Andhra High Court
Chenna Reddy vs D. Venkata Reddy on 26
September, 2003
Equivalent citations: 2004 (1) ALT 406
Author:
P Narayana
Bench: P Narayana
JUDGMENT
P.S.
Narayana, J.
1. The
appellant herein, Chenna Reddy, the 1st defendant in O.S.No. 60/92 on the file
of Principal junior Civil Judge, Hindupur and 1st respondent in A.S.No. 27/99
on the file of Senior Civil Judge, Hindupur, had preferred the present Second
Appeal, aggrieved by the reversing Judgment and decree made in A.S.No. 27/99 on
the file of Senior Civil Judge, Hindupur.
2. The
respondent herein, Venkat Reddy filed O.S.No. 60/92 on*the file of the
Principal Junior Civil Judge, Hindupur for the relief of permanent injunction
relating to the plaint schedule property as against defendants 1 to 3. The 3rd
defendant was set ex parte. The appellant -- 1st defendant filed written
statement and an adoption memo was filed by the 2nd defendant.
3. On the
strength of the respective pleadings of the parties, Issues were settled. In
the Court of first instance, on behalf of the respondent/plaintiff, P.W.1 to
P.W.3 were examined and Exs.A-1 to A-5 were marked. Likewise, on behalf of the
defendants 1 and 2, D.W.1 to D.W.3 were examined and Exs.B-1 to B-8 were
marked. On appreciation of the oral and documentary evidence, the Court of
first instance had dismissed the suit, with costs. Aggrieved by the said
Judgment and decree, the plaintiff had carried the matter by way of Appeal
A.S.No. 27/99 on the file of Senior Civil Judge, Hindupur and the appellate
Court had allowed the appeal with costs, setting aside the Judgment and decree
of the Court of first instance. The 1st defendant/1st respondent, aggrieved by
the same, had preferred the present Second Appeal.
4. Sri
Sridhar Reddy, the learned Counsel representing the appellant had pointed out
to substantial questions of law which had been raised in the Second Appeal. The
learned Counsel also had taken me through the findings recorded by the Court of
first instance and the findings recorded by the appellate Court. The learned
Counsel also pointed out that the appellate Court had totally erred in arriving
at the conclusion that the appellant is a stranger and not a member of the
family and hence the deceased had no right to Will away the property which had
been assigned to him. The learned Counsel also had taken me through the
provisions of A.P. Assigned Lands (Prohibition of Transfer) Act 1977,
hereinafter in short referred to as "Act" for the purpose of
convenience. The learned Counsel also had contended that the expression
"family" is not defined under the Act and had drawn my attention to
the definition of the word "family" in Websters Dictionary. While
elaborating his submissions, the learned, Counsel also had taken me through the
evidence of D.W.1 and D.W.2 and had pointed out that Ex.B-1 was proved in
accordance with law and the appellate Court had totally erred in reversing the
well considered Judgment and decree of the Court of first instance. The learned
Counsel also contended that the mere mutation in revenue records may not be of
any consequence since by virtue of these documents, it cannot be said that the
respondent/plaintiff has title to the suit property. Reliance was placed on
Nagar Palika v. Jagat Singh and Y.
Vijayabharathi
v. Y. Manikyamma .
5. Per
contra, Sri Prasad, the learned Counsel representing the respondent/
appellant/plaintiff made the following submissions. The learned Counsel would
maintain that there is no controversy relating to the relationship of the
parties. The learned Counsel also further submitted that the 3rd defendant and
the plaintiff are the family members and also the nature heirs of the deceased
in whose favour the land was assigned. The learned Counsel also had drawn my
attention to Ex.A-3 and had pointed out to the contention relating to
heritability and non-alienability of the property assigned in favour of the
deceased. The learned Counsel further contended that though testamentary
disposition may be permissible under the Act, such disposition cannot be made
in favour of a stranger to the family and hence Ex.B-1 is invalid and it does
not confer any right whatsoever on the appellant. The learned Counsel also had
taken me through the findings recorded by the appellate Court and had submitted
that even otherwise, Ex.B-1 was not proved in accordance with law. The learned
Counsel also had placed strong reliance on K.Yesuratnam
v. Commissioner, Land Revenue, Hyderabad 1993(2) APLJ 444.
6.
Heard both the Counsel at length and also perused the oral and documentary
evidence available on record and the findings recorded by the Court of first
instance and the appellate Court.
7. The
pleadings of the respective parties, in short, are as hereunder:
The
respondent/plaintiff had pleaded that one Narayanappa is the original owner of
the schedule property and he got patta in his favour. The 3rd defendant is the
brother of the said Narayanappa and father of the plaintiff. Narayanappa was in
possession and enjoyment of the schedule property during his lifetime and after
his death, the plaintiff and the 3rd defendant succeeded to the property and
they are in possession and enjoyment of the same. The plaintiffs name is
mutated in revenue records. Defendants 1 and 2 have nothing to do with the
schedule property and are trying to interfere with the peaceful possession of
the schedule property.
