CRP/2379/2015 of jangala Anantha Ramulu Vs Galam Varalakshmi on 31 December 2015

ORDER:

The petitioner is the proposed 6[th] defendant in O.S.No.1 of2014 on the file of XVI Additional District Judge, Nandigama,Krishna District. The suit was filed by the respondents 1 and 2herein seeking partition and separate possession of their share inthe property. In the suit, the petitioner herein filed I.A.No.978 of2014 seeking his impleadment as 6[th] defendant on the ground thathis mother Seshamma is having 1/5[th] share in the plaint scheduleproperty being a daughter of original owner Galam Subbaiah. Shedied intestate and his father also died. He is the only son entitled toclaim 1/5[th] share of his mother. The respondents filed a counterstating that the mother of the petitioner died on 20-12-2002 andduring the life time all the daughters of Subbaiah did not claim anyshare in their property as their marriages were performed by thesaid Subbaiah. The joint family of Subbaiah was dissolved on 21-06-1982. As on the date of death of Subbaiah, there is no right to property to the daughters in the joint family. The Amendment Act2005 has no retrospective application.

The trial Court dismissed the application with the following observations:

“......Here in this case admittedly the mother of petitionerby name Seshamma died on 20-12-2002 i.e. almost threeyears prior to the commencement of the Amendment Act,2005. In addition to that, the original owner of theschedule property Subbaiah died on 21-06-1982 by whichdate the joint family would be dissolved on othercoparceners. The said death of Subbaiah is also longprior to coming into force of section 6 as amended in2005, therefore, the mother of petitioner herself not havingany right by the date of her death. Therefore, thepetitioner cannot make claim through his mother who hadno right in the coparcenary property by the date of herdeath, therefore, the petitioner is neither a proper party nora necessary party to the suit. Without his presence in thesuit, the suit can be effectively and completely beadjudicated. Point answered accordingly....”

Learned counsel for the petitioner submits that evenassuming that Section 6 of the Hindu Succession Act has noapplication, the mother of the petitioner will be having a share in theshare of the property of Subbaiah and the said share would devolveon the proposed 6[th] defendant.

In spite of service of notices on the respondents, noneappeared for the respondents.

Admittedly, the petitioner herein is grandson of Subbaiahbeing the son of the daughter of Subbaiah. The suit is filed forpartition. Merely because the application for impleadment of a partyis allowed, the party will not get any right in the property. The rightsof the parties have to be adjudicated in the main suit itself. The suit is of the year 2014 and it is premature to decide the entitlement ofthe petitioner. In the circumstances, no prejudice is caused to theexisting parties in the suit for partition by impleading the proposed6[th] defendant.

In view of the same, the order dated 24-04-2015 inI.A.No.978 of 2014 in O.S.No.1 of 2014 passed by the learned XVIAdditional District and Sessions Judge, Nandigama, is set asideand the said application is allowed. The Civil Revision Petition isallowed accordingly. There shall be no order as to costs. As asequel thereto, miscellaneous petitions, if any, pending shall standclosed.

Date: 31-12-2015Ksn

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A.RAMALINGESWARA RAO, J