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IN THE COURT OF THE IV ADDL. DISTRICT JUDGE:: NELLORE

Thursday, this the 13th day of April 2017
Present::CH. RAMACHANDRA MURTHY,
IV Addl. District Judge, Nellore.

A.S.No.2/2014
1. Thikkavarapu Siva Kota Reddy,
son of late Siva Rami Reddy, Hindu,
aged 56 years, Macherlavaripalem
Village & Post, Thotapalliguduru ..... Appellant
Mandalam, Nellore District.
Vs.
1. Thikkavarapu Sanathana Reddy,
Son of late Siva Rami Reddy, Hindu,
aged 56 years, agriculture,
Macherlavaripalem Village & Post,
Thotapalliguduru Mandalam, Nellore
District

2. Mandipati Giridhar Reddy,

son of late Venkatrami Reddy, Hindu,
aged 36 years, agriculture,
Edalavaripalem village,
Brahmadevam Post, Muthukuru
Mandalam, SPSR Nellore District

3. Konduru Anitha,
wife of Revathinadh, Hindu, aged 38
years, housewife, 16-3-542,
Ramamurthy Nagar, Nellore-524 003.

4. Isanaka Suneetha,
wife of Damodar Reddy, Hindu, aged
34 years, housewife, 27-2-1788,
upstairs, Lakshmi Nagar, Balaji Nagar
Ext., Nellore 524 002

5. Biradavolu Sowjanyamma,
wife of Raveendra Reddy, Hindu,
aged 58 years, house wife, 26-1-915,
Near BJP Office, Bhakthavatssala
Nagar, AK Nagar Post, Nellore. 524
004 ….. Respondents

APPEAL PREFERRED UNDER ORDER 41 RULE 1 OF CPC AGAINST THE

DECREE AND JUDGMENT DATED 11.10.2013 IN OS NO.747/2007 ON THE
FILE OF Prl. SENIOR CIVIL JUDGE, NELLORE.
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Thikkavarapu Sanathana Reddy …. Plaintif

Vs.
1. Thikkavarapu Siva Kota Reddy
2. Mandipati Bhuvaneswaramma
3. Biradavolu Sowjanyamma …...... Defendants

This appeal coming on 7.4.2017 for final hearing before me in the

presence of Sri P.Raghu Rami Reddy advocate for Appellant and of Sri S.V.M.K.V.
Prasad Rao advocate for respondents 1,4 and 5 and respondent No.2 and 3
have been called absent and set exparte and the matter having stood over for
consideration till this day, this Court made the following-
JUDGMENT
1. Appellant is the 1st defendant in OS 747/2007 on the file of

learned Principal Senior Civil Judge, Nellore, preferred the present appeal

against the decree and judgment dated 11.10.2013 against partly decree the

suit for partition.

2. The brief averments of the plaint are that:

The plaintiff and 1st defendant are brothers and sons of late Sivarami

Reddy. They are members of joint family. Their father died intestate in the

month of March 2001, leaving behind the plaintiff and the 1 st defendant as his

legal heirs. Suit property is the ancestral property of their father late Sivarami

Reddy. Their father performed the marriages of two daughters who are

defendants no.2 and 3 about more than 25 years back by giving sufficient

money as a gift at the time of their marriages. After the death of their father,

the plaintiff demanded the defendant to divide the suit property. The 1 st

defendant postponed the same. The plaintiff got issued legal notice dated

01.05.2001. The 1st defendant did not give any reply. The 1 st defendant

obtained two registered settlement deeds dated 11.09.1995 from his parents

in respect of the suit property. The 1st defendant leased out the suit property

to one Nelavoi Suresh Reddy. The plaintiff filed suit in OS 585/2001 On the file

of III Addl. Junior Civil Judge Court, Nellore for partition. The suit was

dismissed for default in the year, 2003. Hence, the suit.

