On a reading of the settlement with regard to the Bread Winner Scheme it is clear that it was made applicable with immediate effect to the contract crew, which includes the petitioner. - The act of the second respondent to circumvent the orders should not be encouraged and the decisions relied on by the learned Counsel for the contemnor are not applicable to the facts of the case. Hence, this Court holds that the second respondent is liable for punishment and, accordingly, the second respondent is convicted under the Contempt of Courts Act and punished to pay a fine of Rs.5,000/- (Rupees five thousand only) to the petitioner within four weeks. The payment of fine or the punishment in this case, will not absolve the responsibility of the respondents to comply with the order.

THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO            

CONTEMPT CASE No.2013 of 2016    

27-04-2017

S.Kiranmayi.Petitioner

Sri N.Sambasiva Rao, Managing Director, APSRTC, RTC House, Pandit Nehru us Station, Vijayawada,And others. Respondents    
       
Counsel for the Petitioner: Sri A.G.Satyanarayana Rao

Counsel for the Respondent: Sri Aravala Rama Rao

<Gist :
       
>Head Note :

? Cases referred
1.      AIR 1972 SC 591
2.      (1986) 2 SCC 679
3.      2000 (1) ALD 108
4.      (2006) 4 SCC 257
5.      2012 (3) ALD 429
6.      (1996) 6 SCC 291
7.      (1996) 10 SCC 102
8.      2013 (1) ALD 9 (SC)
9.      2014 (3) ALT 617
10.     2016 (4) ALD 520 : 2016 (5) ALT 226
11.     AIR 1993 SC 356
12.     (1995) 2 SCC 584
13.     (2002) 4 SCC 21
14.     (2004) 8 SCC 683


THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO            

CONTEMPT CASE No.2013 of 2016    
ORDER:                                        

        This Contempt Case is filed alleging non-implementation of
the order in W.P.No.12970 of 2016 dated 27.06.2016

        Though it is not necessary for this Court to repeat the entire
order, but for the purpose of disposal of the present Contempt
Case, the following facts are necessary.      

        The husband of the petitioner, who was appointed as a
contract driver in Chittoor-I Depot, died while in service on
20.02.2012 leaving behind the petitioner and her two minor
children.  The petitioner states that she is entitled for
compassionate appointment under the Bread Winner Scheme.  In  
respect of dependents of regular employees, they are eligible for
payment of additional monetary benefit in lieu of employment
from the year 1989.  But, in view of the hardship of the families of
contract employees who died while in service, the management
extended the scheme of compassionate employment to the eligible
dependants by entering into a Memorandum of Settlement under
Section 12(3) of the Industrial Disputes Act, 1947, with the
APSRTC Employees Union on 03.08.2013.  The Government    
issued G.O.Ms.No.2, Transport Department dated 05.01.2013
according permission to APSRTC to provide compassionate  
appointments to all the eligible dependents of the employees who
died in harness during the period from 01.01.1998 to
31.12.2010.  It was clarified in G.O.Ms.No.15, Transport
Department, dated 07.02.2014, making it applicable to the
employees who died thereafter also.  The Corporation also issued
circular on 01.03.2014 directing continuance of process of
recruitment under the Bread Winner Scheme in respect of the
employees who died beyond 31.12.2010 also.

        The petitioner studied Intermediate and submitted an
application on 24.02.2012 seeking employment on
compassionate grounds.  Her case was considered for the post of
RTC Constable, interview was conducted and she was
provisionally selected for the said post.  She was asked to
undergo physical efficiency test by proceedings dated
23.01.2016.  She was qualified in that test also.  She was asked
to undergo medical examination by letter dated 23.03.2016 and
she underwent the same.  Thereafter, she was informed that she
will not be given appointment as her husband was only a contract
employee at the time of his death.  In those circumstances, the
petitioner approached this Court by filing W.P.No.12970 of 2016.
In spite of several adjournments, no counter affidavit was filed
and the learned Standing Counsel orally submitted that the
settlement arrived with the Employees Union was not approved
by the Board of Directors.  This Court disposed of the Writ
Petition by directing the respondents to consider the case of the
petitioner for appointment to the post of RTC Constable under
compassionate grounds in view of the settlement arrived at on
03.08.2013 and pass appropriate orders within three months.

