Whether the benefits of the Hindu Succession Act are available to the appellants therein. The facts of the cited case are as follows: The appellants and the respondents are siblings being daughters and sons of one Ch. Venkata Swamy. The 1st respondent filed a suit for partition impleading his father (D1), his brother (D2) and his two sisters (the appellants-D3 and D4). The A, C, and D schedule properties are coparcenary property. The plaintiff claimed 1/3rd share for him and the defendants 1 and 2 (his father and brother). The preliminary decree granted in March 1999 declared that the plaintiff has got 1/3rd share in the said properties. Before passing the final decree, by 2005 Amendment Act, Section 6 of the Hindu Succession Act, 1956 was substituted. The appellants (D3 and D4) made an application for passing preliminary decree in their favour for partition of A, C and D coparcenary properties into four equal shares and allotment of one such share each to them as the 1st defendant died during the pendency of the suit. The said application was contested by the plaintiff. The trial Court by its order dated 15.06.2009 allowed the application of the appellants (D3 and D4) and had held that they were entitled for re-allotment of shares in the preliminary decree, i.e., they are entitled to 1/4th share each and separate possession in A, C and D schedule properties. The said order was challenged before this Court in an appeal. A learned single Judge of this court allowed the appeal and had set aside the order of the trial court. The appellants (D3 and D4) preferred an appeal by Special Leave before the Honble Supreme Court. While answering the question as to whether the preliminary decree passed by the trial court deprived the appellants/daughters of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed, the Honble Supreme Court had held in favour of the daughters and had set aside the orders of this Court and had restored the order of the trial court. In the result, the appeal is allowed in part and the preliminary decree passed by the trial Court insofar as it related to determination of shares of the sharers is set aside by holding that the plaintiffs 2 and 3 and the 1st defendant are entitled to a 5/16th share each and that the 1st plaintiff is entitled to a 1/16th share in both the plaint A and B schedule properties. Accordingly, a preliminary decree is passed in favour of the plaintiffs and against the 1st defendant for partition of plaint A and B schedule properties into sixteen (16) equal and equitable shares by metes and bounds and according to good and bad qualities and for allotment of a 5/16th share each to the plaintiffs 2 and 3 and the 1st defendant and the remaining 1/16th share to the 1st plaintiff. There shall be no order as to costs.

THE HONBLE SRI JUSTICE K.C.BHANU AND THE HON'BLE SRI JUSTICE M.SEETHARAMA                

A.S.No.660 of 2006

01-04-2015

M.Sujatha W/o late M.Bhupati Reddy .Appellants                                


M.Surender Reddy & others. Respondents  

Counsel for the appellants:Sri K.Mahipathi Rao

$Counsel for Respondent 1:Sri B.Mahendra Reddy  


<Gist :

>Head Note:

? Cases referred:

2012 (2) ALD 50 (SC)
LAWS (Bom)-2014-8-69  
2007 (5) ALT 447


THE HONBLE SRI JUSTICE K.C. BHANU      
AND
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI          

A.S. No.660 of 2006


JUDGMENT: (per Honble Sri Justice M. Seetharama Murti)


        The plaintiffs, who are partly aggrieved of the preliminary decree
in so far as it related to the allotment of smaller extents of shares in the
plaint A and B schedule properties, had preferred this appeal against
the said preliminary decree and the judgment dated 30.06.2006 of the
learned V Additional District Judge (Judge, Fast Track Court), Ranga
Reddy District passed in O.S.No.140 of 2003.

2.      We have heard the submissions of the learned counsel for the
appellants/plaintiffs.  The respondents 2 and 3 are stated to be not
necessary parties.  Though the 1st respondent and the respondents 4 to 6
had put in appearance and are represented by their respective counsel,
none appeared and no arguments were advanced on behalf of the said
respondents, despite listing the matter for hearing the arguments on the
side of the said respondents.

3.      In this appeal suit, the parties shall hereinafter be referred to as
appellants/plaintiffs and respondents/defendants for convenience and
clarity.

4.      This Court of first appeal being the last court of fact, it is
necessary to refer to the pleadings and the chronology of events leading
to the filing of this first appeal by the plaintiffs, who are partly
successful before the trial court.

5.              The plaint averments, which are relevant for consideration,
in brief, are as follows: The 1st plaintiff is the wife of late M. Bhupathi
Reddy.  The plaintiffs 2 and 3 are the daughters; and the 1st defendant is
the son, of the said Bhupathi Reddy.  The said Bhupathi Reddy died
intestate on 10.07.1999 leaving behind him the plaintiffs and the 1st
defendant.  The plaint A schedule properties are the self acquired
separate properties of Bhupathi Reddy and therefore, the plaintiffs and
the 1st defendant are entitled to a 1/4th share each in the plaint A
schedule properties.  The plaint B schedule properties are the ancestral
properties, and hence, the 1st defendant and late Bhupathi Reddy had a
50% share each in the said properties.  On the intestate death of
Bhupathi Reddy, the plaintiffs and the 1st defendant have become
entitled to a share each in the half share of Bhupathi Reddy in the plaint
B schedule properties.  Thus, in the plaint B schedule properties,
which are ancestral properties, the plaintiffs 1 to 3 are entitled to a
1/8th share each and the 1st defendant is entitled to the remaining 5/8th
share.  The 1st defendant had wilfully denied the shares of the plaintiffs
in the plaint A and B schedule properties.  Taking into consideration
his attitude and as it has become apparent that he is not going to
partition the properties and deliver the legally entitled shares to the
plaintiffs, the plaintiffs had called upon the 1st defendant on 25.09.2003
and 28.09.2003 to partition the properties in the presence of family
elders.  However, the 1st defendant had flatly refused to entertain even a
discussion in that regard.  Hence, the plaintiffs are constrained to file
the suit for partition against the 1st defendant.  The defendants 2 and 3
were impleaded as they are the tenants in some of the properties, i.e.,
in the flats constructed over A schedule property after it was given for
development.

6.      The 1st defendant in his written statement while admitting the
relationship had inter alia contended as follows: His father purchased
the plaint A schedule properties also with the income derived from the
ancestral lands and undivided family funds for the benefit of the
coparcenary.  Bhupathi Reddy, the father of the plaintiffs 2 and 3, had
performed their marriages during his life time and they were also given
cash and jewellery at the time of their marriages.  They both are well
settled.   The 2nd plaintiff had acquired citizenship of the United States
of America and the 3rd plaintiff is a Green Card holder and is expecting to
acquire U.S. Citizenship shortly.  The material benefits given to the
plaintiffs 2 and 3 were pooled up from out of the joint family assets.
Bhupathi Reddy became sick on account of sudden kidney failure and
since the plaintiffs 2 and 3 are well placed in life, he had wished to give
his interest in the properties to the 1st plaintiff and the 1st defendant.
Accordingly, Bhupathi Reddy relinquished his rights in his share of
property in favour of the 1st plaintiff and the 1st defendant by oral
arrangement/partition in the year 1998 when he came over to USA along
with the 1st plaintiff.   The plaintiffs 2 and 3 were also present at that
time.   Thus, the 1st defendant is having 75% share and the 1st plaintiff is
having remaining 25% share; and the properties were in joint possession
of the 1st defendant and the 1st plaintiff, who is his mother.  On the
death of the father on 10.07.1999, the 1st defendant got both A and B
schedule properties.  The plaintiffs never demanded for partition of the
properties.  The portions of A schedule properties were let out
recently.  The plaintiffs 2 and 3 having managed to gain the confidence
of the 1st plaintiff had filed the present suit with a view to knock away
the property.  The plaintiffs 2 and 3 have no right in the suit schedule
properties.

7.      The tenants, who are the defendants 2 and 3, had filed written
statements pleading about their possession of some of the properties in
A schedule, i.e., flats, as tenants.  Therefore, their defence is not
much of relevance for determination of the issues involved in the suit for
partition amongst the family members of Bhupathi Reddy.

8.      Basing on the pleadings, the following issues were framed for trial:
1.      Whether the family arrangement pleaded by Defendant No.1
is true, valid and binding on the parties?
2.      Whether the plaintiffs are entitled to seek partition of the
properties and allotment of one-fourth (1/4th) share to each
of them?
        3.      To what relief?

During the course of trial before the trial Court, the 1st plaintiff and the
husband of the 3rd plaintiff were examined as PWs1 and 2 and exhibits A1
to A20 were marked on the side of the plaintiffs.  The 1st defendant was
examined as DW1 and exhibits B1 to B6 were marked on his side.  On
merits, the trial court held that both A and B schedule properties are
ancestral properties and that the plaintiffs 1 to 3 are entitled to a 1/8th
share each and that the 1st defendant is entitled to the remaining 5/8th
share in the said properties.
9.      To begin with, it is pertinent to mention that all the three
plaintiffs, who are the mother and sisters of the 1st defendant, had
claimed a 1/4th share each in the plaint A schedule properties stating
that the same are the separate properties of late Bhupathi Reddy and a
1/8th share each in the plaint B schedule properties stating that the
same are the ancestral properties.  However, the trial Court had granted
a preliminary decree against the 1st defendant and had directed for the
partition of both the said A and B schedule properties into eight equal
shares and allotment of one such share each, i.e., total three shares to
the three plaintiffs and the remaining five shares to the 1st defendant.
Thus, the trial court had held that both A and B schedule properties
are ancestral properties.  Aggrieved of the lesser shares allotted to them
in the plaint schedule properties, the plaintiffs had preferred this first
appeal suit. No appeal or cross appeal is preferred by the 1st defendant.
The defendants 2 and 3, as already noted, are the tenants of flats in A
schedule properties.  During the pendency of this appeal, the
respondents 4 to 6, who are tenants in some of the properties, are also
impleaded.  Be that as it may, the learned counsel for the plaintiffs/
appellants while submitting that the plaintiffs/ appellants are now not
assailing the findings of the trial court that plaint A schedule properties
are also ancestral property had further contended inter alia that even if
the plaint A and B schedule properties are ancestral properties still
the plaintiffs are entitled to larger shares than granted by the court
below in view of the amendment to Section 6 in Chapter II of the Hindu
Succession Act, 1956 dealing with devolution of interest in coparcenary
property, which came into force with effect from 09.09.2005.  Placing
reliance on the said new provision of law of Section 6 as
amended/substituted by Act 39 of 2005 and also on the decision in
Ganduri Koteshwaramma and another v. Chakiri Yanadi and another
he had submitted that since the suit for partition is pending and as no
partition by a registered deed of partition has taken place and as
Bhupathi Reddy had died intestate, the daughters of Bhupathi Reddy,
who are the plaintiffs 2 and 3 have become coparceners in their own
right in the same manner as the son, i.e., the 1st defendant and that they
are entitled to the same rights in the coparcenary property as they would
have had if they had been sons and that therefore, the rights of the
plaintiffs 2 and 3 are on par with the rights of the 1st defendant in the
coparcenary and that in view of the substantive right in favour of the
plaintiffs 2 and 3, they are entitled to larger shares equally along with
the 1st defendant, who is their brother.

10.     In view of the facts and the submissions, the points for
determination in this appeal suit are --
(1)     Whether the plaintiffs 2 and 3 are entitled to equal
shares along with the 1st defendant in the plaint A
and B schedule ancestral properties in view of the
existing Section 6 of the Hindu Succession Act, which
the Parliament had introduced in the year 2005 and
which came into force with effect from 09.09.2005?
(2)     What are the shares to which the plaintiffs 1 to 3 and
the 1st defendant are entitled to in the plaint A and
B schedule properties?
(3)     Whether the decree and judgment of the trial court
need modification in respect of the shares of the
plaintiffs 1 to 3 and the 1st defendant in the plaint A
and B schedule properties?
(4)     To what relief?


11.     POINTS 1 to 3:

11.     (a)     The facts leading to the present stage of the matter are
already stated supra, in detail.  The 1st plaintiff is the wife of Bhupathi
Reddy.  The 1st defendant is the son; and the plaintiffs 2 and 3 are the
married daughters of the said Bhupathi Reddy.  The 1st defendants
defence is that the plaint A and B schedule properties are the
ancestral properties of the family.  The trial court had held that even A
schedule properties are ancestral properties.  On careful examination of
the evidence on record on this aspect, we are of the well considered
view that the evidence on record is sufficient to accept the defence of
the 1st defendant that the plaint A schedule properties are also
ancestral properties and therefore, the plaintiffs contention that the
said A schedule property is separate property of late Bhupathi Reddy is
devoid of merit.  The plaintiffs are now not disputing the said contention
of the 1st defendant and the finding of the trial court on this aspect and
are conceding that both plaint A and B schedule properties are
ancestral properties.

