Posts

Showing posts from June, 2013

CHANGES IN AGREEMENT WITH OUT PERMISSION - novation of the contract=The agreement was prepared in such a way, that all the three children of the 1st respondent have figured as vendors. Not only their names were mentioned, but also space was provided for signature of all the three. However, it is only the respondents 1 and 2 that signed the agreement and the place in between their signatures is left blank, so much so, the numerical - 2 was struck off. In the body of the agreement also, the name of the Rudra Deva Reddy was struck off. One or two words were added. No evidence was adduced to establish that these changes and alterations have taken place with the assent of the parties concerned. Obviously, these acts constitute novation of the contract, without the participation of the other party to it. It is fairly well settled principle of law that an agreement becomes unenforceable, if any changes to it are caused by only one of the parties.= The relief of specific performance of an agreement of sale is purely equitable in nature and it is only when the Court is satisfied, that a clear case is made out for grant of the relief, and there are no counterbalancing factors, that such a relief can be granted. The various issues discussed above would certainly have a bearing upon the exercise of discretion, by the Court. Denial of relief of specific performance in a case of this nature, where, a) there is total uncertainty about the description of the property, b) the agreement was altered in several respects by the appellant, and c) there is failure of the appellant to prove his readiness and willingness to perform his part of the contract; can not at all be treated as contrary to law. No substantial question of law arises for consideration.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9791
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

Second Appeal No.176 of  2012

28-02-2013

V. Sudhakar Naidu                                              

Smt. M. Padmavathamma and another              

Counsel for the appellant: Sri  N. Ashok Kumar

Counsel for respondent: Sri P. Hemachandra for R-1

<GIST

>HEAD NOTE:  

?CASES REFERRED:    
AIR 2004 Kerala 155

JUDGMENT:  

The sole plaintiff in O.S.No.180 of 2001 on the file of the Additional Senior
Civil Judge, Tirupati is the appellant.
He entered into an agreement of sale dated 11-02-1999 with the
respondents/defendants.  He pleaded that the respondents, who are sister and
brother got the suit schedule property in a family partition; evidenced by a
registered partition deed dated
20-06-1992, and that they offered to sell the same for a sum of Rs.4,50,000/-.
Advance of Rs.50,000/- is said to have been paid.
It is stated that the suit schedule property is part o…

Sec.5 of limitation Act condone delay of 255 days = After coming to know about the dismissal of the suit, he filed I.A.No.45 of 2011 under section 5 of the Limitation Act to condone the delay in filing the petition to set aside the order dismissing the suit as abated, and the delay sought to be condoned is 255 days. It is mentioned by him in the affidavit filed in support of the petition that after the death of his mother, his daughter developed illicit intimacy with a person of Mahaboobnagar and the said person to grab his property beat the first respondent and threatened him. Under those circumstances the first respondent states that he left Mahaboobnagar to save his life and came back only in the first week of June, 2011. Thereafter, it is said that he obtained the death certificate of his mother from the Municipality and then filed the petition under section 5 of the Limitation Act.= The suit filed by the first respondent is for declaration of the title and consequential injunction, wherein the substantive rights of the parties are involved for consideration. As per the law laid down by the Supreme Court, the courts while dealing with the application under section 5 of the Limitation Act should not adopt pedantic and hyper technical approach and shall allow the parties to contest the cases on merits.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9899
HONOURABLE SRI JUSTICE R. KANTHARAO        

CIVIL REVISION PETITION No. 3359 OF 2012  

13-02-2013

Bulusu Sundareshwara Murthy and another  ... Petitioners    

And

Ravi Kumar and another                            ...Respondents

Counsel for the Petitioners: Sri Shafath Ahmed Khan

Counsel for the respondents: Sri K. Someswara Kumar

<Gist:

>Head Note:

