when there is no appeal against the declaration of mother as insolvent, the mere appeal on the declaration of gift deed as null and void not maintainable by the daughter as she obtained it while money suit is pending and as she failed to prove her pasupukumkuma theory - hence the lower courts committed no error indeclaring the gift deed as null and void in insolvency proceding under sec.9 of insolvency act.

HON’BLE SRI JUSTICE K.G.SHANKAR

                          C.M.S.A.No.31 of 2012

Date: 01-10-2012

Between

                                                    

Mallipudi Sunie Anila Kumari

... Appellant/

                                                                   Appellant

                AND

Juttiga Venkayamma

and another                                          

... Respondents

                                                       Respondents 1 and 2                               

                    

 HON’BLE SRI JUSTICE K.G.SHANKAR

C.M.S.A.No.31 of 2012

Judgment:

The 2^nd respondent in I.P.No.52 of 2004 on the
file of the Principal Senior Civil Judge, Kovvur,
West Godavari District, preferred the present appeal assailing the judgment of the learned Principal District Judge, West Godavari at Eluru, in A.S.No.30 of 2009.  The 1^st respondent herein filed I.P.No.52 of 2004 under Section 9 of the Provincial Insolvency Act, 1920 (the Insolvency Act, for short) to declare the 2^nd respondent herein as an insolvent.  The 1^st respondent herein also sought to declare the gift deed dated 08-9-2004 executed by the 2^nd respondent herein in favour of the
appellant herein as null and void.  Through orders
dated 10-12-2008, I.P.No.52 of 2004 was allowed. 
The 1^st respondent in I.P.No.52 of 2004, who is the
2^nd respondent herein, was declared as an insolvent. 
The gift deed dated 08-9-2004, which was exhibited as Ex.A-2, was declared to be null and void.  Questioning the same, the 2^nd respondent before the Insolvency Court preferred A.S.No.30 of 2009 unsuccessfully.  Hence the present appeal.     

2. For convenience, I shall refer the parties as they are arrayed in I.P.No.52 of 2004.  

3. The 1^st respondent is the mother of the
2^nd respondent.  The 1^st respondent contracted a debt to a tune of Rs.80,000/- on 10-6-1999 from the petitioner vide Ex.A-1 pronote.  The petitioner filed O.S.No.82 of 2002 on the file of the Principal Senior Civil Judge’s Court, Kovvur.  The suit was decreed on 26-10-2006 vide Ex.A-3 certified copy of the judgment and decree. While the suit was pending, the 1^st respondent executed Ex.A-2 settlement deed in favour of her daughter-2^ndrespondent on 08-9-2004.  The petitioner contended that the execution of the settlement deed was sham and nominal and was brought out to defeat the decree that was likely to be passed against the 1^st respondent. 

4. The case of the respondents is that the property covered by Ex.A-2 was gifted to the 2^nd respondent by the 1^st respondent towards her pasupu-kumkuma at the time of the marriage of the 2^nd respondent in 1993 and that the possession was delivered to the 2^nd respondent on
30-5-1993.  It is their further case that Ex.A-2 settlement deed was executed to regularise the gift that was given to the 2^nd respondent by her mother-1^st respondent as
a marriage gift. 

5. Smt. N.Anjana Devi, learned counsel for the creditor-petitioner, contended that the alleged gift under Ex.A-2 is nominal and that the same is evident from the fact that the 2^nd respondent never took possession of the property covered by the gift.  She submitted that the
1^st respondent never questioned her adjudication as an insolvent by the Insolvency Court.  She also pointed out that it is the 2^nd respondent who is questioning the order relating to holding Ex.A-2 as null and void and that the 2^nd respondent has no proof that the gift was valid.  

6. Under Section 9 of the Insolvency Act, a creditor can institute an insolvency petition if the debtor committed acts of insolvency within 3 months before the date of presentation of the petition vide Section 9(c) of the Insolvency Act.  The gift deed under Ex.A-2 is dated
08-9-2004.  The insolvency petition was filed on
30-11-2004 within 3 months from the date of the gift deed.  I therefore accept the contention of the learned counsel for the petitioner that the insolvency petition was filed by the creditor well within time.

7. The major question however is whether Ex.A-2 settlement deed is null and void or not.  Sri Vinod Singh, learned counsel for the 2^nd respondent, placed reliance upon Bachu Srinivasa Rao v. Yerramsetti Saraswatamma[1] and contended that the 1^st respondent does not deserve to be declared as an insolvent where there is no proof regarding the intention of the
1^st respondent to commit acts of insolvency.  In the cited case, a learned single Judge of this Court observed:

“18. From a perusal of the evidence on record, there is no tangible evidence to the effect that the debtor made transfer of her property or of any part thereof, with intention to defeat or delay his creditors. 

19. The courts below, have not framed any issue with regard to the averment of the petitioner with regard to intention of the debtor with regard to delay and defraud the creditors and in order to invoke the said clause, the ingredients have to be proved.  Therefore, when the averments of the petitioner are not proved, even if there is transfer of property by the debtor, he cannot be declared insolvent.  On this count alone, the impugned judgments of both the courts below are liable to be set aside.”

       

8. In the present case, the question is not
whether the 1^st respondent committed acts of insolvency.  The 1^st respondent did not prefer any appeal.  The second appeal is by the 2^nd respondent questioning the order of the trial Court as well as the judgment of the appellate Court that Ex.A-2 settlement deed is null and void.   