11.     (b)     The defence of the 1st defendant that his father orally
relinquished his share in the ancestral immovable properties in his favour
and in favour of his mother and that as per the said arrangement/oral
partition, he is entitled to 75% share and that his mother is entitled to
25% share in the plaint A and B schedule properties and that on the
death of his father he has got the A and B schedule properties, is
untenable and cannot be countenanced as any relinquishment of a right
in immovable property, the value of which exceeds hundred rupees
cannot be oral and in the absence of any registered document, such a
contention cannot be upheld in a court of law.  The further contention of
the 1st defendant which was advanced before the trial Court that since
the daughters/plaintiffs 2 and 3 were sufficiently provided with cash and
jewellery at the time of their marriages and that they are well settled
and that as material benefits that were given to them were pooled up
from and out of joint family assets, they are not entitled to a share in
the ancestral properties also cannot be countenanced in a court of law.
Further, the defence that the father had divided the properties orally
during his visit along with the 1st plaintiff to the USA in the year 1988 and
that every family member has accepted the same also cannot be
countenanced in the absence of any reliable evidence except the self-
serving statement in the evidence of the 1st defendant.  The 1st plaintiff,
who is the mother of the 1st defendant, in her evidence, had denied the
oral partition and also family arrangement and the defence of the 1st
defendant.  Therefore, the trial Court had rightly disbelieved the
defence of the 1st defendant and had held that the plaint A and B
schedule properties which are ancestral properties are liable for
partition.  Having gone through the evidence of PW1 and DW1 in
juxtaposition and keeping in view the legal position we do not find any
reason to disagree with the findings of the trial court recorded against
the 1st defendant.  Further, the trial Court had disbelieved and negatived
the defence of the 1st defendant and had held that the plaint schedule
properties are liable for partition.  The 1st defendant having not
preferred an appeal or cross appeal against the preliminary decree is not
entitled to seek reversal of the preliminary decree, which is granted
against him and in favour of the plaintiffs and hence, the defence of the
defendant which was advanced before the trial Court need not be
countenanced by this Court.

11.     (c)     Now, the next question is as to what are the shares to which
all the four sharers, namely, the plaintiffs 1 to 3 and the 1st defendant
are entitled to in the plaint A and B schedule properties.  Admittedly,
there is no partition by way of a registered partition deed and Bhupathi
Reddy had died intestate on 10.07.1999 leaving behind him the plaintiffs
and the 1st defendant.  Now, the plaintiffs 2 and 3, the daughters of
Bhupathi Reddy, are making claims for larger shares in the plaint A and
B ancestral properties.  And, their claims are based on the
new/substituted Section 6 of the Hindu Succession Act, 1956.  Therefore,
it is necessary to refer to infra the said provision of law.

11.     (d)     Section 6 of the Hindu Succession Act, 1956 (the principal
Act, for brevity) as amended/substituted by the Parliament by the
Amendment Act, 2005 (Act 39 of 2005) reads as follows:

         "6.   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.

(2) Any property to which a female Hindu becomes entitled by
virtue   of   sub-section   (1)   shall   be   held   by   her   with
the incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other law
for the time being in force in, as property capable of being
disposed of by her by testamentary disposition.

(3)   Where   a   Hindu   dies   after   the   commencement   of
the Hindu Succession (Amendment) Act, 2005, his interest in
the   property   of   a   Joint   Hindu   family   governed by   the
Mitakshara law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by
survivorship, and the coparcenary property shall be deemed
to   have   been   divided   as   if   a   partition   had   taken
place and,--

(a)  the daughter is allotted the same share as is allotted to a
       son;


(b)  the  share  of   the  pre-deceased  son  or  a  pre-deceased
daughter,  as  they  would   have  got  had they  been
alive  at   the   time   of   partition,  shall   be allotted to
the surviving child of such pre-deceased son or of such pre-
deceased daughter; and

(c)     the share of the pre-deceased child of a pre-deceased  son
or of a pre-deceased daughter, as such child would have
got had he or she been alive at  the time of the   partition,
shall   be   allotted  to the child   of   such   pre-deceased
child of the pre-deceased  son  or a pre-deceased
daughter,  as  the case may be.

Explanation.--   For   the   purposes   of   this   sub-section, the
interest of a Hindu Mitakshara coparcener shall be deemed to
be   the   share   in   the   property   that   would   have   been
allotted to him if a partition of the property had taken place
immediately   before   his   death,   irrespective   of   whether
he was entitled to claim partition or not.

(4)   After the commencement of the Hindu Succession
(Amendment) Act, 2005, no court shall recognize any right to
proceed against a son, grandson or great-grandson for the
recovery of any debt due from his father, grandfather or great-
grandfather   solely   on   the   ground   of   the   pious
obligation   under the Hindu   law, of such son, grandson or
great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the
commencement   of   the   Hindu   Succession   (Amendment)
Act, 2005, nothing contained in this sub-section shall affect---

(a) the right of any creditor to proceed against the son,
grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any
such  debt, and any such right or alienation shall be
enforceable   under   the   rule   of   pious obligation   in  the
same   manner  and to the same extent  as  it  would  have
been enforceable as if the Hindu Succession Amendment) Act,
2005 had not been enacted.

Explanation.--For   the   purposes   of   clause   (a),   the
expression   "son",   "grandson"   or   "great-grandson"   shall
be deemed to refer to the son, grandson or great-grandson, as
the   case   may   be,   who   was   born   or   adopted   prior
to   the commencement   of   the   Hindu   Succession
(Amendment) Act, 2005.

(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."


The new Section 6 provides for parity of rights in the coparcenary
property among male and female members of a joint Hindu family on and
from September 9, 2005.  A plain reading of this provision shows that the
legislature has conferred substantive right in favour of the daughters.
According to this new Section, the daughter of a coparcener shall by
birth become a coparcener in her own rights and liabilities in the same
manner as the son.

11.     (e)     The incidental question before us is  Whether the provision
of Section 6 of the principal Act as substituted by the Amendment Act
2005 inures for the benefit of the plaintiffs 2 and 3, who are the
daughters of late Bhupathi Reddy? For answering this question it is
advantageous to refer to the decision in Badrinarayan Shankar Bhandari
v. Omprakash Shankar Bhandari . A Full Bench of the High Court of
Bombay was constituted on a reference made by a learned Single Judge
of that court to give its opinion on the following questions of law
referred to it:

 (a)   Whether Section 6 of the Hindu Succession Act, 1956 as amended by  
the Amendment Act, 2005 is prospective or retrospective in
operation?
(b)     Whether Section 6 of the Hindu Succession Act, 1956 as amended by  
the Amendment Act 2005 applies to daughters born prior to
17.6.1956?
(c)     Whether Section 6 of the Hindu Succession Act, 1956 as amended by  
the Amendment Act, 2005 applies to daughters born after 17.6.1956
and prior to 9.9.2005?
(d)     Whether Section 6 of the Hindu Succession Act, 1956 as amended by  
the Amendment Act, 2005 applies only to daughters born after
9.9.2005?
(e)     Whether the decision of the Division Bench in the case of Vaishali
Ganorkar is per in curium of Gandori Koteshwaramma and others?

The primary issue before the learned Single Judge of that Court was
whether Section 6 of the Hindu Succession Act, 1956 (the Principal Act)
substituted by Section 3 of the Hindu Succession (Amendment) Act, 2005
(the Amendment Act) is prospective or retrospective in operation.   The
Full Bench of the Bombay High Court having considered the aspects of old
Hindu law, the relevant provisions of the Principal Act and the reasons
that led to the making of the Amendment Act, the statement of objects
and reasons for amending the Principal Act, the decisions of the Supreme
Court in Ganduri Koteshwaramma (1 supra) and other cited decisions
including the decisions in G.Sekhars case [(2009) 6 SCC 99] and in
Sheeladevis case [(2006) 8 SCC 581], had answered the questions as
follows:
        Question (a):

In view of above discussion, in our view the correct legal position
is that Section 6 as amended by the 2005 Amendment Act is
retroactive in nature meaning thereby the rights under Section
6(1)(b) and (c) and under sub-Rule (2) are available to all daughters
living on the date of coming into force of the 2005 Amendment Act
i.e. on 9 September 2005, though born prior to 9 September 2005.
Obviously, the daughters born on or after 9 September 2005 are
entitled to get the benefits of Amended Section 6 of the Act under
clause (a) of sub section (1).  In other words, the heirs of daughters
who died before 9 September 2005 do not get the benefits of
amended Section 6.

        Question (b), (c) and (d):
       In the above view of the matter, so far as questions (b), (c)
and (d) are concerned, we hold that the Amendment Act applies to
daughters born any time provided the daughters born prior to 9th
September 2005 are alive on the date of coming into force of the
Amendment Act i.e. on 9 September 2005.  There is no dispute
between the parties that the Amendment Act applies to daughters
born on or after 9 September 2005.

While answering the question (e), the Full Bench of the Bombay High
Court had referred to the ratio in the decision of Ganduri
Koteshwaramma (1 supra), wherein the Supreme Court held that the
amended Section 6 will apply where final decree was not passed before
the date of commencement of the Amended Act 2005 and had held as  
under:
We are, therefore, of the view that the binding force of the
Supreme Court in Ganduri Koteshwaramma (supra): (2011)9 SCC-  
788 is not weakened by non-consideration of the Supreme Court
decisions in G.Sekhars case (supra): (2009) 6- SCC-99 and in
Sheeladevis case (supra): (2006) 8 SCC-581. We, therefore,
answer question (e) in the affirmative that is to say, the decision of
the Division Bench in Vaishali Ganorkars case (supra): 2012(5)-Bom
C.R-210 is per incuriam the Supreme Court decision in Ganduri
Koteshwaramma (supra): (2011) 9-SCC -788.

Having gone through the Full Bench decision of the Bombay High Court,
though it is of persuasive value, we find ourselves in respectful
agreement with the findings recorded by the Full Bench of the Bombay
High Court.

11.     (f)     Before reverting back to the facts of the instant case, it is to
be noted that new Section 6 of the Principal Act extracted supra brings
uniformity in the country.  Although the Central Act 39 of 2005 has not
expressly repealed Section 29A, which was introduced in the Hindu
Succession Act by the A P State Amendment Act 13 of 1986, the said
State Law is void to the extent it is repugnant to, or inconsistent with,
the Central Law.  In the decision in Damalanka Gangaraju and Others v.
Nandipati Vijaya Lakshmi and others  this Court has held that the State
amendment is deemed to be repealed as the Parliament and the State
Legislature made laws related to the same concurrent subject and as a
conflict arises between the two enactments. This Court also held that
the conflict is resolved by Article 254 (1) of the Constitution of India,
which provided that in such cases of conflict the State Law shall be void
to the extent it is repugnant to, or inconsistent with, the Central Law.  It
was, therefore, held by this Court that all the daughters have to be
treated as coparceners entitled to equal shares, irrespective of the fact
whether they are majors or minors or their marriages were performed
before 05.09.1985 or subsequent thereto. Hence, the new provision of
Section 6, which is now on the Statute Book, would inure to the benefit
of the plaintiffs 2 and 3, the daughters. Thus, on and from 9th September
2005, the daughter is entitled to a share in the ancestral property and is
a coparcener as if she had been a son.  Thus, the right which accrued to
the daughter by virtue of this new provision is an absolute right insofar as
the property of a joint Hindu family governed by Mitakshara law.   It is
also to be noted that the present case of the plaintiffs 2 and 3 does not
fall in anyone of the exceptions provided in the proviso appended to sub-
section (1) of Section 6.  Only two categories are excepted from
application of the new Section 6 of the Act.  The said two categories are
(i) where disposition or alienation including any partition has taken place
before 20th December 2004; and (ii) where testamentary disposition of
property has been made before 20th December 2004.  For the purpose of
the new Section, partition means any partition made by execution of a
deed of partition duly registered under the Registration Act, 1908 or
partition effected by a decree of a Court.  Now that a preliminary decree
is passed by the trial court on 30.06.2006, it cannot be said that the
preliminary decree in the suit granted by the trial court deprived the
appellants/plaintiffs 2 and 3 of claiming the benefits of 2005 Amendment
Act, more particularly, when their suit was instituted in the year 2003
and when no final decree has been passed and as the suit continues until
the final decree is passed and the preliminary decree can be amended, in
case the amendment of the preliminary decree is necessary in the light
of any changed circumstances.

