NO POLICE AID PENDING ENQUIRY OF EXPARTE INJUNCTION = since I.A.No.379 of 2002 filed under Order 39 Rules 1 & 2 of C.P.C. filed for temporary injunction has not yet been decided on merits despite counter filed by the defendants, the Court below ought not to have granted police aid for enforcement of the order of the ad interim injunction dated 9.10.2002.

REPORTED IN /judis.nic.in/judis_andhra/filename=5839
THE HON'BLE Ms. JUSTICE G. ROHINI    
Civil Revision Petition No.2181 of 2008

21-07-2008

Kasturi Venkata Subbaiah and 9 others.

Veerapareddy Yasodamma.  

Counsel for the petitioners: Sri Nimmagadda Satyanarayana

Counsel for the respondent:  Sri M. Balaji

:ORDER:

        This Civil Revision Petition is directed against the order dated 10.4.2008
in I.A.No.454 of 2002 in I.A.No.379 of 2002 in O.S.No.66 of 2002 on the file of
the Court of the Senior Civil Judge, Rajampet.
        The revision petitioners are the defendants in the suit filed by the
respondent  herein for specific performance of agreement of sale in respect of
the suit schedule properties.  Along with the suit, the plaintiff/respondent
herein filed I.A.No.379 of 2002 for grant of temporary injunction restraining
the defendants/revision petitioners  from interfering with the suit schedule
property. The Court below granted ad interim injunction on 9.10.2002.  The
defendants/revision petitioners  filed their counters contesting the said
application for temporary injunction.  While I.A.No.379 of 2002 for temporary
injunction was yet to be heard, the plaintiff/respondent herein filed another
application being I.A.No.454 of 2002 on 28.11.2002 for grant of police aid for
implementation of the order of ad interim injunction. The said application was
also opposed by the defendants/revision petitioners  by filing a counter.
However, no final orders were passed on any of the said applications and they
were merely kept pending.
While so, on 20.6.2007 I.A.No.379 of 2002 filed for temporary injunction was
dismissed for non-prosecution by the plaintiff/respondent herein.  Subsequently,
on an application made by the plaintiff/respondent herein, I.A.No.379 of 2002
was restored to file by order dated 10.4.2008.  Surprisingly on the same day
i.e., 10.4.2008 the Court below allowed I.A.No.454 of 2002 also thereby granting
police aid for implementation of the order of ad interim injunction dated
9.10.2002.
The said order made in I.A.No.454 of 2002 is under challenge in this Civil
Revision Petition.
        I have heard the learned counsel for both the parties and perused the
material on record.
        There can be no dispute about the inherent powers of a Court to grant
police aid for implementation of its orders so as to meet the ends of justice
and to prevent abuse of process of the Court. Such a power can be exercised even
to enforce the order of ad interim injunction. However, the question is whether
the Court below is justified in granting police aid on 10.4.2008  on an
application filed in the year 2002 for the purpose of enforcement of ad interim
injunction dated 9.10.2002.
        It is relevant to note that the defendants/revision petitioners filed
counter contesting the application for temporary injunction in the year 2002
itself. However, the application was kept pending for a long time and ultimately
it was dismissed for default on       20.06.2007. Thereafter, there was no order
in operation till the application was restored to file on 10.4.2008.
        Even while seeking restoration, the plaintiff  did not allege or establish
any attempt on the part of the defendants to violate the order of ad interim
injunction warranting grant of police aid.  In the circumstances, what prompted
the Court below  to grant police aid  on 10.04.2008 on the basis of the
allegations made in the application filed in the year 2002 is ununderstandable.
        It is also relevant to note that in I.A.No.454 of 2002 filed for police
aid, a counter was already filed by  the  defendants/petitioners herein.
However,    even without referring to the said counter the court below allowed
I.A.No.454 of 2002 by a cryptic order which runs as under :
"Heard the learned counsel for the petitioner, and the counsel for the
respondents.  The I.A.No.379/2002 is restored to file and injunction  order
already granted on 9.10.2002 is continued. As there is injunction order pending
issued by this Court the bounden duty of this Court to protect its own order.
This Court has no alternative except to grant police aid to the petitioner to
protect the injunction order  already granted on 9.10.2002 in I.A.No.379/2002.
In order to protect the own order of this Court and in view of the facts and
circumstances of the case, I have no hesitation to say  that the petitioner
herein  is entitled for the relief of police aid  to protect the injunction
order already granted by this Court on 9.10.2002 in I.A.No.379 of 2002 and
thereby this petition merits to be allowed, and accordingly this petition is
allowed, in the circumstances without costs."

        As rightly submitted by the learned counsel for the petitioners,
since
I.A.No.379 of 2002 filed under Order 39 Rules      1 & 2 of C.P.C. filed for
temporary injunction has not yet been decided on merits despite counter filed by the defendants, the Court below ought not to have granted police aid for enforcement of the order of the ad interim injunction dated 9.10.2002.
Particularly in the absence of any fresh material to show that there was any
attempt on the part of the defendants to violate the order of injunction, there
was absolutely no justification to grant police aid. Moreover, except observing
that since there is an order of injunction the Court is bound to protect its own
order by granting police aid, the Court below did not assign any reasons which
warranted granting the relief of police aid.
From the facts and circumstances of the case noticed above, I am of the opinion
that the Court below committed a grave error in granting police aid firstly,
without disposing of the application for temporary injunction on  merits and
secondly without assigning any reasons for grant of such police aid. At any
rate, in the absence of any fresh material the impugned order  granting police
aid on an application made in the year 2002, on the face of it, amounts to
erroneous exercise of jurisdiction conferred under law.
        Viewed from any angle, the  order under Revision being contrary to law is
unsustainable. Accordingly, the same is hereby set aside and the Civil Revision
Petition is allowed with a direction to consider and decide I.A.No.454 of 2002
after disposal of I.A.No.379 of 2002 filed for temporary injunction on merits.
No costs.

NO POLICE AID IN E.P. PROCEEDINGS OF PERMANENT INJUNCTION DECREE = whether E.A.No.407 of 2004 filed by the first respondent is maintainable or whether the executing Court was justified in granting police aid.= Order 21 C.P.C. provides for the mode of execution of decrees of different purport. The mode of execution would depend much upon the nature of the decree. So far as the execution of the decree for perpetual injunction is concerned, Rule 32 of Order 21 C.P.C. provides for two courses of action, namely arrest of the judgment-debtor or attachment of his properties. Beyond that, no other course of action is permitted. Precedents are to the effect that in case the judgment debtor in a decree for perpetual injunction assumes possession of the schedule property, the remedy open to the aggrieved party is to institute a suit for recovery of possession. Further, invocation of Section 151 C.P.C. in the execution proceedings is almost impermissible.

REPORTED IN http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=6709
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        
Civil Revision Petition No.6753 of  2004

12-08-2009

K.Srinivasa Rao (died) per L.Rs. and another.

K.Hanumantha Rao and another.  

