Whether the declarations filed by the respondent and the father before the Land Reforms Tribunal, as evidenced by Ex.B.7 are sufficient to hold that there was a valid partition before the commencement of the Hindu Succession (Amendment) Act, 2005?= As we have stated earlier, Ex.B.7 is dated 23.01.1976. It is only since no actual division by metes and bounds had taken place as on the date of Ex.B.7 that under Ex.B.1-Will dated 20.04.1990, the father conveyed his half undivided share in the properties. If a partition had actually taken place and the properties had been divided by metes and bounds, way-back in 1975 or 76, there was no question of the father bequeathing his half undivided share under the Will executed in 1990. The very fact that what was bequeathed under Ex.B.1 was the half undivided share of the father establishes that no partition took place either before or under Ex.B.7. Hence the third issue arising for determination is answered in favour of the appellant/plaintiff.; whether mere execution of the Will prior to 20.12.2004 was sufficient to make a Will come within the purview of the expression disposition under the proviso to Section 6(1) of the Hindu Succession (Amendment) Act, 2005, especially when the testator admittedly died only after 20.12.2004. = Therefore, we are of the considered view that in cases where the testator was alive as on 20-12-2004, the Will, even if any executed by him genuinely before the said date, would not make it a case of testamentary disposition which had taken place, so as to make the case fall under the proviso and to take it out of the application of section 6(1);Insofar as the other two items are concerned, the sale of a part of the lands described in Item Nos.11 and 12 of the plaint schedule is virtually admitted by the appellant/plaintiff. But the date of the sale is not known. However, the plaintiff herself has admitted during cross- examination that the sale of a part of items 11 and 12 of the plaint schedule took place long back. Therefore, we have no alternative but to presume that the sale took place before 20.12.2004. .

HONBLE SRI JUSTICE V.RAMASUBRAMANIAN ANDHONBLE SMT JUSTICE ANIS                

APPEAL SUIT No.349 of 2016  

27-04-2017

Smt. R. Seethamma @ Seetha Lakshmi, W/o. Sri R.Vema Reddy, R/o. Door No.134, CIEFL Colony,East Anand Bagh, Safilguda, Malkaj      

M. Thimma Reddy,S/o. Late M. Satyanarayana Reddy Occ: Advocate/Ryot,R/o. Gudur Village, Kurnool District. Respondent    

Counsel for the Appellant : Mr. Ch. Ramesh Babu

Counsel for the Respondent: Mr. K.S. Gopalakrishnan

<GIST:

>HEAD NOTE:  

? Cases referred
1.      (2016) 2 SCC 36
2.      (1991) 3 SCC 647
3.      (1993) 4 SCC 392
4.      AIR 2012 SC 169

Court made the following Judgment


HONBLE SRI JUSTICE V.RAMASUBRAMANIAN          
AND
HONBLE SMT JUSTICE ANIS    

A.S.No.349 of 2016

JUDGMENT: (per V. Ramasubramanian, J.)  

        Aggrieved by the dismissal of her suit for partition, the unsuccessful
plaintiff has come up with this regular appeal.
      2. Heard Sri Ch. Ramesh Babu, learned counsel for the appellant
and Sri K. Gopalakrishnan, learned counsel for the respondent.
      3. The appellant herein filed a suit in O.S.No.71 of 2011 on the file
of the IV Additional District Judge, Kurnool, seeking partition and
separate possession of her half share in the properties described in the
schedule to the plaint. The case of the appellant in her plaint, inter alia
was: that the respondent herein is her elder brother; that the father of
the appellant and the respondent by name M. Satyanarayana Reddy died  
at Gudur, Kurnool District on 27.04.2006; that the suit properties are
ancestral properties; that on 04.08.1954, the appellants grandfather by
name M. Venkatarami Reddy and his two sons Satyanarayana Reddy and     
Chandrasekhar Reddy partitioned the ancestral properties; that while the
properties described in Schedule-A fell to the share of the appellants
grandfather, the properties described in B-schedule fell to the share of the
appellants father and the properties described in C-schedule fell to the
share of the appellants paternal uncle; that after the death of the
appellants grandfather, A-schedule properties devolved upon the
appellants father; that after the death of their father on 27.04.2006
followed by the death of their mother on 09.05.2011, the properties
devolved upon her and the respondent.
      4. The respondent herein filed a written statement contending
inter alia, that the appellant could not be termed as a coparcener; that
she was not entitled to the benefit of the amended provisions of the
Hindu Succession Act, 2005; that the respondent/defendant and the
father Satyanarayana Reddy got all the suit schedule properties, except
two items in a partition that took place between his father, his
grandfather and paternal uncle; that the father of the appellant and the
respondent executed a registered Will on 20.04.1990 bequeathing his half
share in the ancestral properties in favour of the respondent and his two
sons; that the Will was also registered; that after the demise of their
father on 27.04.2006, the defendant and his sons acquired absolute title
to the suit properties; that insofar as the land in Survey No.906/3 and
850/1 measuring about Ac.1.25 cents is concerned, the respondent
acquired the same under the Gift deed from his maternal aunt; that
therefore the land in these 2 Survey Numbers was not the ancestral
property, but a self-acquisition by the respondent; that the entire land
except an extent of Ac.13 cents in Survey No.765/1/B had already been
sold; that the land in Survey No.763/1 measuring about Ac.0.24 cents
was also alienated, leaving behind only Ac.0.03 cents; that the land in
Survey No.315 and Survey No.775 was acquired by the Government of
Andhra Pradesh for the purpose of providing house sites to persons
belonging to the Scheduled Caste in the year 1999 and an award has also
been passed; that the father of the appellant and the respondent, was an
employee of Andhra Bank and was staying only at Hyderabad; that
therefore the defendant was in possession of the land and cultivating the
same; that during his retired life the father came to Gudur and settled
there in 1997; that the appellant/plaintiff is not entitled to any share in
the suit properties; that even during the life time of the father, the
respondent got patta passbook in his favour with the consent of the
father in the year 1996 itself; that the father gave consent for effecting
mutation in the revenue records even during his lifetime; and that
therefore the appellant/plaintiff was not entitled to partition.
      5. After three years of the filing of the written statement, the
respondent/defendant got the written statement amended, so as to
include a paragraph dealing with what happened during the proceedings
under the Land Reforms Act in the year 1976. It was averred in the said
paragraph, numbered as para 8 (a) of the written statement that the
defendant and the father submitted separate declarations under the Land
Reforms Act claiming half share in the properties and that the Land
Reforms Tribunal also accepted the same and passed orders showing
thereby that the properties already got partitioned.
      6. The appellant/plaintiff filed a reply to the amended written
statement. In response to the averments in newly added paragraph of the
written statement, it was stated by the plaintiff in her reply that the
declaration made by her father and her brother under the Land Reforms
Act was wrong, untrue and contrary to Hindu Succession Act and that no
partition was valid without the involvement of the plaintiff..
   7. The Court below framed the following issues for consideration:
1.      Whether the plaintiff is not coparcener and not entitled to claim for
the benefit of amended provisions of Hindu Succession Act to claim
for her share in the joint family properties?
2.      Whether the registered will dated 20.04.1990 executed by late M.
Satyanarayana Reddy father of Plaintiff and defendant is genuine
valid under law and binding on the plaintiff?
3.      Whether the land in Item No.9 and 17 of schedule properties were
acquired by the defendant by the gift deed executed by her
maternal aunt and not the ancestral properties?
4.      Whether the plaintiff is entitled for half share in the plaint schedule
properties and so for partition and to allot separate possession of
her half share?
5.      Whether the plaintiff is entitled for the preliminary decree or final
decree as prayed for?
6.      To what relief?