        The aforesaid order was not complied with and an order
was issued on 31.08.2016 by the second respondent stating that
the petitioners case will be considered in the selections to be
conducted for employment under Bread Winner Scheme  
(compassionate grounds) after receipt of the approval of the
Government for the Memorandum of Settlement arrived on
03.08.2013, and it was further stated that the said proceedings
were passed in compliance with the orders of this Court.

        Learned Counsel for the petitioner issued a notice on
13.09.2016 stating that the said order is in violation of the orders
of this Court.

        Since a counter affidavit was not filed in the Writ Petition,
the respondents filed a counter affidavit in the present case
admitting the facts stated in the affidavit and justified the action
of denying appointment on the ground that before appointment of
the petitioner when they verified the personal records of the
deceased employee, they came to know that he was not a regular
employee but he worked as contract driver and his services were
not regularized.  It is stated that the Bread Winner Scheme
communicated by letter dated 15.05.2013 is applicable only to
the regular employees of the Corporation.  The petitioner was not
eligible, as her husband was not a regular employee.  However,
the case of the petitioner will be considered in the selections to be
conducted for employment under Bread Winner Scheme after  
receipt of the approval of the Government for the Memorandum
of Settlement arrived on 03.08.2013.  The said proceedings were
issued when the second respondent received the communication
from the Executive Director on 15.05.2013 clarifying that the
applications of the dependants of contract employees cannot be
considered under the Bread Winner Scheme since it is applicable
only to the regular employees of the Corporation.

        Learned Counsel for the writ petitioner who initiated the
present contempt proceedings submitted that the denial of relief
to the petitioner is in willful violation of the orders of this Court
when this Court directed the respondents to consider the case
meaning to pass favourable orders only.  He relied on The
Barium Chemicals Ltd. v. A.J.Rana , Comptroller and
Auditor-General of India v. K.S.Jagannathan ,
S.Purushotham v. District Collector, Karimnagar ,
Employees State Insurance Corporation v. All India ITDC
Employees Union  and K.Achamma v. Venkateswara    
University .
      Learned Counsel for the Corporation, on the other hand,
submitted that by taking into consideration the facts and
circumstances of the case, an order was passed by the second
respondent and, in view of passing of such order, it cannot be
said that there is willful violation of the orders of the Court
punishable under the Contempt of Courts Act.  He relied on
J.S.Parihar v. Ganpat Duggar , V.Kanakarajan v. General
Manager, South Eastern Railway , Salauddin Ahmed v.
Samta Andolan  and Nambaru Ramu v. M.R.Prasanna    
Kumar .

      In the instant case, when the Writ Petition was considered,
the respondents never chose to file a counter affidavit as could be
seen from the adjournments granted and the order dated
27.06.2016.  Even after disposal of the Writ Petition also an order
was passed as aforesaid and no appeal was preferred against the
order.  Thus, the second respondent put upon himself the
burden of implementing the orders of this Court.  While
examining the validity of the said order it has to be seen whether
the said settlement relied on by the petitioner stated to have been
sent to the Government for approval requires approval at all for
implementation and in the absence of approval from the
Government, denial of relief to the petitioner is a violation of the
order of this Court or not.

      A perusal of the Memorandum of Settlement shows that it
was entered under Section 12(3) of the Industrial Disputes Act,
1947.  The regularization of contract crew is one of the items of
settlement.  It was stated that the contract crew who were
recruited up to December, 2012 will be taken up in a phased
manner upon obtaining the prior permission from the
Government as per the schedule given thereunder.  The
regularization schedule shows that it will come to an end by
01.09.2014.  It was also stated that necessary administrative
steps for getting permission from the Government for the said
proposal will be taken up immediately.  In respect of Bread
Winner Scheme, the Unions represented for extension of the
Bread Winner Scheme to contract crew with retrospective effect,
while the management proposed for implementation of the
scheme with prospective effect.  After negotiations,
implementation of the scheme with immediate effect was mutually
agreed to.  Only with regard to continuance of the scheme for
future beneficiaries in respect of both regular and contract
employees dependants, it was agreed to seek clarification from
the Government.  The relevant portion reads as follows:
Bread Winner Scheme:  The unions represented for
extension of the Bread Winner Scheme to contract
crew with retrospective effect while the management
proposed for implementation of the scheme with
prospective effect.  After negotiations, implementation
of the scheme with immediate effect was mutually
agreed to.  It is also agreed to seek clarification from
the Government to continue the scheme for future
beneficiaries in respect of both regular and contract
employees defendants.