8. As
already stated supra, the 3rd defendant was sailing with the plaintiff, but
however he was set ex parte. The appellant/ 1st defendant filed a written
statement and an adoption memo was filed by the 2nd defendant. It was pleaded
in the written statement by the appellant/1st defendant as hereunder:
9.
During the lifetime of Narayanappa, he executed a registered Will dated
23-1-1985 in favour of the 1st defendant in respect of all his properties
including the schedule property. The 1st defendant was enjoying the schedule
property along with Narayanappa during his lifetime. After his death, the 1st
defendant came into possession of the schedule property and cultivating the
lands and was paying land revenue. The 1st defendent is not aware of mutation
of name of the plaintiff in the revenue records. The mutation in favour of the
plaintiff does not confer any right over the schedule property. The plaintiff
and the 3rd defendant are not in possession and enjoyment of the suit property.
The plaintiff not a legal heir of late D.Narayanappa.
10. On
the respective pleadings of the parties, the following Issues were settled:
(1)
Whether the plaintiff is entitled for permanent injunction as prayed for?
(2)
Whether the plaintiff is not the legal heir of late D.Narayanappa?
(3)
Whether the 1st defendant is entitled for the suit schedule property by virtue
of a will dated 23-1-1985?
(4)
Whether the suit for mere injunction without declaration of right and title is
not at all maintainable?
(5) To
what relief?
11. On
behalf of the respondent/plaintiff, P.W.1 to P.W.3 were examined. P.W.1 is the
plaintiff in the suit and P.W.2 and P.W.3 are residents of Chilamathur. Ex.A-1
is a certified copy of chitta. Ex.A-2 is the Adangal. Ex.A-3 is the duplicate D
Form patta in the name of Narayanappa. Ex.A-4 is the patta standing in the name
of the plaintiff and Ex.A-5 is 10(1) account. Likewise, on behalf of the
appellant/defendant, D.W.1 to D.W.3 were examined and Exs.B-1 to B-8 were
marked. D.W.1 is the appellant/1st defendant and D.W.2 is the 2nd defendant.
D.W.3 is a resident of Chalivendala. Ex.B-1 is the registered sale deed dated
23-1-1985 executed by Narayanappa. Ex.B-2 is a copy of the notice date 11 -11
-1991. Exs.B-3 and B-4 are postal acknowledgments. Ex.B-5 is the land revenue
receipt in the name of Narayanappa. Exs.B-6 and B-7 are the land revenue
receipts in the name of the appellant/1st defendant. Ex. B-8 is the notice
issued by the Mandal Revenue Officer dated 27-6-1992. The Court of first
instance, on appreciation of the oral and documentary evidence, by its Judgment
and decree dated 21-5-1999 had dismissed the suit and aggrieved by the same,
the plaintiff preferred A.S.No. 27/99 on the file of Senior Civil Judge,
Hindupur and the appellate Court had reversed the Judgment and decree on
24-10-2002 and aggrieved by the same, the 1st defendant/1st respondent
preferred the present Second Appeal.
12.
The two substantial questions of law which were raised and argued by the
Counsel for the appellant are as hereunder:
(1)
Whether the Will by an assignee in favour of his sister's son can be construed
to be a testamentary disposition in favour of a stranger within the meaning of
the Act?
(2)
Whether the respondent/plaintiff is entitled to a decree on the ground that the
mere revenue entries would constitute title in his favour?
13.
The facts in nutshell had been dealt with supra. The appellant/1st defendant no
doubt had raised a plea that during the lifetime of Narayanappa, he was living
with him and he was looking after him and they constitute members of a
composite family. The suit lands are self-acquisitions of D.Narayanappa who
died on 13-3-1991 testate by executing a Will dated 23-1 -1985, marked as
Ex.B-1. It is the specific case of the appellant that during the lifetime of
late Narayanappa, the suit property was being enjoyed jointly by them and they
were raising different crops and were paying cist and the respondent/plaintiff
or his father have nothing to do with the said properties and they never
enjoyed the said properties. The 3rd defendant, during the pendency of A.S.No.
27/99 on the file of Senior Civil Judge, Hindupur died and no legal
representatives were impleaded since the plaintiff alone is the legal heir of
the 3rd defendant. As already referred to supra, the 3rd defendant is the
brother of Narayanappa and the father of the respondent/plaintiff. The Court of
first instance, on the strength of the Will executed by Narayanappa - Ex.B-1,
ultimately had negatived the relief to the respondent/plaintiff.
14. It
is not in controversy between the parties that Condition No. 1 in D-Form Patta
- Ex.A-3, granted in favour of Narayanappa specifies about heritability and
non-alienability of the assigned land. No doubt, the evidentiary details had
been pointed out by both the Counsel relating to the proof of the execution of
Ex.B-1. Section 2(6) of the Act defining 'transfer' reads:
"transfer
means sale, gift, exchange, mortgage with or without possession, lease or any
other transaction with assigned lands, not being a testamentary disposition and
includes a charge on such property of a contract relating a assigned lands in
respect of such sale, gift, exchange, mortgage, lease or other
transaction"
From
this definition, it is clear that a testamentary disposition does not fall
within meaning of 'transfer' under the Act. Hence, the right of the
assignee-deceased Narayanappa in making testamentary disposition cannot be in
any way doubted.