      8. The appellant/plaintiff examined herself as PW.1 and examined
her aunt by name P. Seethamma, who gifted the land in Survey Nos.906
and 850/1 to the defendant, as PW.2. The partition deed dated
04.08.1954 was marked as Ex.A.1 and the death certificate of the father
M. Satyanarayana Reddy dated 27.04.2006 was marked as Ex.A.2.  
      9. The defendant examined himself as DW.1. He also examined one
of the attestors of the Will dated 20.04.1990 as DW.2. The original
registered Will executed by the father was marked as Ex.B.1, the original
Gift deed executed by PW.2 was marked as Ex.B.2, the original pattadar
pass book was marked as Ex.B.3, the original pattadar pass books issued
in favour of the respondents son were marked as Exs.B.4 and B.5, the
registered Will dated 20.04.1990 of the mother of the parties hereto was
marked as Ex.B.6 and the orders passed by the Land Reforms Tribunal
were marked as Ex.B.7.
      10. By a judgment and decree dated 10.02.2016, the trial Court
held on issues 1 and 2 that Ex.B.1-registered Will dated 20.04.1990 was a
genuine document and that there was a partition long prior to the Hindu
Succession (amendment) Act, 2005. On Issue No.3 the Court below held  
that Item Nos.9 and 17 of the plaint schedule properties were not
ancestral properties and that they were gifted to the defendant under
Ex.B.2 by the maternal aunt.
      11.  As a consequence of the findings on issues 1, 2 and 3, the trial
Court held that the appellant/plaintiff was not entitled to a half share in
the plaint schedule properties and that the suit was liable to be dismissed.
Aggrieved by the said judgment and decree, the plaintiff is before us.
      12. The main grounds on which the judgment and decree of the
trial Court are assailed by the appellant are:
      i)  that the orders passed by the Land Reforms Tribunal on
23.01.1976 marked as Ex.B.7 considering the father and the respondent
/defendant as independent holders of lands cannot be treated as evidence
of partition in view of the Explanation to Section 6 (5) of the Hindu
Succession (Amendment) Act, 2005;   
      ii)  that the Court below ought not to have looked into Ex.B.7,
since in the original written statement, there was no pleading about the
same and that it was only after the evidence on the side of the plaintiff
was closed, and the evidence of DW.1 had commenced that the defendant   
sought amendment of written statement, so as to incorporate a pleading
relating to land reforms proceedings;
      iii) that if there had been a partition as claimed by the defendant,
which led to the order of the Land Reforms Tribunal in 1976, there could
have been no occasion for the father to execute a Will on 20.04.1990
bequeathing his half share;
      iv) that the paternal aunt Smt. Seethamma examined as PW.2
categorically stated that there was neither a partition nor a Will, but her
evidence was overlooked; and 
      v) that the execution of Will in 1990 may not tantamount to
disposition of property within the meaning of the proviso to sub-section
(1) of Section 6 of the Hindu Succession (Amendment) Act, 2005.
      13. In response to the above contentions it is submitted by the
learned counsel for the respondent that the provisions of
Section 6(1) of the Hindu Succession (Amendment) Act, 2005 would not
have any application to a disposition including a testamentary disposition
of property which had taken place before 20.12.2014; that the Will-
Ex.B.1 dated 20.04.1990 was not seriously disputed by the appellant, and
the defendant proved the Will by examining one of the attestors of the
Will as DW.2; that once it is concluded that the Will, a registered one,
was proved in accordance with law to be a genuine document, the proviso
to Section 6(1) comes into play and that therefore the plaintiff cannot
seek the benefit of Section 6(1).
      14.  We have carefully considered the above submissions.
      15. From the rival contentions it appears to us that the following
points arise for determination in the above appeal:
1.      Whether the Will-Ex.B.1 dated 20.04.1990 was duly proved by the
defendant?
2.      Whether the execution of Will before 20th day of December, 2004
was sufficient, to make a Will come within the purview of the
expression disposition under the proviso to Section 6(1) of the
Hindu Succession (Amendment) Act, 2005, especially when the  
testator was alive on the crucial date?
3.      Whether the declarations filed by the respondent and the father
before the Land Reforms Tribunal, as evidenced by Ex.B.7 are
sufficient to hold that there was a valid partition before the
commencement of the Hindu Succession (Amendment) Act, 2005?    
4.      Whether the properties at Sl.Nos.9 & 17 of the schedule to the
plaint are liable to be partitioned, in the event of the above
questions being decided in favour of the appellant?
5.      Whether the properties described in Items 8, 11, 12 and 21 of the
plaint schedule are liable to be partitioned, in the event of
questions 1 to 3 being decided in favour of the appellant/plaintiff?
6.      Whether the appellant is entitled to any relief?
POINT No.1
      16. The first point for determination is as to whether the
defendant could prove Ex.B.1-Will dated 20.04.1990 in a manner known
to law or not?
      17. A bare look at Ex.B.1-Will dated 20.04.1990 shows that the
same was registered as document No.93 of 1990 in the office of the
Registrar, Hyderabad. The signature of M. Satyanarayana Reddy, the 
father of the parties hereto in the Will is not disputed by the appellant
herein. It is stated in the Will that the testator was 65 years of age and
was making the Will in a sound and disposing state of mind. The testator
has disclosed in the Will that he was having a wife, a son, a daughter and
two grandsons (both majors) through the son. He had claimed in the Will
that he possessed about 24 items of ancestral properties at Guduru Village
and Mandal, Kurnool District and that half undivided share of those
properties belonged to him and the remaining half undivided share
belonged to his son. By the said Will the testator bequeathed his half
share in the 24 items of ancestral properties, in favour of his only son
(defendant in the suit) and two grandsons through the son.
      18. The Will was attested by two persons, both of whom were
officers of Andhra Bank in which the testator himself was employed
earlier. One of those attestors by name A. Narasimha was examined as
DW.2. He stated in his affidavit in lieu of chief examination that the
testator executed a Will in his presence and in the presence of the other
attestor V. B. Ram Murthy. DW.2 further stated that the testator dictated
the contents of the Will to the typist in the presence of the attestors and
that after it was typed the testator went through the same and thereafter
signed it in the presence of the attestors. DW.2 also stated that both the
attestors attested the Will in the presence of each other and in the
presence of the testator and that the testator was in a sound and
disposing state of mind.
      19. As a matter of fact, two Wills came to be executed and
registered on the same day, viz., 20.04.1990. One was by M.
Satyanarayana Reddy, the father of the plaintiff and the defendant. It was
marked as Ex.B.1. The other Will was executed by the mother of the
parties hereto and it was marked as Ex.B.6. The Will of the mother was
also attested by the very same attestors and DW.1, the attestor identified
his signatures in both the Wills.
      20. In addition, there is a reference in the last Will and testament
executed by the father (Ex.B.1) to the Will executed by the mother
(Ex.B.6). Ex.B.6 was registered as document No.92/1990 and Ex.B.1 was  
registered as document No.93/1990. Therefore, it is clear that the
mothers Will was executed and registered prior in point of time to the
fathers Will, though on the same day. Therefore, the fathers Will contains
a reference to the mothers Will.
      21. Though in the Will executed by the father, he has not stated
any justification for not providing anything to the daughter, the Will
executed by the mother contains a reason as to why the daughter was
excluded. It is stated in the mothers Will as follows:
We performed the marriage of our daughter
according to our family traditions and customs and
commensurate with our academic status. She is well
settled in life and we have no obligation towards
her.