For the Petitioner: Mr. Subba Rao

For the Respondents: Mr. Venugopala Rao

:ORDER:

        The first respondent filed O.S.No.228 of 2001 in the Court of the
Principal Junior Civil Judge, Gurazala against the second respondent and the
petitioners herein for the relief of perpetual injunction in respect of the suit
schedule property.  The suit was decreed on 15.04.2003.  Alleging that the
petitioners herein are interfering with his possession over the suit schedule
property, the first respondent filed E.P.No.115 of 2004 obviously, under Rule 32
of Order 21 C.P.C.  He has also filed E.A.No.407 of 2004 under Section 151
C.P.C. with a prayer to grant police aid.  The petitioner opposed the
application on several grounds. The executing Court allowed the E.A., through
the order, dated 25.10.2004.  Hence, this revision.
        Sri N.Subba Rao, learned counsel for the petitioners, submits that the
grant of police aid in the course of execution of a decree for perpetual
injunction is unknown to law and it is totally outside the scope of the
execution itself.  He contends that the executing Court did not take this aspect
into account and had straightaway allowed the E.A.
        Sri V.Venugopala Rao, learned counsel for the first respondent, on the
other hand, submits that the petitioners started interfering with the possession
of the first respondent over the suit schedule property, despite the decree, and
police aid was sought to protect the possession.
        The short question that arises for consideration in this revision is as to
whether E.A.No.407 of 2004 filed by the first respondent is maintainable or
whether the executing Court was justified in granting police aid.
        Order 21 C.P.C. provides for the mode of execution of decrees of different
purport.  The mode of execution would depend much upon the nature of the decree.
So far as the execution of the decree for perpetual injunction is concerned,
Rule 32 of Order 21 C.P.C. provides for two courses of action, namely arrest of
the judgment-debtor or attachment of his properties. Beyond that, no other
course of action is permitted.  Precedents are to the effect that in case the
judgment debtor in a decree for perpetual injunction assumes possession of the
schedule property, the remedy open to the aggrieved party is to institute a suit
for recovery of possession.
        Further, invocation of Section 151 C.P.C. in the execution proceedings is
almost impermissible.  The reason is that every contingency is taken care of by
Order 21 C.P.C. Inasmuch as any direction in the execution proceedings visits
with serious consequences, it must be specifically provided for.  If there does
not exist any specific provision, recourse cannot be had to Section 151 C.P.C.
in matters of this nature. Viewed from any angle, the order under revision
cannot be sustained in law.
        Hence, the civil revision petition is allowed and the order under revision
is set aside.  There shall be no order as to costs.

No police Aid as the injunction orders are misused = In the instant case, the temporary injunction was obtained by the revision petitioner in respect of the vacant site and thereafter they constructed a small room in a portion of the schedule mentioned site. The allegation against the respondents is that after construction of the said structure, they trespassed into the property violating the orders of injunction and dismantled the said structure. The police protection was not in fact sought to protect the vacant site in respect of which the injunction order was granted. The said structure was raised by the petitioner only after obtaining the order of temporary injunction pending disposal of the suit. No permission was obtained from the Court to raise the structure.

REPORTED IN judis.nic.in/judis_andhra/filename=8743

HON'BLE SRI JUSTICE R.KANTHA RAO        

C.R.P.No.931 OF 2011  

27-09-2011 

Smt Shamsunnisa Begum    

                        

J.R.Ladaram and others 

Counsel for appellant:  Sri M.Rajamalla Reddy

                                

Counsel for respondents : Sri T.V.Kalyan Singh

? Cases referred:

1 AIR 1971 AP 53 

2 2006(4)ALT 660 

3 2010(2) ALD 41 (DB) 

ORDER:  

        This civil revision petition is filed against the order dated 03.12.2010

passed by the Principal Junior Civil Judge, Nizamabad in I.A.No.1121 of 2010 in

O.S.No.462 of 2003. 

2.      I have heard Sri M.Rajamalla Reddy, learned counsel appearing for the

petitioner and Sri T.V.Kalyan Singh, learned counsel appearing for the

Respondents. 

3.      The petitioner in a suit filed by her for permanent injunction obtained

order of temporary injunction pending disposal of the suit I.A.No.1958 of 2003

and in the appeal filed there-against in C.M.A.No.15 of 2006, the appellate

Court confirmed the order dated 07.09.2003 passed by the trial Court.

Subsequently, it is said that the respondents trespassed into the part of the

schedule mentioned land and caused damage to certain constructions raised by the 

petitioner therein after obtaining temporary injunction.  Under these

circumstances, the petitioner filed a petition under Section 151 CPC to grant

police aid for implementing the orders of the temporary injunction passed in

favour of the petitioner by the trial Court pending disposal of the suit which

is confirmed by the appellate Court in the civil miscellaneous appeal.

4.      The earned trial Court having gone through the facts of the case

elaborately and examining the circumstances in which the petitioner seeking

police aid came to be filed, dismissed the same on the ground that the

petitioners are protracting the trial of the suit when the defendants are ready

to proceed with the trial and expressed the view that the plaintiff can as well

invoke the jurisdiction of the trial Court by filing proper application under

Order 39 Rule 2(A) CPC for breach of injunction committed by the respondents.

Against the said order, the present revision petition is filed.

5.      The learned counsel appearing for the revision petitioner relied upon a

judgment of the Division Bench of this Court in RAYAPATI AUDEMMA v POTHINENI     

NARASIMHAM1 wherein it is held as follows:  

"There being no express provision in the Code for the grant of police aid, the

Court can grant aid under its inherent powers and that Order 39 Rule 2(3) does

not deal with implementation but with punishment for disobedience and therefore,

the order can be implemented under Article 226 of the Constitution."

6.      The learned counsel further relied upon a judgment of the learned Single

Judge in NEETHA CHINTAWAR AND ANOTHER v BODUGAM GOPI2 wherein the learned single             

judge held as follows:

"Refusal to grant police protection amounts to practically rendering the order

of temporary injunction ineffective and therefore, the Court can grant police

aid by exercising its power under Section 151 CPC even though the party applying

for police aid can institute proceedings under Rule 2(A) of Order 39 CPC for

breach of temporary injunction."

7.      On the other hand, the learned counsel appearing for the respondents

relied upon a decision in POLAVARAPU NAGAMANI AND OTHERS v PARCHURI KOTESHWARA                 

RAO AND OTHERS3 wherein the Division Bench of this Court deprecated the practice   

of granting police aid for implementation for mere asking and issued certain

guidelines in the matter of granting police aid by the Courts.  The legal

position as stated by the Division Bench on the issue of granting police aid to

implement the orders granting temporary injunction or any other temporary relief

is that the discretion entirely rests with the Court in exercising its

jurisdiction.  Whenever an application seeking for police aid is granted, it is

not obligatory on the part of the Court to grant police aid.  The Court can

grant police aid exercising its discretion if the situation warrants, such an

exercise of power by the Court, the police have to discharge several important

functions in performance of their duty.  Normally, the indulgence of the police

in civil disputes shall be avoided and only in exceptional situations, the

assistance of the police can be cited and granted when the situation goes out of

the control of the parties and it cannot be remedied by merely resorting to the

civil remedies available to the parties. Whenever the party, in whose favour the

order granting temporary injunction is not able to prevent the invasion of the

opposite party, the police aid cannot be granted in a routine manner and it can

be only granted in exceptional circumstances warranting such an exercise of

power by the Court.

8.      In the instant case, the temporary injunction was obtained by the revision

petitioner in respect of the vacant site and thereafter they constructed a small

room in a portion of the schedule mentioned site.  The allegation against the

respondents is that after construction of the said structure, they trespassed

into the property violating the orders of injunction and dismantled the said

structure.  The police protection was not in fact sought to protect the vacant

site in respect of which the injunction order was granted.  The said structure

was raised by the petitioner only after obtaining the order of temporary

injunction pending disposal of the suit.  No permission was obtained from the

Court to raise the structure.