15. It
is no doubt true that the respondent/plaintiff had not specifically pleaded
about the family or the joint family as such, but the fact remains that the 3rd
defendant is the brother and the respondent/ plaintiff is the brother's son
belonging to the same family since Narayanappa died unmarried. It is also not
in dispute that the appellant is the sister's son. Since a sister's son also is
a blood relative, such a blood relative will not be a stranger and hence there
could be testamentary disposition in favour of such a blood relative, is the
stand taken by the learned Counsel for the appellant. Since the term
"family" is not defined under the Act, the definition of the same in
Webster's Dictionary had been relied upon wherein on doubt it is stated that
all persons in the family related by blood or marriage also may fall within the
meaning of "family". However, apart from the condition of non-alienability,
there is a condition relating to the heritabilty also. The term or expression
"heritable" can be definitely construed as one in favour of the
family members and all blood relatives cannot fall within the fold of the
family members. In the decision referred (3) supra, it was held:
"The
lands are assigned to the land less poor persons for their enjoyment, as also
the enjoyment of their heirs. As such, the conditions that the assigned land is
heritable but not alienable and that it should be in cultivation of the
assignee and his family members, have to be read together and in this context,
the definition of the word 'transfer' under Section 2(6) of the Act has to be
tested including the exclusion of testamentary disposition from the said word
'transfer'. This exclusion of testamentary disposition from the word 'transfer'
under Section 2(6) of the Act is not in genera sense and the testamentary
disposition is not used or understood as in common parlance. It should be read
down and understood in the context of the objects and intendment of the Act,
which totally prohibits the induction of strangers to the family of assignee
either during his lifetime or thereafter. As such, the words 'testamentary
disposition' employed under Section 2(6) of the Act have to be understood that
the assignee can execute a Will choosing some of his family members to succeed
to the assigned lands excluding one or some among his family members. As such,
the will even if it is a testamentary disposition can only be among the family
members of the said assignee but not to a stranger. This is the proper
construction to be given to beneficial legislation of this nature, as
otherwise, it is capable of being abused and misused. If bequeathing of the
assigned land to a stranger to a family is allowed, then under the guise of a
will, the lands which are otherwise precluded from alienation or transfer can
easily be transferred labeling it as a will and then the very purpose of the
Act will be frustrated. While interpreting the beneficial statutes, one which
furthers the object of Act should be adopted even by passing the common and
general notions. As such, that the will, even though a testamentary
disposition, is not permissible in the case of assigned land covered by A.P.
Act No. 9 of 1977 in favour of strangers to the family . A will can be executed
by the assignee under A.P act No. 9 of 1977 only in favour of his family
member/s and not to strangers."
Though
testamentary disposition is permissible under the Act, inasmuch as Ex.B-1 was
executed in favour of sister's son who is a stranger to the family, in my
considered opinion, the appellate Court had arrived at the correct conclusion
relating to the validity of Ex.B-1. It is no doubt true that the evidence of
D.W.1 and D.W.2 had been let in to prove the execution of Ex.B-1. In the light
of the view expressed by me, the other evidentiary details need not be
discussed in this regard.
16.
The next question which has been elaborately argued is that the mere entries in
revenue records relied upon by the respondent/plaintiff would not constitute
title. Reliance was placed on the divisions referred (1) and (2) supra. There
cannot be any controversy about this proposition. Ex.B-8, notice given by the
Mandal Revenue Officer subsequent to the suit, also had been explained by the
appellate Court and clear findings had been recorded at para 15 in this regard.
Apart from the evidence of P.W.1, the evidence of P.W.2 and P.W.3 and also the
documentary evidence Exs.A-1 to A-5 is available on record. As already referred
to supra, the subsequent events i.e., the death of the brother of Narayanppa,
the 3rd defendant, during the pendency of the Appeal and the
respondent/plaintiff alone being the sole heir of the deceased, also may have
to be taken into consideration and in the light of the same, I have no
hesitation in holding that the respondent/plaintiff alone is the family member
of the deceased Narayanappa and in view of the clear condition in D-Form Patta,
the execution of Ex. B-1 by the deceased Narayanappa is of no consequence and
accordingly the respondent/plaintiff is bound to succeed. The appellate Court
had recorded several other findings in detail which are all findings relating
to the factual aspects. In the light of the object and also the provisions of
the Act and also in the light of the condition in Ex.A-3, I have no hesitation
in holding that the appellate Court is well justified in reversing the Judgment
and decree of the Court of first instance.
17.
Hence, I do not find any merit in the Second Appeal and accordingly the same
shall stand dismissed, but in the facts and circumstances of the case, without
costs.
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