed the suit OS. No. 24/86 for partition against respondents 2 and 3. In that suit, the petitioners have filed IA. No. 107/89 to impfead them as parties on the ground that they have got right in the property by virtue of the amendment to the Hindu Succession Act, Act 13 of 1986, which came into force on 5th September, 1985. Their case in so far as it is relevant for the purpose of this petition is as follows. The property originally belonged to one Anthaiah. He had three sons by name Papaiah Raj" aiah, and Narasaiah. Papaiah died 'leaving 6 daughters, The petitioners are the sons of three daughters They alleged that the other three daughters are not interested in the property. Rajaiah had two sons by name Veeraiah and Anthaiah. The plaintiff is the son of Anthaiah. Narsaiah's sons are defendants 1 and 2. The case of the petitioners is that by virtue of the amendment to the Hindu Succession Act, i.e. Sec. 29-A a daughter is entitled to an equal share along with the son even in a joint family property governed by Mitakshara Law and therefore as this property is joint family property the daughters of Papaiah are also entitled to their respective shares in the properties along with the plaintiff and defendants 1 and 2 who are sons of Rajaiah and Narsaiah. The petitioners, therefore contend that they may be implead as parties as they have got right in the properties. Respondents 2 and 3 filed counter opposing the application. The learned Subordinate Judge dismissed the petition and aggrived by that, the petitioners have filed this revision petition.

(2.) The contention of the petitioners that they are entitled to a share in the suit properties is based on Sec. 29-A of the Hindu Succession Act which was inserted by the A P. Amendment Act 13 of 1986, which came into effect on 5-9-1985. That Section reads that notwithstanding anything contained in Section 6 of this Act-(i) ina joint Hindu family governed by Mistakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenery property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son; (ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotible to a son - Clause (iv) reads that nothing in clause (ii) shall apply to a daughter married prior to OR to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986.

(3.) In this case it is admitted that the mothers of the petitioners who are daughters of Papaiah, were married long prior to the date when the Act came into force. So, the question is whether they are disentitled to claim a share in the properties by virtue of Clause (iv) of the said provision. The contention of the learned counsel for the petitioners is that the daughter will be disentitled to claim a share only if both the conditions are satisfied i.e. it applies to a case of a daughter married prior to the commencement of the Act and if the partition had already taken place. On the other hand, the learned counsel for the respondents contended that a daughter is disqualified from claiming a share in the property if any one of the conditions exists i.e. if she is married prior to the commencement of the Act or if there had been a partition before the commencement of the Act.