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2. Defendants 2 and 3 were set exparte. 1 st defendant filed written

statement denying the avernments in the plaint. He further contends that his

father Sivarami Reddy was absolute owner of the suit property, who executed

registered settlement deed 11.9.1995 in favour of the 1 st defendant. His

mother also executed settlement deed for an extent of Ac.0.89 cents in

Sy.No.414 of T.P.Gudur Village and that the 1 st defendant has been in

possession and enjoyment over the suit property in pursuance of settlement

deeds. The plaintiff was never in possession and enjoyment of the suit

property since11.9.1995. Therefore, he requested to dismiss the suit with

costs.

3. On the above pleadings issues were framed by the Trial court.

1. :- Whether the plaint schedule property is the

ancestral property of father of plaintiff and
defendants as pleaded by the plaintiff?

2. :- Whether the plaintiff has been in joint

possession and enjoyment of plaint schedule
property as claimed by him? If not, court fee paid
by the plaintiff on the plaint is correct.
3 :- Whether the plaintiff is entitled for partition and
separate possession of half share in the plaint
schedule property by metes and bounds, as
prayed for?
4 :- To what relief?

4. On behalf of plaintiff, Pws 1 and 2 were examined and Exs.A1 and A2

were marked.

5. On behalf of the defendant, DW1 was examined and Ex.B1 to B9 were

marked.

6. After hearing both sides and on appreciation oral and

documentary evidence, the learned Principal Senior Civil Judge held that the

plaintiff failed to prove that part of the suit property in an extent of Ac.0.89

cents is their ancestor property and that as per Ex.B1, B3 to B9, the 1 st

defendant became the owner of the property and he obtained pattadar

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passbook and title deed and that the settlement deed in Ex.B1 was acted upon

and that item no.1 of the plaint schedule is exclusive property of 1 st defendant

and that plaintiff is entitled to 1/5th share in an extent of Ac.2.66 cents in

Sy.No.411 of Macharlavaripalem Village. By observing the same the suit of the

plaintiff for partition was partly Preliminarily decreed without costs.

7. Against the said decree and judgment, the 1 st defendant

Thikkavarapu Siva Kota Reddy preferred the present appeal.

(i) In the grounds of appeal it is contended that

1. :- The trial court erred in not considering the

question of law involved.
2. :- The trial court erred in drawing a presumption
does the property covered by Ex.B2 is the
ancestral property and erred in observing that
Pithrajithamu means ancestor property
3. :- The trial court ought to have observed that
Pithrajithamu means the property acquired by
the father
4. :- The trial court failed to appreciate the oral
and documentary evidence.

Therefore, the appellant requested to allow the appeal after setting

aside the said decree and judgment and consequently dismiss the suit for

partition.

8. Heard both sides and perused relevant records.

9. Now the points for consideration in the present appeal is:

Whether item no.1 of the plaint schedule is joint family

property of the plaintif and 1st defendant ?
Whether the decree and judgment by the learned Prl.
Senior Civil Judge in OS 747/2007 dated 11.10.2013 are
liable to be set-aside?

POINT

Whether item no.1 of the plaint schedule is joint family

property of the plaintif and 1st defendant?
Whether the decree and judgment by the learned Prl.
Senior Civil Judge in OS 747/2007 dated 11.10.2013 are
liable to be set-aside?
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They are interrelated I deal with together.

10. It is not in dispute that the plaintiff and 1 st defendant are brothers and

sons and defendants 2 and 3 are sisters and daughters of late Thikkavarapu

Sivarami Reddy. Sivarami Reddy died intestate in the month of March 2001. It

is also not in dispute that Sivarami Reddy performed the marriages of his two

daughters about over 25 years back. It is not in dispute that the plaintiff filed

suit in OS 585/2001 on the file of the learned III Additional Junior Civil Judge,

Nellore for partition and separate possession. The said suit was dismissed for

non payment of batta. It is not disputed that single boundaries are furnished

for the property covered in S.N.411 in an extent of Ac.2.66 and for an extent of

Ac.0.89 cents in S.No. 414 situated at Macharlavaripalem village of T.P.GUDUR

Mandal.(for both the items)

11. It is also not dispute that the suit for partition was dismissed against

property in an extent of Ac.0.89 cents in S.No. 414 situated at

Macharlavaripalem village of T.P.GUDUR Mandal. Against the said finding the

plaintiff did not prefer any appeal. It is also not in dispute that the 1 st

defendant obtained pattadar passbook and title deed in Ex.B3 and B4 and

paying land revenue and obtained receipts. It is evident from Ex.B5 to B9.