      22. A cumulative consideration of all the above would show that
the execution of the Will by both the parents of the parties on the same
day is true. There are also no suspicious circumstances surrounding the
execution of the Wills. Though no reasons are stated in the fathers Will,
for excluding the daughter, the mothers Will contains some reasons, weak
or strong. In the fathers Will the properties are stated to be ancestral
and what was bequeathed was only the fathers half share.
      23. Therefore, we are of the considered view that the defendant
proved Ex.B.1-Will, in accordance with the provisions of Section 68 of the
Indian Evidence Act.
      24. As a matter of fact, the truth and the genuineness of Ex.B.1-
Will was not even challenged by the appellant/plaintiff. This could be seen
from the fact that the defendant specifically pleaded the execution of the
Will by his father in para-4 of the written statement. The written
statement was subsequently amended to include additional pleadings.
Thereafter, the appellant/plaintiff filed a rejoinder to the amended written
statement. In paragraph-4 of the rejoinder, the appellant/plaintiff merely
claimed that the Will was null and void and cannot be operative. In other
words what was challenged by the appellant/plaintiff was not the truth
and genuineness of Ex.B.1, but only its validity under the Hindu law of
Succession.
      25. Even in this appeal, the appellant has not raised any grounds
challenging the truth and genuineness of the Will. Therefore, on Point
No.1 arising for our determination in this appeal, we hold that the
defendant proved Ex.B.1-Will dated 20.04.1990 in a manner prescribed by
law.
POINT No.2
      26. The second point arising for determination is as to whether
mere execution of the Will prior to 20.12.2004 was sufficient to
make a Will come within the purview of the expression
disposition under the proviso to Section 6(1) of the Hindu
Succession (Amendment) Act, 2005, especially when the testator 
admittedly died only after 20.12.2004.
      27. Section 6(1) of the Hindu Succession Act, 1956 reads as
follows:
Devolution of interest in coparcenary property.
(1) On and from the commencement of the Hindu
Succession (Amendment) Act, 2005, in a joint Hindu
family governed by the Mitakshara law, the daughter of a
coparcener shall:
(a)     by birth become a coparcener in her own right in the
same manner as the son;
(b)     have the same rights in the coparcenary property as
she would have had if she had been a son;
(c)     be subject to the same liabilities in respect of the
said coparcenary property as that of a son, and any
reference to a Hindu Mitakshara coparcener shall be
deemed to include a reference to a daughter of a
coparcener:
Provided that nothing contained in this sub-section shall
affect or invalidate any disposition or alienation including
any partition or testamentary disposition of property
which had taken place before the 20th day of December,
2004.