      In the above case the husband of the petitioner was
selected in the year 2008 by a duly constituted selection
committee and was appointed as a contract driver in Chittoor-I
Depot on 08.10.2009.  He died while in service on 20.02.2012.
The settlement was arrived at on 03.08.2013.  On a reading of the
settlement with regard to the Bread Winner Scheme it is clear
that it was made applicable with immediate effect to the contract
crew, which includes the petitioner.  However, with regard to the
application of the Scheme for future beneficiaries, clarification
from the Government was required and sought.  The issue with
regard to regularization of contract crew was also pending for
permission from the Government.  Now we are concerned with
application of Bread Winner Scheme only and as per the
settlement, there is no doubt that the Scheme is applicable with
immediate effect.  It appears that a resolution was passed by the
Board for extension of the Scheme to the contract crew with
retrospective effect as could be seen from the letter of the
Corporation addressed to the Special Chief Secretary on
24.09.2013.

      Thus, it is clear that there is no need to obtain the orders or
clarification from the Government in respect of the settlement
arrived and in view of the resolution passed by the Board.  In
view of this clear position, the contemnor should not have taken
the stand that the case of the petitioner would be considered in
the selections to be conducted for employment under Bread
Winner Scheme (compassionate grounds) after receipt of the
approval of the Government for the MOU arrived on 03.08.2013.
The contemnor having taken that stand, this Court has no other
alternative except to hold that the contemnor violated the orders
of this Court by misinterpreting and by disallowing the genuine
claim of the petitioner on untenable grounds.  Thus, the second
respondent violated the orders of this Court.

      Coming to the legal position, the second respondent took a
defense by relying on the decisions in J.S.Parihars case (supra),
V.Kanakarajans case (supra), Salauddin Ahmeds case (supra)
and Nambaru Ramus case (supra).

      In J.S.Parihars case (supra) the Supreme Court was
considering a case relating to the preparation of seniority list.
The Division Bench of the High Court declared the seniority list
prepared with retrospective effect in terms of the amended Rules
as unconstitutional and it accordingly quashed the list and
directed preparation of the seniority list afresh.  The said order
was followed by two other Division Benches.  When contempt
proceedings were taken up, the learned single Judge of the Court
held that the respondents had not willfully disobeyed the orders
of the Court and gave direction to prepare the seniority list as per
the orders of the Division Bench by giving liberty to the petitioner
to move the contempt petition afresh if the order was not
complied with.  When the appeal was filed against the said order,
a preliminary objection was taken with regard to the
maintainability of the appeal.  The Division Bench held that the
appeal was not maintainable under Section 19 of the Contempt of
Courts Act, but held that the appeal would be maintainable as a
Letter Patent Appeal and set aside the directions issued by the
learned single Judge.  The matter was taken up to the Supreme
Court.  The Supreme Court, on the facts of the case, held that the
appeal was not maintainable as there was no order of
punishment.  With regard to setting aside the direction of the
learned single Judge, it was held that when once an order was
passed by the Government on the basis of the directions issued
by the Court, a fresh cause of action arises, but that cannot be
considered to be a willful violation of the order. It was further
held that when the learned single Judge held that there was no
willful violation of the orders, he ought not to have issued further
direction to redraw the seniority list.

      The case in V.Kanakarajan (supra) is a case arising out of
an order of dismissal by the Division Bench of Calcutta High
Court on an application for contempt.  The order of the High
Court stated that no case was made out for contempt against the
respondents, but the petitioner was given liberty to move against
the said order in appropriate writ application.  The said order
was upheld by the Supreme Court.

      In Salauddin Ahmeds case (supra) the Supreme Court
held that in order to establish that a person had deliberately and
willfully committed contempt of Court, two essential ingredients
have to be proved.  The first thing is a direction from the Court,
and the second thing is, in spite of knowledge of such order, the
person has deliberately and willfully violated the same with the
intention of lowering the dignity and image of the Court.

      In the instant case the order passed by the contemnor has
to be read as it is and when the said order is based on untenable
grounds, it has to be construed as a deliberate and willful
violation.