12. The main contention of the plaintiff is that the suit properties are

their ancestral properties and that the 1st defendant leased out the same and

he did not come forward for division of the properties in spite of issuing legal

notice in Ex.A1.

13. On the other hand the 1st defendant contends that the suit

properties are not joint family properties and that his parents executed

registered settlement deeds in Ex.B1 and B2 and settled the suit properties in

his favour and that he has been in possession and enjoyment over the suit

property and that the plaintiff is nothing to do with the suit properties.
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14. Plaintiff examined as PW1, he deposed that the suit properties are

their ancestral properties and they are liable for partition. During his cross

examination, he admitted that he has no record to show that the plaint

schedule property is their ancestor property. He further admitted that the

house in which he is residing was partitioned between himself and the 1 st

defendant. He is residing in half portion of the house and the 1 st defendant is

residing in the remaining half portion of the house. The witness again says that

the house is not partitioned.

15. Defendants 2 and 3 are his sisters. He did not raise an objection

before Revenue Department against issuance of Ex.B3 and B4 in the name of

1st defendant. In the year, 2001, he came to know about Ex.B1 and B2

settlement deeds. He denied a suggestion that the suit property is not their

ancestral property and that his parents settled the suit property in favour of

the 1st defendant under Ex.B1 and B2.

16. PW2 is resident of Isukapalem. He deposed that suit property is

joint family property of the plaintiff and the 1 st defendant. He cannot say

survey number and patta number of the suit property. He has no evidence to

show that suit property is ancestral property of Sivarami Reddy. He admitted

that one house was partitioned in between the plaintiff and 1st defendant and

they are living separately in their respective shares for the last 14 years. He

does not know about the execution of documents by Sivarami Reddy and his

wife.

17. 1st defendant examined as DW1. He deposed that suit properties

are not joint family properties. His father was absolute owner of an extent of

Ac.2.66 cents in Sy.No.411 of Thotapally Gudur and that he executed a

settlement deed in his favour under Ex.B2 and that his mother executed Ex.B1

in respect of Ac.0.89 cents in Sy.No.414 and that he has been in possession and
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enjoyment over the suit property and that the suit is filed in order to harass

him.

(I) During his cross examination, he deposed that his father used to

have Ac.30.00 of self acquired property. He has no documentary evidence to

prove the same. His father died in the month of March 2001. His mother

predeceased his father. By the time of death of his father he left no property

for himself. By the date of Ex.B2 his father used to have the property covered

under Ex.B2 apart from Ac.2.22 cents of land which was given to his brother.

No document was executed in favour of his brother by his father for an extent

of Ac.2.22 cents. By the date of execution of Ex.B2, his father used to be in

possession and enjoyment of the property. There is no record to show his

father purchased the property covered under Ex.B2. He admitted that there is

a recital in Ex.B1 that his mother acquired property from her parents. He

denied a suggestion that suit properties are joint family properties and that his

parents have no right to execute Ex.B1 and B2 settlement deeds.

18. Learned Advocate for the plaintiff argued that the suit property is

ancestral property of the parties to the suit and the plaintiff and 1 st defendant

are having equal rights over the suit property and that the learned Senior Civil

Judge has rightly appreciated the evidence on record and rightly partly

decreed the suit for partition.

