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Thursday, June 18, 2015

Claim Petition under Land ceiling Act - The petitioner was unmarried but was major on 01-01-1975. Therefore, she cannot be said to be the member of the family in the family unit of her father. At the time of submitting declaration, her father erroneously mentioned her as one of the members of his family unit. After coming into force of Hindu Succession Act as amended by Act 39 of 2005 with effect from 09-9-2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son, provided the partition of properties has not been effected before 20th day of December, 2004. Therefore, by virtue of Section 4-A of the L.R. Act, as the petitioner is a coparcener, the ceiling area of the unit will be increased in respect of the petitioner considering her to be a major son for an extent of land equal to that of her father, the 3rd respondent herein. Therefore, the family unit of the 3rd respondent gets 2 standard holdings on account of the fact that the petitioner was major by 01-01-1975 and by virtue of Act 39 of 2005. The declaration erroneously made by the 3rd respondent does not bind the petitioner since she was major on the date of submitting the said declaration. The petitioner filed the claim petition I.A.No.12 of 1996 before the Land Reforms Tribunal, Bandar in the year 1996. Therefore, by the date of coming into force of the Act 39 of 2005 i.e. 09-9-2005, the proceedings were pending before the Tribunals below.Order XLI, Rule 33 of the Code of Civil Procedure - In the instant case, the learned Appellate Tribunal ought to have taken into consideration the change of law brought about by Act 39 of 2005 conferring the status of coparcener on a daughter. Even though the said issue was specifically raised in the appeal, the learned Appellate Tribunal declined to answer the issue on the ground that it was not raised in the claim petition before the Tribunal. The approach adopted by the Appellate Tribunal refusing to exercise the power vested in it by Rule 33 of Order XLI, CPC is totally erroneous and it is in the nature of subjecting parties to multiplicity of proceedings. The appeal is nothing but continuation of the original proceedings and when the appeal is still pending, no finality could have been attached to the original decree and it is the duty of the Appellate Court to take note of the subsequent changes in law and it is obliged to mould the relief in accordance with the rights conferred on the petitioner by virtue of Act 39 of 2005. This is a clear case wherein the petitioner is entitled to one standard holding in the coparcenary property in her own right under Section 6 of the Hindu Succession Act i.e. Act 39 of 2005. The petitioner claims to be in possession of the property in question and no finality has so far been attached to the proceedings under the L.R. Act in respect of the share of the petitioner. If the petitioner is entitled for a standard holding in the coparcenary property in her own right, admittedly there may not be any surplus land to be surrendered under the L.R. Act. 12. For the foregoing reasons, the judgment dated 02-11-2011 passed by the Appellate Tribunal in L.R.A.No.29 of 2000 is set aside confirming the order passed by the Land Reforms Tribunal, Bandar in I.A.No.12 of 1996 in C.C.No.518/NDG/75, dated 17-3-1997. The civil revision petition is accordingly allowed. The miscellaneous petitions, if any, pending in this revision shall stand closed. No costs.

HONBLE SRI JUSTICE R.KANTHA RAO      

Civil Revision Petition No.44 of 2012

01-6-2015

Smt. Nallamothu Siva Yogeswari Revision Petitioner/Respondent No.1/Claimant  
Petitioner

State of A.P., Rep. by the Authorized Officer,  Land Reforms Tribunal, Bandar,
Krishna district Respondent/Appellant/Respondent No.2
                                           Smt. Sadineni Annapurnamma  and
another Respondents/Respondents 2 and 3/Respondents 1 and 3    

Counsel for the Petitioner:Sri Ch.Dhanamjaya
                                       
Counsel for Respondent No.1: Government Pleader for
                              Arbitration
Counsel for Respondents 2&3: None

<Gist:

>Head Note:

? Cases referred:
   Nil.


HONBLE SRI JUSTICE R.KANTHA RAO      

Civil Revision Petition No.44 of 2012

Date: 01-6-2015

Order:
        This civil revision petition is filed against the judgment
dated 02-11-2011 passed by the Chairman, Land Reforms  
Appellate Tribunal cum II Additional District Judge, Eluru,
West Godavari district in L.R.A.No.29 of 2000.

     2. I have heard Sri Ch.Dhanamjaya, learned counsel
appearing for the revision petitioner-respondent No.1 and
the learned Government Pleader for Arbitration appearing
for the 1st respondent-State.