      In Nambaru Ramus case (supra) when contempt
proceedings were initiated for not complying with the order
directing the respondents to consider approving the
appointments of petitioners as Secondary Grade Teachers and as
Hindi Pundit (Grade-I), learned Government Pleader therein
relied on J.S.Parihars case (supra).  Learned single Judge, on
the facts of the case, opined that there was no direction to
approve the appointments of the petitioners but it was only a
direction to 'consider approving' the same.  When the
respondents passed elaborate orders concluding that the
approval cannot be granted, in view of the decision in
J.S.Parihars case (supra), it was held that the cause of action
did not survive and no contempt would lie.

      In the light of the above decisions it has to be considered
whether the direction of this Court mandates the respondents to
consider the case of the petitioner in a positive manner or it left
anything to the discretion of the respondents enabling them to
pass an order giving rise to a fresh cause of action.

      In Barium Chemicals Ltd.s case (supra) the word
consider fell for interpretation and the Supreme Court observed
as follows:
      The words 'considers it necessary' postulate
that the authority concerned has thought over the
matter deliberately and with care and it has been
found necessary as a result of such thinking to pass
the order. The dictionary meaning of the word
'consider' is 'to view attentively, to survey, examine,
inspect (arch), to look attentively, to contemplate
mentally, to think over, meditate on, give heed to, take
note of, to think deliberately, be think oneself. to
reflect' (vide Shorter Oxford Dictionary). According to
Words & Phrases-Permanent Edn: Vol. 8-A to 'consider'
means to think with care. It is also mentioned that to
'consider' is to fix the mind upon with a view to careful
examination; to ponder; study; meditate upon, think
or reflect with care. It is, therefore, manifest that
careful thinking or due application of the mind
regarding the necessity to obtain and examine the
documents in question in sine qua non for the making
of the order. If the impugned order were to show that
there has been no careful thinking or proper
application of the mind as to the necessity of obtaining
and examining the documents specified in the order,
the essential requisite. to the makings of the order
would be held to be non-existent.
A necessary corollary of what has been observed above
is that mind has to be applied with regard to the
necessity to obtain and examine all the documents
mentioned in the order. An application of the mind
with regard to the necessity to obtain and examine
only a few of the many documents mentioned in the
order, while there has been no such application of
mind in respect of the remaining documents, would
not be sufficient compliance with the requirements of
the statute. If, however, there has been consideration
of the matter regarding the necessity to obtain and
examine all the documents and an order is passed
thereafter, the Court would stay its hand in the matter
and would not substitute its own opinion for that of
the authority concerned regarding the necessity to
obtain the documents in question.

      The above observations were made while interpreting
Section 19(2) of the Foreign Exchange Regulation Act. The
Supreme Court quashed the order passed under the said Section
by the competent authority on the ground that the order was
passed without complying with the requirements of the said
Section.  It was also stated that the compliance of the Section is
required in view of the penal consequences flowing from non-
compliance with the order made under the said Section.

      In K.S.Jagannathans case (supra) the Supreme Court
considered the nature of writ of mandamus and observed as
follows:
      There is thus no doubt that the High Courts in
India exercising their jurisdiction under Article 226
have the power to issue a writ of mandamus or a writ
in the nature of mandamus or to pass orders and give
necessary directions where the Government or a public
authority has failed to exercise or has wrongly
exercised the discretion conferred upon it by a statute
or a rule or a policy decision of the Government or has
exercised such discretion mala fide or on irrelevant
considerations or by ignoring the relevant
considerations and materials or in such a manner as
to frustrate the object of conferring such discretion or
the policy for implementing which such discretion has
been conferred. In all such cases and in any other fit
and proper case a High Court can, in the exercise of its
jurisdiction under Article 226, issue a writ of
mandamus or a writ in the nature of mandamus or
pass orders and give directions to compel the
performance in a proper and lawful manner of the
discretion conferred upon the Government or a public
authority, and in a proper case, in order to prevent
injustice resulting to the concerned parties, the Court
may itself pass an order or give directions which the
Government or the public authority should have
passed or given had it properly and lawfully exercised
its discretion.