19. Learned Advocate for the 1st defendant submitted that the suit

property is self acquired property of the father of the plaintiff and 1 st

defendant and that their father executed a registered settlement deed in

favour of 1st defendant under Ex.B2 and that the 1 st defendant has been in

possession and enjoyment over the suit property.

20. In a decision reported in 2005 (4) ALD 291 Pabbithi Anjaneyulu Vs.

Pabbithi N.Rathnamaya Chetty and others it was observed that there is no

presumption that any property held by members of joint Hindu Family, is

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joint family property . Where in it was observed that even if proof of joint

family exists, that does not lead to presumption as to property held by

member of the family to be joint unless anyone asserting that any item of

the property is joint and establishes the same by acceptable evidence. In

the absence of any evidence it cannot be held that the property was

acquired with aid of joint family nucleus.

21. In a decision reported in 2008 (6) ALD Page 602 Modadugu Venkata

Subbamma and another Vs. Kanamarlapdu Rathaiah and others, it was

observed that there is no presumption that the property in hands of

member is joint family property and liable for partition. The burden rests

on person who alleges such state of afairs. In view of the principles laid-

down in the decisions referred to above the initial burden is on the plaintiff to

prove that the suit property is joint family property of plaintiff and

defendants.

22. Except Ex.A1 legal notice and Ex.A2 postal receipt and

acknowledgement, the plaintiff did not choose to produce any records to prove

that the suit properties are their ancestral properties. The plaintiff as PW1

admitted in his cross examination that the 1st defendant has been doing Prawn

Culture out of the suit property for the last eight years. In the year 2001, he

came to know about Ex.B1 and B2 settlement deeds. He does not know how

the suit property was devolved upon his father and mother. He denied a

suggestion that suit properties are not their ancestral properties.

23. PW1 deposed in his chief examination that he came to know the

execution of Ex.B1 and B2 settlement deeds in favour of D1, without any

manner of right. The said settlement deeds are concocted and fabricated by 1 st

defendant by impersonation. During his cross examination, he admitted the

execution Ex.B1 and B2 by his parents. Through his evidence only, Ex.B1 and B2

were marked. No explanation was offered by PW1 during his cross examination
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regarding the execution of Ex.B1 and B2. As stated above the learned judge

accepted the execution of Ex.B1and dismissed the suit for an extent of Ac.0.89

cts. In S.No. 414.

24. PW2 deposed that he has no record to show that the suit

properties are ancestral properties of the plaintiff. PW1 and 2 admitted that

one house was partitioned between the plaintiff and 1 st defendant and they are

living separately in their respective shares. Admittedly the said house is not

the subject matter of the present suit. Except the oral evidence of PW1 and 2,

the plaintiff did not choose to produce any record to show that the suit

properties are their ancestral properties.

25. As per recitals of Ex.B2, it is recited as “పతతరరతత వలన సతకకమతచతద". In

view of rival contentions, it would be appropriate to deal with subject on

ancestral or copercenary property.

Property inherited by a Hindu from his father,

father’s father or father’s fathers’ father, is
ancestral property. Any property acquired by the
Hindu great grand father, which then passes
undivided down the next three generations up to
the present generation of great grand
son/daughter.
This property should be four generation old. It
should not have been divided by the users in the
joint Hindu family as once a division of the
property takes place, the share or portion which
each Coparcener gets after the division becomes
his or her self acquired property. The right to a
share in ancestral or coparcenary property
accrues by birth itself, unlike other forms of
inheritance, where inheritance opens only on the
death of the owner.
The rights in ancestral property are determined
per stripes and not per capita. Share of each
generation is first determined and the successive
generations in turn sub divide what has been
inherited by their respective predecessor.
Properties inherited from mother, grandmother,
uncle and even brother is not ancestral property.
Property inherited by will and gift are not
ancestral properties. Self acquired property can
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become ancestral property if it is thrown into the

pool of ancestral properties and enjoyed in
common.