9.      In any event, the learned trial Court examined the entire situation having

regard to the circumstances of the case and refused to grant police aid.  When

the Court after exercising discretionary power refused to invoke the inherent

powers conferred on it, it cannot be said that any error of jurisdiction is

committed by the Court and there is no irregularity or illegality in the order

dated 03.12.2010 passed by the Principal Junior Civil Judge, Nizamabad in

I.A.No.1121 of 2010 in O.S.No.462 of 2003, the revision petition is liable to be

dismissed. 

6.      For all the reasons mentioned above, there are no valid grounds to

interfere with the order dated 03.12.2010 passed by the Principal Junior Civil

Judge, Nizamabad in I.A.No.1121 of 2010 in O.S.No.462 of 2003. The revision

petition therefore fails and the same is dismissed.  There shall be no order as

to costs.

        

_________________   

R. KANTHA RAO, J   

Date: 27.09.2011

CHANGES IN AGREEMENT WITH OUT PERMISSION - novation of the contract=The agreement was prepared in such a way, that all the three children of the 1st respondent have figured as vendors. Not only their names were mentioned, but also space was provided for signature of all the three. However, it is only the respondents 1 and 2 that signed the agreement and the place in between their signatures is left blank, so much so, the numerical - 2 was struck off. In the body of the agreement also, the name of the Rudra Deva Reddy was struck off. One or two words were added. No evidence was adduced to establish that these changes and alterations have taken place with the assent of the parties concerned. Obviously, these acts constitute novation of the contract, without the participation of the other party to it. It is fairly well settled principle of law that an agreement becomes unenforceable, if any changes to it are caused by only one of the parties.= The relief of specific performance of an agreement of sale is purely equitable in nature and it is only when the Court is satisfied, that a clear case is made out for grant of the relief, and there are no counterbalancing factors, that such a relief can be granted. The various issues discussed above would certainly have a bearing upon the exercise of discretion, by the Court. Denial of relief of specific performance in a case of this nature, where, a) there is total uncertainty about the description of the property, b) the agreement was altered in several respects by the appellant, and c) there is failure of the appellant to prove his readiness and willingness to perform his part of the contract; can not at all be treated as contrary to law. No substantial question of law arises for consideration.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9791
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

Second Appeal No.176 of  2012

28-02-2013

V. Sudhakar Naidu                                              

Smt. M. Padmavathamma and another              

Counsel for the appellant: Sri  N. Ashok Kumar

Counsel for respondent: Sri P. Hemachandra for R-1

<GIST

>HEAD NOTE:  

?CASES REFERRED:    
AIR 2004 Kerala 155

JUDGMENT:  

The sole plaintiff in O.S.No.180 of 2001 on the file of the Additional Senior
Civil Judge, Tirupati is the appellant.
He entered into an agreement of sale dated 11-02-1999 with the
respondents/defendants.  He pleaded that the respondents, who are sister and
brother got the suit schedule property in a family partition; evidenced by a
registered partition deed dated
20-06-1992, and that they offered to sell the same for a sum of Rs.4,50,000/-.
Advance of Rs.50,000/- is said to have been paid.
It is stated that the suit schedule property is part of larger extent of Ac.2.24
cents in Sy.No.525/2B of Perur Village, Tirupati Rural Mandal and that the
corresponding share being, 1/21 was agreed to be conveyed by the respondents.
It is alleged that though he was ready and willing to perform his part of
contract, the respondents did not cooperate and accordingly prayed for a decree
for specific performance.

The 2nd respondent remained ex parte, and the suit was contested by the 1st
respondent.  She stated that the agreement relied upon by the appellant is
interpolated, fabricated and is unenforceable in law.  Obviously, indirectly
admitting the execution thereof, the 1st respondent stated that the contents of
the agreement are incomplete, and that the same is unenforceable in law.  She
raised the plea of limitation, and has also stated that the rights, if any,
under the agreement stood forfeited.

The trial Court dismissed the suit, through its judgment dated 31-08-2006.
Aggrieved by the same, the appellant filed A.S.No.140 of 2006 in the Court of
III Additional District Judge, Tirupati.  The appeal was dismissed on 04-08-
2010.  Hence, this Second Appeal.

Sri N. Ashok Kumar, learned counsel for the appellant submits that once the
respondents did not dispute the execution of the agreement of sale, the suit
ought to have been decreed.
He contends that the property was originally purchased by the father of the
respondents 1 and 2, in the form of an undivided share of 1/24 in Ac.2.24 cents,
and that later on, it was partitioned among the joint family members.  Learned
counsel submits that the trial Court and the lower Appellate Court have
concentrated more
upon unnecessary details, than dealing with the actual issue, that is involved
in the matter.

Sri P. Hemachandra, leaned counsel for the 1st respondent, on the other hand,
submits that the agreement, Ex.A-1 was substantially interpolated, not only by
striking of some words, but also in certain other respects.  He contends that
the agreement was prepared, giving an indication that the property was jointly
sold by the respondents and their brother, Rudra Deva Reddy and for reasons best
known to them, the respondents did not obtain his signature and struck off his
name.  He contends that the description of the property, both in Ex.A-1 and in
the plaint is vague, uncertain and cannot be the subject-matter of a decree, at
all.

The suit for specific performance of an agreement of sale filed by the appellant
herein was opposed by the respondents,
by raising the plea of interpolation and tampering with of the agreement, as
well as its unenforceability.  The trial Court framed the following issues, on
the basis of the pleadings:

1. Whether the plaintiff is entitled for specific performance of contract in
pursuance of agreement of sale dated 11.2.1999?
2. Whether the suit agreement is a created one with material alterations?
3. Whether the time is essence of contract of the suit agreement?
4. Whether the suit agreement is unenforceable under law?
5. Whether the suit based on agreement of sale dated 11.2.1999 is barred by
limitation?

On behalf of the appellant, PWs 1 to 4 were examined and Exs.A-1 to A-3 were
filed.  On behalf of the respondents, DWs 1 to 3 were examined and Exs.B-1 and
B-2 were filed.  On dismissal of the suit, the appellant filed A.S.No.140 of
2006, wherein the following points were framed:

1. Whether the suit agreement dt. 11.2.99 is materially altered and not
enforceable under law?
2. Whether time is the essence of the contract under the suit agreement of sale
in favour of the plaintiff?
3. Whether the plaintiff is entitled for specific performance of contract under
agreement of sale dt. 11.2.99?

The appeal was ultimately dismissed.
       
Ex.A-1 is the agreement of sale dated 11-02-1999.  Though the respondents
resisted the suit by raising several grounds, they did not seriously dispute the
execution thereof.  Therefore, it has to be proceeded on the assumption that the
execution of Ex.A-1 is proved.  However, a perusal of the said agreement
discloses that there exist several anomalies.  In the body of the agreement, it
is mentioned that the property, that is proposed to be sold in favour of the
appellant is jointly held by the respondents, and their brother, Rudra Deva
Reddy.

It appears that the father of the respondents purchased the undivided share of
1/24, in an extent of Ac.2.24 cents,
in Sy.No.525/2B of Perur Village, from his vendor, through sale deed dated 16-
07-1966, marked as Ex.B-2.  The record discloses that he got the property
divided, and came into possession of the share, covered by Ex.B-2.  However, the
partition of the family of the respondents took place through Ex.B-1, dated 20-
06-1992.  A perusal of that document discloses that the division of shares was
mostly in the form of mentioning the value in rupees, and not by metes and
bounds.  Obviously, on account of this, the description of the property in the
agreement is made in vague and uncertain terms, as under:

"Chittoor District-Chandragiri Sub District-Tirupathi Rural Mandalam-Perur
Village Accounts-S.No.525/2B, in a total extent of Ac.2.24 cents, in this
undivided 1/24 share, present share of right of 1/21 share of site allotted to
the Defendants bearing Plot No.24 total site".