      The circumstances under which this Court passes an order
in a writ of mandamus and the nature of the order is explained in
Employees State Insurance Corporations case (supra), more
particularly in relation to the directions issued in the Writ
Petitions to consider the cases, as follows:
      Where an order or action of the State or an
authority is found to be illegal, or in contravention of
prescribed procedure, or in breach of the rules of
natural justice, or arbitrary/unreasonable/irrational,
or prompted by mala fides or extraneous consideration,
or the result of abuse of power, such action is open to
judicial review. When the High Court finds that the
order or action requires interference and exercises the
power of judicial review, thereby resulting in the
action/order of the State or authority being quashed,
the High Court will not proceed to substitute its own
decision in the matter, as that will amount to
exercising appellate power, but require the authority to
'consider' and decide the matter again. The power of
judicial review under Article 226 concentrates and lays
emphasis on the decision making process, rather than
the decision itself.
The High Courts also direct authorities to 'consider' ,
in a different category of cases. Where an authority
vested with the power to decide a matter, fails to do so
in spite of a request, the person aggrieved approaches
the High Court, which in exercise of power of judicial
review, directs the authority to 'consider' and decide
the matter. In such cases, while exercising the power of
judicial review, the High Court directs 'consideration'
without examining the facts or the legal question(s)
involved and without recording any findings on the
issues. The High Court may also direct the authority to
'consider' afresh, where the authority had decided a
matter without considering the relevant facts and
circumstances, or by taking extraneous or irrelevant
matters into consideration. In such cases also, High
Court may not examine the validity or tenability of the
claim on merits, but require the authority to do so.
Where the High Court finds the decision-making
process erroneous and records its findings as to the
manner in which the decision should be made, and
then directs the authority to 'consider' the matter, the
authority will have to consider and decide the matter
in the light of findings or observations of the Court.
But where the High Court without recording any
findings, or without expressing any view, merely
directs the authority to 'consider' the matter, the
authority will have to consider the matter in
accordance with law, with reference to the facts and
circumstances of the case, its power not being
circumscribed by any observations or findings of the
Court.
We may also note that sometimes the High Courts
dispose of matter merely with a direction to the
authority to 'consider' the matter without examining
the issue raised even though the facts necessary to
decide the correctness of the order are available.
Neither pressure of work nor the complexity of the
issue can be a reason for the Court, to avoid deciding
the issue which requires to be decided, and disposing
of the matter with a direction to 'consider' the matter
afresh.
There are also several instances where unscrupulous
petitioners with the connivance of 'pliable' authorities
have misused the direction 'to consider' issued by
court. We may illustrate by an example. A claim, which
is stale, time-barred or untenable, is put forth in the
form of a representation. On the ground that the
authority has not disposed of the representation
within a reasonable time the person making the
representation approaches the High Court with an
innocuous prayer to direct the authority to 'consider'
and dispose of the representation. When the Court
disposes of the petition with a direction to 'consider',
the authority grants the relief, taking shelter under the
order of the Court directing it to 'consider' . Instances
are also not wanting where authorities, unfamiliar
with the process and practice relating to writ
proceedings and the nuances of judicial review, have
interpreted or understood the order 'to consider' as
directing grant of relief sought in the representation
and consequently granting reliefs which otherwise
could not have been granted. Thus, action of the
authorities granting undeserving relief, in pursuance
of orders to 'consider', may be on account of ignorance,
or on account of bona fide belief that they should grant
relief in view of Court's direction to 'consider' the claim
or on account of collusion/connivance between the
person making the representation and the authority
deciding it.
Therefore, while disposing of writ petitions with a
direction to 'consider', there is a need for the High
Court to make the direction clear and specific. The
order should clearly indicate whether the High Court
is recording any finding about the entitlement of the
petitioner to the relief or whether the petition is being
disposed of without examining the claim on merits.
The aforesaid aspects were highlighted recently
in A.P.S.R.T.C. & Ors. v. G. Srinivas Reddy and Ors.
(AIR 2006 SCW 1108).

      The said cases were followed by this Court in
S.Purushothams case (supra).