11.     (g)     The view of this court finds support from the ratio in the
decision in Ganduri Koteshwaramma (1 supra).  In this cited case, the
question that fell for consideration before the Supreme Court was
Whether the benefits of the Hindu Succession Act are available to the
appellants therein.  The facts of the cited case are as follows: The
appellants and the respondents are siblings being daughters and sons of
one Ch. Venkata Swamy.  The 1st respondent filed a suit for partition
impleading his father (D1), his brother (D2) and his two sisters (the
appellants-D3 and D4).  The A, C, and D schedule properties are
coparcenary property.  The plaintiff claimed 1/3rd share for him and the
defendants 1 and 2 (his father and brother).  The preliminary decree
granted in March 1999 declared that the plaintiff has got 1/3rd share in
the said properties.  Before passing the final decree, by 2005 Amendment
Act, Section 6 of the Hindu Succession Act, 1956 was substituted. The
appellants (D3 and D4) made an application for passing preliminary
decree in their favour for partition of A, C and D coparcenary
properties into four equal shares and allotment of one such share each to
them as the 1st defendant died during the pendency of the suit. The said
application was contested by the plaintiff.  The trial Court by its order
dated 15.06.2009 allowed the application of the appellants (D3 and D4)
and had held that they were entitled for re-allotment of shares in the
preliminary decree, i.e., they are entitled to 1/4th share each and
separate possession in A, C and D schedule properties.  The said
order was challenged before this Court in an appeal.  A learned single
Judge of this court allowed the appeal and had set aside the order of the
trial court.  The appellants (D3 and D4) preferred an appeal by Special
Leave before the Honble Supreme Court.  While answering the question
as to whether the preliminary decree passed by the trial court deprived
the appellants/daughters of the benefits of 2005 Amendment Act
although final decree for partition has not yet been passed, the Honble
Supreme Court had held in favour of the daughters and had set aside the
orders of this Court and had restored the order of the trial court.

11.     (h)     The ratio in the decision squarely applies to the facts of the
case on hand.  Therefore, in the plaint A and B schedule properties
which are ancestral joint family coparcenary properties, the two
daughters of Bhupathi Reddy i.e., the plaintiffs 2 and 3, whose cases are
not covered by the excepted categories, are entitled, along with their
brother-the 1st defendant, to an equal share each as the right accrued to
the daughters/the plaintiffs 2 and 3 in the property of a joint Hindu
family governed by Mitakshara law by virtue of Section 6 of the Act is
absolute.  As held by the Honble Supreme Court, the declaration in
Section 6 that the daughter of the coparcener shall have same rights and
liabilities in the coparcenary property/ancestral property as she would
have been a son is unambiguous and unequivocal and thus, on and from
September 9, 2005, the daughter is entitled to a share in the ancestral
property and is a coparcener as if she had been a son.  Therefore, the
findings of the trial Court in the instant suit that the son/the 1st
defendant is entitled to 5/8th share and that the daughters i.e., the
plaintiffs 2 and 3 are entitled to 1/8th share each along with the 1st
plaintiff, the mother, are not correct as the trial court had failed to take
note of the amended new provision of Section 6 of the Act.  Probably this
aspect was not brought to the notice of the trial Court.  Therefore, if
partition of plaint A and B schedule ancestral properties is to be
effected as per the law now obtaining and applicable, the plaintiffs 2 and
3, who are daughters of late Bhupathi Reddy, are to be placed on par
with the 1st defendant, who is the son of late Bhupathi Reddy.
Accordingly, the shares to which the plaintiffs and the 1st defendant
would be entitled to in the plaint A and B schedule properties are to
be worked out as follows:

The plaint A and B schedule properties should be
partitioned first into four shares by allotting one such
share notionally to the deceased Bhupathi Reddy also.  A
th share each out of four such shares is allotable to each
of the plaintiffs 2 and 3, who are the daughters and the
1st defendant, who is the son.  The remaining th share
notionally allotted to Bhupathi Reddy is to be again
partitioned amongst his wife, the two daughters and the
son.  Therefore, the wife would be entitled to a th
share in the said th share.  Thus, the wife of Bhupathi
Reddy, the 1st plaintiff, would be entitled to 1/16th share
in the plaint A and B schedule properties and the
daughters and the son of late Bhupathi Reddy, i.e., the
plaintiffs 2 and 3 and the 1st defendant would be entitled
to a 1/4th + 1/16th share each in the plaint A and B
schedule properties, in view of the settled legal position
obtaining and applicable to the facts of the case.

The points are accordingly answered holding that the 1st plaintiff who is
the wife of Bhupathi Reddy is entitled to 1/16th share in the plaint A
and B schedule properties and that the plaintiffs 2 and 3, who are the
daughters and the 1st defendant, who is the Son, of Bhupathi Reddy are
entitled to 1/4th + 1/16th share each (5/16th share each) in plaint A and
B schedule properties.  As a sequel, it must be held that the
preliminary decree granted by the trial Court is to be modified
accordingly in respect of the shares of the plaintiffs and the 1st
defendant.  The points are accordingly answered in favour of the
plaintiffs/appellants.



12.     POINT NO.4:

        In the result, the appeal is allowed in part and the preliminary
decree passed by the trial Court insofar as it related to determination of
shares of the sharers is set aside by holding that the plaintiffs 2 and 3
and the 1st defendant are entitled to a 5/16th share each and that the 1st
plaintiff is entitled to a 1/16th share in both the plaint A and B
schedule properties.  Accordingly, a preliminary decree is passed in
favour of the plaintiffs and against the 1st defendant for partition of
plaint A and B schedule properties into sixteen (16) equal and
equitable shares by metes and bounds and according to good and bad
qualities and for allotment of a 5/16th share each to the plaintiffs 2 and 3
and the 1st defendant and the remaining 1/16th share to the 1st plaintiff.
There shall be no order as to costs.
        Miscellaneous petitions, if any, pending in this appeal shall stand
closed.

_______________  
K.C. BHANU, J
________________________  
M. SEETHARAMA MURTI, J    
01st April 2015

Ex.B4 executed by the plaintiff in favour of the defendants is release deed or relinquishment deed but not settlement deed as defined under Section 2 (24) of the Act of 1899 or under Section 2 (b) of the Act of 1963.= Moreover, recitals of Ex.B4 did not indicate intention of any of the parties to execute registered relinquishment deed or settlement deed in favour of the defendants and, taking advantage of stray admissions in the evidence of D.W.1, learned counsel for the plaintiff invented a theory that Ex.B4 is only an agreement but this cannot be accepted in the absence of any recital that the plaintiff agreed to execute registered document in pursuance of Ex.B4.and, therefore, this contention is without any substance. Ex.B4 is only a release or relinquishment deed which does not require registration and it is admissible in evidence. =Ex.B4 in evidence and, basing the plaintiff is ceased to be a member of Hindu undivided coparcenary after execution of Ex.4 as he relinquished or given up his right in the property of Hindu undivided coparcenary.

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY            

A.S.No. 1685 OF 1994

21-08-2015

Pasagadugula Narayana Rao,  S/o Rama Murty, 36 years, R.T.C. Employee,  R/o  
Jagannaickpur, Kakinada.APPELLANT/PLAINTIFF      
       
Pasagadugula Rama Murty,  S/o Rama Murty, 72 years, Business,  D.No. 4-3-118 A,  
Girigari Street, Pithapuram,  East Godavari District, &
others.RESPONDENTS/DEFENDANTS        

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

Counsel for Respondents:Sri K.Vinaya Kumar.

<GIST:

>HEAD NOTE:  

? Cases referred:
1.      AIR 1973 SC 2609
2.      AIR 1959 SC 24
3.      (1976) 3 SCC 119
4.      AIR 1955 SC 481
5.      AIR 1966 SC 1836
6.      AIR 1958 AP 147
7.      2008 (5) ALLMR 671
8.      AIR 1967 SC 1395
9.      AIR 1986 AP 42
10.     AIR 1965 AP 177
11.     AIR 2012 AP 129
12.     AIR 2012 AP 1
13.     1993 (1) A.P.L.J. 79