      28. A careful look at Section 6(1) would show that by the
amendment brought forth by Central Act No.39/2005, the daughter of a
coparcener in a joint Hindu family governed by the Mitakshara law was
made a coparcener by birth, in the same manner as the son and was 
vested with the same rights and obligations in respect of the coparcenery
property, as a son would have. But the proviso to sub-section (1) makes it
clear that nothing therein would affect or invalidate any disposition or
alienation including any partition or testamentary disposition which had
taken place before 20.12.2004.
      29. Two expressions appearing in the proviso to sub-section (1) of
Section 6 are of significance. They are (1) disposition and (2)
alienation. These two expressions are followed by a rider to the effect
that any partition or testamentary disposition is also included within the
purview of these two expressions.
      30. While we would have no difficulty in understanding the purport
of the expression alienation, there is some difficulty in expounding the
meaning of the expression disposition. This difficulty is compounded by
the inclusion of testamentary disposition, within the meaning of the
expression disposition. Normally one would understand the expression
testamentary disposition to mean the execution of a testamentary
instrument, the bequest under which is to take effect in future, while
alienation takes place in praesenti. Therefore the confusion or
difficulty posed by the proviso to Section 6(1) is as to whether it
includes a testamentary disposition that has come into effect
due the death of the testator before the crucial date or a
bequest which has not yet come into effect, due to the testator
being alive as on the crucial date.
      31. The question as to whether, the Hindu Succession
(Amendment) Act, 2005 will have retrospective effect or not, has been
answered by the Supreme Court in Prakash v. Phulavati . The Supreme 
Court held therein that the rights under the amendment are applicable to
living daughters of living coparceners as on 9th September, 2005
irrespective of when such daughters were born. The Supreme Court
further held that disposition or alienation including partition, which may
have taken place before 20.12.2004 as per the law applicable prior to the
said date, will remain unaffected.
      32. In Prakash, the Supreme Court considered some of its earlier
decisions in which a tricky question similar to the one arising in the
present case came up for consideration. For instance, in S. Sai Reddy v.
S. Narayana Reddy , a preliminary decree for partition was passed in
favour of a son against his father. But before a final decree could be
passed, an amendment was introduced by the State of Andhra Pradesh   
under Hindu Succession (A.P. Amendment) Act, 1986, allowing a share to  
the unmarried daughters. Therefore, a question arose as to whether the
share allotted to the son under the preliminary decree would undergo a
change or not. The Court upheld the right of the unmarried daughters on
the ground that the rights of the son had not crystallized. But the
Supreme Court pointed out in Prakash that the decision in S. Sai Reddy
did not arise out of a case where the shares of the parties stood already
crystallized by operation of law. Moreover, the A.P. amendment Act did
not include under Section 29-A, a provision similar to the proviso to
Section 6(1), introduced by the 2005 Central Amendment. Clause (iv) of
Section 29A merely covered, marriage or partition effected before the
commencement of the A.P. Amendment Act, 1986. There was no inclusion    
of testamentary disposition under the exclusion clause, in the A.P.
Amendment Act.  
      33. Heavy reliance is placed by the learned counsel for the
respondent/defendant on the judgment of the Supreme Court in Pavitri
Devi v. Darbari Singh , in support of his contention that the expression
testamentary disposition includes the mere execution of a Will. In the
said case before the Supreme Court, what was in question was only a gift
deed and not a Will. Therefore the expression testamentary disposition
appearing in Section 30(1) of the Hindu Succession Act, 1956 had no
application to the case before the Supreme Court. But nevertheless, the
Supreme Court referred to the expression testamentary disposition
appearing in Section 30 (1) and went into the scope and ambit of the said
expression in paragraph 3. Paragraph-3 of the said decision reads as
follows:
       Webster in Comprehensive' Dictionary in international
edition at page 1298, stated the meaning of the word
'testamentary' thus: (i) derived from, bequeathed by, or set
forth in a will; (ii) appointed or provided by, or done in
accordance with, a will; (iii) pertaining to a will, or to the
administration or settlement of a will, testamental. In the Law
Lexicon by P. Ramanatha Aiyar, reprint edition 1987 at P. 1271
testamentary instrument was defined to mean a "testamentary
instrument" is one which declares the present will of the maker
as to the disposal of his property after death, without
attempting to declare or create any rights therein prior to such
event. Black's Law Dictionary [6th Ed. 1991] defines
"testamentary disposition" at page 1475 thus - "the passing of
property to another upon the death of the owner. A disposition
of property by way of a gift, Will or deed which is not to take
effect unless the grantor dies or until that event." Section 123 of
the Transfer of Property Act provides disposition by a gift which
takes effect even during the lifetime of the donor and effective
as soon as it is registered and normally given possession of the
property therein. Section 30 of the Act is merely declaratory of
the law not only as it stood before the Act, but as it now stands
modified by the provisions of the Act. It declares that any Hindu
may dispose of by a will or other testamentary disposition his
property or interest in coparcenary which is capable of being so
disposed of by him in accordance with the provisions of the
Indian Succession Act, 1925 or any other law for the time being
in force applicable to the Hindus. Its explanation is really
material. The testamentary disposition, therefore, would mean
disposition of the property which would take effect after the
death, instead of co-instentine on the execution of the
document. A testamentary disposition is generally effected by a
will or by a codicil which means an instrument made in relation
to a will extending, altering or adding to its disposition arid is to
be deemed to form part of the will. Will as defined in Section
2(h) of the Indian Succession Act, 1925 means legal declaration
of the intention of the testator with respect to his property
which he desired to carry into effect after his demise. It limits
alienation intra vivos. While the gift being a disposition in
presenting, it becomes effective on due execution and
registration and generally delivery of the possession. Section 30
makes it clear that testamentary disposition under the Act would
be dealt with in accordance with the Indian Succession Act.
Section 55 and Schedule 3 of the said Act prescribe procedure
effecting succession amongst Hindus by testamentary succession
by will or codicil. Section 30 employs non-obstinate clause and
excludes from the operation of pre-existing or any other law
applicable to coparcenery property governed by Mitakshara law
and introduced fiction in its explanation and empowers the Hindu
male or female to dispose of his or her interest by a will or any
other testamentary disposition known to law-which would be
effective after the demise. It would, therefore, be difficult to
envisage that disposition by gift partakes the character of
testamentary succession under Section 30 of the Act.