       

9. In Gandevalla Jayaram Reddy v. Mokkala Padmavathamma[2], a question came up for consideration regarding the gift of immovable property by way of pasupu-kumkuma to a daughter at the time of the marriage.  The Full Bench held that oral gift of immovable property is not permissible and that such
a gift is liable to be through an instrument duly stamped and registered.  In that view of the situation, neither the 1^st respondent nor the 2^nd respondent can contend that the property covered by Ex.A-2 was gifted to the
2^nd respondent way back in 1993 and that Ex.A-2 was only a regularisation of the gift that was given in favour of the 2^nd respondent.

       

10. Further, the learned counsel for the petitioner pointed out that no evidence has been let in by the
2^nd respondent to show that she has been in possession of the property from 1993.  Thus, the very claim of the respondents that the 1^st respondent gifted the property covered by Ex.A-2 to the 2^nd respondent in 1993 has not been proved.  The gift is to be considered to have been executed in 2004 for the first time.  

11. Where the very suit in O.S.No.82 of 2002
was pending by the date of the gift, the gift is hit by Section 9(c) of the Insolvency Act.  The trial Court and the appellate Court consequently were perfectly justified in holding that the 1^st respondent committed acts of insolvency and that the gift was null and void. 
I therefore see no merits in this second appeal.  This second appeal consequently is dismissed.  No costs.  

__________________

                                                     K.G.SHANKAR, J.

01^st October, 2012.

Ak

                                                           

HON’BLE SRI JUSTICE K.G.SHANKAR

                                           

 

 

 

 

 

 

C.M.S.A.No.31 of 2012

 (Judgment)

 

01^st October, 2012.

(Ak)

---

[1] 2011 (4) ALT 740

[2] 2001 (5) ALD 402 (FB)

the trial Court dismissed the suit treating Ex.A1 – delivery challan-cum-proforma invoice and Ex.A2 – Invoice No.27 as concocted ones and observing that since the defendant was a stranger, the burden was more on the plaintiff to prove the same, however the plaintiff failed to prove his case.

HON’BLE SRI JUSTICE B.N.RAO NALLA

S.A. No. 118 of 2012

DATED: 19.04.2012

Between:

Rajender Kumar Gupta                                                                    .. Appellant

And

F1 Fashion Corner                                                                   ..    Respondent

JUDGMENT:-

            This  Second Appeal is directed against the judgment and decree dated 30.05.2011 delivered in A.S. No. 54 of 2008 by IX Additional Chief Judge (F.T.C.), City Civil Court, Hyderabad.

            The brief facts of the case are that the plaintiff filed a suit in O.S. No. 6139 of 2005 on the file of the Court of VII Junior Civil Judge, City Civil Court, Hyderabad seeking to recover an amount of Rs.31,620/- with interest and costs from the defendant.  The plaintiff pleaded that he was dealing in ready-made garments, so also the defendant. The defendant had purchased shirts from him under delivery challan and invoice Nos.6 and 27 on 07.02.2005 worth Rs.34,008/-. Payment was to be made within 30 days from the date of invoice lest an interest at the rate of 18% p.a. would be chargeable.     The defendant failed to pay the invoice amount in spite of repeated requests.  After paying a paltry amount of Rs.5,000/- in the month of June, 2005, the defendant denied the transaction and also the other material averments in the plaint.  Based on the pleadings of both the parties, the trial Court has framed necessary issues.  Both the parties let in oral and documentary evidence, considering the same, the trial Court dismissed the suit treating Ex.A1 – delivery challan-cum-proforma invoice and Ex.A2 – Invoice No.27 as concocted ones and observing that since the defendant was a stranger, the burden was more on the plaintiff to prove the same, however the plaintiff failed to prove his case.   Being aggrieved thereby, the plaintiff filed an appeal suit in A.S. No. 58 of 2008 on the file of IX Additional Chief Judge (F.T.C.),City Civil Court, Hyderabad.  The lower appellate Court, after hearing the learned counsel for both the parties and perusing the impugned judgment and decree as well as other material on record, came to the same conclusion as that of the trial Court and thereby concurred therewith and dismissed the appeal.  Challenging the judgment dated 30.05.2011 of the lower appellate Court, the plaintiff has preferred the present Second Appeal.

The learned counsel for the appellant-plaintiff has inter alia raised the self-same contentions as he had raised before both the Courts below.  His main contention is that both the Courts below have failed to appreciate the evidence and material on record in proper perspective, and thereby, came to an erroneous conclusion in dismissing the suit as well as the appeal suit.  Hence, he prays to set aside the judgment under appeal.

Having heard the learned counsel for the appellant and perused the impugned judgment and decree and other material on record, this Court is of the considered view that both the Courts below do no appear to have committed any error or irregularity in dismissing the suit as well the appeal suit, as such, there is no question of law much less substantial question of law involved in the second appeal.  Therefore, this Court finds no reason whatsoever to interfere with the judgment under appeal in exercise of jurisdiction under Section 100 of the Code of Civil Procedure, 1908. 

In the result, the Second Appeal is dismissed at the admission stage.  There shall be no order as to costs.

                                                __________________

B.N.RAO NALLA, J

19.04.2012

bcj

whether there was an equitable mortgage created by the defendants is a question of fact, which the courts below have not accepted. The memorandum of deposit is Ex.A.8 and as can be seen from the record that prior to the filing of the suit, legal notice Ex.A.5 was given and in that the alleged memorandum of deposit of title deeds under Ex.A.8 was not mentioned. The legal notice is dated 20.05.1996. Even in the plaint, the particulars of Ex.A.8 were not mentioned. Ex.A.8 is said to have been filed in the Court on 07.02.2001 after the cross examination of PW.1 was over. There was no proper explanation, and, therefore, the Courts below were not inclined to accept the creation of equitable mortgage and the appreciation of evidence by the courts below cannot be said to be irrational.

