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Sec.13 of Hindu Marriage Act- Divorce =mere filing criminal case is not cruelty =unless the allegations are per se illegal and unlawful from the conduct is per se wild, bad and unlawful to make that itself constitutes act of cruelty; in other respects every conduct alleged that tantamounts to cruelty must be proved by preponderance of probabilities and even the giving of police report or filing of complaint or pursuing of the case under Section 498-A IPC and Sections 4 & 6 of D.P Act by wife against the husband or his family members per se do not constitute cruelty including from the result of acquittal therein; in the absence of showing and proving by the husband that the complaint filed or report given or pursuing of the case is aimed to harass and ill treat the husband that constitute mental cruelty. Equally mere allegations appearing wild or grave in the pleadings of the parties, if not proved does not constitute cruelty; in the absence of evidence showing the same are false or made with intend to ill-treat or harass; by disproving said allegations. ;continuous period of two years desertion = there must be a continuous period of two years desertion on the part of the other spouse to put an end to marital tie with an intention to live away and without any mind to join. Here that is totally lacking in the case as rightly concluded by the trial Court and suffice to hold that there is no factual foundation to establish desertion or construction desertion. ;husband cannot take advantage of his own faults= Having regard to the above as rightly concluded by the trial Court, the husband cannot take advantage of his own faults, for no fault of the wife in driving out her from the marital home and for the sake of record having filed restitution of conjugal rights with no mind and even wife expressed her willingness to join and even after the restitution of conjugal rights petition allowed, he did not execute much less served any notice to her to come and join and further even not allowed her to join and even case registered for the offence under Section 498-A IPC from his demands to part with the property having driven out when she tried to join by proceeding with her mother (RW.2) and PW.3 (that is proved from their evidence) he beat her and demanded to part with her property in his name to alienate and further when she was attending Court to give evidence she was way laid and beaten for which another case registered where he was convicted. Thus, there is neither desertion nor cruelty on the part of the wife, but for cruelty and desertion on the part of the husband. ;irretrievably broken down of marriage is not a ground for divorce.= It is needless to say that it is one of the contentions of the appellant/husband that after December, 1997, the parties are living separately and that is a ground for divorce. As held in the expressions supra, irretrievably broken down of marriage is not a ground for divorce. It is needless to say even the amendment proposed after Naveen Kohli (1 supra) and Samar Ghosh (7 supra) to make it a ground for divorce and that was even recommended by the law commission, it could not fructify in the Parliament. Accordingly, the point No.1 is answered.

THE HONBLE SRI JUSTICE R.SUBHASH REDDY And THE HONBLE DR. JUSTICE B.SIVA SANKARA RAO              

C.M.A. No.4575 OF 2004  

19-02-2015

Sri Anchuri Subbaraju, S/o.Gangaraju,Hindu, male, aged 36 years, employee,In
Naval Dock Yard (V), Employee No.19231, C.No.140, resident of
Rly.Q.No.58/A,Marripalem, Visakhapatnam....APPELLANTVERSUS      

Smt.Anchuri Sunitha, W/o.Subbaraju, Hindu, male, aged 29 years, House wife,
R/o.C/o.Kadiyala Lakshmi, D.No.3-1, Akkireddypalem, Visakhapatnam....RESPONDENT      

Counsel for Appellant: Smt.N.(P) Anjana Devi

Counsel for Respondent : Sri V.Ajay Kumar

<GIST:

>HEAD NOTE:  

? Cases referred
1.      (2006) 4 SCC 558
2.      AIR 1975 SC 1534
3.      1988 SCC (Cri) 60
4.      1950 (2) All ER 398 at P.403 h
5.      (1994) 1 SCC 337
6.      (2002) 2 SCC 73
7.      (2007) 4 SCC 511
8.      AIR 2011 SC 114 (1)
9.      AIR 2003 SC 2462
10.     (2014) 7 SCC 640
11.     2005 (2) SCC 22
12.     2009 (1) SCC 422
13.     2013 (5) SCC 226
14.     (1999) 3 SCC …

whether in absence of an appeal or cross-objection from the claimants, is it permissible to grant additional benefits to the appellants as provided in Section 23(1-A) of the Amendment Act?

HON'BLE SRI JUSTICE RAMESH RANGANATHAN HON'BLE SRI JUSTICE S. RAVI KUMAR                

A SMP No.730 of 2015

29-07-2015

Girreddy Suryanarayana Reddy .Appellant.                              

The Land Acquisition Officer and Special Deputy Collector, Y.R.P., Unit-III,
Peddapuram, East Godavari District. .....Respondent.