The same was repeated in the plaint schedule.  No boundaries are mentioned, nor
the extent is stated.  It is relevant to take note of the requirement under Rule
3 of Order VII C.P.C., which reads:

"O.VII R 3. Where the subject-matter of the suit is immovable property.- Where
the subject-matter of the suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it, and, in case such
property can be identified by boundaries or numbers in a record of settlement or
survey, the plaint shall specify such boundaries or numbers".

 The schedule that is furnished in the plaint does not at all conform to or
accord with Rule 3 of Order VII C.P.C.  No boundaries are mentioned, much less,
the extent is indicated.  The appellant himself was not sure as to whether he
was claiming 1/24, or 1/21 share in the extent, in Sy.No.524/2B, admeasuring
Ac.2.24 cents.  It is not even mentioned as to whether the subject-matter of the
agreement is an undivided share, or a definite extent of land.  The respondents
1 and 2, no doubt, did not dispute their signatures on Ex.A-1.  However, several
circumstances remained unexplained, in relation to Ex.A-1.

The respondents are said to be exclusive owners of the property.  However, they
have executed agreement of sale on the basis of an alleged relinquishment by
their brother of his share.
No document, evidencing the same was placed before the Court.

The 1st respondent has three issues.
 The agreement was prepared in such a way, 
that all the three children of the 1st respondent have figured as vendors.  
Not only their names were mentioned,
but also space was provided for signature of all the three.  
However, it is only
the respondents 1 and 2 that signed the agreement and the place in between their
signatures is left blank, so much so, the numerical - 2 was struck off. 
 In the
body of the agreement also, the name of the Rudra Deva Reddy was struck off.
One or two words were added.  
No evidence was adduced to establish that these 
changes and alterations have taken place with the assent of the parties
concerned.  
Obviously, these acts constitute novation of the contract, without
the participation of the other party to it.  
It is fairly well settled principle
of law that an agreement becomes unenforceable, if any changes to it are caused by only one of the parties.

Learned counsel for the appellant submits that the brother of the respondents 1
and 2 can be said to have relinquished his share of the property and agreement
can be enforced to the extent of the share of the respondents 1 and 2.  He has
placed reliance upon the judgment of the Kerala High Court in Krishnan v. K.S.
Krishnan and others1.  That was a case, where, out of the five co-owners, two
have relinquished their shares in favour of the other three, and the latter, in
turn, executed the agreement of sale.  There was no dispute as to the
relinquishment.  In the instant case, there was not even a plea that the brother
of the respondents 1 and 2 relinquished his share.
 There is intrinsic evidence
to contradict this plea, from the fact that the name of Rudra Deva Deddy was
very much mentioned in the agreement, and he was expected to sign it.

The plea of the respondents that time was the essence of the contract was taken
into account by the trial Court and lower Appellate Court, with reference to the
decided cases.  Further, a finding was recorded to the effect that the appellant
failed to prove that he is ready and willing to perform his part of the
contract.  Being a question of fact, that cannot be re-agitated in a Second
Appeal.

Apart from the reasons mentioned above, the principle underlying Section 22 of
the Specific Relief Act needs to be taken into account.
The relief of specific
performance of an agreement of sale is purely equitable in nature and it is only
when the Court is satisfied, that a clear case is made out for grant of the
relief, and there are no counterbalancing factors, that such a relief can be
granted.
The various issues discussed above would certainly have a bearing upon the
exercise of discretion, by the Court. 
 Denial of relief of specific performance
in a case of this nature, where,
a) there is total uncertainty about the description of the property,
b) the agreement was altered in several respects by the appellant, and c) there
is failure of the appellant to prove his readiness and willingness to perform
his part of the contract; can not at all be treated as contrary to law.
No substantial question of law arises for consideration.

The Second Appeal is accordingly dismissed.
The miscellaneous petition filed in this Second Appeal shall also stand disposed
of.    
There shall be no order as to costs.
_______________________  
L. NARASIMHA REDDY, J    
Dt.28-02-2013

Sec.5 of limitation Act condone delay of 255 days = After coming to know about the dismissal of the suit, he filed I.A.No.45 of 2011 under section 5 of the Limitation Act to condone the delay in filing the petition to set aside the order dismissing the suit as abated, and the delay sought to be condoned is 255 days. It is mentioned by him in the affidavit filed in support of the petition that after the death of his mother, his daughter developed illicit intimacy with a person of Mahaboobnagar and the said person to grab his property beat the first respondent and threatened him. Under those circumstances the first respondent states that he left Mahaboobnagar to save his life and came back only in the first week of June, 2011. Thereafter, it is said that he obtained the death certificate of his mother from the Municipality and then filed the petition under section 5 of the Limitation Act.= The suit filed by the first respondent is for declaration of the title and consequential injunction, wherein the substantive rights of the parties are involved for consideration. As per the law laid down by the Supreme Court, the courts while dealing with the application under section 5 of the Limitation Act should not adopt pedantic and hyper technical approach and shall allow the parties to contest the cases on merits.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9899
HONOURABLE SRI JUSTICE R. KANTHARAO        

CIVIL REVISION PETITION No. 3359 OF 2012  

13-02-2013

Bulusu Sundareshwara Murthy and another  ... Petitioners    

And

Ravi Kumar and another                            ...Respondents

Counsel for the Petitioners: Sri Shafath Ahmed Khan

Counsel for the respondents: Sri K. Someswara Kumar

<Gist:

>Head Note:

?Cases referred:
1. 1987 (1) SCC 685
2. AIR 2002 SC 1201

ORDER:
        This Civil Revision Petition is filed by the first defendant in O.S.No. 88
of 2003 on the file of the Court of II-Additional Senior Civil Judge, (FTC),
Mahaboobnagar, against the order dated 09.03.2012, in I.A.No. 45 of 2011 in the
said suit.
2.      I have heard Sri Shafath Ahmed Khan, the learned counsel appearing for the
revision petitioner/first defendant and            Sri K.Someswara Kumar, the
learned counsel appearing for the respondent/plaintiff.
3.      The brief facts relevant for considering the present Civil Revision
Petition are that the respondent's mother G.V. Ramanamma filed O.S.No.88 of 2003
on the file of the Court of
II Additional Senior Civil Judge (FTC), Mahaboobnagar, for declaration of title
to the suit property and consequential injunction.  Pending the suit, the
plaintiff died on 07.06.2010.  The second respondent is her only son.  He did
not make any application to implead himself as the plaintiff in the suit after
the death of his mother and consequently the suit was dismissed as abated on
03.11.2010.   
After coming to know about the dismissal of the suit, he filed
I.A.No.45 of 2011 under section 5 of the Limitation Act to condone the delay in
filing the petition to set aside the order dismissing the suit as abated, and
the delay sought to be condoned is 255 days.  It is mentioned by him in the
affidavit filed in support of the petition that after the death of his mother,
his daughter developed illicit intimacy with a person of Mahaboobnagar and the
said person to grab his property beat the first respondent and threatened him.
Under those circumstances the first respondent states that he left Mahaboobnagar
to save his life and came back only in the first week of June, 2011.
Thereafter, it is said that he obtained the death certificate of his mother from
the Municipality and then filed the petition under section 5 of the Limitation
Act.
4.      The petition was opposed by the revision petitioners by filing counter
contending that the first respondent was fully aware of the dismissal of the
suit, he did not properly explain each days delay in filing the application
under section 5 of the Limitation Act, and sought to dismiss the petition.
5.      The learned trial Court referring to the judgments in "Bhag Singh Vs.
Daljit Singh (1987-02-25)1 and Ram Nath Sao Alias Ram Nath Sahu and others V.  
Gobardhan Sao and others2,
wherein the Supreme Court laid down the ratio to the
effect that pedantic and hyper technical view of the matter cannot be taken
while dealing with the applications under section 5 of the Limitation Act where
stakes are high and/or arguable points of facts and law are involved in the
case, allowed the application filed by the first respondent by imposing costs of
Rs.600/- to be paid to the revision petitioners.
6.      The learned counsel appearing for the revision petitioners argued that the
trial court did not advert the counter filed by the revision petitioners and did
not furnish adequate reasons for allowing the application, and therefore, he
contends that the order passed by the trial Court is liable to be set aside.  I
absolutely see no force in the contention urged by the learned counsel appearing
for the revision petitioners.  From the order passed by the learned trial Court,
it is obvious that the trial Court took into consideration the affidavit filed
by the first respondent in support of his petition and decided the application
by following the ratio laid down by the Supreme Court in the said decisions.
The suit filed by the first respondent is for declaration of the title and
consequential injunction, wherein the substantive rights of the parties are
involved for consideration.  As per the law laid down by the Supreme Court, the
courts while dealing with the application under section 5 of the Limitation Act
should not adopt pedantic and hyper technical approach and shall allow the
parties to contest the cases on merits.
7.      In the instant case, the first respondent furnished sufficient grounds for
the delay and considering those grounds, the learned trial Court allowed the
petition.  I do not find any irregularity or illegality in the order passed by
the learned trial Court to interfere in revisional jurisdiction.  I absolutely
see no merits in the Civil Revision Petition and accordingly dismiss the same
without any order as to costs.