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

S.A.NO.137 OF 2012

JUDGMENT:-

The Second Appeal is filed by the unsuccessful plaintiff in O.S.No.141 of 1996 on the file of the Court of Additional Senior Civil Judge at Eluru. The suit was filed for enforcement of a mortgage alleging that on 21.06.1991 the defendants have borrowed a sum of Rs.20,000/- and executed a promissory note and thereafter created an equitable mortgage of the schedule property. A part payment was made on 25.10.1993 which was endorsed on the promissory note.  As the defendants have not paid the amount, the suit was filed.

        The defendants contended that a sum of Rs.5,000/- was borrowed in the year 1991 from one G.V.V. Satyanarayana and at that time the signatures and thumb marks of the second defendant were taken on the blank papers and the said debt was discharged.  The said Satyanarayana in collusion with the plaintiff has fabricated a suit document and the endorsement of payment is not true.

The Courts below after considering the rival contentions have found that the loan transaction is true and did not believe the theory of equitable mortgage and granted a decree and the said decree was confirmed by the appellate Court.  The appellate Court also did not accept the theory of the equitable mortgage. 

The question that was sought to be canvassed before this Court is that the evidence on record clearly goes to show that Exs.A.1 and A.3 sale deeds were deposited and it was admitted and Ex.A.8 memorandum of title deed was also executed and these documents were not considered by the Courts and, therefore, the rejection of the claim for preliminary decree is not valid.  Evidently, whether there was an equitable mortgage created by the defendants is a question of fact, which the courts below have not accepted. The memorandum of deposit is Ex.A.8 and as can be seen from the record that prior to the filing of the suit, legal notice Ex.A.5 was given and in that the alleged memorandum of deposit of title deeds under Ex.A.8 was not mentioned.  The legal notice is dated 20.05.1996. Even in the plaint, the particulars of Ex.A.8 were not mentioned. Ex.A.8 is said to have been filed in the Court on 07.02.2001 after the cross examination of PW.1 was over.  There was no proper explanation, and, therefore, the Courts below were not inclined to accept the creation of equitable mortgage and the appreciation of evidence by the courts below cannot be said to be irrational. There is no substantial question of law involved or a case of mis-appreciation of evidence. Consequently, there are no grounds in the appeal and the appeal is liable to be dismissed.

        Accordingly, the Second Appeal is dismissed at the stage of admission. No costs.

           

_____________________­­__

N.R.L. NĀGESWARA RĀO,J

19-06-2012

TSNR

whether there is valid notice of termination of tenancy under Section 106 of the Transfer of Property Act. The notice has been received by the appellant/defendant and no serious objections were raised in the writ statement about the insufficiency of the notice. Evidently, the contract of tenancy is on a month to month basis and consequently the notice under Section 106 of the Transfer of Property Act, even if it contains some allegations about the terms of contract of tenancy, if it is found will not defeat the validity of the notice.

N THE HIGH COURT OF JUDICATURE,ANDHRAPRADESH
AT HYDERABAD

 

HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

S.A.No.721 of 2012

Date: 04-09-2012

 

Between:

Mohd. Khaja

                                                                          .. Appellant

And

1.B.Ramesh Babu and

   two others.

                                                                        ..Respondents

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

S.A.No.721 of 2012

 

 

JUDGMENT:

        The defendant in O.S.No.4236 of 2004 on the file of the Court of the Principal Rent Controller-cum-12^th Junior Civil Judge, Hyderabad, is the appellant herein. The suit was filed for eviction of the defendant from the suit schedule property contending that he was a tenant of the premises since 1995 on a rent of Rs.2,500/- per month.  The defendant paid the rent for a period of 12 months and subsequently committed default in payment of rents. Thereafter, a notice under Section 106 of the Transfer of Property Act was given and the suit was filed for recovery of arrears of rent and also for damages at the rate of Rs.5,000/- per month from July, 2004 to till the date of disposal of the suit. The defendant admitted the tenancy but denied the liability to pay the arrears and claimed that entire arrears of rent was paid and there is no default in payment of rent and the suit for eviction is not bona fide.  After considering the evidence on record, the learned Junior Civil Judge has dismissed the suit holding that the plaintiffs failed to prove the willful default in payment of arrears of rent and as against that an appeal in A.S.No.109 of 2008 was filed before the Court of the XIV Additional Chief Judge (F.T.C), City Civil Court, Hyderabad and by its judgment the learned Additional Chief Judge has allowed the appeal, but, however directed the appellant/defendant to pay an amount of Rs.2,500/- per month towards damages from July, 2004 to till disposal of the suit as his occupation is illegal. Aggrieved by the said judgment, the present appeal is filed.

          Evidently, the contract of tenancy is not covered under the Rent Control Act.  The question whether there is willful default or not is not a relevant factor. But, however, both the Courts below have found that there is no proof of arrears of rent and consequently the said finding has become final and the plaintiffs have not challenged the said finding.  The only question is whether there is valid notice of termination of tenancy under Section 106 of the Transfer of Property Act. The notice has been received by the appellant/defendant and no serious objections were raised in the writ statement about the insufficiency of the notice. Evidently, the contract of tenancy is on a month to month basis and consequently the notice under Section 106 of the Transfer of Property Act, even if it contains some allegations about the terms of contract of tenancy, if it is found will not defeat the validity of the notice.  There are absolutely no merits in the appeal warranting admission on any substantial question of law. Consequently, the appeal; is liable to be dismissed.