In Mulla’s Principles of Hindu Law (15th Edition), it is

stated at page 289:
“………. if A inherits property, whether movable or
immovable, from his father or father’s father, or
father’s father’s father, it is ancestral property as
regards his male issue. If A has no son, son’s son,
or son’s son’s son in existence at the time when
he inherits the property, he holds the property as
absolute owner thereof, and he can deal with it as
he pleases ………. A person inheriting property
from his three immediate paternal ancestors
holds it, and must hold it, in coparcenary with his
sons, sons’ sons and sons’ sons’ sons’ but as
regards other relations he holds it and is entitled
to hold it, as his absolute property.”
In case titled Commissioner of Wealth Tax,
Kanpur and Others Vs. Chander Sen and Others,
(1986) 3 SCC 567, it was held that after passing
of the Hindu Succession Act, 1956 the traditional
view that on inheritance of an immovable
property from paternal ancestors up to three
degrees, automatically a Hindu Undivided Family
came into existence, no longer remained the legal
position in view of Section 8 of the Hindu
Succession Act, 1956.
This judgment of the Supreme Court in the case
of Chander Sen (supra) was thereafter followed
by the Supreme Court in the case of Yudhishter
Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the
Supreme Court reiterated the legal position that
after coming into force of Section 8 of the Hindu
Succession Act, 1956, inheritance of ancestral
property after 1956 does not create a Hindu
Undivided Family property and inheritance of
ancestral property after 1956 therefore does not
result in creation of a Hindu Undivided Family
property.

The passage in para 244 at page 212 of Hindu

Law by N.R.Raghavachari (9 th edition published
in the year 1999), which reads as follows:-
Ancestral property – the term “ancestral
property”, which is a technical term having a
special reason, does not mean the property
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inherited from any ancestor, male or female

paternal or maternal, near or remote but only
such property as is inherited by a male from
father, father's father, and father's fathers' father.
Such inheritors' son, son's son and son's son's son
get an interest in it by birth and can interdict
improper alienations by the inheritor, whose
position in respect of that property, though it will
otherwise be absolute, is reduced in the presence
of such decendence to that of an owner with
restricted rights.
Smt. Dipo, AIR 1983 SC 846, Bua Singh was the
last male holder ofthe property and had left no
male issue. There was no surviving member of
the joint family, a descendant or otherwise, who
could take the property by survivorship. Smt.
Dipo was his sister. According to the custom
prevailing in the area, a sister was excluded from
inheritance in respect of the ancestral property.
The Supreme Court eventually took the view,
after noticing the statements of law contained in
Mulla's Principles of Hindu Law on the subject,
that, inasmuch as, the defendants were
collaterals of Bua Singh and the property was not
ancestral, plaintif Smt. Dipo was a preferential
heir. She was entitled to a decree in respect to
the entire property claimed by her in the suit. The
principle which has been accepted by the
Supreme Court in the above case has been stated
by Mulla in the following words:--
"....... If A inherits property, whether
immovable or immovable, from his father or
father's father, father's father's father, it is
ancestral property as regards his male issue. If A
has no son, son's son, or son's son's son in
existence at the time when he inherits the
property, he holds the property as absolute owner
thereof, and he can deal with it as he
pleases ....... A person inheriting property from his
three immediate paternal ancestors holds it, and
must hold it, in coparcenary with his sons, son's
sons and son's son's sons, but as regards other
relations he holds it, and is entitled to hold it, as
his absolute property."

U.R.Virupakshaiah vs Sarvamma & Anr

on 17 December, 2008(DB) CIVIL APPEAL
NO. 7346 OF 2008 (Arising out of SLP (C)
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No. 11785 OF 2007), while dealing with

subject on joint family and ancestral
property, in para-15, it was held that,

“15. The High Court furthermore proceeded on

the presumption that the plaintiff and the
defendants belong to the fourth generation of
Nanjappa. In holding so, the High Court wrongly
included the propositors as the first generation.
The plaintiff and the defendants were the third
generation of the propositors.