___________________
JUSTICE R.KANTHARAO    
Date: 13-02-2013

BURDEN OF PROOF - ON DEFENDANT TO PROVE MATERIEL ALTERATION NOT APPEAR TO NAKED EYE, AND FORGERY OF PART PAYMENT ENDORSEMENT = The appellant did not dispute the execution of Ex.A1. His only plea was that the figure mentioned therein was Rs.7,700/-, whereas, the figure '5' was added by the respondent. In this regard, it needs to be observed that apart from mentioning the amount in figures, it is stated in words also. In case the appellant was of the view that there is any discrepancy in the contents of Ex.A1, he ought to have taken steps to get the same examined by the handwriting expert. No such steps were taken. - Ex.A2 plays an important role in the suit. If there is no acknowledgement of the debt by the appellant, the suit filed in the year 2006 would have been clearly barred to recover an amount covered by a promissory note executed in the year 2000. It is only Ex.A2, which is a connecting link. According to the respondent, Ex.A2 endorsement was made on 01.03.2003. Though in Ex.A1, it was mentioned as 02.01.2003, later on, it was explained in the examination in chief, as well as cross-examination . - At any rate, in case the admitted signature of the appellant on Ex.A1 and the disputed signature on Ex.A2 are not one and the same, the appellant ought to have taken steps to get the signature on Ex.A2 examined by a handwriting expert. Here again, he repeated the same performance vis--vis the contents of Ex.A2.

PUBLISHED INhttp://judis.nic.in/judis_andhra/filename=9922
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY    
 
SA No.1233 of 2011

11-02-2013

K.Kannaiah

S.Sankaraiah

Counsel for the Appellant:Sri.G.Jagadeeswar

Counsel for Respondent:-

<Gist:

>Head Note

? Citations:

JUDGMENT:

        The respondent filed O.S.No.16 of 2006 in the Court of the Senior Civil
Judge, Srikalahasti against the appellant for recovery of amount on the strength
of a promissory note, dated 02.03.2000.
 It was stated by the respondent that
being acquainted with him, the appellant borrowed a sum of Rs.57,700/- and he
did not repay the same in spite of repeated demands.
His further case was that
when he went to the appellant, residing at Chittoor, for repayment of the
amount, he paid a sum of Rs.100/- on 01.03.2003, acknowledging the debt covered 
by the promissory note. 
He ultimately prayed for a decree for the suit amount.

The appellant filed a written statement.
It was pleaded that he borrowed
Rs.7,700/- from the respondent through Ex.A1 and that the respondent has
clandestinely added the figure '5' before the amount. 
 He denied the
endorsement, Ex.A2, dated 01.03.2003. 
In addition to that, the appellant has
stated that
the respondent got issued a notice, Ex.B1, on 22.10.2003 by taking a
false plea that a sum of Rs.100/- was paid on 01.02.2003 and 
still, he did not
make any reference to Ex.B1 either in the plaint or in the affidavit filed in
lieu of chief-examination.
The trial Court dismissed the suit through judgment, dated 13.02.2007.
Aggrieved by that, the respondent filed A.S.No.54 of 2007 in the Court of the
III Additional District Judge, Tirupathi.
The appeal was allowed on 31.08.2010.
Hence, this second appeal.

        The learned counsel for the appellant submits that there was no
justification on the part of the lower appellate Court in reversing the decree
passed by the trial Court.  He contends that a clear discrepancy exists as to
the very making of endorsement, Ex.A2, and read in the context of Ex.A1, the
suit is clearly barred by limitation.  He contends that if Ex.A2 is excluded,
the suit is barred and if Ex.A2 is compared with Ex.B1, it emerges that there is
a clear discrepancy leading to a situation where the suit is barred by
limitation.

        In the suit filed by the respondent, the following issues were framed for
consideration:

1. Whether the suit pronote is true, valid and binding on the defendant?
2. Whether the part payment pleaded by the plaintiff is true and binding on the
defendant? 
3. Whether the suit pronote is void for material alteration?
4. Whether the rate of interest is excessive and usurious?

         The respondent deposed as P.W.1 and on his behalf P.Ws.2 to 4 were
examined.
As observed earlier, promissory note was marked as Ex.A1 and the
endorsement thereon as Ex.A2.
Except that the appellant deposed as D.W1, he did
not examine any other witness.
The legal notice got issued by the respondent is
marked as Ex.B1.
The trial Court took the view that the respondent failed to
prove Ex.A2 to its satisfaction and on that basis, dismissed the suit as barred by limitation.

         The lower appellate Court framed the following points for its
consideration:

(1) Whether the part payment under Ex.A2 is true, valid and binding on the
defendant?
(2) Whether the plaintiff is entitled for the suit amount?

The lower appellate Court answered all the points in favour of the respondent.

       The second appeal arises out of a reversing decree passed by the lower
appellate Court and accordingly, needs a close and careful scrutiny.

       The appellant did not dispute the execution of Ex.A1. 
His only plea was
that the figure mentioned therein was Rs.7,700/-, whereas, the figure '5' was added by the respondent.  
In this regard, it needs to be observed that apart
from mentioning the amount in figures, it is stated in words also.  
In case the
appellant was of the view that there is any discrepancy in the contents of Ex.A1, he ought to have taken steps to get the same examined by the handwriting expert.  No such steps were taken.
       
The appellant raised the plea that he has already repaid the amount
covered by Ex.A1 with interest at 24% per annum. 
Even as regards this, it is
only self-serving statement and no person, who has any knowledge about payment 
or has witnessed the act, was examined. 