          In the result, the appeal is dismissed. However, the appellant is permitted to vacate the suit schedule premises within a period of three months from today.  The appellant shall pay rent at the rate of Rs.2,500/- per month from the date of the suit till the date of the judgment of the appellate Court and thereafter at the rate of Rs.5,000/- till the date of vacation of the premises. The appellant is directed to deposit entire arrears of rent within a period of four weeks from today and the respondents are permitted to withdraw the same.  The appellant is entitled for deduction of the amount, if any, paid to the respondents. No order as to costs. The Miscellaneous petitions, if any, pending in this appeal shall stand closed.        

       ­­­­­­­­­­_________________________________­­­­

JUSTICE N.R.L.NAGESWARA RAO

04.09.2012

Gsn

It is an admitted fact that after the dismissal of the suit for injunction, the present appellants have filed a suit in O.S.No.1611/2005 for declaration of title and for recovery of possession. The filing of the suit in O.S.No.1611/2005 by the appellants herein itself shows that the appellants have no possession of the schedule property. It appears that the said suit was dismissed on 29.10.2010. As against the said judgment, the appellants herein intend to prefer an appeal. Taking into consideration of the above circumstances, since the possession is established by the plaintiffs, the relief of injunction was granted by the lower appellate Court. However, it is made clear that any of the findings recorded by the Courts below against the appellants herein may not operate as res judicata in the suit filed by the appellants herein in O.S.No.1611/2005, which is based on title.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD

FRIDAY, THE SEVENTH DAY OF SEPTEMBER
TWO THOUSAND AND TWELVE

 

PRESENT

 

THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO

 

SECOND APPEAL No.1017 of 2012

 

 

Between:

Nizamuddin and another

..... APPELLANTS

And

Syeda Shahnaz Sultana and 2 others

.....RESPONDENTS

The Court made the following:

                                                                                 

 

THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO

 

SECOND APPEAL No.1017 of 2012

JUDGMENT:

          Defendants 1 and 2 in O.S.No.1575/2002 on the file of the X Additional Senior Civil Judge (Fast Track Court), City Civil Court, Hyderabad are the appellants herein.  The suit is one filed for permanent injunction restraining the appellants herein and 2 others from interfering with the schedule property, which is a house property, claiming that the plaintiffs are the owners of the property, having purchased the same under registered sale deed dated 09.05.1984.  The defendants claimed that the plaintiffs have no right, title or interest in the schedule property and the 2^nd defendant is the absolute owner, having purchased the same by virtue of a registered sale deed dated 27.08.2002. 

The trial Court after considering the evidence on record, dismissed the claim of the plaintiffs vide judgment dated 11.03.2005.  Aggrieved by the same, the plaintiffs preferred appeal in A.S.No.262/2006 on the file of the XI Additional Chief Judge, City Civil Court, Hyderabad and the same was allowed, vide judgment dated 18.06.2010, granting injunction in favour of the plaintiffs.  Aggrieved by the said judgment, the present second appeal is sought to be filed.

          It is an admitted fact that after the dismissal of the suit for injunction, the present appellants have filed a suit in O.S.No.1611/2005 for declaration of title and for recovery of possession.  The filing of the suit in O.S.No.1611/2005 by the appellants herein itself shows that the appellants have no possession of the schedule property.  It appears that the said suit was dismissed on 29.10.2010.  As against the said judgment, the appellants herein intend to prefer an appeal.

          Taking into consideration of the above circumstances, since the possession is established by the plaintiffs, the relief of injunction was granted by the lower appellate Court. However, it is made clear that any of the findings recorded by the Courts below against the appellants herein may not operate as res judicata in the suit filed by the appellants herein in O.S.No.1611/2005, which is based on title.

          In view of the above, I find no question of law, much less substantial question of law that arise for consideration in the present appeal.  The Second Appeal is accordingly dismissed at the stage of admission.  Pending miscellaneous petitions, if any, shall stand dismissed in consequence.  No order as to costs.

         

____________________________

N.R.L.NAGESWARA RAO,J

Dated: 07.09.2012

Dsr

This being a suit for simple injunction, it is necessary for the plaintiffs to prove that they have been in possession and enjoyment of the property. There is no dispute about the fact that the suit schedule property is a Government land. Ex.B.1 proceedings from the competent revenue records clearly goes to show that the crop was auctioned and a sum of Rs.950/- was recovered and occupiers of the land in Sy.No.170 to an extent of 1.95 cents were evicted, which incidentally relates to the suit schedule property. Therefore, the above fact clearly shows that after 1997 the plaintiffs could not have been in possession of the property. Even assuming to be that the proceedings under Ex.B.1 are not valid without giving the notice under Land Encroachment Act, still it is for the plaintiffs to prove that they have been in continuous possession and enjoyment of the property. The suit was filed in the year, 2002. The eviction was said to be in the year, 1997. Ex.A.3 is the land revenue receipt of the year, 1996 and Ex.A.4 is said to be an adungal extract showing possession and enjoyment for the year 1993-94, which cannot be taken into consideration to prove the possession of the plaintiff as on the date of the suit.