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY            

A.S.No. 1685 OF 1994

JUDGMENT:  
      The unsuccessful plaintiff in O.S.No. 50 of 1992 on the file of the Court
of
Subordinate Judge, Pithapuram (for short, 'the trial Court'), preferred this
appeal
challenging the decree and judgment dated 18-04-1994, whereby and
whereunder the suit filed by the plaintiff for partition was dismissed.
2.      The appellant was the plaintiff and the respondents were the defendants
before the trial Court and, for convenience of reference, the ranks given to the
parties in the suit before the trial Court will be adopted throughout this
judgment.
3.      The plaintiff filed the suit for partition of schedule property into 7
equal
shares and to allot one such share to him with separate possession and for
rendition of true and correct account of both past and future profits alleging
that
Ramachandra Rao, Satyanarayana, the plaintiff and defendant Nos. 2 to 5 are
sons and 6th defendant is unmarried daughter of the 1st defendant.  The
plaintiff
is the third son of the 1st defendant.  The 1st defendant and his sons
constituted
as members of Hindu coparcenary/joint family and the 1st defendant was acting
as manager of the family.  The main avocation of the family members is
agriculture and they hail from K.E.Chinnayapalem.  The 1st defendant succeeded
Ac. 10.00 cents of land in K.E.Chinnayapalem besides a thatched house and site
from his father late Rama Murty as ancestral property.  Subsequently, the 1st
defendant acquired Ac. 2.00 cents of land with the aid of ancestral nucleus.
The
eldest son of the 1st defendant by name Ramachandra Rao got divided from the
family in the year 1971 after his marriage.  Subsequently, Ramachandra Rao
was given Ac. 2.00 cents of land situated in K.E.Chinnayapalem besides 3
tulas of gold towards his share.  Ever since, the said Ramachandra Rao is living
separately cultivating his land being divided son of the 1st defendant.  The
second son Satyanarayana also got divided from the family in the year 1981
after his marriage in 1978.  In lieu of his share in the family properties,
Satyanarayana received cash and got divided from the family.  Ever since,
Satyanarayana is residing at Pithapuram in a rented house carrying on fancy
business in the name and style of Chandamama Fancy Stores, Main Road,  
Pithapuram, and it is his exclusive business.  Thus, Ramachandra Rao and
Satyanarayana have nothing to do with the suit schedule property as they are
divided members of the Hindu coparcenary.
      The plaintiff studied B.Sc. in 1974 but could not secure any employment
and used to attend cultivation of family land till 1977.  In 1977, the plaintiff
and
Satyanarayana started fancy goods business in Pithapuram in the name and
style of Devi Fancy Stores with the family income, obtained sales tax license
R.C.No. 1819 by the plaintiff and, accordingly, the business was carried on.
The
plaintiff got married in 1980 and, thereafter also, he continued his business
till
1981 i.e. till Satyanarayana got divided.  Thereafter, the plaintiff continued
the
business up to April, 1985, along with defendant Nos. 1, 4 and 5 but the
plaintiff
was sent out from the house at Pithapuram in the month of April, 1985.  Since
then, the plaintiff has been living with his parents-in-law in Jagannaickpur,
Kakinada.  In the month of February, 1986, the plaintiff secured employment as
conductor in R.T.C. and continuing to work in the same post.  The accounts of
the said business Devi Fancy Stores are with defendant Nos. 1, 4 and 5.  After
the plaintiff got appointment in R.T.C., the license got cancelled as he, being
an
employee, cannot hold business license and obtained license in the name of
defendant Nos. 4 and 5 but the business being carried on in the same name.
      With the income derived from ancestral lands at K.E.Chinnayapalem and
income from the business at Pithapuram, the defendants purchased an old tiled
house in an extent of 650 square yards at Girigari Street, Pithapuram, but sale
deed was obtained in the name of the 1st defendant.  Thereby, the said tiled
house is also part of joint family property.  Thus, all the items of schedule
property are joint family ancestral properties and the plaintiff and the
defendants
are entitled to claim equal share.
      As the plaintiff was sent out and the defendants were enjoying income
from joint family property, the plaintiff started demanding partition of
schedule
property but the 1st defendant was postponing the same on one pretext or the
other.  Ultimately, the 1st defendant asked the plaintiff to receive Rs.15,000/-
in
lieu of his share.  Though the said amount is far less than the value of the
plaintiff's share in the family property, the plaintiff agreed for the same out
of
regard for the 1st defendant and to avoid unpleasant situation which the
defendants were creating at that time in the month of August, 1985.  At the time
of execution of document, the plaintiff was paid only Rs.500/- and obtained a
letter of settlement, giving up his share, from the plaintiff in favour of the
defendants.  Though the defendants promised to pay the balance amount, they
did not pay Rs.14,500/-.  Thereupon, the plaintiff got issued registered notice
dated 01-12-1988 through his counsel informing that, on account of non-payment
of the amount within the time agreed, the plaintiff is not bound by the letter
of
settlement while calling upon the defendants to co-operate for partition of
schedule property into 7 equal shares and to allot one such share to him.  Thus,
the plaintiff is not bound by the letter of settlement and, therefore, he is
entitled to
claim income from schedule property besides his 1/7th share of property with
separate possession and prayed to pass decree in his favour.
4.      The 1st defendant filed his written statement and the same was duly
adopted by defendant Nos. 3 to 6.  The 1st defendant admitted about relationship
between the parties while denying acquisition of any of items of the property
with
the aid of joint family nucleus.  The 1st defendant contended that joint family
owned and possessed only Ac. 10.00 cents of land and Ac. 2.00 cents of land is
self acquired property of the 1st defendant.
      The 1st defendant further contended that he incurred debts to educate the
plaintiff, defendant Nos. 2 to 5 and the other son Ramachandra Rao and to
perform marriages of his daughters.  Thus, the 1st defendant heavily indebted to
different persons.  Thereby, income form ancestral property is not sufficient
even
to maintain the family.  Hence, question of acquiring any property with the aid
of
joint family nucleus does not arise.  He further contended that, at the time of
dividing Satyanarayana and other sons, they were given their due share in the
property either by cash or kind.
      The business in the name and style of Devi Fancy Stores allegedly carried
on by the defendants is not with the aid of joint family nucleus and it is his
separate business.  The tiled house in Girigari Street, Pithapuram, is the
exclusive property of the 1st defendant.  Either the plaintiff or defendant Nos.
2 to
6 have no manner of right in the property.  After the plaintiff got separated
himself from the family, a partnership firm was formed with regard to Devi Fancy
Stores and defendant Nos. 1 to 5 are partners and the 4th defendant is the
managing partner of the said firm.  Thus, Devi Fancy Stores is a partnership
firm
in which the plaintiff is not a partner and the firm is not joint family
property.
Consequently, the plaintiff is not entitled to claim any share in the property
or
income therefrom and the defendants are not liable to render true and correct
account.
      The main contention of the 1st defendant is that the plaintiff, who
disputed
with the defendants, agreed to receive Rs.15,000/- towards his share in joint
family properties and further agreed not to claim any share in the properties in
the year 1985 itself.  In pursuance of the family settlement entered in the year
1985, the plaintiff received Rs.500/- and receipt of the same was acknowledged
on the reverse of the letter of settlement.  The defendants agreed to pay the
balance of Rs.14,500/- at the time of registration of relinquishment deed in
favour
of defendant Nos. 1 to 5.  The settlement letter dated 11-06-1985 was executed
by the plaintiff in favour of defendant Nos. 1 to 5.  Thus, the 1st defendant
never
agreed to pay balance of amount under letter of settlement before 1988 and it
was specifically agreed that balance is to be paid at the time of registration
of
relinquishment deed.  Thereby, the 1st defendant is always ready and willing to
pay balance of amount at the time of registration of relinquishment deed but the
plaintiff refused to execute registered document.  Therefore, the plaintiff is
not
entitled to claim share in any of the items of schedule property.  On this
ground
alone, the plaintiff is disentitled to claim any share in schedule property.
      The 1st defendant further contended that out of item No. 1 of plaint A
schedule property, an extent of Ac. 2.71 cents was sold to Giduturi Matabbai on
21-01-1986 for Rs.16,500/- and he is in possession and enjoyment of the same.
An extent of Ac. 0.50 cents in item No. 1 of plaint A schedule was sold to
Giduturi Lakshmi under registered sale deed dated 21-01-1986 for Rs.3,000/-
and she is in possession and enjoyment of the same.  Both the above registered
sale deeds established that there was settlement between the plaintiff and the
defendants and the plaintiff has no right to revoke the family settlement
already
entered into between them.  Thereby, the suit is not maintainable and prayed for
dismissal.
      In item No. 2 of plaint A schedule, Ac. 0.50 cents was given to Giduturi
Gangayamma, W/o Matayya, towards Pasupukunkuma.  The said Gangayamma        
is in possession and enjoyment of the property and the defendants have no
manner of right over Ac. 0.50 cents.  Out of item No. 3 of plaint A schedule, an
extent of Ac. 1.00 cents was given as Pasupukunkuma to Giduturi Lakshmi, W/o
Ramamurthy, in the year 1974 and she is in possession and enjoyment of the
same since 1974.  The 1st defendant is only in possession and enjoyment of Ac.
4.11 cents in item No. 2 and Ac. 1.56 cents in item No. 3 of plaint schedule.
Thereby, the plaintiff is not entitled to claim share in the property given to
Gangayamma and Lakshmi.  
      Finally, it is contended that the plaintiff has no right to claim any
share or
interest in B schedule property in pursuance of the family settlement.
      The plaintiff also claimed share in stock in trade worth Rs.50,000/- which
is described in item No. 1 of plaint C schedule but there was no such property
as
on that day and the property described as C schedule was never in existence
and not available for partition.  The 1st defendant also denied receipt of
notice
dated 01-12-1988 got issued by the plaintiff through his counsel and finally
prayed to dismiss the suit.
      The 1st defendant finally contended that the Court fee paid is not correct
as the plaintiff is out of possession.  On this ground also, the suit is liable
for
dismissal.
5.      The 2nd defendant remained ex parte.
6.      During pendency of the suit, defendant Nos. 7 and 8 were impleaded vide
order dated 03-11-1993 in I.A.No. 398 of 1993 but did not file any separate
written statement.
7.      Basing on the above pleadings, the trial Court framed the following
issues:
Issues:
1.      Whether the plaintiff is entitled for partition of the properties into
seven
equal shares and to allot one such share as prayed for?
2.      Whether the plaintiff is entitled for rendition of account so far as the
share
of the plaintiff is concerned as prayed for?
3.      Whether the plaintiff is entitled for future profits out of his share as
prayed
for?
4.      Whether the family settlement in the year 1985 to receive Rs.15,000/- by
the plaintiff is true?
5.      Whether the plaintiff received Rs.500/- in pursuance of the family
settlement as pleaded in the written statement?
6.      Whether the suit is not maintainable under law?
7.      Whether the valuation of the suit is not correct?
8.      Whether there is no stock in trade worth Rs.15,000/- as pleaded in the
written statement?
9.      To what relief?                                         (extracted).
8.      During the course of trial, on behalf of the plaintiff, P.Ws.1 and 2 were
examined and got marked Exs.A1 to A8.  On behalf of the defendants, D.Ws.1
and 2 were examined and got marked Exs.B1 to B5.  
9.      Upon hearing argument of both counsel and considering oral and
documentary evidence on record, the trial Court, believing Ex.B4 on the ground
that the plaintiff settled his claim agreeing to receive Rs.15,000/-, dismissed
the
suit.
10.     Aggrieved by the decree and judgment of the trial Court, the unsuccessful
plaintiff preferred the present appeal on various grounds mainly questioning the
validity of settlement letter dated 11-06-1985 marked as Ex.B4, which was
withdrawn by issuing notice since the defendants did not perform their part of
obligation i.e. payment of balance of consideration agreed to be paid, but the
trial
Court, on erroneous appreciation, dismissed the suit.
      It is further contended that the trial Court, placing reliance on Ex.B4
without any registered document of relinquishment, accepted the contention of
the defendants erroneously and negated the claim of the plaintiff.  Ex.B4 letter
does not convey or extinguish any right or liability of the parties and,
therefore,
on the strength of Ex.B4, the plaintiff cannot be non-suited to claim share in
schedule property.  That apart, under Ex.B4, Rs.14,500/- is still due and, in
the
absence of payment of balance of amount agreed to be paid, the claim of the
plaintiff cannot be thrown out.  However, the trial Court, on erroneous
appreciation of both fact and law, negated the relief of partition without
assigning
any legal reasoning and prayed to allow the appeal; setting aside the decree and
judgment of the trial Court; passing preliminary decree for partition of
schedule
property into 7 equal shares, to allot one such share with separate possession
of
the property and render true and correct account of both past and future
profits.
11.     During the course of argument, learned counsel for the plaintiff totally
concentrated his argument on the validity of Ex.B4 settlement letter and
contended that, when the letter was withdrawn by issuing legal notice,
relinquishment or release is no more valid but the trial Court, giving much
credence to Ex.B4, accepted the contention of the defendants that the plaintiff
released his share in joint family property agreeing to receive Rs.15,000/- as
consideration which is an apparent error on the face of the record.  It is
further
contended that Ex.B4 is not a settlement deed and, by executing the alleged
deed, the plaintiff is required to execute a registered document.  Till
execution of
registered document, the defendants would not get any title in the share of the
plaintiff but the trial Court, without looking into the legal effect of Ex.B4,
denied
relief of partition erroneously.  Finally, it is contended that if Ex.B4 is
excluded
from consideration, certainly the plaintiff is entitled to partition of the
property
and, that apart, Ex.B4 is not admissible in evidence for two reasons i.e. non-
payment of deficit stamp duty and penalty; and non-registration of the same
under the provisions of the Registration Act, 1908 (for brevity, 'the Act of
1908').
On these grounds also, Ex.B4 cannot be looked into and finally prayed to allow
the appeal setting aside the decree and judgment including Ex.B4.
12.     Learned counsel for the defendants argued totally in support of the
findings recorded by the trial Court while contending that Ex.B4 is only a
release
deed though it was contended before the trial Court that it was a settlement
deed; the said release deed will never extinguish or create any right in
immovable property and, therefore, not required to be registered.  Thus, the
trial
Court rightly admitted Ex.B4 in evidence.  If, for any reason, the plaintiff was
not
paid Rs.14,500/- after deducting Rs.500/- already paid out of the amount agreed
to be paid under Ex.B4 by the defendants, his remedy is only to recover
Rs.14,500/- and not entitled to claim any share in the property having given up
his share in clear and unequivocal terms under Ex.B4.  Though the document