In Mulla's Hindu Law (17th Edn) Article

212(2 ), 213, it is stated :
"' 212. Joint Hindu family - (1) … (2) The joint and
undivided family is the normal condition of Hindu
society. An undivided Hindu family is ordinarily
joint not only in estate but also in food and
worship. The existence of joint estate is not an
essential requisite to constitute a joint family and
a family, which does not own any property, may
nevertheless be joint. Where there is joint
estates, and the members of the family become
separate in estate, the family ceases to be joint.
Mere severance in food and worship does not
operate as a separation. Possession of joint family
property is not a necessary requisite for the
constitution of a joint Hindu family. Hindus get a
joint family status by birth, and the joint family
property is only an adjunct of the joint family."
XXX XXX XXX ' 213. Hindu coparcenary - A
Hindu coparcenary is a much narrower body than
the joint family. It includes only those persons
who acquire by birth an interest in the joint or
coparcenary property. These are the sons,
grandsons and great-grandsons of the holder of
the joint property for the time being, in other
words, the three generations next to the holder in
unbroken male descent. The above propositions
must be read in the light of what has been stated
in the note at the top of this chapter. To
understand the formation of a coparcenary, it is
important to note the distinction between
ancestral property and separate property.
Property inherited by a Hindu from his father,
father's father or father's fathers' father, is
ancestral property.”
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Dr. Prem Bhatnagar vs Shri Ravi Mohan

Bhatnagar And Ors. on 8 March, 2006,Delhi
in para 18, Learned counsel also referred to
p.367 dealing with a Hindu coparcenary. In para
213, it has been stated as under:
To understand the formation of a
coparcenary, it is important to note the
distinction between ancestral property and
separate property. Property inherited by a Hindu
from his father, father's father or father's father's
father, is ancestral property. Property inherited by
him from other relations is his separate property.
The essential feature of ancestral property is that
if the person inheriting it has sons,grandsons or
great-grandsons, they become joint owner's
coparcenerswith him. they become entitled to it
due to their birth. These propositions also must
be read in the light of what has been stated in
the note at the top of this chapter.”

In the judgment of the Supreme Court in1969 AIR

1330, State Bank of India v. Ghamandi Ram (dead) by
his LR Gurbax Rai where it was observed in para 7 as
under:

The incidents of co-parcenership under the

Mitakshara law are: first, the lineal male
descendants of a person up to the third
generation, acquire on birth ownership in the
ancestral properties of such person; secondly that
such descendants can at any time work out their
rights by asking for partition; thirdly, that till
partition each member has got ownership
extending over the entire property conjointly with
the rest; fourthly, that as a result of such co-
ownership the possession and enjoyment of the
properties is common; fifthly that no alienation of
the property is possible unless it be for necessity,
without the concurrence of the coparceners, and
sixthly, that the interest of a deceased member
lapses on his death to the survivors. A
coparcenery under the Mitakshara School is a
creature of law and cannot arise by act of parties
except in so far that on adoption the adopted son
becomes a co-parcener with his adoptive father
as regards the ancestral properties of the latter.
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In Madanlal Phulchand Jain vs State Of

Maharashtra And Ors on 9 April, 1992,
1992 AIR 1254, 1992 SCR (2) 479
“ It is equally well settled that
excluding the property inherited from a
maternal grandfather the only property
which can be characterised as
ancestral property is the property inherited
by a person from his father, father's father,
or father's father. That means property
inherited by a person from any other
relation becomes his separate property
and his male issue does not take any
interest therein by birth. Thus, property
inherited by a person from collaterals such
as a brother, uncle, etc., cannot be said to
be ancestral property and his son cannot
claim a share therein as if it were ancestral
property. There can, therefore, be no doubt
that the property which the appellant
inherited from his uncle (natural father)
was his separate property in which his
major son could not claim any share
whatsoever. Property inherited by him from
other relations is his separate property. The
essential feature of ancestral property is
that if the person inheriting it has sons,
grandsons or great-grandsons, they
become joint owner's coparceners with him.
They become entitled to it due to their
birth. These propositions also must be read
in the light of what has been stated in the
note at the top of this chapter."