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO SECOND APPEAL No.229 OF 2012 JUDGMENT:-           The unsuccessful plaintiffs in O.S.No.34 of 2002 on the file of the Court of Junior Civil Judge, Palakonda, are the appellants herein. 2.       The suit was filed for permanent injunction contending that the 1st plaintiff is in possession of 40 cents of land and the 2nd plaintiff is in possession of 20 cents of land and it was a grant of lease by the Government in the year, 1995 and they have been in continuous possession and enjoyment.  The defendants have no right or interest over the plaint schedule land and they are trying to cause interference and hence filed the suit.  The defendants contended that there are about 115 Harijana families in the village and they have been jointly cultivating the Government land and the lands were assigned to the defendants.  The Revenue Divisional Officer has cancelled the alleged lease in favour of the plaintiffs on 01.12.1997 under Ex.B.1 proceedings and auctioned the crop and one R.Erraiah was the highest bidder.  The plaintiffs challenged the cancellation of patta before the RDO and the appeal was also dismissed suppressing all the facts, the present suit was filed. 3.       After framing necessary issues and considering the evidence adduced by the plaintiffs, the lower Court has dismissed the suit and as against that A.S.No.11 of 2009 was preferred to the Senior Civil Judge, Rajam, who also dismissed the suit and hence the second appeal. 4.       This being a suit for simple injunction, it is necessary for the plaintiffs to prove that they have been in possession and enjoyment of the property.  There is no dispute about the fact that the suit schedule property is a Government land.  Ex.B.1 proceedings from the competent revenue records clearly goes to show that the crop was auctioned and a sum of Rs.950/- was recovered and occupiers of the land in Sy.No.170 to an extent of 1.95 cents were evicted, which incidentally relates to the suit schedule property.  Therefore, the above fact clearly shows that after 1997 the plaintiffs could not have been in possession of the property.   Even assuming to be that the proceedings under Ex.B.1 are not valid without giving the notice under Land Encroachment Act, still it is for the plaintiffs to prove that they have been in continuous possession and enjoyment of the property.  The suit was filed in the year, 2002.  The eviction was said to be in the year, 1997.  Ex.A.3 is the land revenue receipt of the year, 1996 and Ex.A.4 is said to be an adungal extract showing possession and enjoyment for the year 1993-94, which cannot be taken into consideration to prove the possession of the plaintiff as on the date of the suit. Some reliance is sought to be placed on the evidence of PW.4, who is an Advocate and said to have taken possession of the property from the plaintiffs and therefore, the appellants contend that the proceedings under Ex.B.1 are not true.  As can be seen from the judgment of the Court below, the appointment of PW.4 as receiver was cancelled by the appellate Court and the Court was not inclined to accept the evidence of PW.4.  Therefore, as rightly found by the Court below right from 1997 till filing of the suit no single scrap of paper was filed to prove possession and enjoyment of the property.  Having come to the Court seeking equitable relief of injunction, it is for the plaintiffs to establish their rights.  The Courts below on question of fact found that the plaintiffs are not in possession of the property after Ex.B.1 and it also transpired during the trial that the patta was cancelled and it has become final, as such there are absolutely no merits and there is no substantial question of law and therefore, the appeal is liable to be dismissed. 5.       Accordingly, the Second Appeal is dismissed at the stage of admission.  No costs.  Miscellaneous petitions, if any, pending in this appeal shall stand closed.           _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:25.06.2012 INL

whether the judgment of the Appellate Court in setting aside the judgment of the Court below and holding that the defendant is not the son of the plaintiff, is legal and sustainable?

HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO

SECOND APPEAL No.356 OF 2012

JUDGMENT:

          This Second Appeal is filed challenging the judgment in A.S. No.29 of 2005 on the file of the First Additional District Judge, Medak at Sangareddy, by virtue of which the judgment in O.S No.133 of 2003 on the file of the Junior Civil Judge, Zaheerabad was set aside.  The suit was filed for declaration that the defendant is not the son of the plaintiff and for a consequential injunction restraining him from interfering with the possession of the schedule properties. 

          2.  No representation was made by the defendant before the Court below and the Court below dismissed the suit, as there is no positive evidence about the relationship.  As against that, the Appellate Court has reversed the judgment of the Court below accepting the evidence of PW-1.  It appears that the defendant died and the Second Appeal is filed by the legal representatives of the defendant, questioning the correctness of the judgment passed by the appellate Court. 

3.  The substantial question of law is whether the judgment of the Appellate Court in setting aside the judgment of the Court below and holding that the defendant is not the son of the plaintiff, is legal and sustainable? 

4.  POINT: Evidently, the paternity of the defendant is in dispute and when such question is raised, there are serious consequences if a declaration is granted to that effect.  The lower Appellate Court has taken into consideration only the evidence of PW-1 and willingness to go for DNA test.  But, as the matter stands, service of notice on the defendant is disputed and the legal representatives have now come on record to challenge the judgment.  Therefore, it is a fit case where the ex parte decree passed by the Court below has to be set aside and an opportunity has to be given to the appellants / defendants to prove the relationship of the deceased defendant with the plaintiff. 

5.  Therefore, the Second Appeal is allowed and the matter is remanded to the Court below and the appellants / defendants are directed to file written statement within a period of three (3) months and thereafter, the Court below shall dispose of the case within a period of six (6) months by giving opportunity to both the parties to adduce evidence.  Each party has to bear their own costs.

 ______________________

N.R.L. NAGESWARA RAO, J

June 21, 2012.

KTL

THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO            
APPEAL SUIT NOs.1471,1472 OF 2002    

01-04-2011

Vijayawada Municipal Corporation, Vijayawada rep. by its Commissioner,  Vijayawada.