     3. The 2nd respondent is the mother and the
3rd respondent is the father of the revision petitioner.
The revision petitioner is the only daughter of respondents
2 and 3.  The 3rd respondent submitted a declaration under
Section 8 of the Andhra Pradesh Land Reforms (Ceiling on
Agricultural Holdings) Act, 1973 (the L.R. Act, for short) to
the Land Reforms Tribunal, Bandar by mentioning therein
that his family unit consists of himself, his wife (respondent
No.2) and one unmarried daughter.  By order dated
09-11-1997, the Land Reforms Tribunal, Vijayawada held
that the unit of the declarants family was in possession of
excess land equivalent to 0.3438 standard holdings.
Subsequently, the revision petitioner filed I.A.No.12 of 1996
in C.C.No.518/NDG/75, before the Land Reforms Tribunal,
Bandar stating that the land of an extent of Ac.20-37 cents
was gifted to her as pasupu-kumkuma by her mother from
the coparcenary property on 24-9-1973 under
an unregistered gift deed and the said land shall be
excluded from the holding of the declarant.  After making
an enquiry into the claim petition, the Tribunal allowed the
same by order dated 17-3-1997.  Against the said order, the
1st respondent-State preferred an appeal with an application
to condone the delay of 400 days in filing the appeal.
The Appellate Tribunal condoned the delay by order dated
27-10-2000 and registered the appeal as L.R.A.No.29 of
2000.  Against the order dated 27-10-2000 condoning the
delay, the revision petitioner preferred a revision before this
Court and this Court set aside the order dated 27-10-2000.
Feeling aggrieved, the 1st respondent-State filed a Special
Leave Petition before the Supreme Court and the Supreme
Court in C.A.No.7008 of 2004 set aside the order passed by
the High Court and restored the appeal to file once again.

     4. It was contended by the 1st respondent-State before
the Appellate Tribunal that the unregistered gift deed dated
24-3-1973 under which the land was gifted away to the
petitioner by her mother is not genuine since the same was
not mentioned by the declarant in the declaration
submitted by him.  It is further contended that when the
marriage of the petitioner took place in the year 1980, the
execution of the unregistered gift deed on 24-9-1973 i.e.
7 years prior to the marriage cannot be believed and
therefore, the order passed by the Land Reforms Tribunal,
Bandar shall be set aside.

     5. The petitioner produced the unregistered gift deed,
dated 24-9-1973 and two land revenue receipts.
She examined the attestor of the gift deed and
a neighbouring land owner as witnesses on her behalf.
The learned Land Reforms Appellate Tribunal, Eluru
accepted the contention put-forth by the 1st respondent-
State, disbelieved the unregistered gift deed, declined to
apply the provisions of amended Hindu Succession Act i.e.
Act 39 of 2005 to the facts of the case on the ground that
the said plea was not taken in the claim petition and
ultimately allowed the appeal.  Assailing the appellate
judgment, the petitioner filed the present revision petition.

     6. Since the gift deed was unregistered and only two
land revenue receipts were filed to prove the possession of
the petitioner over the land in question and also in view of
the fact that the declarant viz., the father of the petitioner
failed to mention about the gifting of the land in favour of
the petitioner under an unregistered gift deed in the
declaration submitted by him, I am of the view that the
learned Land Reforms Appellate Tribunal, Eluru is right in
not accepting the unregistered gift deed dated 24-9-1973.
However, it is also not proper to presume that the said gift
deed is false as it was executed 7 years prior to the
marriage of the petitioner.  In any event, this Court is also
of the view that the petitioner failed to establish the
genuineness and authenticity of the gift deed and also the
fact that it was acted upon.

     7. However, the crucial question would be whether the
Appellate Tribunal is justified in refusing to examine the
claim made by the petitioner in the light of Act 39 of 2005
and also having regard to the provisions of the L.R. Act.

     8. According to the petitioner, she is the only daughter
of respondents 2 and 3 and was born on 13-3-1954 in
Madras.  She also filed a certificate issued by the
Corporation of Madras dated 18-9-1996.  This fact has not
been disputed by the 1st respondent.  As such, she was
a major on the date of coming into force of the L.R. Act i.e.
by 01-01-1975.