       Ex.A2 plays an important role in the suit.  If there is no
acknowledgement of the debt by the appellant, the suit filed in the year 2006 would have been clearly barred to recover an amount covered by a promissory note executed in the year 2000.  
It is only Ex.A2, which is a connecting link.
According to the respondent, Ex.A2 endorsement was made on 01.03.2003.  
Though  in Ex.A1, it was mentioned as 02.01.2003, later on, it was explained in the examination in chief, as well as cross-examination.

        The only basis for the appellant to deny the existence of Ex.A2 is that
having made a mention about that in Ex.B1, the respondent did not refer to the
notice at all realising that it cannot be substantiated.
That plea is as weak as any other contentions advanced by the appellant.
Mere omission on the part
of the respondent to make a reference to Ex.B1 in the plaint cannot be treated
as fatal.
Further, the appellant did not elicit anything in the cross- examination of P.W.1 as to the alleged fabrication of Ex.A2.
At any rate, in case the admitted signature of the appellant on Ex.A1 and the disputed signature on Ex.A2 are not one and the same, the appellant ought to have taken steps to get the signature on Ex.A2 examined by a handwriting expert.  
Here again, he repeated the same performance vis--vis the contents of Ex.A2.  
The lower
appellate Court has taken the correct view of the matter and this Court is not
inclined to interfere with the judgment in the appeal.

         The second appeal is accordingly dismissed. There shall be no order as
to costs.

The miscellaneous petition filed in this appeal shall also stand disposed of.
_____________________  
L.NARASIMHA REDDY,J    
Dt:11.02.2013

HINDU SUCCESSION ACT AMENDMENT ACT 4/2005 - "Whether, on the facts and in the circumstances of the case, in view of Amendment Act 39 of 2005 to Section 6 of the Hindu Succession Act, 1956, and deletion of Section 23 which came into force with effect from 09.09.2005 the appellant is also entitled to a share along with her brothers in respect of B schedule properties".= "Restrictive, right contained in Section 23 of the Act, in view of our aforementioned discussions, cannot be held to remain continuing despite the 2005 Act. ----------------------------------------------------- "26. Indisputably, the question as to whether an amendment is prospective or retrospective in nature, will depend upon its construction. It is merely a disabling provision. Such a right could be enforced if a cause of action therefor arose subsequently. A right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring the nature. It cannot be said to be an accrued right or a vested right. Such a right indisputably can be taken away by operation of the statute and/or by removing the disablement clause. -------------------------------------------------------- "28. Thus, a right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible." 9. In that view of the matter, after the restrictive provision under Section 23 of the 1956 Act was omitted in the 2005 Amendment Act, it was not necessary for this Court to apply the said restriction now in this second appeal. In any event, items 1 to 3 of the plaint 'B' schedule are all vacant sites and not dwelling houses, even though they are stated to be appurtenant sites for the dwelling house. Therefore, this second appeal is liable to be allowed by applying Amended provisions of the Hindu Succession Act, 1956 as it stands today. All the substantial questions of law are answered accordingly. 10. In the result, the second appeal is allowed granting preliminary decree in favour of the plaintiff/appellant for partition of the plaint 'B' schedule properties into 12 equal shares and for allotment of one such share to the plaintiff/appellant. No costs.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9696

HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            

SECOND APPEAL No.141 of 1999    

11.03.2013

Prathipati Jogayyamma

1. Vobhilineni Veera Venkata Satyanarayana And others

Counsel for the appellant: Sri M.S.R.Subrahmanyam

Counsel  for the Respondents: Sri Venkateswara Rao Gudapati

<Gist :

>Head Note:

? Cases referred:
AIR 2009 Supreme Court 2649

JUDGMENT:  

        The then learned Judge admitted this second appeal in view of
substantial questions of law raised in ground Nos.9(a) and (b) of the
memorandum.  Those substantial questions of law are as follows:
a) whether on the facts and in the circumstances of the case, 
the appellant has a right to claim partition of B schedule items in view of the facts that a division could be inferred between the male members-defendants 1 and 2 by reasons of the facts 
(a) that they were living in separate door numbers, 
(b) that they were enrolled as votors in two different door numbers and 
(c) that they have separate ration cards and 
such admitted facts are inconsistent with their non-division of B schedule properties.

b) Whether in any view of the matter, the plaintiff is entitled to claim partition of items 2 and 3 of B schedule which cannot be considered as a dwelling house wholly occupied by members of the family within the meaning of that term under Section 23 of the Hindu Succession Act as item 2 is a cattle shed and item No.3 is a vacant site purchased by plaintiff father and not build upon.

         The appellant's counsel filed a memo taking an additional ground in the
second appeal as follows:
      "Whether, on the facts and in the circumstances of the case, in view of Amendment Act 39 of 2005 to Section 6 of the Hindu Succession Act, 1956, and  deletion of Section 23 which came into force with effect from 09.09.2005 the appellant is also entitled to a share along with her brothers in respect of B
schedule properties".

This additional ground of substantial question of law arose in view of the 2005
Act.  Effect of this additional substantial question of law has to be considered
herein and decided.

        2. The plaintiff/appellant and the 3rd defendant/3rd respondent are
sisters and the defendants 1 and 2/respondents 1 and 2 are their brothers, all
of them being children of late Oblineni Dorayya and Veeramma.
The plaintiff
filed the suit in the trial Court for partition of the plaint 'A' schedule
properties into 4 equal shares and the plaint 'B' schedule properties into 12
equal shares and for allotment of one such share each to her, for possession of
the same and for profits, both past as well as future. 
 It is her case that
during the life time of Dorayya, there was partition of landed properties among
Dorayya and the defendants 1 and 2 and the plaint 'A' schedule properties fell
to the share of Dorayya.  
The plaint 'B' schedule consists of vacant sites.
Dorayya died in December, 1970.  
It is the plaintiff's case that Dorayya left
his last Will and testament dated 02.11.1966 bequeathing life estate to his wife
Veeramma and vested remainder to the plaintiff.  
Veeramma died intestate in
July, 1972.  Since mother died intestate possessed of the plaint 'A' schedule
land, all the parties are entitled to 1/4th share each therein.

      3. The 3rd defendant remained ex parte.
It is contention of the
defendants 1 and 2 that there was no partition among Dorayya and the defendants
1 and 2 and that Will dated 02.11.1966 is forged and
that after death of their
father, the defendants 1 and 2 partitioned their family properties in the year 1971 and that house portion and 'B' schedule properties combined together forms part of dwelling house of the defendants 1 and 2 and therefore are not liable for partition at the instance of the plaintiff.

        4. After trial, the trial Court granted preliminary decree for partition
of 'A' schedule properties as prayed for; and denied partition of plaint 'B'
schedule property.  
On appeal by the plaintiff, the lower appellate Court
dismissed the appeal holding that the plaintiff is not entitled to any share in
the plaint 'B' schedule property since the defendants 1 and 2 are living jointly
in the said house and therefore the suit becomes premature.  
Thereupon, the
plaintiff filed this second appeal, which was admitted by this Court on the
above substantial questions of law.

        5. In this appeal, it is contended by the appellant's counsel that
admittedly the plaintiff is residing in a portion of the joint family house and
that the plaint 'B' schedule property cannot be construed as house property
which is in occupation of members of joint family for their residence jointly
and that therefore Section 23 of the Hindu Succession Act, 1956 (in short, the
1956 Act) is not applicable to the said property.
It is further contended that
during pendency of this second appeal, the Hindu Succession (Amendment) Act,  2005 (in short, the 2005 Act) came into force and Section 4 thereof omitted Section 23 of the 1956 Act which is the principal Act and that it resulted in taking away of restriction contained in Section 23 of the 1956 Act.
        6. On the other hand, it is contended by the respondents' counsel that
Section 4 of the 2005 Act which omitted Section 23 of the 1956 Act can only be
prospective in nature and it has no retrospective operation and that it cannot
be applied to pending civil proceedings which were commenced prior to the 2005
Act coming into force on 09.09.2005.