      34. Though the Supreme Court, in Pavitri Devi, expounded the
meaning of the expression testamentary disposition and gave it a
meaning, we do not think that we can take the decision in Pavitri Devi as
an authoritative pronouncement on the issue now before us, for two
reasons. They are:
(a)     As we have pointed out in the preceding paragraph, the Supreme
Court was concerned in Pavitri Devi with a gift deed and not a Will.
A gift is actually a transfer of property, while a Will is not.
Therefore, the interpretation given by the Supreme Court in Pavitri
Devi to the expression testamentary disposition is actually out of
context and did not arise out of the lis before the Supreme Court.
Hence, the decision in Pavitri Devi cannot be taken to be the last
word on the interpretation of the expression found in the proviso
to Section 6(1).
(b)     By its very nature, a testamentary disposition is one which does
not take effect and which does not become final, unless and until
the testator dies. It is not only the bequest under a Will,
which is subject to various uncertainties, dependent upon
the life and wish of the testator, but even the right of the
testator to bequeath a particular property may undergo a
change before he dies. Take for instance a case where the
testator begets a child after the execution of Will. If his undivided
share in the joint family property had been the subject matter of
the Will, his own share may undergo a change with the birth of a
son after the execution of the Will. In peculiar cases it may even
happen with the birth of a sibling to the testator. Therefore, a
testamentary disposition can never be an actual
disposition in the true sense of the term, since its coming
into effect as well as the extent to which it takes effect,
are always subject to the uncertainties of time and mind,
apart from birth and death. As pointed out by the Supreme
court in Mathai Samuel Vs. Eapen Eapen {(2012) 13 SCC  
80}, a Will is merely a legal declaration of the testators
intention and its essential characteristic is its
ambulatoriness and revocability.
      35. Unfortunately, the word disposition itself emerged from the
English language and law and hence the manner in which law dictionaries
have expounded the term, is in tune more with linguistics than with law.
This is perhaps why the Supreme court pointed out in Goli Eswariah vs.
Commissioner of Gift Tax {AIR 1970 SC 1722} that the word
disposition is not a term of law, having a precise meaning and
that its meaning has to be gathered from the context in which it
is used.
      36. Blacks Law Dictionary defines disposition to mean the fact of
transferring something to anothers care or possession especially by deed
or will; the relinquishing of property. The same dictionary defines
testamentary disposition to mean a disposition to take effect upon the
death of the person making it, who retains substantially entire control of
the property until death. P. Ramanatha Aiyars the Law Lexicon (3rd
Edition 2012) deals with the definition of the word disposition in a
variety of circumstances. One of the several connotations given in the Law
Lexicon is as follow:
The word disposition in relation to property means
disposition made by deed or will and also disposition
made by or under a decree or under order of a Court as
the qualifying phrase used in Section 21(2), viz.,
including any transfer in execution of a decree or order
of a Court, Tribunal or authority (Sanjay v. State of
Maharashtra  AIR 1986 SC 414).

      37. The right of a Hindu to dispose of his property by will or other
testamentary disposition is recognised by Section 30 of the Hindu
Succession Act. It is that in Section 30, the expression testamentary
disposition is used. A careful look at the manner in which Section 30 is
worded would show two things, viz., - a) that a testamentary disposition
could be either by way of will or otherwise; and b) that what is sought to
be done through will or other testamentary disposition is considered by
Section 30 to be a disposal.
      38. Interestingly the Oxford English Dictionary defines the word,
whenever used as a noun in the branch of law, to mean the distribution
or transfer of property or money to someone especially by bequest. The
origin and etymology of the word disposition, as indicated in Merriam
Webster Dictionary shows that the word evolved in the 14th century from
the Latin word Dispositio and from the word disponere. Though no
disposition or disposal or distribution of property takes place at the time
of execution of the Will, the word disposition has come to be associated
even with testamentary instruments.
      39. But the Proviso to section 6(1) does not merely use the
expression testamentary disposition. It starts with the word disposition,
then proceeds to include testamentary disposition within its ambit and
then qualifies it with the words which had taken place. Therefore, we
think that the proviso to Section 6(1) has to be split into 3 parts
(i) the first part containing the words disposition or alienation
(ii) the second part containing the words including any partition
or testamentary disposition and
(iii) the third part containing the words  which had taken place
before 20-12-2004.
      40. Therefore, if a case is to be brought within the purview of the
proviso to section 6(1), especially in  relation to a Will, 2 things are to be
proved namely (i) that there was a valid Will and (ii) that the
disposition under the Will had taken place before the date
specified. The disposition under a Will would take place only
when the testator dies and not otherwise. This is not only due to
the very nature of testamentary disposition but also due to the fact that
during the period between the date of execution of the Will and
the date of death of the testator, many things may happen, even
beyond the control of the testator, that would make the bequest
invalid, wholly or partially. Therefore, the expression
testamentary disposition appearing in the proviso to section
6(1) should be understood to mean only a Will which had taken
come into effect before 20-12 2004. The words which had taken
place should be understood to mean which had taken effect.
      41. There is one clue available in Section 6 itself, for anyone to
come to the same conclusion as we have. It is in sub-section (5) and the
Explanation following the same. Sub-section (5) of section 6 and the
Explanation following the same, read as follow:
(5) Nothing contained in this section shall apply to a
partition, which has been effected before the 20th day of
December, 2004.

Explanation: For the purposes of this section
partition means any partition made by execution of a
deed of partition duly registered under the Registration
Act, 1908 (16 of 1908) or partition effected by a decree
of a Court.