Ex.B4 is styled as family settlement letter, the defendants also pleaded that it
is
only a family settlement but the nomenclature whatever given to the document is
not the deciding factor about nature of the document and, to decide nature of
the
document, the Court has to look into the contents of the document and intention
of the parties.  If the contents of Ex.B4 are looked into, it is only settlement
deed
but not relinquishment or family settlement.  In such case, it is admissible in
evidence and not required to be registered.  Thereby, the plaintiff has to be
non-
suited on the sole ground that he released his share in the property.
Therefore,
the trial Court rightly dismissed the suit and the findings do not call for
interference of this Court and prayed to dismiss the appeal confirming the
decree
and judgment of the trial court.
13.     Considering rival contentions, perusing oral and documentary evidence
and the decree and judgment under challenge, the points that arise for
consideration are as follows:
(1)     Whether Ex.B4 dated 11-06-1985 is release deed or
relinquishment deed or family settlement deed?  If Ex.B4 is release
deed, is it admissible in evidence?
(2)     Whether Ex.B4 is admissible in evidence and acted upon, if so, is
the plaintiff entitled to claim partition of schedule property into 7
equal shares and for allotment of one such share to him?
(3)     Whether the property described in schedules is ancestral property?
(4)     Whether tiled house described as item No. 3 of plaint B schedule is
separate property of the 1st defendant?
(5)     Whether Devi Fancy Stores is separate property of defendant Nos.
4 and 5?
(6)     Whether movables shown as item No. 2 of plaint C schedule are
available for partition?
(7)     Whether the defendants are liable to render true and correct
account of income from business and past and future profits from
business?
14.     In Re. Point Nos. 1 and 2:
        The core issue before this Court is about validity of Ex.B4 dated
11-06-1985 and the entire dispute revolves around Ex.B4 in view of the alleged
execution of relinquishment deed or family settlement deed by the plaintiff in
favour of his father and brothers.  Both learned counsel concentrated on Ex.B4
and advanced their argument about validity and invalidity of Ex.B4.  It is an
undisputed fact that the plaintiff and defendant Nos. 1 to 6 are coparceners of
joint family and nature of the property is also not in dispute except the
business
by name Devi Fancy Stores, item No. 3 of B schedule property and availability of
item No. 2 of C schedule property.  The plaintiff filed the suit for partition
of entire
schedule property claiming 1/7th share for himself contending that the property
is
joint family property.  However, the defendants raised a specific contention
that
the plaintiff released his undivided 1/7th share in the property by executing
Ex.B4
and, therefore, the plaintiff is not entitled to claim any share as he got
separated
from Hindu undivided coparcenary.  In fact, in the plaint itself, the plaintiff
disclosed about execution of Ex.B4 receiving Rs.500/- in favour of his father
and
brothers, who are continuing as members of joint family, whereunder he agreed
to receive Rs.15,000/- in lieu of his share.  Though the defendants promised to
pay balance of Rs.14,500/-, they did not pay the balance of consideration under
Ex.B4.  The plaintiff allegedly executed settlement deed marked as Ex.B4 but it
is relinquishment deed according to the defendants.  Therefore, execution of
Ex.B4 is not in controversy.  Even in the registered correspondence between the
plaintiff and the defendants, the plaintiff himself admitted about execution of
Ex.B4 but his specific contention as on the date of filing the suit was that he
revoked Ex.B4.  Therefore, the plaintiff is entitled to claim partition of
schedule
property and, on such partition, he is entitled to 1/7th share in the property.
15.     The defendants resisted the claim of the plaintiff on the ground that the
plaintiff has no right to revoke the family settlement entered into by executing
Ex.B4 and, therefore, he is not entitled to claim partition of schedule
property.  In
view of the undisputed execution of Ex.B4, the controversy before this Court is
only with regards to nature and admissibility of Ex.B4.  Before deciding the
various contentions with regard to admissibility and nature of document, I feel
that it is appropriate to advert to the contents of Ex.B4 letter dated 11-06-
1985
duly signed by the plaintiff and attested by two witnesses.  The nomenclature of
the documents is "Settlement Letter for Rs.15,000/-".  The contents in Ex.B4
disclosed that the plaintiff, his father D1 and brothers D2 to D5 constituted as
members of Hindu joint family and the plaintiff decided to separate from
coparcenary receiving Rs.15,000/- while releasing his right in both movable and
immovable property.  On the reverse of Ex.B4, receipt of Rs.500/- towards
consideration agreed to be paid under Ex.B4 was acknowledged by the plaintiff
duly signing under the acknowledgement.  From the contents of Ex.B4, it is only
a release deed though it is styled as family settlement letter.  It is
elementary
principle of law that nomenclature of a document is not decisive to determine
the
nature of transaction covered by it.  The contents of the document have to be
looked into to decide the nature of transaction.  In Delhi Development
Authority Vs. Durga Chand Kaushish , the Apex Court held that
"In construing document, one must have regard, not to the presumed intention of
the parties, but to the meaning of the words they have used.  If two
interpretations of the document are possible, the one which would give effect
and
meaning to all its parts should be adopted and for the purpose, the words
creating uncertainty in the document can be ignored."
      In the above judgment, both sides have relied upon certain passages in
Odgers' "Construction of Deeds and Statutes" (5th edition 1967).  There (at
pages 28-29), the First General Rule of Interpretation formulated is: "The
meaning of the document or of a particular part of it is therefore to be sought
for
in the document itself."  That is, undoubtedly, the primary rule of construction
to
which Sections 90 to 94 of the Indian Evidence Act, 1872 ('the Act of 1872' for
brevity), give statutory recognition and effect, with certain exceptions
contained
in Sections 95 to 98 of the Act of 1872.  Of course, "the document" means "the
document" read as a whole and not piecemeal.  In the same judgment, the Apex
Court relied on Radha Sunder Dutta Vs. Mohd. Jahadur Rahim  to hold that
"If there be admissible two constructions of a document, one of which will give
effect to all the clauses therein while the other will render one or more of
them
nugatory, it is the former that should be adopted on the principle expressed in
the maxim "ut rrs magis valeat quam pereat."
      By applying the principle laid down in the above judgment, the Court has
to look into entire contents of the document which is sought to be interpreted
including nomenclature of the document.  If that is done, the document before
this Court i.e. Ex.B4 is not a family settlement and it is only either
relinquishment
or release deed.
16.     Learned counsel for the defendants, contending that the document before
this Court is a settlement deed, drawn attention of this Court to Kale and
others
Vs. Deputy Director of Consolidation and others , wherein the Supreme
Court ruled as follows:
"(a)    By virtue of a family settlement or arrangement, members of a family
descending from a common ancestor or a near relation seek to sink their
differences and disputes, settle and resolve their conflicting claims or
disputed titles once for all in order to buy peace of mind and bring about
complete harmony and goodwill in the family.  Family arrangements are
governed by a special equity peculiar to themselves, and will be enforced
if honestly made, although they have not been meant as a compromise,
but have proceeded from an error of all parties, originating in mistake or
ignorance of fact as to what their rights actually are, or of the points on
which their rights actually depend;
(b)     The bona fides and propriety of a family arrangement has to be judged by
the circumstances prevailing at the time when such settlement was
made;
(c)     Allegations of fraud or undue influence must first clearly be pleaded and
then proved by clear and cogent evidence; and
(d)     Parties to the family arrangement who have benefited thereunder are
precluded from assailing it.
        It appears from the law declared by the Apex Court that entering into
family settlement will arise only to settle disputes between members of family
but
there were no subsisting disputes between the plaintiff and the defendants by
the
date of execution of Ex.B4.
        In the above judgment, the Apex Court relied on Sahu Madho Das Vs.
Pandit Mukand Ram  to hold that
"Family arrangement can as a matter of law be inferred from a long course of
dealings between the parties."
        In the same judgment, the Apex Court also relied on Maturi Pullaiah Vs.
Maturi Narasimham  to further hold that
"Although conflict of legal claims in praesenti or future is generally a
condition for
the validity of family arrangements, it is not necessarily so.  Even bona fide
disputes present or possible, which may not involve legal claims would be
sufficient.  Members of a joint Hindu family may to maintain peace or to bring
about harmony in the family, enter into such a family arrangement.  If such an
agreement is entered into bona fide and the terms thereto are fair in the
circumstances of a particular case, the Courts would more readily give assent to
such an agreement than to avoid it."
        Coming to the present facts of the case, Ex.B4 is neither family
settlement
nor family arrangement.
17.     A Division Bench of this Court, while deciding whether family arrangement
is a transfer or not, in Yendapalli Venkataraju (died) and another Vs.
Yendapalli Yedukondalu alias Venkateswarlu and others , held as follows:
"If an arrangement or a compromise is one under which a person having an
absolute title to the property transfers his title in some of the items thereof
to
others, the formalities prescribed by law have to be complied with since the
transferees derive their respective titles from the transferor.  If, on the
other
hand, the parties set up competing titles and the differences are solved by the
compromise, there is no question of one deriving title from the other and
therefore the arrangement does not fall within the mischief of Section 17 read
with Section 49 of the Registration Act as no interest in property is created or
declared by the document for the first time.  Generally by such an arrangement,
it is intended to set at rest competing claims amongst the various members of
the family to secure peace and amity.  The compromise is on the footing that
there is an antecedent title of some sort in the parties and the settlement
acknowledges and defines title of each of the parties.  In such an event, the
settlement need not be reduced to writing and even if it is embodies in a
document, it need not be registered."
      In the above judgment, this Court also discussed about requirements of
family settlement and requirement of registration and stamp duty.
18.     Learned counsel for the defendants also drawn attention of this Court to
Mahadeo Tulsiram Pathade (dead) through L.Rs. Vs. Vatsalabai Shamrao  
Pathade , wherein it was held that
"Admissibility of document styled as family arrangement for non-registration and
it is not required to be registered compulsorily under Section 17 (1) (b) of the
Registration Act, 1908."
        In view of the law declared by the Apex Court, this Court and Bombay
High Court, it is clear that family arrangement or settlement will arise only
when
members of family intended to settle their disputes and to maintain peace and
harmony in the family by such settlement and such settlement is not required to
be registered under Section 17 of the Registration Act, 1908 (for short, 'the
Act of
1908').
19.     The present dispute is with regard to nature of document and its
admissibility in evidence.  Though Ex.B4 is styled as family settlement letter,
it is
neither family settlement deed nor family arrangement since there were no
disputes by the date of execution of Ex.B4 amongst the members of family and
not intended to maintain amity amongst the members of family by executing
Ex.B4 but the intention of the plaintiff in execution of Ex.B4 is that he wanted
to
live separately severing from the other members of Hindu undivided coparcenary
by receiving Rs.15,000/- towards his share in lieu of giving up all his claims
in the
property.  Therefore, Ex.B4 is neither family settlement deed nor deed of family
arrangement.
20.     Section 2 (24) of Indian Stamp Act, 1899 ('the Act of 1899' for brevity),
defines the word 'settlement' as follows:
"Any non-testamentary disposition, in writing, of movable or immovable
property [whether by way of declaration of trust or otherwise] made
(a)     in consideration of marriage;
(b)     for the purposes of distributing property of the settler among his
family or those for whom he desires to provide, or for the purpose
of providing for some person dependent on him, or
(c)     for any religious or charitable purpose; and includes an agreement
in writing to make such a disposition and, where any such
disposition has not been made in writing, any instrument recording,
whether by way of declaration of trust or otherwise, the terms of
any such disposition.
21.     The definition under Section 2 (b) of the Specific Relief Act, 1963 (for
short, 'the Act of 1963'), is exhaustive and wider.  According to it, settlement
means
"An instrument (other than a will or codicil as defined by the Indian Succession
Act, 1925) whereby the destination or devolution of successive interests in
movable or immovable property is disposed of or is agreed to be disposed of."
      It is a document by which a property is transferred or agreed to be
transferred inter vivos as such it may be either executory or executed and takes
effect during the life of the executor.  The literal meaning connotes the idea
to
secure by gift or legal act or to create successive interests in use or income
going to one person while the corpus of the property remains another's thus
giving possession by legal sanction.  Even if the definition of the word
settlement
either under Section 2 (24) of the Act of 1899 or under Section 2 (b) of the Act
of
1963 is applied to the present facts of the case, it is difficult to hold that
Ex.B4 is
family settlement deed or deed of family arrangement.  The trial Court,
accepting
the contention of the parties, held that Ex.B4 is settlement deed and not
required
to be registered and, therefore, admitted in evidence.  A bare look at the
contents of Ex.B4, it is only a release deed which is not defined either under
the
Act of 1899 or under the Act of 1963.  As defined in West's Legal
Thesaurus/Dictionary, release means:
"To set free; to discharge a claim that one has against another (the settlement
released him from liability).  Discharge, relinquish, liberate, clear, unburden,
spare, acquit, dissolve, extricate, emancipate, exempt, relieve, disengage,
unbind, undo, rescue, franchise, exonerate, redeem, unchain, remit, forgive,
vindicate, unite.
       To allow something to be communicated (release the information).
The giving up of a right, claim, or privilege (she signed the release).
Relinquishment, discharge, concession, abandonment, waiver, liberation,
dismissal, yielding, deliverance, acquittal, clearance, freedom, emancipation,
exculpation, loosing, clearing, salvation, indemnity, pardon, exoneration,
disengagement, amnesty, letting go, exemption, redemption, absolution,
severance."
22.     In Kuppuswami Chettiar Vs. A.S.P.A.Arumugam Chettiar and  
another , the Supreme Court, while drawing distinction between release deed
and gift, held as follows:
"A release deed can only feed title but cannot transfer title.  Renunciation
must
be in favour of a person, who had already title to the estate, the effect of
which is
only to enlarge the right.  Renunciation does not vest in person a title where
it did
not exist.  Now, it cannot be disputed that a release can be usefully employed
as