        7. Subject matter of this second appeal is only divisibility of the
plaint 'B' schedule properties are concerned.  
The Courts below granted decree
for partition of the plaint 'A' schedule properties in favour of the
appellant/plaintiff as prayed for and the said portion of the preliminary decree
became final as none of the defendants 1 and 2 filed any appeal against the
preliminary decree relating to the plaint 'A' schedule properties.
The
defendants 1 and 2 placed strong reliance on Section 23 of the 1956 Act which was in the statute book upto coming into force of the 2005 Act omitting Section 23 of the Principal Act.  
According to the defendants 1 and 2, vacant sites
mentioned in the plaint 'B' schedule are appurtenant sites to joint family dwelling house. 
 Even though the house property is only one, each of the parties
is occupying different portions of the house, the plaintiff being in occupation of the upstair portion of the house exclusively for her residence.

         8. Be that controversy as it may, 
the Apex Court had an occasion to
consider effect of Section 4 of the 2005 Act on applicability of Section 23 of
the Principal Act of 1956 in G.Sekar v Geetha1 Section 4 of the 2005 Act reads
as follows:
        "Omission of Section 23.- Section 23 of the principal Act shall be
omitted".

        The matter reached the Supreme Court in G.Sekar (1 supra) from the
Madras High Court wherein C.S.No.153 of 1996 was filed for partition of the suit
property which inter aia consisted of residential premises bearing No.36, 1st
Cross Street, West CIT Nagar, Madras.
That suit was filed prior to the 2005 Act
coming into force.
In C.S.No.153 of 1996 a preliminary decree for partition of
the suit property was passed in view of the 4th defendant also in his written
statement sought for partition of the property.
The learned Single Judge held
that Section 23 of the 1956 Act would not stand in the way of the plaintiff's
suit for partition.
In the intra Court appeal filed as OSA, the Division Bench
dismissed the appeal holding that even assuming there was any embargo at the 
time of filing the suit or passing judgment by the learned Single Judge as
contemplated under Section 23 of the 1956 Act as it stood, in view of the
amendment and deletion of such provision, it is obvious that there is no such
embargo after 09.09.2005 and that after 09.09.2005 any female heir can seek for
partition even in respect of a dwelling house.  
Thereupon, the matter reached the Supreme Court.
The Supreme Court discussed the subject relating to Section
23 of the 1956 Act and its deletion by the 2005 Act and concluded:
           "21. It is, therefore, evident that the Parliament intended to
achieve the goal of removal of discrimination not only as contained in Section 6
of the Act but also conferring an absolute right in a female heir to ask for a
partition in a dwelling house wholly occupied by a joint family as provided for
in terms of Section 23 of the Act.
         "22. Section 23 of the Act has been omitted so as to remove the
disability on female heirs contained in that Section.  It sought to achieve a
larger public purpose.  If even the disability of a female heir to inherit the
equal share of the property together with a male heir so far as joint
coparacenary property is concerned has been sought to be removed, we fail to
understand as to how such a disability could be allowed to be retained in the
statute book in respect of the property which had devolved upon the female heirs
in terms of Section 8 of the Act read with the schedule appended thereto.
    --------------------------------------------------------
          "Restrictive, right contained in Section 23 of the Act, in view of our
aforementioned discussions, cannot be held to remain continuing despite the 2005
Act.
     -----------------------------------------------------
           "26. Indisputably, the question as to whether an amendment is prospective or retrospective in nature, will depend upon its construction.
            It is merely a disabling provision.  
Such a right could be enforced if a cause of action therefor arose subsequently.  
A right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring the nature. 
It cannot be
said to be an accrued right or a vested right.  
Such a right indisputably can be taken away by operation of the statute and/or by removing the disablement clause.
       --------------------------------------------------------
           "28.  Thus, a right in terms of Section 23 of the Act to obtain a
decree for partition of the dwelling house is one whereby the right to claim
partition by the family is kept in abeyance.  
Once, the said right becomes
enforceable, the restriction must be held to have been removed. 
 Indisputably,
when there are two male heirs, at the option of one, partition of a dwelling
house is also permissible."

        9.  In that view of the matter, after the restrictive provision under
Section 23 of the 1956 Act was omitted in the 2005 Amendment Act, it was not
necessary for this Court to apply the said restriction now in this second
appeal.  
In any event, items 1 to 3 of the plaint 'B' schedule are all vacant
sites and not dwelling houses, even though they are stated to be appurtenant
sites for the dwelling house.  
Therefore, this second appeal is liable to be
allowed by applying Amended provisions of the Hindu Succession Act, 1956 as it
stands today.  All the substantial questions of law are answered accordingly.

         10.  In the result, the second appeal is allowed granting preliminary
decree in favour of the plaintiff/appellant for partition of the plaint 'B'
schedule properties into 12 equal shares and for allotment of one such share to
the plaintiff/appellant.  No costs.
____________________________    
SAMUDRALA GOVINDARAJULU,J        
Dt.11th March, 2013

GIFT BY FATHER OUT OF JOINT FAMILY PROPERTY = whether the suit property forms reasonable part of the joint family property or not in order to consider validity of Ex.A.1- settlement deed.= a father can make a gift of ancestral immovable property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his daughter at the time of her marriage or even long after her marriage".= whether Ac.1-80 cents of the suit land is reasonable extent out of the joint family property held by Narayana Murty and the 1st defendant. Again, this is a question of fact. The Lower Appellate Court came to the conclusion that the 1st defendant has failed to show total extent of the suit property held by his joint family. = As can be seen from recitals of Ex.B.3 will, Narayana Murty got lands in Patrunivalasa Village in partition with his brothers and he also acquired some properties subsequently and he had wet lands in Ganjamettu village apart from terraced house in Patrunivalasa village. Ex.B.3 also recites that Narayana Murty possessed lands in Thandevalasa Village. But Ex.B.3 failed to give extents of lands held by Narayana Murty in each of the above villages. Having regard to the above state of evidence before the Courts below, the Lower Appellate Court rightly came to the conclusion that the suit land of Ac.1-80 cents forms reasonable part of the joint family property held by Narayana Murty and his son and ultimately upheld settlement deed covered by Ex.A.1. In the above state of evidence before this Court, this Court has no hesitation to come to the conclusion that the suit land of Ac.1-80 cents is reasonable part of joint family lands held by Narayana Murty and 1st defendant even by the date of Ex.A.1 settlement deed.

published in http://judis.nic.in/judis_andhra/filename=9694

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            

SECOND APPEAL No. 149 of 1999    

11.03.2013

Baratam Venkata Chengalva Murty(died) per LRs Baratam Lakshmikantham and four  
others.                                        

Ladi Dalappanna and four others.

Counsel for Appellants: Sri M.S.R. Subrahmanyam, Advocate

Counsel for Respondents: Sri M.V.S. Suresh Kumar, Advocate

<Gist:

>Head Note:

?Cases referred:

1.AIR 2004 Supreme Court 1284.