      42. While the proviso under sub-section (1) of section 6
excludes from the operation of sub-section (1), any alienation or
disposition, including any partition or testamentary disposition
that has taken place before the appointed day, sub-section (5)
excludes from the operation of section 6 in entirety, a partition
made by a registered deed or a partition effected by a decree of
court. It is important to note that the proviso to sub-section (1) is
confined in its applicability to sub-section (1). In contrast, the
prescription contained in sub-section (5) and the Explanation there under,
are applicable to the entirety of section 6.
      43. The prescription contained in sub-section (5) and the
Explanation following the same, give a clear indication to the fact that the
law makers did not want parties to plead oral partition effected before the
appointed day, for the purpose of defeating the right created by the
Amendment Act. An oral partition or a Memorandum recording past
partition, had always been accepted by courts, subject to proof. But the
Explanation to section 6, makes it clear that unless a partition had been
effected by a registered deed or by a decree of court, the benefit of sub-
section (5) may not be available.
      44. It is needless to point out that in a partition, mutual transfers
take place in presenti. Even then, the benefit of sub-section (5) will not
be available unless the partition had been effected by a registered deed or
a decree of court. Therefore, the intention of the law makers is very
clear to the effect that no one should be allowed to create
documents, after the advent of the Amendment Act of 2005, to
defeat the rights conferred by the amendment. In order to prevent
the creation of ante dated documents, the Amendment ensures that even
reliance upon such documents is impermissible. In such circumstances, if
the expression testamentary disposition is taken to mean the mere
execution of a Will, the rights conferred by section 6 can be easily
defeated by parties by setting up a Will, which is not required to be
compulsorily registered.
      45. Therefore, we are of the considered view that in cases where
the testator was alive as on 20-12-2004, the Will, even if any executed by
him genuinely before the said date, would not make it a case of
testamentary disposition which had taken place, so as to make
the case fall under the proviso and to take it out of the application of
section 6(1). In other words, a case will fall under the proviso to
section 6(1), only if 2 things had taken place before 20-12 2004
namely (i) execution of a Will and (ii) the death of the testator.
The execution of the Will before 20-12 2004 alone is not sufficient to take
a case out of the operation of section 6(1), as no disposition under the
Will would have taken place, if the testator was alive. As pointed by the
Supreme court in S.Rathinam vs. Mariappan {AIR 2007 SC 2134},
a Will of a man is the aggregate of his testamentary intentions
manifested in writing and is not a transfer.
      46. Today there can be no dispute any longer about the
proposition that to fall under the category of a disposition that had
taken place, a partition should have become final and conclusive and that
even a preliminary decree for partition would not suffice. This is in view of
at least 3 decisions of the Supreme court namely (1) S. Sai Reddy v. S.
Narayana Reddy (1991) 3 SCC 647 (2) Prema vs. Nanje Gowda (2011)  
6 SCC 462 and (3) Ganduri Koteshwaramma vs. Chakiri Yanadi (2011)  
9 SCC 788. If a preliminary decree for partition itself cannot
bring a case within the ambit of the proviso to section 6(1) or
within the ambit of section 6(5), on account of the same not
becoming final and conclusive, we do not know how the mere
execution of a Will, without the death of the testator before the
appointed day, can make the case come within the purview
either of the proviso to section 6(1) or of section 6(5). Hence, we
answer point no. 2 in favour of the appellant/plaintiff, since the father of
the parties hereto died (unfortunately for the respondent and fortunately
for the appellant) after 20-12-2004.
POINT No.3
        46. The third point arising for determination in this appeal is as to
whether the declarations filed by the respondent and the father before
the Land Reforms Tribunal, as evidenced by Ex.B.7 are sufficient to hold
that there was a valid partition before the commencement of the Hindu
Succession (Amendment) Act, 2005.  
      47. As we have pointed out earlier, the respondent/defendant
raised this particular plea only by way of amendment to the written
statement. The original written statement, that appears to have been filed
in December, 2011, did not contain such a plea. But after the evidence on
the side of the plaintiffs was closed and the defendant was in the witness
box as DW.1, the defendant filed an application in I.A.No.52 of 2014 for
amendment of written statement. It was allowed by an order dated
17.04.2014. By this amendment, para-8(a) was inserted in the written
statement, wherein the respondent/defendant pleaded that he and his
father submitted separate declarations of lands owned by them, under the
Land Reforms Act and that the Tribunal passed orders based upon the
declarations. He also claimed in the amended written statement that from
the date of the order, the partition was given effect.
      48. As already pointed out, by the time the amendment to the
written statement was allowed in April 2014, the evidence on the side of
the plaintiff was already over. Even the respondent/defendant had already
filed his affidavit in lieu of chief-examination, much before the written
statement was amended. Along with the affidavit in lieu of chief-
examination, the respondent/defendant filed only six documents. These
documents were marked as Exs.B.1 to B.6 on 28.02.2014. Thereafter, the 
cross-examination was deferred.
        49. In the interregnum, the application for amendment of the
written statement was filed and allowed. Therefore the defendant once
again went to the witness box as DW.1, after a gap of more than 18
months, only on 05.10.2015. On 05.10.2015, the respondent/defendant
marked the copies of the orders passed by the Land Reforms Tribunal in
C.C.Nos.3593 & 3594/KNL, dated 23.01.1976 as Ex.B.7. Thereafter, the
cross-examination of DW.1 by the counsel for the plaintiff was taken up
on 07.10.2015.
      50. The portion of the cross-examination that revolved around
Ex.B.7 is extracted as follows:
It is true there are two declarants as per Ex.B.7
proceedings. It is true I was absent at the time of those
proceedings. C.C.3574 in Ex.B.7 pertains to my land. My
fathers declaration Number is 3 and mine is 4 as per
Ex.B.7. It is true as per Ex.B.7 (Page No.3) declarant
No.2 has one major son, and that son is entitled for one
half share in the property.
        51. A careful look at paragraph-9 of the rejoinder filed by the
appellant/plaintiff in response to the specific pleading with regard to the