?Cases referred:
1. 1987 (1) SCC 685
2. AIR 2002 SC 1201

ORDER:
        This Civil Revision Petition is filed by the first defendant in O.S.No. 88
of 2003 on the file of the Court of II-Additional Senior Civil Judge, (FTC),
Mahaboobnagar, against the order dated 09.03.2012, in I.A.No. 45 of 2011 in the
said suit.
2.      I have heard Sri Shafath Ahmed Khan, the learned counsel appearing for the
revision petitioner/first defendant and            Sri K.Someswara Kumar, the
learned counsel appearing for the respondent/plaintiff.
3.      The brief facts relevant for consider…

BURDEN OF PROOF - ON DEFENDANT TO PROVE MATERIEL ALTERATION NOT APPEAR TO NAKED EYE, AND FORGERY OF PART PAYMENT ENDORSEMENT = The appellant did not dispute the execution of Ex.A1. His only plea was that the figure mentioned therein was Rs.7,700/-, whereas, the figure '5' was added by the respondent. In this regard, it needs to be observed that apart from mentioning the amount in figures, it is stated in words also. In case the appellant was of the view that there is any discrepancy in the contents of Ex.A1, he ought to have taken steps to get the same examined by the handwriting expert. No such steps were taken. - Ex.A2 plays an important role in the suit. If there is no acknowledgement of the debt by the appellant, the suit filed in the year 2006 would have been clearly barred to recover an amount covered by a promissory note executed in the year 2000. It is only Ex.A2, which is a connecting link. According to the respondent, Ex.A2 endorsement was made on 01.03.2003. Though in Ex.A1, it was mentioned as 02.01.2003, later on, it was explained in the examination in chief, as well as cross-examination . - At any rate, in case the admitted signature of the appellant on Ex.A1 and the disputed signature on Ex.A2 are not one and the same, the appellant ought to have taken steps to get the signature on Ex.A2 examined by a handwriting expert. Here again, he repeated the same performance vis--vis the contents of Ex.A2.

PUBLISHED INhttp://judis.nic.in/judis_andhra/filename=9922
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY    

SA No.1233 of 2011

11-02-2013

K.Kannaiah

S.Sankaraiah

Counsel for the Appellant:Sri.G.Jagadeeswar

Counsel for Respondent:-

<Gist:

>Head Note

? Citations:

JUDGMENT:

        The respondent filed O.S.No.16 of 2006 in the Court of the Senior Civil
Judge, Srikalahasti against the appellant for recovery of amount on the strength
of a promissory note, dated 02.03.2000.
 It was stated by the respondent that
being acquainted with him, the appellant borrowed a sum of Rs.57,700/- and he
did not repay the same in spite of repeated demands.
His further case was that
when he went to the appellant, residing at Chittoor, for repayment of the
amount, he paid a sum of Rs.100/- on 01.03.2003, acknowledging the debt covered 
by the promissory note. 
He ultimately prayed for a decree for the suit amount.

The appellant filed a written statement.
It was pleaded that he borrowed
Rs.7,700/- from …

HINDU SUCCESSION ACT AMENDMENT ACT 4/2005 - "Whether, on the facts and in the circumstances of the case, in view of Amendment Act 39 of 2005 to Section 6 of the Hindu Succession Act, 1956, and deletion of Section 23 which came into force with effect from 09.09.2005 the appellant is also entitled to a share along with her brothers in respect of B schedule properties".= "Restrictive, right contained in Section 23 of the Act, in view of our aforementioned discussions, cannot be held to remain continuing despite the 2005 Act. ----------------------------------------------------- "26. Indisputably, the question as to whether an amendment is prospective or retrospective in nature, will depend upon its construction. It is merely a disabling provision. Such a right could be enforced if a cause of action therefor arose subsequently. A right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring the nature. It cannot be said to be an accrued right or a vested right. Such a right indisputably can be taken away by operation of the statute and/or by removing the disablement clause. -------------------------------------------------------- "28. Thus, a right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible." 9. In that view of the matter, after the restrictive provision under Section 23 of the 1956 Act was omitted in the 2005 Amendment Act, it was not necessary for this Court to apply the said restriction now in this second appeal. In any event, items 1 to 3 of the plaint 'B' schedule are all vacant sites and not dwelling houses, even though they are stated to be appurtenant sites for the dwelling house. Therefore, this second appeal is liable to be allowed by applying Amended provisions of the Hindu Succession Act, 1956 as it stands today. All the substantial questions of law are answered accordingly. 10. In the result, the second appeal is allowed granting preliminary decree in favour of the plaintiff/appellant for partition of the plaint 'B' schedule properties into 12 equal shares and for allotment of one such share to the plaintiff/appellant. No costs.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9696

HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            

SECOND APPEAL No.141 of 1999    

11.03.2013

Prathipati Jogayyamma

1. Vobhilineni Veera Venkata Satyanarayana And others

Counsel for the appellant: Sri M.S.R.Subrahmanyam

Counsel  for the Respondents: Sri Venkateswara Rao Gudapati

<Gist :

>Head Note:

? Cases referred:
AIR 2009 Supreme Court 2649

JUDGMENT:  

        The then learned Judge admitted this second appeal in view of
substantial questions of law raised in ground Nos.9(a) and (b) of the
memorandum.  Those substantial questions of law are as follows:
a) whether on the facts and in the circumstances of the case, 
the appellant has a right to claim partition of B schedule items in view of the facts that a division could be inferred between the male members-defendants 1 and 2 by reasons of the facts 
(a) that they were living in separate door numbers, 
(b) that they were enrolled as votors in two different …

GIFT BY FATHER OUT OF JOINT FAMILY PROPERTY = whether the suit property forms reasonable part of the joint family property or not in order to consider validity of Ex.A.1- settlement deed.= a father can make a gift of ancestral immovable property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his daughter at the time of her marriage or even long after her marriage".= whether Ac.1-80 cents of the suit land is reasonable extent out of the joint family property held by Narayana Murty and the 1st defendant. Again, this is a question of fact. The Lower Appellate Court came to the conclusion that the 1st defendant has failed to show total extent of the suit property held by his joint family. = As can be seen from recitals of Ex.B.3 will, Narayana Murty got lands in Patrunivalasa Village in partition with his brothers and he also acquired some properties subsequently and he had wet lands in Ganjamettu village apart from terraced house in Patrunivalasa village. Ex.B.3 also recites that Narayana Murty possessed lands in Thandevalasa Village. But Ex.B.3 failed to give extents of lands held by Narayana Murty in each of the above villages. Having regard to the above state of evidence before the Courts below, the Lower Appellate Court rightly came to the conclusion that the suit land of Ac.1-80 cents forms reasonable part of the joint family property held by Narayana Murty and his son and ultimately upheld settlement deed covered by Ex.A.1. In the above state of evidence before this Court, this Court has no hesitation to come to the conclusion that the suit land of Ac.1-80 cents is reasonable part of joint family lands held by Narayana Murty and 1st defendant even by the date of Ex.A.1 settlement deed.

published in http://judis.nic.in/judis_andhra/filename=9694

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            

SECOND APPEAL No. 149 of 1999    

11.03.2013

Baratam Venkata Chengalva Murty(died) per LRs Baratam Lakshmikantham and four  
others.                                        

Ladi Dalappanna and four others.

Counsel for Appellants: Sri M.S.R. Subrahmanyam, Advocate

Counsel for Respondents: Sri M.V.S. Suresh Kumar, Advocate

<Gist:

>Head Note:

?Cases referred:

1.AIR 2004 Supreme Court 1284.

JUDGMENT:  

        The 1st defendant who lost the suit in both the Courts below is the
Appellant.
He died after filing of the second appeal and his legal
representatives were brought on record.
Mother of the plaintiffs 1 to 4 by name
Ladi Venkata Narasamma is elder sister of the 1st defendant. 
The 2nd defendant
is younger sister of Venkata Narasamma and the 1st defendant.  
All of them are children of Baratam Narayana Murty and the 3rd defendant.
The plaintiffs 1 to 4
fil…