Chagarlamudi Nageswara Rao and another  

Counsel for the Appellant : Sri V.L.N.G.K.Murthy

Counsel for the Respondents:Sri T.Subrahmanya Reddy  

:COMMON JUDGMENT:      

Both appeals arise out of the common judgment dated 15-07-2002 in O.S.Nos.559 of 1994 and 78 of 2001 passed by the Principal
A.S.No.1471 of 2002 was filed against the judgment in O.S.No.559 of 1994 and A.S.No.1472 of 2002 was filed against the judgme
The brief facts of the case are as under:-
 Suit O.S.No.559 1994 was filed for sale proceedings held by the defendant is null and void and for possession of the suit sc
The allegations in the plaint goes to show that the father of the plaintiff has inherited the land in Sy.No.141/B and in the
The Collector fixed the market value @ 22/- per square yard and the defendant requested the plaintiff and others to give cons
Meanwhile, the plaintiff requested the defendant when the site is not public purpose, the site may be deleted from the master
The plaintiff planned to construct apartments in the suit schedule property and the plaintiff was surprised to know that the
The defendant has filed a written statement contending that the suit is bad for want of notice under Section 685 of the Act;
"It is submitted that the plaint schedule land was marked for the public purpose in the Master Plan sanctioned by the Governm
        The V.M.C. is its Council Resolution No.578, dated 07.06.1994 has resolved to construct Kalyan Mandapam in 551.11 sq.Mts. in

The plaintiff has taken the sale consideration from the defendant's authorities in the year 1979 and failed to obtain the cle
On the basis of the pleadings, the following issues were framed for trial:-
1. Whether the plaintiff is entitled for declaration as prayed for?
2. Whether the suit is not maintainable for want of notice under section 685 of Hyderabad Municipal Corporation Act?
3. Whether the suit claim is barred by time?
4. To what relief?

A.S.NO.1472 of 2002
        When the above suit O.S.No.559 of 1994 was pending, O.S.No.78 of 2001 was filed by the plaintiff in O.S.No.559 of 1994 and a
        As the defendant is bent upon encroaching the property and also cause interference with possession and enjoyment the suit wa
        The defendant filed a written statement repeating the allegations in O.S.No.559 of 1994 mostly. Further facts were pleaded d
        The said representation was given by the Minister to the defendant on 22-10-1978 for remarks. Further more another represent
        The defendant has also requested the plaintiffs to obtain the "U.L.C" clearance. The plaintiffs have delivered the possessio
        The defendant developed park and maintaining it since 1992. The defendant also constructed watchmen quarters at the northern
        It was further informed that if any one of the above proposals is acceptable, they are ready to withdraw the suit O.S.No.559
        The defendant did not accept those proposals and was rejected by a letter dated 06-09-1999. The second plaintiff has again s
        The defendant pleaded that the defendant has been in continuous possession and enjoyment of the property since 1979. The all
        On the basis of the above pleadings, the following issues have been framed for trial.
1. Whether the plaintiff is entitled for permanent injunction as prayed for?
2. To what relief?

On behalf of the plaintiffs PWs.1 to 3 were examined and marked Exs.A-1 to A18 and on behalf of the defendant DWs.1 to 3 were
After considering the material evidence on record, the learned Senior Civil Judge has passed the following decrees:-
"The suit(O.S.No.559 of 1994) is decreed declaring that the sale proceedings held by the defendant is null and void. The defe

The suit (O.S.No.78 of 2001) is decreed directing the defendants not to interfere with the peaceful possession and enjoyment

Aggrieved by the said common judgment, the present appeals are filed.
Heard Sri V.L.N.G.K.Murthy, the learned Senior Counsel for the appellant and Sri T.Subrahmany Reddy, the learned Senior Couns
Now the points that arise for consideration are:-
(1) Whether the declaration about the sale transaction given by the lower court is legal?
(2) Whether the direction given by the lower court for refund of the money paid towards consideration is legal?
(3) Whether the relief of permanent injunction granted by the lower court is legal?
(4) Whether there is any fraud or misrepresentation of any fact played by the defendant in inducing the plaintiffs to sell th
POINTS:-
The learned Senior Counsel Sri V.L.N.G.K.Murthy representing the appellants contends that the whole approach of the lower cou
On the other hand, Sri T.Subrahmanya Reddy, the learned Senior Counsel on behalf of the plaintiffs repeated the contentions b
In view of the rival contentions of both parties, it is useful at the outset to see as to on what grounds the lower court has
In page.11 of the judgment the lower court found as follows:-
        "Since the land is demarcated in the master plan for public purpose as rightly put by the defendant in the written statement

Further in continuation of the same, in page.12 it was found as under:-
        "The situation as it stands now is that the title of the schedule property is not transferred in the name of the defendant.
At page 16 the learned Senior Civil Judge found that there is no free consent and the object is not lawful as the plaintiffs
Before considering the tenability of the judgment of the learned Senior Civil Judge, it is to be mentioned that no declaratio
Section 31: When cancellation may be ordered:-
(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrumen

Therefore, granting of a declaration under Section 31 is discretionary and such a declaration is necessary only if there is a
The law with regard to avoidance of a contract being void or voidable is well settled. The party who seeks to challenge the t
        "Vitiation due to misrepresentation, fraud or coercion. Onus and burden of proof held lies on party seeking to deny contract

Section 17 of the Contract Act defines "fraud" which reads as under:-
 "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his a
(1) the suggestion, as a fact, of that which is not true by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent.