Land Reforms Proceedings, together with the cross-examination by the
appellants counsel, as extracted above, would show that the appellant did
not dispute the truth, but disputed only the validity of Ex.B.7.
        52. Ex.B.7 is of the year 1976. Under the declarations found in
EX.B.7, the ancestral properties were divided into two halves; one half
being taken by the respondent and the other half taken by the father.
Ex.B.7 is the order of the Land Reforms Tribunal under Section 9 of the
A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. It is seen
from the said order that the declarant in C.C.No.3593/KNL was
M. Satyanarayana Reddy, the father of the parties. The declarant in
C.C.No.3594/KNL was the defendant. The relevant portion of the order of
the Tribunal dated 23.01.1976 filed as Ex.B.7 reads as follows:
       Accordingly the relevant proportions of the extent
of each class held by the declarant to the extent of
standard holding of the appropriate class has been
worked out in the manner prescribed and the aggregate
of all such proportions comes to 2.0004. The declarant
has one major son. He has also filed his declaration in
C.C.No.3594/KNL. He is entitled to have his  share in
the property. Their share works out as follows:
Share of the Declarant in C.C.3593/KNL. 1.0002
Share of the Declarant in C.C.3594/KNL  1.0002
       The family unit of the declarant in C.C.3593/KNL
consists of two members i.e., the declarant and his wife
and the family unit of the declarant in C.C.3594/KNL
consists of five members, i.e., declarant, his wife, two
minor sons and one minor daughter. So both the family
units of the above two declarants are entitled to hold one
standard holding.
       The Tribunal hereby determines u/s 9 of the
A.P.L.R. (Ceiling on Agricultural Holdings) Act, 1973 that
the declarant in C.C.3593/KNL holds an extent of land
equivalent to 0.0002 standard holding, and the declarant
in C.C,.3594/KNL holds an extent of land equivalent to
0.0002 standard holding in excess of the ceiling area,
which they are liable to surrender u/s 10(1) of the
A.P.L.R. (Ceiling on Agricultural Holding) Act, 1973.
        53. The main focus of attack to Ex.B.7 by the learned counsel for
the appellant/plaintiff was on the basis of the explanation to Section 6 of
the Hindu Succession (Amendment) Act, 2005. The explanation reads as
follows:
Explanation  For the purposes of this section
partition means any partition made by execution of a
deed of partition duly, registered under the Registration
Act, 1908 (16 of 1908) or partition effected by a decree
of a Court
        54. Therefore the contention of the learned counsel for the
appellant is that Ex.B.7 can never tantamount to a partition that stands
excluded by sub-section (5) of Section 6, in view of the Explanation
thereunder.
        55. Placing reliance upon the decision of the Supreme Court in
Ganduri Koteshwaramma v. Chakiri Yanadi  it is also contended by
the learned counsel for the appellant/plaintiff that the right of a daughter
in a coparcenery property was not lost even by the passing of a
preliminary decree. Since a preliminary decree determines only the rights
and interests of the parties and the suit for partition is not disposed of by
the passing of the preliminary decree, it was held by the Supreme Court in
the said decision that the amendment to the Hindu Succession Act became
a supervening circumstance, which necessitated the modification of the
preliminary decree for partition.
        56. Therefore, it is contended by the learned counsel for the
appellant/plaintiff that in as much as Ex.B.7 does not satisfy the
requirement of the Explanation under sub-section (5) of Section 6, the
same cannot be taken to be evidentiary of partition. In simple terms the
contention of the learned counsel for the appellant is that unless a
partition pleaded in a suit after the 2005 amendment, satisfied either of
the two criteria, viz., (a) execution and registration of a deed of partition;
or (b) a partition effected by a decree of Court, before 20-12-2004, the
same cannot be recognized.
        57. We have carefully considered the above submissions.
        58. It is true that the Explanation under sub-section (5) of section
6 recognises only (i) a registered deed of partition and (ii) a decree of
partition. No other mode of partition is made entitled to the benefit of
sub-section (5). This stands in contrast to other Statutory enactments and
the law that normally governs a partition. There is no prohibition in law,
in normal circumstances, for a party to plead in any proceedings, an oral
partition, as evidenced among other things, by a Memorandum recording 
past partition. But the Explanation to section 6 makes a deviation.
      59. It is relevant to point out here, that the deviation made in the
Explanation under section 6(5) is bound to create some confusion, as we
shall explain here. Under Article 40 of Schedule-1A to the Indian Stamp
Act, 1899 (as applicable to the State of A.P. by virtue of State
Amendments), an instrument of partition, as defined in Section 2(15) of
the Indian Stamp Act, 1899, requires to be stamped with the same stamp
duty as a Bottomry Bond for the amount or the market value of the
separated share. But what is important to note is, what is chargeable to
stamp duty under Article 40 of Schedule-1A is only an instrument of
partition and not partition by itself. The words instrument as well as
instrument of partition are separately defined under Section 2(14) and
2(15) respectively.
        60. Section 2(14) of the Indian Stamp Act, 1899 reads as follows:
Instrument: - Instrument includes every document
by which any right or liability is, or purports to be,
created, transferred, limited, extended, extinguished or
recorded.
But the expression instrument of partition, as originally defined in
section 2(15) of the Indian Stamp Act, 1899 did not include a
Memorandum recording past partition. This is despite the fact that a
memorandum would also come within the definition of the word
instrument.
        61. Realizing that this created a loophole in the law relating to
Stamp Duty, the State of Andhra Pradesh made an amendment to the  
Indian Stamp Act, 1899 by A.P. (Amendment) Act 17 of 1986, w.e.f.,
16.08.1986. By this amendment, the words and a memorandum  
regarding past partition was inserted in the definition of the expression
instrument of partition under Section 2(15) of the Indian Stamp Act,
1899.
        62. The definition of the expression instrument of partition as it
now stands under section 2(15) of the Stamp Act, in its application to the
State of A.P., reads as follows:-
Instrument of Partition: Instrument of partition
means any instrument whereby co-owners of any
property divide or agree to divide such property in
severally, and includes also a final order for effecting a
partition passed by any revenue authority or any civil
Court and an award by an arbitrator directing a partition
(and a memorandum regarding past partition;)