CERTIFIED COPY OF SUCCESSION CERTIFICATE CAN BE FILED FOR PASSING MONEY DECREE. THE DEFENDANT HAS NO LOCUS STANDI TO QUESTION THE VALIDITY OF SUCCESSION CERTIFICATE ISSUED BY COMPETENT COURT = WHETHER THE original succession certificate has to be filed. AND WHETHER THE Certified copy of succession certificate was not issued by the court which granted the same IS INVALID = When the original certificate which was engrossed on proper stamp duty was filed in another suit, certified copy thereof was granted and it was filed in the trial Court. When the succession certificate covers several debts and several securities, single original certificate cannot be filed in all the suits. Therefore, the plaintiff obtained certified copy from another suit where it was filed and filed the same in the trial court to prove his entitlement of the suit debt on behalf of the deceased Narayanamma. = When once succession certificate Ex.A3 is filed into the Court, the plaintiff need not prove in this suit that he was adopted son of late Narayanamma and that therefore he is entitled to recover the suit debt as legal heir of the payee. On the basis of mere succession certificate, the plaintiff is entitled to obtain decree in the suit, when there is no dispute about Ex.A1 pronote and when discharge pleaded by the defendant was disbelieved.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9686

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU          

SECOND APPEAL No.1090 OF 1998    

01.03.2013

Alla Nagireddy

G.Narayana Reddy

JUDGMENT:

Unfortunate plaintiff, who failed in both the courts below, is the appellant in
the second appeal.
 He filed the suit for recovery of Rs.11,900/- from the
defendant on the basis of Ex.A1 promissory note dated 1.7.1979 executed by the
defendant in favour of one Narayanamma.
Narayanamma is no more.
Execution of  Ex.A1 pronote by the defendant after receiving the consideration thereunder is
admitted.
Plea of the defendant is one of discharge of the amount to Narayanamma
when she was alive.  
The trial court disbelieved the plea of discharge.
But the
trial court, after trial, dismissed the suit on the ground that Ex.A3 succession certificate dated 20.12.1988 in favour of the plaintiff is invalid.
On appeal
by the plaintiff, the lower appellate court dismissed the appeal on the gro…

Section 13 (1) (ia) (ib) of Hindu Marriage Act, 1955 (for short 'the Act') seeking divorce against the respondent, was dismissed.= A Husband who is at fault can not claim divorce = The evidence of PW.1 goes to prove that the respondent was living alone with her child in the rented house for more than two months and as there is nobody to look after/or maintain her, she left for her parents' place. In this view of the matter, it can be said that when the petitioner was out of matrimonial home for a period of more than two months and was not maintaining the respondent and their child, circumstances compelled her to go to her parents' place. Further, it is observed that the petitioner never visited his in law's house to bring the respondent and her child. On the other hand, it is the case of the respondent that she is always behaved in most harmonious and respectful manner with the petitioner and still she is looking towards him with love and affection. Therefore, it cannot be said that the respondent deserted the petitioner, on the contrary, it can be said that the petitioner deserted the respondent.

published in http://judis.nic.in/judis_andhra/filename=9685

THE HON'BLE SRI JUSTICE V. ESWARAIAH AND THE HON'BLE SRI JUSTICE B.N. RAO NALLA              

C.M.A. No.406 OF 2004

04.03.2013    

Sri Erram Sharath Babu alias Sharath Reddy s/o. Madhusudhan Reddy  

Smt. Erram Anitha w/o. Sharath Babu

Counsel for the Appellant: Mr. D.Bhaskar Reddy

Counsel for Respondent: Mr. T.Ramulu

<GIST:

>HEAD NOTE:  

Referred Cases:
(2005) 2 SCC 22

JUDGMENT: (per Hon'ble Sri Justice B.N. Rao Nalla)

This Civil Miscellaneous Appeal is filed assailing the order dated 24.07.2003 in
O.P. No.22 of 1999 on the file of the Court of  Senior Civil Judge, Karimnagar,
whereby and whereunder the petition filed by the petitioner under
Section 13 (1)
(ia) (ib) of Hindu Marriage Act, 1955 (for short 'the Act') seeking divorce
against the respondent, was dismissed.

2.   The appellant herein is the petitioner - husband and the respondent herein
is the respondent - wife in the O.P.  For the sake…