JUDGMENT:  

        The 1st defendant who lost the suit in both the Courts below is the
Appellant.
He died after filing of the second appeal and his legal
representatives were brought on record.
Mother of the plaintiffs 1 to 4 by name
Ladi Venkata Narasamma is elder sister of the 1st defendant. 
 The 2nd defendant
is younger sister of Venkata Narasamma and the 1st defendant.  
All of them are children of Baratam Narayana Murty and the 3rd defendant. 
The plaintiffs 1 to 4
filed the suit in the trial Court for possession of the plaint schedule
property, for profits both past and future in respect thereof.   The plaint
schedule property consists of Ac.1-80 cents of land.
The plaintiffs filed the
suit on the basis of 
Ex.A.1 registered settlement deed dated 27.02.1958 executed by Baratam Narayana Murty on his behalf and on behalf of his minor son - the 1st defendant in favour of the plaintiffs' mother for the suit property, after reserving life interest therein to himself.  
Narayana Murty died on 20.10.1989.
The plaintiffs' mother Venkata Narasamma died on 28.10.1987.  
After death of the
plaintiffs mother, the plaintiffs got issued Ex.A.2 notice dated 06.06.1988 
when Narayana Murty intended to execute documents in respect of the suit land. 
 For the said notice, Narayana Murty got issued Ex.A.3 reply dated 27.06.1988.
Subsequently, Narayana Murty executed Ex.B.3 registered will dated 09.08.1988 in respect of his properties in favour of the 1st defendant. 
In that background,
the plaintiffs filed the suit for possession of the suit property.  
The 1st
defendant opposed the suit on the ground that Ex.A.1 settlement is void and
illegal and is not binding on him and that Late Narayana Murty executed Ex.A.1
in favour of the plaintiffs' mother nominally when the plaintiffs' father
Krishna Murty was giving trouble to Narayana Murty by way of harassing the
plaintiffs' mother.  
It is further contended by the 1st defendant inter alia
that the suit property is part of joint family property and that the suit land is not reasonable part of the joint family property.

2.      After trial, the trial Court held that the suit property is not part of joint family property and upheld Ex.A.1 settlement deed and consequently granted decree in favour of the plaintiffs. 
On appeal by the 1st defendant, 
the lower
Appellate Court came to the conclusion that suit property is part of the joint family property and that the suit extent forms reasonable part of the joint family property and therefore Ex.A.1 is valid in law.
The lower Appellate Court
further held that the 1st defendant who did not question Ex.A.1 settlement deed within three years of he attaining the age of majority, is not entitled to resist the plaintiffs' claim; and confirmed decree of the trial Court.
Therefore, the 1st defendant approached this Court with this second appeal.

3.      At the time of the admission of the second appeal, without framing any
substantial question of law, the second appeal was admitted.  Therefore, it is
endeavour of this Court to find whether any substantial question of law arises
for determination in this second appeal.  In the memorandum of grounds of the
second appeal, the appellant's counsel noted the following points as substantial
questions of law:
a) Whether, on the facts and in the circumstances of the case, the Lower Appellate Court is right in confirming the decree of the trial Court especially
when the Lower Appellate Court reversed the finding of the trial Court that the suit schedule property was separate property of the Appellant father and held that suit property was joint family property of the Appellant and his father?

b) Whether, on the facts and in the circumstances of the case, the Lower Appellate Court is right in decreeing the suit, as the schedule property is substantial (nearly half) part of joint family property, especially 
when there
is no proof that the appellants joint family has more than (4) Acres, more so, when the appellant could not be expected to establish a negative fact?

c) Whether, on the facts and in the circumstances of the case, the suit is bad for non-joinder of parties especially when, under Ex.B.3 the schedule property was bequeathed to the sons of the appellants and they were not made parties to the suit?

4.       In my opinion, point No.C above does not arise in this second appeal as Ex.B.3 will becomes inoperative insofar as the suit property is concerned, as it was transferred inter vivos prior to execution of the will.  
The question
whether the suit property is part of joint family property or not, is one of
fact and finding of the lower Appellate Court is to the effect that the suit
property is part of joint family property.  
The only question left out is
whether the suit property forms reasonable part of the joint family property or not in order to consider validity of Ex.A.1- settlement deed.

5.      The Appellants Counsel placed reliance on R. Kuppayee Vs. Raja Gounder1 of  
the Supreme Court,
wherein the Supreme Court after extracting paragraphs 225,
226 and 258 of Mullas Hindu Law relating to summary on the subject,
held:
"Combined reading of these paragraphs shows that the position in Hindu Law is that whereas the father has the power to gift ancestral movables within reasonable limits, he has no such power with regard to the ancestral immovable property or coparcenary property.  He can, however make a gift within reasonable limits of ancestral immovable property for "pious purposes".  However, the alienation must be by an act inter vivos, and not by will.  This Court has extended the rule in paragraph 226 and held that the father was competent to make a gift of immovable property to a daughter, if the gift is of reasonable
extent having regard to the properties held by the family".

After going through case law rendered by the Supreme Court previously the Apex
Court reiterated the legal position as follows:
"On the authority of the Judgments referred to above it can safely be held that a father can make a gift of ancestral immovable property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his daughter at the time of her marriage or even long after her
marriage".

6.      This is not a case where father i.e., Narayana Murty executed Ex.A.1 gift
deed by himself alone. He executed Ex.A.1 not only by himself but also as
guardian of the then minor 1st defendant. This is not a case where Ex.A.1 is
executed in respect of undivided share of father in the joint family property.
Again, this is not a case where Ex.A.1 was executed in respect of any minor's
property.  
Therefore, Ex.A.1 has to be evaluated as it stands in respect of a
particular property which is described in the schedule. 
 Unless it is part of
the joint family property, Narayana Murty would not have included his minor son as party to the Ex.A.1.

7.      The only question to be seen is whether Ac.1-80 cents of the suit land is reasonable extent out of the joint family property held by Narayana Murty and the 1st defendant.  Again, this is a question of fact. The Lower Appellate Court came to the conclusion that the 1st defendant has failed to show total extent of the suit property held by his joint family.  
According to the 1st defendant as
DW.1, his joint family possessed of only 4 Acres of land including the suit land
of Ac.1-80 cents. 
On the other hand, one of the plaintiffs as PW.1, stated that
joint family of Narayana Murty possessed of 15 to 20 Acres of land.
There is no
supporting documentary evidence on behalf of either of the parties.  
The lower
Appellate Court pointed out that even in Ex.B.3 will executed by Narayana Murty
in the year 1988, he did not give list of properties held by him and his joint
family.  
As can be seen from recitals of Ex.B.3 will, Narayana Murty got lands
in Patrunivalasa Village in partition with his brothers and he also acquired
some properties subsequently and he had wet lands in Ganjamettu village apart
from terraced house in Patrunivalasa village.  
Ex.B.3 also recites that Narayana
Murty possessed lands in Thandevalasa Village. But Ex.B.3 failed to give extents
of lands held by Narayana Murty in each of the above villages. 
 Having regard to
the above state of evidence before the Courts below, the Lower Appellate Court
rightly came to the conclusion that the suit land of Ac.1-80 cents forms
reasonable part of the joint family property held by Narayana Murty and his son
and ultimately upheld settlement deed covered by Ex.A.1.  
In the above state of
evidence before this Court, this Court has no hesitation to come to the
conclusion that the suit land of Ac.1-80 cents is reasonable part of joint
family lands held by Narayana Murty and 1st defendant even by the date of Ex.A.1
settlement deed. 
I find no error, much less legal error committed by the lower
Appellate Court. I also find that no substantial question of law arises for
determination in this second appeal.

8. In the result, the Second Appeal is dismissed with costs.
_____________________________    
SAMUDRALA GOVINDARAJULU, J.      
11th March, 2013