     9. Section 3(f) of the L.R. Act reads as under:
      family unit means
(i)     in the case of an individual who has a spouse
or spouses, such individual, the spouse or
spouses and their minor sons and their
unmarried minor daughters, if any;
(ii)    in the case of an individual who has no spouse,
such individual and his or her minor sons and
unmarried minor daughters;
(iii)   in the case of an individual who is a divorced
husband and who has not remarried, such
individual and his minor sons and unmarried
minor daughters, whether in his custody or
not; and
(iv)    where an individual and his or her spouse are
both dead, their minor sons and unmarried
minor daughters.
      Explanation:-- Where a minor son is married, his
wife and their offspring, if any, shall also be deemed to
be members of the family unit of which the minor son
is a member.

     10. The petitioner was unmarried but was major on
01-01-1975.  Therefore, she cannot be said to be the
member of the family in the family unit of her father.
At the time of submitting declaration, her father
erroneously mentioned her as one of the members of his
family unit.  After coming into force of Hindu Succession
Act as amended by Act 39 of 2005 with effect from
09-9-2005, the daughter of a coparcener shall by birth
become a coparcener in her own right in the same manner
as the son, provided the partition of properties has not been
effected before 20th day of December, 2004.  Therefore,
by virtue of Section 4-A of the L.R. Act, as the petitioner is
a coparcener, the ceiling area of the unit will be increased in
respect of the petitioner considering her to be a major son
for an extent of land equal to that of her father, the
3rd respondent herein.  Therefore, the family unit of the
3rd respondent gets 2 standard holdings on account of the
fact that the petitioner was major by 01-01-1975 and by
virtue of Act 39 of 2005.  The declaration erroneously made
by the 3rd respondent does not bind the petitioner since she
was major on the date of submitting the said declaration.
The petitioner filed the claim petition I.A.No.12 of 1996
before the Land Reforms Tribunal, Bandar in the year 1996.
Therefore, by the date of coming into force of the Act 39 of
2005 i.e. 09-9-2005, the proceedings were pending before
the Tribunals below.  The learned Appellate Tribunal
therefore ought have taken into consideration the change
in the law brought about by Act 39 of 2005 during the
pendency of the appeal before it.  The Appellate Court under
Order XLI, Rule 33 of the Code of Civil Procedure shall have
the power to pass any decree and make any order which
ought to have been passed or made and to pass or make
such further or other decree or order as the case may
require, and this power may be exercised by the Court
notwithstanding that the appeal is as to only part of the
decree and may be exercised in favour of all or any of the
respondents or parties, although such respondents or
parties may not have filed any appeal or objection.
     11. In the instant case, the learned Appellate Tribunal
ought to have taken into consideration the change of law
brought about by Act 39 of 2005 conferring the status of
coparcener on a daughter.  Even though the said issue was
specifically raised in the appeal, the learned Appellate
Tribunal declined to answer the issue on the ground that
it was not raised in the claim petition before the Tribunal.
The approach adopted by the Appellate Tribunal refusing to
exercise the power vested in it by Rule 33 of Order XLI, CPC
is totally erroneous and it is in the nature of subjecting
parties to multiplicity of proceedings.  The appeal is nothing
but continuation of the original proceedings and when the
appeal is still pending, no finality could have been attached
to the original decree and it is the duty of the Appellate
Court to take note of the subsequent changes in law and it
is obliged to mould the relief in accordance with the rights
conferred on the petitioner by virtue of Act 39 of 2005.
This is a clear case wherein the petitioner is entitled to one
standard holding in the coparcenary property in her own
right under Section 6 of the Hindu Succession Act i.e. Act
39 of 2005.  The petitioner claims to be in possession of the
property in question and no finality has so far been
attached to the proceedings under the L.R. Act in respect of
the share of the petitioner.  If the petitioner is entitled for
a standard holding in the coparcenary property in her own
right, admittedly there may not be any surplus land to be
surrendered under the L.R. Act.

     12. For the foregoing reasons, the judgment dated
02-11-2011 passed by the Appellate Tribunal in
L.R.A.No.29 of 2000 is set aside confirming the order
passed by the Land Reforms Tribunal, Bandar in I.A.No.12
of 1996 in C.C.No.518/NDG/75, dated 17-3-1997.  The civil
revision petition is accordingly allowed.  The miscellaneous
petitions, if any, pending in this revision shall stand closed.
No costs.
___________________  
R.KANTHA RAO, J.  
01st June, 2015.

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