      The consequences of not following such directions was
considered by a learned single Judge of this Court in
K.Achammas case (supra) by once again considering the word
consider and holding as follows:
      At this stage, this Court has no option except to
go through the dictionary meaning of the word
'consider' by referring to two or three premier
dictionaries.
      As per the Chambers Dictionary 10th Edition,
the word 'consider' means "look at attentively or
carefully; to think or deliberate on; to take into
account; to attend to, to regard as, to think, hold the
opinion, to reward, think seriously or carefully, to
deliberate."
      As per the Oxford Dictionary Thesaurus and
Wordpower Guide, Indian Edition 2007, the word
'consider' means "think carefully about; take into
account when making judgment; contemplate; reflect
on; examine; review; mull over; ponder; deliberate on."
      As per Collins English Dictionary, the word
'consider' means 'to think carefully about (a problem
or decision); to bear in mind; to have regard for or care
about; to discuss (something) in order to make a
decision; to look at."
      The Apex Court in case between Divisional
Personnel Officer, Southern Railway and Another v.
T.R.Challappan ((1976) 3 SCC 190), observed that to
consider means; there should be active application of
the mind and further observed that the term consider
postulates consideration of all the aspects. In cases
between The Barium Chemicals Ltd and another v.
SH. A.J.Rana and others (AIR 1972 SC 591) and Ajit
Singh and others (II) v. State of Punjab and others
((1999) 7 SCC 209), the Apex Court observed that "It is
therefore manifest that careful thinking or due
application of the mind regarding the necessity to
obtain and examine the documents in question is sine
qua non for the making of the order."
      Therefore, the dictionary meaning of the word
'consider' means to consider basing on the material
available on record. To consider means to consider
sincerely and honestly, which means to make sincere
effort to pass an order in the letter and spirit of the
directions of this Court. To consider means to make all
efforts to fulfil the object of the order of the Court. To
consider does not mean to search for a lame excuse
and reject the claim. It does not mean to just pass an
order and dismiss the claim of the petitioner on flimsy
grounds. Therefore, the respondents shall not invent
or search some fresh reason or other technical ground
and reject the claim of the petitioner when there is a
specific direction by this Court to consider the case of
the petitioner. The Authorities cannot show the same
reason or ground which they had already taken in the
earlier proceedings. This amounts to showing
disrespect to the orders of the court. The authorities
cannot flout the orders of the Court on technical
grounds. If at all they require permission of the
Government, they must address the Government  
enclosing the copy of the order of the court or orders of
the quasi judicial authorities and the authorities at the
government level also should and must take into
consideration the directions and observations of the
court and purport of those orders. No authority can
disturb the findings or observations of any court. The
findings, directions or observations of a court can only
be disturbed, varied, modified or set aside by the court,
superior to the court which made those findings or
directions. Except the superior court, no authority can
take a contra view, taken by a court. Rejection of the
claim on a ground which they had already taken in the
earlier proceedings and which has been already
considered and rejected by the Court amounts to
nothing but Contempt of Court and disobeying the
orders of the Court.

      In view of the above position of law and in the light of the
facts and circumstances of the case, the second respondent has
no option but to extend the benefit under the Memorandum of
Settlement to the petitioner.  But, the second respondent passed
an order after initiation of contempt proceedings stating that the
case of the petitioner would be considered in the selections to be
conducted for employment under Bread Winner Scheme  
(compassionate grounds) after receipt of the approval of the
Government for the MOU arrived on 03.08.2013.  As stated
above, no permission was required for giving the benefit to the
petitioner.  If the petitioner is driven to another round of
litigation, as contended by the learned Counsel for the
respondents, it is a mockery of justice.  This Court has to have a
holistic view of the matter and should not multiply the litigation.
When there is no choice to the respondents to exercise the
discretion, except passing an order in a particular manner on the
facts of the particular case, the passing of an order deviating and
denying the benefit would amount to willful violation of the orders
of this Court.  This Court cannot dismiss the Contempt Cases on
technical pleas when the orders have become final and Contempt
Cases are filed alleging non-implementation of such orders.
Several opportunities were given to the second respondent to
correct his mistake in the present case also and in spite of the
same, no effort was made by him nor did wisdom dawn on him.
It appears that at a belated stage, an appeal was filed seeking
condonation of delay and the fate of such appeal was not known.
This Court is a Court of record and vested with the power to
punish for contempt under Article 215 of the Constitution of
India and in appropriate cases it can travel beyond the
provisions of the Contempt of Courts Act.

      This Court in Sabza Ali v. M.Raghunandan  considered
the decisions of the Supreme Court in Maniyeri Madhavan v.
Inspector of Police, Cannanore , In re Vinay Chandra
Mishra , Anil Ratan Sarkar v. Hirak Ghosh  and E.T.Sunup
v. C.A.N.S.S.Employees Association , and quoted that even a
lackadaisical attitude, which itself may not be deliberate or wilful,
have not been held to be a sufficient ground of defence in a
contempt proceeding. Obviously, the purpose is to ensure
compliance of the orders of the court at the earliest and within
stipulated period.