a form of conveyance by a person having some right or interest to another
having a limited estate, e.g., by a remainderman to a tenant for life, and the
release then operates as an enlargement of the limited estate."
      From the principle laid down in the above judgment, releasing right means
a person, who had interest in property along with others, giving up his right in
the
property which enlarges the right of others who had same right in the property.
If
release in favour of a third person having no right in property, it cannot be
said to
be release and, at best, it may amount to gift as defined under the Transfer of
Property Act, 1882 (for short, 'the Act of 1882').
23.     A Special Bench of this Court in Kothuri Venkata Subba Rao and
others Vs. District Registrar of Assurances, Guntur , held as follows:
"The word 'release' is not defined, but in view of Article 46 of Schedule 1-A
(A.P.), a deed of release is an instrument by which one of the co-owners
releases or renounces his interest in the specified property and the result of
such
release would the enlargement of the share of the other co-owner.  Thus, there
is
a clear and marked distinction between a deed of conveyance and a deed of
release.  A deed of release need not be gratuitous only.  Even if it is
supported
by consideration, still it can be treated as a deed of release if the intendment
of
the parties and the purpose of the transaction satisfy the requirements of a
deed
of release in a case of the property owned by the co-owners.  The release to the
effective and operative must be in favour of all the persons interested in the
property.  The well settled principle of relinquishment is the enlargement of
the
share or shares of the co-owners and that principle will be defeated if the
relinquishment is made in favour of one or a few named co-owners from out of
the several co-owners."
      In view of the principle laid down in the decision referred supra, a deed
of
release means an instrument by which one of the co-owners releases or
renounces his interest in the specified property which would enlarge the share
of
the other co-owners.  In the present case, the plaintiff executed Ex.B4
renouncing or giving up his right in the property of Hindu undivided coparcenary
agreeing to receive Rs.15,000/- as consideration.
24.     In Katragadda China Anjaneyulu and another Vs. Katragadda China
Ramayya and others , a Full Bench of this Court held as follows:
"We feel that the relinquishment of a share by one of the co-parceners in favour
of the other members does not alter the status of the joint family.  The
releaser
alone separates himself from the family while others continue as members of an
undivided family.  Mitakshara treated the estate of co-parceners as held in
entirety without recognition of share and defined partition as the adjustment of
diverse rights regarding the whole by distributing them in particular portions
of
the aggregate.  The relinquishment by a co-parcener does not require either the
adjustment of diverse rights or the division of wealth in definite portions.  It
only
results in the extinction of his rights in the family properties and his
separation
from the family.  That being so, it cannot be predicated that a relinquishment
of
his interest by one of the co-parceners in the family estate is tantamount to a
partition of the joint family wealth."
25.     In G.Dayanand, S/o Late Venkaiah, Vs. District Registrar, Hyderabad,
and another ; and Smt. G.Subbalakshmi Visweswara Rao Vs. Secretary to  
Government, Revenue Department and others , this Court held that when a
coparcener or a member of joint family giving up his right, it amounts to
release
of his share or relinquishment of his right.
26.     A Full Bench of this Court had an occasion to deal with a similar issue in
Maddula Girish Kumar and anothers Vs. The Commissioner of Survey,  
Settlements and Land Records and another , wherein it was held as follows:
"The recitals in the two documents executed by mother as guardian of her two
minor children in favour of their father are identical.  In the said documents,
the
two minor sons have agreed to receive cash, some gold and silver and
relinquished their rights both in the movable and immovable property in favour
of
their father.  The documents are styled as Release deeds.  But the registering
authorities treated them as sale deeds."
      This Court, after considering entire law on this aspect, drawn distinction
between conveyance and relinquishment and held that the documents are only
release deeds but not conveyance.  The above judgment is almost identical to
the present facts of the case as the plaintiff agreed to receive Rs.15,000/- in
lieu
of his share in joint family property giving up his right in favour of other
coparceners who are continuing as members of Hindu undivided coparcenary.
On Account of relinquishment of share by the plaintiff, the share of other co-
parceners is increased.  In view of the law declared in the decisions referred
supra, it is clear that Ex.B4 executed by the plaintiff in favour of the
defendants is
release deed or relinquishment deed but not settlement deed as defined under
Section 2 (24) of the Act of 1899 or under Section 2 (b) of the Act of 1963.
The
trial Court, therefore, rightly concluded that Ex.B4 is relinquishment deed
which
requires no registration.  If Ex.B4 is treated as release deed, it is required
to be
duly stamped under Article 46 to Schedule I-A of the Act of 1899 (A.P.
amendment) but Article 46 was introduced by amendment to Schedule I-A of the
Act of 1899 by G.O.Ms.No. 2045 (Reg. I) dated 28-11-2005 with effect from
01-12-2005.  Clause (A) to Article 46 was introduced by G.O.Ms.No. 1129, Rev.
(Regn. I) Dept., dated 13-06-2005 but withdrawn by G.O.Ms.No. 1169, Rev.
(Regn. I) Dept., dated 15-09-2010 to restore the original stamp duty of 3%.
However, these two amendments to Schedule I-A of the Act of 1899, by
introducing Article 46, have no application to the present facts of the case for
the
reason that Ex.B4 was executed long prior to these amendments.  Moreover, the
trial Court collected stamp duty and penalty and admitted the document in
evidence.  When once the document is admitted under the provisions of the Act
of 1899, the same cannot be questioned at any subsequent stage in view of bar
under Section 36 of the Act of 1899.  In the present case, stamp duty payable on
the document was decided by the trial Court and collected penalty and stamp
duty.  Therefore, question of inadmissibility of Ex.B4 in evidence on account of
non-payment of stamp duty does not arise.  As discussed above, the document
of release would not create any independent right but it enlarges right in
immovable property and, therefore, it is not required to be registered under
Section 17 of the Act of 1908 as held by the Apex Court.
27.     One of the contentions of learned counsel for the plaintiff is that, as
per
the testimony of D.W.1, the plaintiff agreed to execute registered settlement
deed; the 1st defendant agreed to pay balance of Rs.14,500/- on the date of
execution of registered settlement deed and, therefore, it is only an agreement
and, till a regular settlement deed is executed, the defendants are not entitled
to
claim exclusive right over the property.  No doubt there are admissions in the
evidence of D.W.1 about agreement to pay balance of Rs.14,500/- on the date of
execution of registered settlement deed but the evidence of D.W.1 is not based
on any documentary proof.  Moreover, recitals of Ex.B4 did not indicate
intention
of any of the parties to execute registered relinquishment deed or settlement
deed in favour of the defendants and, taking advantage of stray admissions in
the evidence of D.W.1, learned counsel for the plaintiff invented a theory that
Ex.B4 is only an agreement but this cannot be accepted in the absence of any
recital that the plaintiff agreed to execute registered document in pursuance of
Ex.B4.and, therefore, this contention is without any substance.
28.     In view of the law declared by the Apex Court, Ex.B4 is only a release or
relinquishment deed which does not require registration and it is admissible in
evidence.  Thereby, the trial Court rightly admitted Ex.B4 in evidence and,
basing
on Ex.B4 alone, therefore, the trial Court negated the relief of partition while
directing the defendants to pay balance of consideration agreed to be paid under
Ex.B4 with interest.  It is brought to my notice during argument that, after
passing
decree, the defendants complied with the direction issued by the trial Court by
depositing the amount.  When the plaintiff released his right and interest in
Hindu
undivided coparcenary by executing Ex.B4, he is not entitled to claim partition
of
the property.  At best, the plaintiff is entitled to claim recovery of the
amount
agreed to be paid.
29.     Learned counsel for the plaintiff would contend that the amount settled
under Ex.B4 was long back but the present value of the property is increased to
manifold and, in such case, question of payment of balance under Ex.B4 and
claiming exclusive right in the property by the defendants is most inequitable.
However, it is not even the case of the plaintiff that Ex.B4 was obtained by
means of fraud, misrepresentation etc., and it is evident from the material on
record that the plaintiff voluntarily executed Ex.B4 in favour of the defendants
relinquishing or giving up his right in Hindu undivided coparcenary.  Therefore,
the share of the defendants is increased.  That apart, after execution of Ex.B4,
the defendants enjoyed the property in their own right and also sold some of the
items to third parties, more particularly Ac. 2.71 cents of land was sold to
Giduturi Matabbai on 21-01-1986 for Rs.16,500/-; an extent of Ac. 0.50 cents in
item No. 1 of A schedule was sold to Giduturi Lakshmi under registered sale
deed dated 21-01-1986 for Rs.3,000/-; an extent of Ac. 0.50 cents in item No. 2
of A schedule was given to Giduturi Gangayamma, W/o Matayya, towards  
Pasupukunkuma; and an extent of Ac. 1.00 cents in item No. 3 of A schedule
was given as Pasupukunkuma to Giduturi Lakshmi, W/o Ramamurthy, in the  
year 1974 and, since then, they are in continuous possession and enjoyment of
the same.  Thereby, the 1st defendant is only in possession and enjoyment of Ac.
4.11 cents in item No. 2 of A schedule and Ac. 1.56 cents in item No. 3 of A
schedule.  Thus, in pursuance of Ex.B4, the 1st defendant started dealing with
the property as if it is his exclusive property, alienated part of it by
executing
conveyance and also by way of gift at the time of marriages of his daughters.
The subsequent conduct of the parties, in treating the property, clearly
established that Ex.B4 was acted upon.  If the total attending circumstances are
taken into consideration, it is evident that the plaintiff relinquished or given
up or
released his undivided 1/7th share in Hindu undivided coparcenary in favour of
the defendants and it was acted upon too.  Consequently, the plaintiff is only
entitled to recover the amount due under Ex.B4 i.e. Rs.14,500/- with interest if
any.  Thus, the trial Court, after appreciation of entire evidence on record,
rightly
concluded that Ex.B4 was executed by the plaintiff, acted upon and, therefore,
the plaintiff is disentitled to claim any share in Hindu undivided coparcenary.
On
reappraisal of entire evidence with reference to the law laid down by the Apex
Court and this Court, I find no legal infirmity warranting interference of this
Court.
Hence, the finding of the trial Court on Ex.B4 is hereby confirmed holding these
two points in favour of the defendants and against the plaintiff.
30.     In Re. Point Nos. 3 & 4:
      One of the contentions of learned counsel for the defendants is that item
No. 3 of B schedule property is separate property of the 1st defendant and the
property described in the schedule is not ancestral property.  Item No. 3 of B
schedule is a tiled house in an extent of 650 square yards at Girigari Street,
Pithapuram, and it was registered in the name of the 1st defendant.  Taking
advantage of registering the property in the name of the 1st defendant, the 1st
defendant contended that it is his self acquired property.  However, in the
absence of proof that the said property was acquired with the aid of joint
family
nucleus, it is difficult to accept the contention of the plaintiff that it was
acquired
with the aid of joint family nucleus.  Of course there is sufficient nucleus but
mere
possessing of sufficient nucleus by itself is not sufficient.  Even otherwise,
the
plaintiff by executing Ex.B4 relinquished his rights in the property of Hindu
undivided coparcenary.  Therefore, the plaintiff is not entitled to claim any
share
even in item No. 3 of B schedule property.  In view of my finding on point Nos.
1
and 2, discussion on point Nos. 3 and 4 needs no importance.  Hence, I need not
record any specific finding about nature of the property in view of my finding
on
point Nos. 1 and 2.  However, the plaintiff is not entitled to claim any share
in
item No. 3 of B schedule property irrespective of its nature of acquisition.
Accordingly, the points are answered in favour of the defendants and against the
plaintiff.
31.     In Re. Point No. 5:
      The plaintiff claimed share in Devi Fancy Stores contending that the
business was commenced with the aid of joint family nucleus but the defendants
denied right of the plaintiff in Devi Fancy Stores contending that the business
was not commenced with joint family nucleus and it is their separate business.
Admittedly, the plaintiff got appointment as conductor in A.P.S.R.T.C.  After
the
plaintiff got separated himself by executing Ex.B4, partnership firm was formed
to carryon fancy business under the name and style of Devi Fancy Stores,
wherein defendant Nos. 1 to 5 were partners while the 4th defendant was acting
as managing partner of the firm.  Thus, Devi Fancy Stores is a partnership firm
in
which the plaintiff is not a partner and the firm is not the property of joint
family.
The plaintiff's contention from the beginning is that joint family is an
agricultural
family and not a trading family.  If it is a trading family, though Devi Fancy
Stores
is a partnership firm consisting of joint family members, it can be inferred
that it is
the business of joint family but, when joint family is an agricultural family
and not
a trading family, it is difficult to conclude that Devi Fancy Stores is the
business
of joint family.  Even assuming for a moment, without conceding, that Devi Fancy
Stores is the business of joint family, in view of execution of Ex.B4, the
plaintiff is
disentitled to claim any right in the property.  Hence, the plaintiff is not
entitled to
claim any share in Devi Fancy Stores since the firm was reconstituted where
defendant Nos. 4 and 5 alone are partners.  Accordingly, the point is answered
in
favour of the defendants and against the plaintiff.
32.     In Re. Point No. 6:
      The plaintiff also claimed share in item No. 2 of C schedule property but
the trial Court concluded that it is not available.  Even otherwise, in view of
execution of Ex.B4, the plaintiff is not entitled to claim any share since he
gave
up his right both in movable and immovable property.  Accordingly, the point is
answered in favour of the defendants and against the plaintiff.
33.     In Re. Point No. 7:
      In view of my finding on point Nos. 1 to 6, the plaintiff is ceased to be
a
member of Hindu undivided coparcenary after execution of Ex.4 as he
relinquished or given up his right in the property of Hindu undivided
coparcenary.
Consequently, question of rendering true and correct account of income from the
property of joint family does not arise.  Thereby, the defendants are not under
obligation to render true and correct account of income.  Accordingly, the point
is
answered in favour of the defendants and against the plaintiff.
34.     In view of my foregoing discussion and findings on point Nos. 1 to 7, I
find
no ground warranting interference with the findings recorded by the trial Court
and, consequently, the appeal deserves to be dismissed as it is devoid of
merits.
35.     In the result, the appeal is dismissed confirming the decree and judgment
dated 18-04-1994 passed in O.S.No. 50 of 1992 on the file of the Court of
Subordinate Judge, Pithapuram.  Pending miscellaneous petitions in this appeal,
if any, shall stand dismissed in consequence.  No order as to costs.