Section 18 of the said Act deals with misrepresentation, which reads as under:-
        "Misrepresentation" means and includes-
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true,
(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claimi
(3) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subj

In the decision reported in Shanti Budhiya Vesta Patel and Others Vs. Nirmala Jayprakash Tiwari and others(2) it was held tha
        "Misrepresentation or mistake of fact or frustration of contract - Loss of right to avoid the contract on the ground of misr

        Further more it was held as under:-
        Voidability of agreements - Provision regarding - Applicability - Held not applicable to concluded contracts where the party

In Reliance Salt Ltd., Vs. Cosmos Enterprises and another (4), it was held that fraud which vitiates the contract must have a
"Delay and laches - Effect of, on entitlement of relief - Deed for sale of mill executed with the stipulation that part of th

"Blameworthy conduct of both the plaintiff and the respondent - Effect - Deed for sale of mill executed with the stipulation

        It is further useful to refer to a decision reported in Prem Singh and others Vs. Birbal and others (6) whereunder it was he
        The counsel for the respondents contends that the provisions of Urban Land Ceiling Act are not applicable and therefore adva
        The question before the court is that whether the transactions entered by the plaintiffs under the sale deeds Exs.B-12 to B-
        Infact as can be seen from the several correspondence between the parties it was the plaintiffs that were almost beseeching
        "That we have rights over the land situated in D.No.141/1RU Satyanarayana Puram, behind Railway Quarters, Vijayawada measuri

        This is the voluntary offer made by the plaintiffs consciously and for that a reply was given under Ex.A-4 dated 08-03-1977
        Accordingly, the Collector has issued Ex.B-4 proceedings dated 10-08-1978 exercising the power under Section 42(2) of A.P. M
        "Later, as per the above orders, we have requested the Commissioner, Vijayawada Municipality to pay the suitable considerati
        Then, the Municipal Commissioner, Vijayawada inspected our land and vide his letter R.C.G.44449/76, dt.13-09-78 informed us
        We are very much surprised to see the above orders and also we were kept in dark. The Municipality, Vijayawada taken two yea
        This representation unequivocally shows that the plaintiffs are aware that proposals were sent for dereservation and they we
        Even otherwise in the representation made to the Chief Minister and also to the Municipal Commissioner in 1999 two proposals
1) My brother and Myself are willing to surrender the land in which the part construction was already done by the V.M.C. Vija
2) We are agreeing to compensate/repay the amount incurred by the Municipal Corporation Vijayawada for construction of buildi

Hence it is futile for the plaintiffs to contend that there was suppression of fact or fraud.
The lower court has taken the view that the sale transactions are void as they are against the statute. The land was sold for
        "Whereas the Municipal Council of Vijayawada Municipality has agreed to purchase the aforesaid land of 90 cents for utilizin

This the lower court has taken as a vitiation of the transaction.
This is not at all correct. The above statement shows that on 15-04-1978 a resolution was passed by the Council for construct
Therefore, by any sound reasoning it is difficult to believe that the plaintiffs have not parted with the possession of the p
The finding of the lower court that after issuance of the notice from U.L.C. authorities in 1985, no steps were being taken b
Further more by the time of transaction evidently the Municipalities Act was applicable and under Section 42(1) and (2) the a
        "In case the area, for which a layout is sought for, falls in a Master Plan or in a Town Planning Scheme and for which a dra
       
Therefore, it is the obligation of the owner of the property to transfer the land free of cost whereas in cases of master pla
        In this case, evidently, the purpose of acquisition is for the "park" and even though the plaintiffs cannot alienate to thir
The learned counsel for the respondents relied upon the decision reported in Bhikhubai Vithlabhai Patel & Ors Vs. State of Gu

Evidently when once it is to be held that the transaction is not void and the grounds of challenge are on the basis of voidab
"That you have taken a letter from us stating that our land measuring to an extent of Ac.0.90 cents which was earmarked as "P

Therefore, by Ex.A-18 dated 05-03-1982 the contract was rescinded and the sale deed was intended to be cancelled. This is dat
        In the result, both Appeal Suits (A.S.Nos.1471 and 1472 of 2002) are allowed, setting aside the common judgment and decree o

?1 (2011) 1 SCC 167
2 (2010) 5 SCC 104
3 (2003) 12 SCC 91
4 (2006) 13 SCC 599
5 (2002)   5 SCC 383
6 (2006)  5 SCC 353
7 AIR 2008 S.C.1771
8 AIR 1964 A.P. 360
9 AIR 1972 A.P 96
10 (2007) 10 SCC 448 

whether the petitioner is under obligation to secure 40% of marks in each component of the papers. - "Calculation of 40 marks minimum per paper in LL.M examination is out of 100 marks and not minimum 40% in each component (i.e. 32 out of 80 in theory and 8 out of 20 in internal assessment separately) as LL.M. rules do not authorize such calculation. Calculation of 50% in the aggregate is to be done only at the end of the course. - the footnotes on the Marks Memos indicating that the students must secure 40% marks in each component of the subject. In the absence of a Regulation, such notes have no legal sanctity and a fortiori thing is not enforceable. - Admittedly, if the minimum marks for each component of the two subjects - Legal Education & Research Methodology and Law of Export - Import Regulations, are not insisted, the petitioner passed both the subjects as he has got aggregate of 43% and 46% respectively in the said subjects. - On the analysis as above, the writ petition is allowed with the direction to the respondents to treat the petitioner as having passed LL.M Course and issue necessary certificates in respect thereof within a period of one month from the date of receipt of a copy of this order.

THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY          

Writ Petition No.2151 of 2011

17.10.2012

A.V.Venugopal Rao

The Registrar, Andhra university, Visakhapatnam and others

^Counsel for the Petitioner:  Sri P.Bala Krishna Murthy
                               
!Counsel for the respondents: Dr.P.B.Vijay Kumar

<Gist:

>Head note:

?Cases referred:

ORDER:
The action of the respondents in not issuing LL.M Provisional Certificate to the
petitioner is questioned in this writ petition.
The petitioner who retired as Deputy Executive Engineer appeared in PGLCET-2007 
and qualified for being admitted into LL.M (Two Year) Course.  Accordingly, he
has joined LL.M (Business Law) in Dr.B.R.Ambedkar College of Law, Andhra  
University, Visakhapatnam in the year 2008 and has completed the Course.  When  
he applied for Provisional Certificate, he was denied the same by the
respondents on the ground that in two subjects, namely, Legal Education &
Research Methodology and Law of Export - Import Regulations, in II Semester, he
did not get 40% of marks in the theory components of the said two papers.
Questioning this action, he has filed this writ petition.
I have heard Sri P.Bala Krishna Murthy, learned counsel representing the
petitioner, and Dr.P.B.Vijay Kumar, learned Standing Counsel for Andhra
University appearing for the respondents.
On a careful perusal of the respective pleadings of the parties, the short
question that arises for consideration in this writ petition is whether the
petitioner is under obligation to secure 40% of marks in each component of the
papers.
The learned Standing Counsel placed before the Court the Regulations and Syllabi
relating to LL.M Degree Course.  Regulation 12 thereof which is relevant for the
present purpose reads as under:
"12. The results of the candidates for the M.L.Degree shall be declared in two
classes - First Class and Second Class.  A candidate who obtains in the written
examination not less than 50% in the aggregate and not less than 40% in each
paper and obtains in the Essays or Thesis not less than 50% of the marks, shall
be declared to have passed in the Examination.  Such of those candidates who
obtain not less than 60% of the marks on the whole shall be declared to have
passed in the First Class and the rest in the Second Class."

A plain reading of the above re-produced Regulation reveals that in order to
pass LL.M Course, a candidate must inter alia obtain in the written examination
not less than 50% of the aggregate and not less than 40% in each paper.  The
Regulation as such does not prescribe a candidate obtaining minimum 40% marks in
each component of the paper.  The learned Standing Counsel placed reliance on
letter, dated 03.03.2004, of the Assistant Registrar (Academic) addressed to
Professor H.C.M.Patro, the Chairman, Board of Studies in Law, Andhra University,
Dr.B.R.Ambedkar P.G.Centre, Etcherla, Srikakulam, wherein with reference to the
issue in question, he has stated as under:
"L.L.M. Course:
"The results of the LL.M Degree shall be declared in two classes First class and
Second class.  A candidate who obtains in the written examination not less than
50% in the aggregate and not less than 40% in each paper (subject to secure 40%
in each component of the paper) shall be declared to have passed the
examination.  Such of those candidate who obtains not less than 60% marks on the
whole should be declared to have passed in first class and the rest in Second
Class."

Placing emphasis on this letter, the learned Standing Counsel submitted that
unless the Regulation existed requiring a candidate to secure 40% in each
component of the paper, there would have been no occasion for the Assistant
Registrar (Academic) to write such a letter.
The petitioner has filed a copy of the Minutes of the meeting of the Board of
Studies in Law, dated 02.11.2010, wherein it is inter alia resolved as under:
"Calculation of 40 marks minimum per paper in LL.M examination is out of 100
marks and not minimum 40% in each component (i.e. 32 out of 80 in theory and 8 
out of 20 in internal assessment separately) as LL.M. rules do not authorize
such calculation.
Calculation of 50% in the aggregate is to be done only at the end of the course.
The board further resolved that these rules apply from admitted batches 2003-04
onwards until they are changed."

From the above-noted Minutes of the Board of Studies in Law, it is quite evident
that while the LL.M Regulations do not authorize calculation of 40% in each
component of the paper, the University appears to be insisting on this
requirement for a student to pass the Course.  The Board of Studies has
accordingly resolved to change this procedure from 2003-04 batch onwards.  The
Academic Senate of respondent No.1-University in its meeting held on 02.11.2010
has approved the said resolution as evident from letter, dated 27.12.2010,
addressed to the Chairman of Board of Studies in Law; the Principal,
Dr.B.R.Ambedkar College of Law, Andhra University, Visakhapatnam and other
Members of Faculty from the academic year 2010-11.  Thus, from the academic year
2010-11, the requirement of the candidates securing 40% minimum marks in each
component of the subjects is done away with.
As rightly submitted by the learned counsel for the petitioner, the respondents
cannot introduce a procedure which is not authorized by the Regulations made by
the competent authority.  As noted above, Regulation 12 of the Regulations which
governs the issue does not either expressly or by necessary implication
prescribe 40% minimum marks in each component of the paper.  The Board of
Studies in Law, in its resolution noted above has taken note of the fact that
the Regulations do not lay down any such requirement.  The respondents failed to
show the basis on which the Assistant Registrar (Academic) addressed his letter,
dated 03.03.2004, when the purported Regulation he has quoted is not found in
the Regulations.  The University, therefore, cannot enforce on its students a
requirement which is not prescribed by it by way of statutes or Regulations and
the same cannot stand scrutiny of the Courts.
The learned Standing Counsel relied upon the footnotes on the Marks Memos 
indicating that the students must secure 40% marks in each component of the 
subject.  In the absence of a Regulation, such notes have no legal sanctity and
a fortiori thing is not enforceable.
Admittedly, if the minimum marks for each component of the two subjects - Legal
Education & Research Methodology and Law of Export - Import Regulations, are not 
insisted, the petitioner passed both the subjects as he has got aggregate of 43%
and 46% respectively in the said subjects.  On a careful consideration of the
case in its entirety, I am of the considered view that the respondents are not
justified in treating the petitioner as not having passed the two subjects.  As
noted above, from the academic year 2010-11, the University itself has done away
with the said requirement.
On the analysis as above, the writ petition is allowed with the direction to the
respondents to treat the petitioner as having passed LL.M Course and issue
necessary certificates in respect thereof within a period of one month from the
date of receipt of a copy of this order.
As a sequel to disposal of the writ petition, W.P.M.P.No.2667 of 2011 shall
stand disposed of as infructuous.

C.V.NAGARJUNA REDDY, J    
17th October, 2012