Counsel for the Petitioner: Sri A.K. Kishore Reddy.

Counsel for Respondent: G.P for Appeals.

<Gist :

>Head Note:

? Cases referred:
1. (2010) 10 SCC 458
2. (2007) 13 SCC 421
3. (2006) 1 SCC 380
4. (1994) 4 SCC 368
5. (2003) 2 SCC 330
6. (2005) 11 SCC 197
7. (2003) 1 SCC 197
8. (2001) 7 SCC 211
9. (2006) 8 SCC 457
10. (1996) 4 SCC 533
11. (1996) 5 SCC 501
12. (2005) 7 SCC 748
13. (2004) 1 SCC 328
14. (2001) 4 SCC 181


HON'BLE SRI JUSTICE RAMESH RANGANATHAN          

HON'BLE SRI JUSTICE S. RAVI KUMAR      

ASMP No.730 of 2015  
in
A.S No.1884 of 2001

Date:29-07-2015

The Court made the following :


ORDER: (Per Honble Sri Justice S. Ravi Kumar)

     …

Proof of Will – mere expressed ignorance of the manner in which the Will was executed by each of them pleading that the other person has personal knowledge, that is hardly of any significance. – does not make the will invalid as the signature on the Will was admitted = A perusal of the cross-examination of the plaintiffs witnesses, and in particular that of PW-3 and PW-4, who are the attestors to Ex.A-5-Will and PW-5, the scribe of the Will, shows that nothing is elicited to discredit their testimony regarding the execution of the Will by Vasantha Devi. Except the suggestion consistently put to both the attestors and the scribe that the Will was fabricated using the signatures of Vasantha Devi, nothing of significance which would cast a shadow on the genuineness of the Will has been extracted from these witnesses. The evidence of these witnesses, in my opinion, completely satisfies the requirements of Section 63 of the 1925 Act. Though respondent Nos.1 and 2 have expressed ignorance of the manner in which the Will was executed by each of them pleading that the other person has personal knowledge, that is hardly of any significance. Last Testament - though unregistered, last will prevails the earlier registered will deed = Indeed, a perusal of Ex.A-5-Will would show that the testatrix referred to Will dated 11-3-1990 and rescinded the same. From the evidence of appellant No.1, who was examined as DW-1, it is clear that he had admitted the signature of the testatrix while denying the execution of Ex.A-5 Will. In the face of the evidence of PW-3 to PW-5, which remained unshaken, it needs to be held that respondent Nos.1 and 2 are able to prove Ex.A-5-Will as true and valid. Even if PW-1 and PW-2 did not have personal knowledge of the manner in which Vasantha Devi executed the Will, the same would not in any manner affect its genuineness No Equities = When the sale deeds are hit by Doctrine of Lis Pendency, cannot claim any Equities=, but he has also sold Ac.5-00 of land which was bequeathed to respondent Nos.1 and 2 under Ex.A-5-Will to defendant Nos.8 and 9. It is also not in dispute that these properties were sold after the suit was instituted. In these facts and circumstances, defendant Nos.8 and 9 cannot claim any equities against respondent Nos.1 and 2. At the most, they can proceed against appellant No.1 for recovery of the money paid to him and also for damages, if any. - 2015 A.P. MSKLAWREPORTS

Proof of Will – mere expressed ignorance of the manner in which the Will was executed by each of them pleading that the other person has personal knowledge, that is hardly of any significance. – does not make the will invalid as the signature on the Will was admitted = A perusal of the cross-examination of the plaintiffs witnesses, and in particular that of PW-3 and PW-4, who are the attestors to Ex.A-5-Will and PW-5, the scribe of the Will, shows that nothing is elicited to discredit their testimony regarding the execution of the Will by Vasantha Devi.  Except the suggestion consistently put to both the attestors and the scribe that the Will was fabricated using the    signatures of Vasantha Devi, nothing of significance which would cast a shadow on the genuineness of the Will has been extracted from these witnesses.  The evidence of these witnesses, in my opinion, completely satisfies the requirements of Section 63 of the 1925 Act. Though respondent Nos.1 and 2 have expressed ignor…