        63. It can be seen from the definition of the expression instrument
of partition in Section 2 (15), that even a final order effecting a partition
passed by a Revenue Authority is taken to be an instrument of partition.
An important aspect to be noted from the definition of the expression
instrument of partition under Section 2(15) is that it takes within its
purview (1) any document in writing; (2) any final order passed by a
Revenue Authority; (3) any final order passed by a Civil Court; (4) an
award passed by an Arbitrator directing partition; and (5) a memorandum
regarding past partition.
        64. Therefore, if the members of a Hindu Undivided Family, instead
of fighting a battle for partition in a Court of law, had chosen to go
before a panel of Arbitrators and secure an award directing partition,
before the commencement of the Hindu Succession (Amendment) Act,  
2005, the same would have been definitely covered by Section 6(5).
Unfortunately the Explanation under Section 6(5) covers only two
methods by which a partition could be effected, viz., (1) execution and
registration of a deed of partition; and (2) a partition effected by a decree
of a Court.
        65. If we go strictly by the latter of the law as contained in the
Explanation to Section 6(5), even a final order passed by a Revenue
Authority effecting partition and an award passed by an Arbitrator
effecting partition, before 20.12.2004 would stand excluded from
Section 6(5). This would only be absurd as well as disastrous.
      66. There are certain areas in the State of Andhra Pradesh called
agency areas where civil Courts have no jurisdiction over property
matters. Even title disputes are settled in Revenue Courts. Therefore, if
the Explanation to Section 6 is applied literally, whatever had transpired
before the Revenue Courts leading to actual division of properties, even if
taken place before 20.12.2004, would not be excluded from the operation
of Section 6 of the Amendment Act. Therefore, the manner in which the
Explanation to Section 6 has been drafted, appears to be slip shod, since
by its literal meaning, any partition effected through Revenue Courts in
the agency areas of the State of Andhra Pradesh and any partition
effected through an Award passed by Arbitrators, (though before 20-12-
2004) would not come within the purview of Section 6(5).
      67. Having settled the legal position thus, if we come back to the
facts of the case, there are two things that would impel us to answer the
third point arising for consideration in this appeal in favour of the
appellant/plaintiff. They are
      (1) Ex.B.7 does not disclose the actual division of properties by
metes and bounds. For the purpose of determining the holding of the
father, his son and the grand sons, and for finding out the land in excess
of the ceiling limit, the Land Reforms Tribunal took note of the
declarations filed by the father and the respondent herein. The Tribunal
merely recognized the half share of the father and the half share of the
respondent and his minor sons. There is no indication in Ex.B.7 of a
partition in the strict sense of the term, viz., a division by metes and
bounds; 
      (2) As we have stated earlier, Ex.B.7 is dated 23.01.1976. It is only
since no actual division by metes and bounds had taken place as on the
date of Ex.B.7 that under Ex.B.1-Will dated 20.04.1990, the father
conveyed his half undivided share in the properties. If a partition had
actually taken place and the properties had been divided by metes and
bounds, way-back in 1975 or 76, there was no question of the father
bequeathing his half undivided share under the Will executed in 1990. The
very fact that what was bequeathed under Ex.B.1 was the half undivided
share of the father establishes that no partition took place either before
or under Ex.B.7. Hence the third issue arising for determination is
answered in favour of the appellant/plaintiff.
Point No.4:
        68. The fourth point arising for determination is as to whether the
properties described as Item Nos.9 and 17 of the schedule to the plaint
are liable to be partitioned. This question has arisen in view of the claim
made by the respondent/defendant that these two items were gifted to
him by his Aunt under a gift deed dated 03.08.1984 marked as Ex.B.2.
        69. The pleading with regard to this gift was made by the
respondent/defendant specifically in para-5 of the written statement, filed
even in the first instance. In response to this averment, the
appellant/plaintiff merely stated that the gift is false and untrue and that
the property of the maternal Aunt also became the ancestral property.
        70. Interestingly, the appellant/plaintiff herself examined the
maternal Aunt P. Seethamma as PW.2. In the affidavit filed in lieu of chief
examination, she made no whisper about Ex.B.2-gift deed. PW.2 focused
in her chief examination, only upon the entitlement of the plaintiff to half
share in the suit properties. Though the defendant had pleaded the
execution of the gift deed even in the written statement first filed, the
plaintiff did not choose to make PW-2 deny, even formally, the execution
of the same.
        71. Therefore, in cross-examination, she was confronted with the
gift deed and she admitted that she executed the gift deed. There was no
re-examination by the appellant/plaintiff. Therefore, the evidence of PW.2
itself is sufficient to hold that Ex.B.2 was true and valid, since PW.2 was
examined by the plaintiff himself and she admitted the execution of
Ex.B.2, without questioning either its truth and validity or her own right
to execute Ex.B.2. Hence the fourth issue arising for consideration is
answered in favour of the respondent/defendant and against the
appellant.
Point No.5:
        72. The fifth point arising for consideration is as to whether the
properties described in Items 8, 11, 12 and 21 of the plaint schedule are
liable to be partitioned.
        73. Items 11 and 12 of the plaint schedule are claimed by the
respondent/defendant to have been sold partially. Item Nos.8 and 21 are
stated to have been acquired by the Government way back in 1999 for
providing house sites to the Scheduled Castes. The averments, in relation
to the sale as well as the acquisition, are specifically made in para-5 of the
written statement filed by the respondent/defendant.
        74. In response to the averments contained in para-5 of the
written statement, the plaintiff claimed in para-5 of her reply that she did
not receive compensation for the lands acquired by the Government in
S.Nos.315 and 775, which were described at Sl.Nos.8 and 21 of the plaint
schedule. Insofar as the lands in S.Nos.765/1B and 763/1A at Guduru
Village are concerned (described as Item Nos.11 and 12 of the plaint
schedule), it is stated in para-5 of the reply statement filed by the
appellant/plaintiff that the sale was illegal as she had a share.
        75. Out of the four items of properties now in dispute, two items
are to be excluded straight away, for the simple reason that the
acquisition of land in S.Nos.315 and 775, has admittedly taken place in
1999. The Amendment Act, 2005 has no application to the acquisition
made in 1999, as it would fall under the category of alienation within
the meaning of the Proviso under section 6(1). Therefore, the
appellant/plaintiff would have no right over the compensation paid in
respect of the properties described in Item Nos.8 and 21 of the plaint
schedule.
        76. Insofar as the other two items are concerned, the sale of a part
of the lands described in Item Nos.11 and 12 of the plaint schedule is
virtually admitted by the appellant/plaintiff. But the date of the sale is not
known. However, the plaintiff herself has admitted during cross-
examination that the sale of a part of items 11 and 12 of the plaint
schedule took place long back. Therefore, we have no alternative but to
presume that the sale took place before 20.12.2004. Hence what is
available in S.Nos.765/1B (Item 11 of plaint schedule) is only 13  cents.
What is available in s.No.763/1A (Item 12 of the plaint schedule) is only
Ac.0.03 cents.
        77. Therefore, our finding on Point No.5 would be that the
properties described in Items 8 and 21 of the plaint schedule are not
available for partition. Insofar as Item Nos.11 and 12 are concerned, what
is available for partition is only 13  cents in S.No.765/1B and Ac.0.03
cents in S.No.763/1A.
POINT No.6
      78. In fine, in view of our findings on Point Nos.1 to 5 arising for
consideration in this appeal, the appellant is entitled to succeed and to
have a preliminary decree for partition, in respect of her half share in all
the suit schedule properties except Item Nos.8, 9, 17 and 21. Insofar as
Item Nos.11 and 12 of the plaint schedule are concerned, the appellant
will be entitled to a similar preliminary decree only to the extent of the
lands now available.
      79. Accordingly, the Appeal is allowed in part and the judgment
and decree of the trial Court are set aside. There will be a preliminary
decree declaring that the appellant/plaintiff is entitled to half share in all
the items of plaint schedule properties except those described in Item
Nos.8, 9, 17 and 21. Insofar as Item Nos.11 and 12 of the plaint schedule
are concerned, the appellant will be entitled to a similar preliminary
decree insofar as 13  cents in Sy.No.765/1B and Ac.0.03 in
S.No.763/1A. There will be no order as to costs.
      80. As a sequel, miscellaneous petitions pending in this appeal, if
any, shall stand closed.
________________________  
V. RAMASUBRAMANIAN, J    
__________
ANIS, J
Date: 27-04-2017

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