_____________________________    
M.SATYANARAYANA MURTHY, J.      
Date: 21st August, 2015.

The Executing Court has no power to appoint an Advocate Commissioner under Order 26 Rule 9 of the Code of Civil Procedure in execution proceedings and as such, the orders, appointing Advocate Commissioner are totally without jurisdiction.- The facts and circumstances of the cases and the principles and parameters laid down in the above referred judgments drive this Court towards an irresistible conclusion that the petitioner herein has totally failed in making out a case, warranting any interference or indulgence of this Court under Section 115 of the Code of Civil Procedure. The contentions sought to be pressed into service by the learned counsel for the petitioner are liable to be rejected as being devoid of any merit. The fact remains that the decree holder is seeking specific performance of contract in respect of the property within the boundaries as mentioned in the suit agreement of sale and decree only and in the name of mis- description of one of the survey numbers, the legitimate right of the decree holder cannot be permitted to be frustrated. Therefore, this Court is of the considered opinion that the Court below correctly exercised its jurisdiction to enable the decree holder to get the fruits of the decree. In the instant case the entire effort of the judgment debtor is obviously to get the suit claim frustrated, which cannot be permitted.

THE HON'BLE SRI JUSTICE A.V. SESHA SAI      

CIVIL REVISION PETITION No.2982 of 2014 and batch  

30-03-2015

Gurram Anantha Reddy ... PETITIONER/RESPONDENT/J.Dr.      

Katla Sayanna RESPONDENT/PETITIONER/D.Hr.        

Counsel for Appellant: M/s.C. Ramesh Sagar

Counsel for Respondent: Sri G. Rama Krishna

<GIST:

>HEAD NOTE:  

? Cases referred
1.      2007 (2) ALT 636
2.      AIR 1963 SC 1124
3.      AIR 1953 Madras 717
4.      AIR 1963 Supreme Court 1879
5.      AIR 1972 Supreme Court 1371
6.      2006 (5) ALD 838
7.      AIR 1998 PUNJAB AND HARYANA 202      
8.      1987 KERALA 226  


THE HONBLE SRI JUSTICE A.V. SESHA SAI      
CIVIL REVISION PETITION No.2982 of 2014  
And
CIVIL REVISION PETITION (SR) No.23826 of 2014  

COMMON ORDER:    
      The issue in the present revisions is a typical example
for the famous saying vows or difficulties of an Indian Decree
holder start from the date of decree. Since these two
revisions arise out of same execution proceedings and are
inter-related, this Court deems it apt and appropriate to
dispose of these two cases by way of this common order.

2.      The judgment debtor in E.P.No.2 of 2011 in O.S.No.15
of 2008 is the petitioner in these revisions. C.R.P.No.2982 of
2014 is filed against the order, dated 13-08-2014 and
C.R.P.(SR).No.23826 of 2014 is filed against the order, dated
31-10-2013.

3.      Heard Sri C. Ramesh Sagar, learned counsel for the
petitioner and Sri G. Rama Krishna, learned counsel for the
respondent and perused the material available before this
Court.

4.      The respondent herein instituted O.S.No.15 of 2008, on
the file of the Court of the District Judge, Karimnagar against
the petitioner herein for specific performance of agreement of
sale, dated 05-03-2007 in respect of the lands, admeasuring
Ac.2-16 gts., in Sy.No.115/A and Ac.4-00 gts., in
Sy.No.161/B of Bhoopalapatnam village, Choppadandi
Revenue Mandal, Karimnagar District. The learned Judge
decreed the said suit on 31-03-2010. Thereafter, the decree
holder filed E.P.No.2 of 2011 for enforcement of the decree on
09-11-2010. A.S.No.2 of 2011 filed by the defendants/
petitioners herein against the decree in O.S.No.15 of 2008
before this Court was dismissed on 15-04-2013. The decree
holder/respondent herein filed E.A.No.62 of 2013 under
Order 26 Rule 9 of the Code of Civil Procedure for
appointment of an Advocate Commissioner to identify the
land under E.P. with survey numbers and village map in
consonance with the boundary map of E.P. Schedule with the
assistance of Mandal Surveyor of Choppadandi Tahsildar
Office. By way of an order, dated 31-12-2013 Commissioner
was appointed and the same is the subject matter of
challenge in C.R.P.(SR) No.23826 of 2014. The Commissioner
so appointed filed a report on 10-06-2014 and by way of an
order, dated 13-08-2014 the learned Prl. District Judge
accepted the said report and the said order is under challenge
in C.R.P.No.2982 of 2014.

5.      The contentions and submissions of the learned counsel
for the petitioner are:
1.      Orders under challenge in these revisions are erroneous,
contrary to law and are opposed to the provisions of Order 26
Rule 9 of the Code of Civil Procedure.
2.      The Executing Court has no power to appoint an Advocate
Commissioner under Order 26 Rule 9 of the Code of Civil
Procedure in execution proceedings and as such, the orders,
appointing Advocate Commissioner are totally without
jurisdiction.
3.      The Executing Court grossly erred in appointing the Advocate
Commissioner for localizing the property for the purpose of
execution and the E.P. Court cannot travel beyond the scope of
decree and the same is impermissible.
4.      Property which is neither covered by the agreement nor the
plaint schedule property nor the decree cannot be delivered to
the decree holder by appointing Advocate Commissioner.
5.      The decree holder ought to have got amended the plaint
schedule and the decree before initiating the Executing
Proceedings.
6.      The Court below virtually permitted the decree holder to
adduce evidence afresh, which is impermissible.

        In support of this submissions and contentions, learned
counsel heavily placed reliance on the following judgments:
i.      2007 (2) ALT 636 (Vadlamani Suryanarayana
Murthy v. Saripalli Balakameswari and others)
ii.     AIR 1963 SC 1124 (Collector of Customs, Calcutta v
East India Commercial Co. Ltd.,, Calcutta and
others)
iii.    AIR 1953 Madras 717 (P. Moosa Kutty v Unknown)  



6.      Submissions/contentions of the learned counsel for the
respondent are:
1.      Orders passed by the Court below are in accordance with law
and there is no illegality nor any material infirmity nor
irregularity in the impugned orders, as such the present
revisions are not maintainable and the petitioner is not
entitled for any indulgence of this Court nor the orders
impugned warrant any interference of this Court.
2.      The contention of the learned counsel for the petitioner that
E.P. court has no power to appoint Advocate Commissioner is
not tenable in view of the provisions of Order 26 Rule 18-A of
the Code of Civil Procedure.
3.      The entire effort of the petitioner is to drag on the issue in the
name of technicalities in the instant case. The decree holder is
praying for execution in respect of property situated within the
boundaries mentioned in the suit agreement of sale and that
the boundaries prevail over and in the name of mis-description
of survey numbers judgment debtor cannot escape the
execution in the absence of any dispute with regard to the
boundaries.
4.      Having expressed no objection with regard to the appointment
of Commissioner, it is not open for the petitioner to turn
around.
5.      The decree granted by the learned District Judge was
confirmed by this Court in A.S.No.2 of 2011 by enhancing the
amount of compensation by Rs.2,00,000/- and the Honble
Apex Court confirmed the same in S.L.P.C.C.No.18187-18188  
of 2013 on 21-10-2013 and the entire exercise undertaken by
the Commissioner cannot be found fault with.
6.      The decree holder deposited the entire amount as per the
decree.

        To booster his submissions and contentions learned
counsel for the respondents takes the support of the following
judgments:
1.      AIR 1963 Supreme Court 1879 (Sheodhyan Singh and Ors.  
vs MT. Sanichara Kuer and Ors)
2.      AIR 1972 Supreme Court 1371 (Bhavan Vaja and Ors. vs
Solanki Hanuji Khodaji Mansang)
3.      2006 (5) ALD 838 (Chakka Ranga Rao vs Molla Mustari Banu)  
4.      AIR 1998 PUNJAB AND HARYANA 202 (Rocky Tyres and Ors.      
vs Ajit Jain And Anr.)
5.      AIR 1987 KERALA 226 (B.T. Govindappa vs B.  
Narasimhaiahair)

7.      In the above back ground, now the issues that emerge
for consideration of this Court are:
1.      Whether the orders under challenge are in accordance
with law ?
2.      Whether the impugned orders warrants any
interference of this Court ?

8.      The information available before this Court reveals that
the decree of specific performance of agreement of sale
granted by the learned Prl. District Judge on 31-03-2010 was
confirmed by this Court on 15-04-2013 in A.S.No.2 of 2011
with a modification by enhancing the amount of consideration
and the Honble Apex Court confirmed the same on
21-10-2013 in S.L.P.C.C.No.18187-18188 of 2013. In
E.P.No.2 of 2011 the decree holder filed E.A.No.62 of 2013
under Order 26 Rule 9 r/w.151 of Code of Civil Procedure on
01-11-2013 seeking the following relief:
It is prayed that the Honble Court may be pleased to
appoint an advocate/Commissioner to identify the land
under E.P. with Survey numbers and village Map in
consonance with the boundaries of E.P. Schedule with
the assistance of Mandal Surveyor of Choppadandi
Tahsil Office.


9.      A reading of the affidavit filed in support of the
E.A.No.62 of 2013 makes it manifest that the decree holder
filed the said application in the background of objection taken
by the judgment debtor on the executability of the decree on
the ground that one of the survey numbers was incorrectly
mentioned as Sy.No.161/B instead of Sy.No.161/C. A perusal
of the docket of the said application vividly shows that while
receiving notice on 01-11-2013 learned counsel for the
judgment debtor made an endorsement, stating that a Senior
Advocate and Deputy Director of Survey and Settlement be
appointed for marking physical features and distance between
two survey numbers and boundaries. The petitioner herein
did not file any counter, opposing the appointment of
Commissioner. The learned Prl. District Judge, by way of an
order, dated 31-12-2013, appointed one Sri. K. Manohar Rao
as Advocate Commissioner with a direction to him to take the
assistance of senior surveyor appointed by the Assistant
Director of Survey and Settlement Department, Karimnagar
and he was directed to receive work memo from both parties
in execution of warrant.
       

10.     In pursuance of the said order, dated 31-12-2013, the
learned Advocate Commissioner submitted his report on
10-06-2014 and paragraph No.9 of the said report reads as
under:
The total measured suit land is Ac.6-13G (in
Sy.No.115/A measuring Ac2-16G and Sy.No.162/C  
measuring Ac3-37G) is in a compact block and the area
under the way measuring 0-03 gts., is deducted as
furnished by surveyor. Therefore, on my physical
verification and investigation to avoid confusion of
identify of suit land have specifically added the
required correct boundaries of owners of the suit land
which is as follows:-
East:- P.W.D. road and a portion of land of Munigala
chandraiah in Sy.No.178/B and land in Sy.No.178/A
belongs to Gurram Madhusadhan Reddy.  
West: Land of Gurram Mallareddy in Sy.No.116 and
Gurram Ananthareddy in Sy.No.161
North: Temporary way and land of vendor.
South: Land of Mangali (Garshakuthi) Komuraiah
Therefore, the land covered in the suit schedule
boundaries are Sy.Nos.115/A and 162/C as mentioned  
above, but the given Sy.No.161/B of the Suit land is not
within in the suit boundaries.


11.     A perusal of the said Commissioners report clearly
discloses that the learned Commissioner took the assistance
of the Senior Surveyor deputed by the Assistant Director of
Survey and Settlement Department, Karimnagar and the
Village Revenue Officer and Village Revenue Assistant
attended the spot and the Commissioner executed the
warrant in the presence of decree holder and judgment debtor
and his two sons and prepared a map also, showing the
boundaries. Subsequently, vide order, dated 13-08-2014 in
E.A.No.62 of 2013 the learned Prl. District Judge accepted the
said report of the Advocate Commissioner. The said order,
dated 13-08-2014 is under challenge in C.R.P.No.2982 of
2014, whereas the order, dated 31-12-2003 is under
challenge in C.R.P.(SR) No.23826 of 2014.

12.     The objections of the judgment debtor for enforceability
of the said decree are that the E.P. court cannot travel beyond
the decree granted by the original Court and there can be no
appointment of Commissioner in E.P. proceedings and only in
suits Commissioners can be appointed and the E.P. Court
exceeded its jurisdiction by appointing an Advocate
Commissioner for localizing and identifying the property and
the respondent/plaintiff should have sought for amendment
of the schedule of the plaint as well as the decree.

13. The contention that in Execution Proceedings,
Commissioner cannot be appointed and the E.P. Court has no
power to appoint Commissioner under Order 26 Rule 9 of the
Code of Civil Procedure has absolutely no merit in view of the
reason that as per Order 26 Rule 18-A of the Code of Civil
Procedure, the provisions of Order 26 of Code of Civil
Procedure are applicable to the proceedings in execution of a
decree or order also.

14.     In the instant case there is absolutely no dispute with
regard to the boundaries of the plaint schedule properties and
the boundaries in the suit agreement of sale and the decree.
The only controversy is with regard to one survey number i.e.,
Sy.No.161/B. The case of the decree holder is that instead of
showing Sy.No.162/C within the boundaries as shown in the
suit agreement of sale, Sy.No.161/B was incorrectly shown in
the agreement of sale and the same was carried in the plaint
as well as decree. On the other hand, it is the case of the
judgment debtor that E.P. Court cannot travel beyond the
decree and the decree and execution should necessarily be as
per the decree only and no identity nor localization of the land
by the Commissioner is permissible and the only remedy for
the decree holder is to have the plaint and decree amended
before asking of execution.

15.     The duty of the Courts do neither cease nor is co-
terminus with the passing of the decrees and orders. The
endeavour of the Courts should not only be in the direction of
granting remedy in deserving cases but also in the direction
of giving adequate and complete remedy and respite for the
persons aggrieved. There is also a sacred responsibility cast
on the courts to see that the fruits of the decrees are
completely received by successful parties. The rights of the
successful decree holders to enforce the decrees in their true
letter and spirit should not be permitted to be invaded nor
allowed to be destroyed and obliterated by the wise and
seasoned litigants in the name of feeble explanations, lame
excuses and untenable technicalities.