K.Ramananda Mallaya vs
K.Anasuya Bai on 17 March, 2009, it
was held that,
A Hindu coparcenary is a much
narrower body than a joint family. The
coparcenary includes only those persons
who acquire by birth, an interest in the
coparcenary property. They are the sons,
grandsons and great grandsons of the
holder of the joint property for the time
being. A property inherited by a Hindu
from his father, father's father or father's
father's father is ancestral property. At the
same time property inherited by him from
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other relations are his separate properties.

The essential feature of the ancestral
property is that, if the person inheriting
the ancestral property has sons, grandsons
or great grandsons, they become joint
owner's or coparcenars along with him.
They are entitled to the said right due to
their birth. If a son is born subsequently
or a grandson or a great grandson is born
thereafter, the said son, or grandson or
great grandson also became entitled to an
equal right by their birth and all of them
constitute the coparcenary. Similarly, if the
father acquires his own property or inherits
property from other source which are not
ancestral properties, the other members of
the coparcenary family cannot claim any
right in that property. On his death the said
property would devolve on his legal heirs.
But it is not by survivorship but by
succession. At the same time when the self
acquired property of the father is devolved
on his son or sons who are members of
the coparcenary, it becomes the
coparcenary property. In that event it
could be claimed by his sons, son's sons
and great grandsons due to their birth. If
that be so it cannot be claimed by the son
who inherited it that he alone has right over
the property or that is his separate
property. Prior to the coming into force of
Hindu Succession Act, 1956, if A who had a
son B inherited property from his father it
became ancestral property in his hands and
B became a coparcenar with his father. On
the other hand if it was the separate
property of A, he has absolute right over
the property and it cannot be claimed by
his son during his lifetime. But on his death
his right passes on to the son, though not
by survivorship but by succession. Thus,
even if A inherited the property from his
brother and thereby it was his separate
property where he had independent
absolute right of disposal and the son did
not acquire any right by birth, and on his
death that property descends to a male
issue, then it becomes ancestral property in
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the hands of the male issue who inherited

it. Thus, if A who owned separate or self
acquired property died, on his death it
passes on to the son B as his heir and if B
had a son C, C has an interest in that
property by reason of his birth and he
becomes a coparcenar in respect of the
said property with his father B. At the same
time, if the father died after coming into
force of Hindu Succession Act, 1956, then
the inheritance of the property of the father
could only be as provided under section 8
of the Hindu Succession Act, 1956. The
law in this behalf is clearly stated in
Mayne's Hindu Law and usage Twelth
Edition at page 295 as follows:-

"Where ancestral property has

been divided between several joint owners,
there can be no doubt that if any of them
have male issue living at the time of the
partition, the share which falls to him will
continue to be ancestral property in his
hands, as regards his male issue, for their
rights had already attached upon it, and the
partition only cuts of the claims of the
dividing members. The father and his male
issue still remain joint. The same rule would
apply even where the partition had been
made before the birth of the male issue or
before a son is adopted, for the share which
is taken at a partition, by one of the
coparceners is taken by him as
representing his branch.
From the principles laid-down in the
decisions referred to above, it is clear that
the property inherited by the son from his
father, can not be called as ancestral
property. Thus, in law ancestral property can
only become a Hindu Undivided Family property
if inheritance is before 1956, and such Hindu
Undivided Family property therefore which came
into existence before 1956 continues as such
even after 1956. In such a case, since an Hindu
Undivided Family already existed prior to 1956,
thereafter, since the same HUF with its
properties continues, the status of joint Hindu
family/ Hindu Undivided Family properties
continues, and Classification of property under
 17

Hindu Law only in such a case, members of such

joint Hindu family are coparceners entitling
them to a share in the HUF properties.
The property under Hindu Law can be classified
under two heads:-
Coparcenary property; and Separate
property.
Coparcenary property is again divisible
into:-
ancestral property and joint family
property which is not ancestral. This latter
kind of property consists of property
acquired with the aid of ancestral property
and property acquired by the individual
coparcener without such aid but treated by
them as property of the whole family.
Property flowing through four generations
in a family without being
partitioned/settled/sold/gifted is an
ancestral property. So, the property of great
grand father is an ancestral property to his
great grand child if the said property has
not been partitioned /settled/ willed /sold/
gifted by anybody in between after the
demise of the said great grand father.