without seeking relief of recovery of possession, plaintiffs are not entitled to claim relief of declaration as discussed earlier in the earlier paras, defendants miserably failed to establish their possession over the property and on the other hand this Court while accepting possession of defendant No.1 directed defendants not to dispossess plaintiff No.1 from possession of the property under Ex.A.1 after issuing notice, plaintiffs filed the present suit and undisputedly defendant Nos.5 to 11 and plaintiff Nos.1 and 2 were compromised as per orders in I.A.No.1930 of 1992. Defendants also failed to establish that they are continuing in possession of the property, consequently the contention of the defendants that plaintiff Nos.3 to 6 are not entitled to claim relief of declaration of title, without seeking relief of recovery of possession is without any substance and this contention would stand to any legal scrutiny by this Court.unless an enquiry as contemplated under Section 7 of the Act and by following necessary procedure under Sections 9, 10 and 11 of the Act, the property cannot be declared as escheat under Section 12 of the Act. But, in the present case except producing Exs.B.1 and B.2 as part of compliance of the procedure under Section 10(1) of the Act, nothing has been brought on record to establish the strict adherence of the procedure contemplated under the A.P. Act of 1974. In the absence of compliance of the procedure under the A.P. Act of 1974, it is difficult to hold that the possession of the property was taken by defendant Nos.1 to 4 and later on, the same was handed over to defendant Nos.13 to 24 by issuing eksal pattas. Even assuming for a moment that pattas were granted under Exs.B.3 and B.4 to defendant No.13 to 24, those pattas are only for a period of one year i.e., 1991- 1992 and not renewed from time to time as required under law. Therefore, the eksal patta holders i.e., defendant Nos.13 to 24, if any, are liable to vacate and deliver possession of the property after expiry of one year period. Thus, defendant Nos.1 to 4 are totally violated the procedure as contemplated under Sections 9, 10, 11 and 12 of the Act and allegedly took possession of the property.; Admittedly, the plaintiffs and defendant Nos.5 to 11 are covered by Hanani Law of Inheritance. Plaintiff No.1 is not a sharer under absence of defendant Nos.5 to 11, plaintiff No.1 is entitled to succeed Section 63 of the Hanafi Law of Inheritance. Section 67 of Hanafi Law of Inheritance defined distant kindred as follows: Distant Kindred: (1) If there be no shares or Residuaries, the inheritance is divided amongst Distant Kindred. (2) If the only sharer be a husband or wife, and there be no relation belonging to the class of Residuaries, the husband or wife will take his or her full share, and the remainder of the estate will be divided among Distant Kindred. 32. Again the Distant Kindred are divided into four classes under Section 68 of the Hanafi Law of Inheritance, namely: (1) descendants of the deceased other than sharers and Residuaries; (2) ascendants of the deceased other than sharers and Residuaries; (3) descendants of parents other than sharers and Residuaries; (4) descendants of ascendants how highsoever other than Residuaries. The descendants of the deceased succeed in priority to the ascendants, the ascendants of the deceased in priority to the descendants of parents, and the descendants of parents in preference to the descendants of ascendants. Clause (2) of Section 68 of the Hanafi Law of Inheritance is the list of Distant kindred comprised in each of the four clases; 1.Whether plaintiff No.1 is the distant kindred of late Abdulla Bin Musallam? 2. Whether plaintiff No.1 be declared as heir being the distant kindred of late Abdulla Bin Musallam? 3. Whether late Abdulla Bin Musallam died leaving no legal heirs to succeed his estate? 4. Whether plaintiff Nos.3 to 5, being the purchasers from defendant Nos.5 to 11, are entitled to claim relief that they are owners of the schedule property? 5. Whether the claim of plaintiff Nos.3 to 6 is barred by

HONOURABLE SRI JUSTICE M. SATYANARAYANA MURTHY            

APPEAL SUIT NOs.1490 of 1996 andm batch  

19-08-2015

Boddapalli Anjaiah S/o.Yellaiah and eleven others. Appellants

Shaik Sayeed S/o.Shaik Mohammad and twenty one others. Respondents    

Counsel for Petitioner: Sri B. Vijaysen Reddy

Counsel for Respondents: Sri Y. Rama Rao for R.1
                          Sri V.Ravi Kiran Rao for R.3, R.6 & R.6
<GIST:

>HEAD NOTE:  

? CITATIONS:
1.      1987 (2) ALT 46 (NRC)
2.      AIR 2004 AP 167


HONBLE SRI JUSTICE M. SATYANARAYANA MURTHY          

A.S.Nos.1490 of 1996 and 1582 of 1997

COMMON JUDGMENT:    

     Defendant Nos.13 to 24 in O.S.No.162 of 1988 on the file of
the Subordinate Judge, Karimnagar filed A.S.No.1490 of 1996 and
defendant Nos.1 to 4 in O.S.No.162 of 1988 filed A.S.No.1582 of
1997, challenging the degree and judgment dated 13.02.1996 where
under plaintiff No.1 is declared as distant kindred of late Abdulla Bin
Musallam, who was the pattadar of the suit l…