16.     The issues in the present revisions are required to be
examined in the light of the above aspects and the principles
laid down in various judgments cited by the learned
Advocates.

17.     In case of VADLAMANI SURYANARAYANA MURTHY v.          
SARIPALLI BALAKAMESWARI AND OTHERS , this Court held        
that the Commissioner can be appointed in executions also in
view of Order 26 Rule 18-A of the Code of Civil Procedure and
further held in the facts and circumstances of the case of the
said case that the appointment of the Commissioners in the
matters of such nature would amount to reopening the entire
issue and may even lead to annulling the decree as a whole.
In the said judgment the judgment debtor filed an application
in E.P. for appointment of Advocate Commissioner. The said
principle, in the considered opinion of this Court, cannot be
applied to the present case in view of the factual and
circumstantial variation the judgments reported in
COLLECTOR OF CUSTOMS, CALCUTTA v EAST INDIA          
COMMERCIAL CO. LTD.,, CALCUTTA AND OTHERS  and P.          
MOOSA KUTTY v UNKNOWN  on which the learned counsel for      
the petitioner placed reliance would not render any assistance
to the petitioner and they have no relevance to the present
situation.

18.     The learned counsel for the respondent cited the
following judgments:
In SHEODHYAN SINGH AND ORS. vs MT. SANICHARA KUER          
AND ORS , the Honble Apex Court held in paragraph Nos.6
and 7 as follows:
6. In the present appeal, the learned counsel for the
respondents does not ask us to go beyond the sale certificate
and the final decree for sale; his contention is that there is a
mere misdescription of the plot number in the two documents
and that the identity of the plot sold is clear from the
circumstances which we have already. set out above. He
relies on Thakar Barmha v. Jiban Ram Marwari(2). In that
case what had happened was that the judgment-debtor
owned 'a mahal in which ten annas share was mortgaged
while the remainder was free from encumbrances. A creditor
of his attached and put up for sale six anns (2) (1913) L.R. 41
I.A. 38. share out of the mortgaged share. The property
attached was sold. When the auction purchasers applied for
the sale certificate they alleged that a mistake had been
made in the schedule of the property to be sold in that the
word "not" had been omitted from the description of the six
annas share and that the property should have been
described as being six annas not mortgaged. This prayer of
theirs was allowed by the executing court rind the appeal to
the High Court failed. On appeal to the Privy Council, it was
held that in a judicial sale only the property attached can be
sold and that property is conclusively described in and by
the schedule to which the attachment refers, namely, the six
annas share subject to an existing-mortgage. The Privy
Council therefore allowed the appeal and observed that a
case of misdescription could be treated as a mere
irregularity, but the case before them was a cue of identity
and not of misdescription. It was pointed out that a property
fully identified in the schedule may be in some respects
misdescribed, which would be a different case. Thus the
effect of this decision is that where there is no doubt as to
the identity and there is only misdescription that could be
treated as a mere irregularity. Another case on which
reliance has been placed on behalf of the respondents is
Gossain Das Kundu v. Mrittunjoy Agnan Sardar(3). In that
case the land sold was described by boundaries and area;
but the area seems to have been incorrect. It was held to be
a case of misdescription of the area and the boundaries were
held to prevail.
7.      We are of opinion that the present case is analogous
to a case of misdescription. As already pointed out the area,
the khata number and the boundaries all refer to plot No.
1060 and what has happened is that in writing the plot
number, one zero has been missed and 1060 has become  
160. It is also important to remember that there is no plot
bearing No. 160, in khata No. 97. (3) (1913) 18 C. L. J. 541.
In these circumstances we are of opinion that the High Court
was right in holding that this is a case of misdescription only
and that the identity of the property ,;old is well established
namely, that it is plot No. 1060.' The matter may have been
different if no boundaries had been given in the final decree
for sale as well as in the sale certificate and only the plot
number was mentioned. But where we have both the
boundaries and the plot number and the circumstances are
as in this case, the mistake in the plot number must be
treated as a mere misdescription which does not affect the
identity of the property sold. The contention of the appellants
therefore with respect to this plot must fail.

19.     In BHAVAN VAJA AND ORS. vs SOLANKI HANUJI        
KHODAJI MANSANG , wherein it is held in paragraph No.19 as  
follows:
19. It is true that an executing court cannot go behind the
decree under execution. But that does not mean that it has
no duty to find out the true effect of that decree. For
construing a decree it can and in appropriate cases, it ought
to take into consideration the pleadings as well as the
proceedings leading up to the decree. In order to find out the
meaning of the words employed in a decree the court, often
has to ascertain the circumstances under which those words
came to be used. That is the plain duty of the execution court
and if that court fails to discharge that duty it has plainly
failed to exercise the jurisdiction vested in it. Evidently the
execution court in this case thought that its jurisdiction began
& ended with merely looking at the decree as it was finally
drafted. Despite the fact that the pleadings as well as the
earlier judgments rendered by the Board as well as by the
appellate court had been placed before it, the execution court
does not appear to have considered those documents. If one
reads the order of that court, it is clear that it failed to
construe the decree though it purported to have construed the
decree. In its order there is no reference to the documents to
which we have made reference earlier. It appears to have
been unduly influenced by the words of the decree under
execution. The appellate court fell into the same error. When
the matter was taken up in revision to the High Court, the
High Court declined to go into the question of the construction
of the decree on the ground that a wrong construction of a
decree merely raises a question of law and it involves no
question of jurisdiction to bring the case within Section 115,
Civil Procedure Code. As seen earlier in this case the
executing court and the appellate court had not construed the
decree at all. They had not even referred to the relevant
documents. They had merely gone by the words used in the
decree under execution. It is clear that they had failed to
construe the decree. Their omission to construe the decree is
really an omission to exercise the jurisdiction vested in them.



 20.    In CHAKKA RANGA RAO vs MOLLA MUSTARI BANU ,          
wherein it is held in paragraph Nos.4 to 6 as follows:
4. Since it is well known that Executing Court can look into
the plaint for understanding the decree, I have requested the
learned Counsel for the revision petitioner to produce a
certified copy of the plaint. The learned Counsel produced a
certified copy of the plaint. The averments in the plaint show
that the portion shown as A.B.C.D. and E.F.G.H. in the plan
attached thereto belongs to the plaintiff and that the portion
shown as B.E.G.D. in that plan belongs to defendant. The
case of the respondent (plaintiff) is that the revision petitioner
(defendant) who has property in between his two plots had,
while constructing his house encroached into the sites
belonging to him, which are shown as A.B.C.D and E.F.G.H.
Unfortunately, the plaint plan does not contain
measurements of the sites belonging to the parties, but the
area of the portions marked as I.J.K.L. and M.N.O.P therein
is shown as 5 Sq. yards each with rough measurements. It is
difficult to identify those particular portions, because,
distances from the eastern and western boundary of the
plots belonging to the plaintiff, to locate them are not
mentioned in the plaint plan.
5. The Court below was in error in dismissing the petition on
the assumption that the provisions of Order 26 do not apply
to proceedings in executing, because Order 26 Rule 18-A,
clearly lays down that the provisions of that order also apply
to proceedings in execution of a decree or order.
6. Here I feel it appropriate to refer to the observations of the
Apex Court in Prathiba Singh v. Shanti Devi Prasad of its
judgment reading ...Afterall a successful plaintiff should not
be deprived of the fruits of decree. Resort can be had to
Section 152 or Section 47 CPC depending on the facts and
circumstances of each case - which of the two provisions
would be more appropriate, just and convenient to invoke.
Being an inadvertent error, not affecting the merits of the
case, it may be corrected under Section 152 CPC by the
Court which passed the decree by supplying the omission.
Alternatively, the exact description of decretal property may
be ascertained by the Executing Court as a question relating
to execution, discharge or satisfaction of decree within the
meaning of Section 47 CPC. A decree of a competent Court
should not, as far as practicable, be allowed to be defeated
on account of an accidental slip or omission....
In this case, since the dispute is with regard to the actual
area encroached by the defendant, it would be appropriate to
appoint an Advocate Commissioner to take measurements of  
the portions shown as A.B.C.D and E.F.G.H in the plaint
plan, with reference to the title deeds dated 11-8-1977 and
10-4-1980 of the respondent (plaintiff) and also the title
deeds of the revision petitioner (defendant) under which he
acquired B.E.G.D portion of the plaint plan, with the help of a
qualified Surveyor. If the areas and portions purchased by
the respondent and revision petitioner are identified,
localized and demarcated, the area encroached by the
revision petitioner into the site belonging to the respondent
can easily be known. So it is just and expedient to appoint a
Commissioner as such appointment serves the interest of
justice.


21.     In ROCKY TYRES AND ORS. vs AJIT JAIN AND ANR. ,      
wherein it is held in paragraph No.18 as follows:
18. It is settled principle of law that it is not incumbent upon
the executing Court that it must put to trial every objections
which are filed in any execution proceedings, even if prima
facie they appear to be frivolous, vaxatious and arc only
intended to delay the execution and frustrate the procedure
of law or where it amounts to an abuse of the process of the
Court. In this regard reference can be made to a judgment of
this Court in Execution Second Appeal No. 2333 of 1996,
Bhagwan Singh v. Parkash Chand, decided on 7-11-1996.
The Court after detailed discussion and following the
principles enunciated by the Hon'ble Supreme Court of India
in the cases of Babu Lal v. Raj Kumar, JT 1996(2) SC 716 :
(AIR 1996 SC 2050), Munshi Ram v. Delhi Administration.
AIR 1968 SC 702 : (1968 Cri LJ 806). B. Gangadhar v. B. G.
Rajalingam, AIR 1996 SC 780 : (1996 AIR SCW 117) and  
noticing judgments of various High Courts, held as under :--
"Now for a considerable period it is not only the judicial trend
which has declined to interfere to protect unlawful
possession or possession of ranked trespasser etc. but, on
the other hand, judicial anxiety has been to give effective
relief to the successful parties by expeditious execution of
decrees in favour of the parties. Unnecessary prolongation of
litigation sometimes results even in frustrating the decree
itself. Such attempt on the part of the objector to frustrate a
decree is a mischief which has to be prevented by due
process of law and expeditious decision of such ill-founded
and fri volous objections would also be in the interest of
justice and within the permissible field of jurisdiction of the
execution."
"If frivolous objections of the present kind are permitted to
unreasonably and un-necessarily prolong the delivery of
possession to a decree-holder in accordance with law, it
would certainly amount to putting a premium on abuse of
process of law."

22.     In B.T. GOVINDAPPA vs B. NARASIMHAIAHAIR , wherein      
it is held in paragraph No.3 as follows:
3. This is one of those eases where the execution of a decree
is attempted to be stalled on mere technicalities. The suit
itself was keenly fought out by the petitioner. The mailer was
carried through three courts. Thereafter when the execution
is taken, technical pleas are raised as if the court is
precluded from taking note of the actual state of affairs and
conveying the property with a proper sale deed describing
the actual boundaries. It is not as if there was any dispute
as to the properly in regard to which specific performance
was sought. It was not in dispute that the properly covered
by Ext.P2 and that sold as per Ext. D2 was one and the
same. That there was a mistake in the boundary description
in Ext.P2 is also clear from the observations in para 13 of the
judgment in the suit. The plaintiff is entitled, in a suit for
specific performance, to have the property agreed to be said
to him conveyed with a proper, correct and effective deed of
sale. When there is no dispute regarding the identity of the
properly, there is no reason why the actual boundaries of the
properly, as understood by all the parties, should not be
incorporated in the sale deed to avoid any possible confusion
in future. It is not as if by doing so the court is traversing
beyond the decree or causing any prejudice to any of the
parties or conveying property not agreed to be conveyed. In a
case of this nature the courl is bound to carry out and
implement its decree in accordance with its tenor, which in
turn would imply that the property should be correctly
described with the proper boundaries. That is all that has
been done by the lower court in approving the draft sale
deed. The plaintiff has only incorporated the boundaries from
Ext. D2, the sale deed in favour of the petitioner. In the
absence of any dispute that this was the property which was
the subject matter of Ext.P2 also, the lower court has only
acted rightly in approving the draft sale deed.


23.    
24.     In the instant case the entire effort of the judgment
debtor is obviously to get the suit claim frustrated, which
cannot be permitted.

25.     For the aforesaid reasons and having regard to the
principles laid down in the above-referred judgments and
taking into consideration the totality of the circumstances
these revisions are dismissed. There shall be no order as to
costs. The Miscellaneous Petitions, if any, pending in these
Civil Revision Petitions shall stand closed.
_________________  
A.V. SESHA SAI, J
March 30, 2015