A reading of the aforesaid judgments leaves no manner of doubt that the

property inherited by a son from his father or mother does not partake the

character of an ancestral property nor does he hold it as a karta of his own

undivided family. Such a property would be a self-acquired property. The

rationale for this has been explained in the aforesaid judgments as the effect

of the provisions of Section 8 of the said Act. Hindu Law as it stands today

clearly postulates that if it is a self-acquired property of the father it falls into

the hands of his sons not as coparcenery property but devolve on them in their

individual capacity.

26. As per recitals of Ex.AB-2, it is clear that the property was inherited by

father of plaintiff and D-1 from their grand father. The plaintiff did not choose

to produce any record to prove his contention that the property covered in

Ex.B-2 Settlement Deed is their ancestral property. As stated above, the

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property inherited by the son from his father is his self acquired property, but

not ancestral property as contended by the plaintiff. Admittedly, plaintiff as

PW-1 during his cross-examination admitted the execution of Ex.B-2 by his

father. DW-1, denied a suggestion that his father had no right to execute Ex.B-2

Settlement Deed since the property therein is their ancestral property. No

specific suggestion was put to DW-1 during his cross-examination denying the

execution of Ex.B-2 Settlement Deed by their father. Ex.B-2 was executed in

the year 1995 and the first defendant also obtained pattadar pass book and

title deed in Ex.B-3 and Ex.B-4. Plaintiff as PW-1 admitted the issuance of

pattadar pass book and title deed in favour of first defendant. He did not

choose to file any application before revenue authorities questioning issuance

of pattadar pass book and title deed in favour of first defendant. As stated

above, as per evidence of PW-1 and PW-2, the house property was partitioned

among the plaintiff and first defendant and they are in occupation of their

respective shares. The suit property was already settled in favour of the first

defendant during the lifetime the father of the plaintiff and first defendant.

27. In the circumstances of the case and for the above reasons, the

contention of the plaintiff that the property covered under Ex.B-2 is their

ancestral property, cannot be accepted. Plaintiff failed to prove that the

property in Ex.B-2 subject matter of the suit is their ancestral property.

Learned Senior Civil Judge failed to appreciate the evidence on record and

wrongly came to the conclusion that the property covered in Ex.B-2 is ancestral

property of the plaintiff and defendants and wrongly decreed the suit. The said

finding is not valid and justified and the same is liable to be set-aside by

allowing the appeal. Therefore, the said finding is hereby set-aside by allowing

the appeal and consequently the suit of the plaintiff for partition and separate

possession of the property covered in Ex.B-2 Settlement Deed is hereby

dismissed. In the circumstances of the case without costs.

 19

28. In the result, the appeal preferred by Thikkavarapu Siva Kota Reddy, son

of late Siva Rami Reddy/Appellant/first defendant against the decree and

judgment in O.S.No.747/2007 on the file of Principal Senior Civil Judge, Nellore

dated 11.10.2013 is hereby allowed by setting aside the judgment and decree

and consequently the suit of the plaintiff for partition and separate possession

of the property covered in Ex.B-2 Settlement Deed is hereby dismissed. In the

circumstances of the case without costs.

Typed on my direct dictation by the Steno-Typist and corrected and

pronounced by me in open Court on this the 13th day of April 2017.

IV ADDITIONAL DISTRICT JUDGE

NELLORE

APPENDIX OF EVIDENCE

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IV ADDITIONAL DISTRICT JUDGE

NELLORE.