      Here is a case of a poor lady who wanted compassionate
appointment and was denied the same on untenable grounds.  If
the second respondent has taken into consideration the facts and
circumstances of the case and the order passed by this Court, he
would have allowed the case of the petitioner.  The act of the
second respondent to circumvent the orders should not be
encouraged and the decisions relied on by the learned Counsel
for the contemnor are not applicable to the facts of the case.
Hence, this Court holds that the second respondent is liable for
punishment and, accordingly, the second respondent is convicted
under the Contempt of Courts Act and punished to pay a fine of
Rs.5,000/- (Rupees five thousand only) to the petitioner within
four weeks.  The payment of fine or the punishment in this case,
will not absolve the responsibility of the respondents to comply
with the order.

      The Contempt Case is, accordingly, allowed.


________________________________    
A.RAMALINGESWARA RAO, J)      
27.04.2017

whether it is possible to identify the age of the ink on a document when the time gap pleaded is only about 4 years.= Therefore, it is clear that no useful purpose will be served by referring the document to the Handwriting Expert

THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN          

CIVIL REVISION PETITION Nos.6069 of 2016 AND BATCH      

07-04-2017

Polana Jawaharlal Nehru. Revision Petitioner

Maddirala Prabhakara Reddy. Respondent  

Counsel for petitioner  : Sri A. Bhaskara Chari

Counsel for respondent: Sri V.S.R. Anjaneyulu

<Gist:

>Head Note:

? Cases referred:
1)  AIR 1964 Supreme Court 529
2)  1993 (3) ALT 446
3)  2011 Crl. Law Journal 4152
4)  2011 (6) MLJ 524


HONBLE SRI JUSTICE V.RAMASUBRAMANIAN          

Civil Revision Petition Nos.6069 and 6071 of 2016

COMMON ORDER:    

        These revisions arise out of the dismissal of two applications
filed by the petitioner/defendant, seeking the reopening of his
evidence and also for sending the suit promissory note Ex.A.1 for
examination to a Handwriting Expert.
        2. Heard Mr. A. Bhaskara Chari, learned counsel for the
petitioner/defendant and Mr. V.S.R. Anjaneyulu, learned counsel for
the respondent/plaintiff.
        3. The respondent herein filed a suit in O.S.No.1263 of 2015
against the petitioner herein, for recovery of money on the basis of a
promissory note dated 08-12-2012. The petitioner herein filed a
written statement contending, inter alia, that he borrowed an amount
of Rs.8,00,000/- from a person by name Raghava Arjuna Rao on
13-08-2010 and also created a mortgage in his favour; that at the
time of borrowal, the said Ragha Arjuna Rao took his signatures in a
blank promissory note and a blank cheque; that though the entire
mortgage debt was discharged by him, the said Raghava Arjuna
Rao filed a suit in O.S.No.63 of 2013; that the petitioner never
borrowed any money from the respondent herein and that with the
assistance of the said Raghava Arjuna Rao, the respondent
fabricated the blank promissory note given by him and filed the
present suit.
        4. The trial Court framed issues and evidence on both sides
was closed and the matter was posted for arguments on 11-11-
2016. At that time, the defendant, who is the petitioner herein, filed 2
applications, one for reopening his evidence and another for sending
the promissory note for examination by a Handwriting Expert. But
both these applications were dismissed by the trial Court, forcing the
petitioner to come up with the above revisions.
        5. Interestingly, this is not a case where the petitioner denies
his signature in the suit promissory note. His only case is that he
signed a blank promissory note on 13-08-2010 and gave it to one
Raghava Arjuna Rao and that the said promissory note was filled up
by the respondent herein in June, 2014 to come up with the present
suit. Paragraph 5 of the affidavit of the petitioner filed in support of
the applications out of which the present revision petitions arise
reads as follows:
       5. I further submit that I signed on the empty promissory note
and cheque in August, 2010 and handed over the same to the
Sankarasetty Raghava Arjuna Rao. The plaintiff and Sankarasetty
Raghava Arjuna Rao, the 2nd attestor and the scribe filled up the
empty portion of the promissory note and cheque in the year June
2014.  On specific verification the signature on the promissory
note and the matter on Ex.A.1 promissory note clearly discloses
the variation. As such, it is necessary to sent the Ex.A.1
promissory note to the handwriting expert for deciding the age of
the ink used for putting signature and the age of the ink used for
filling the matter of the promissory note as there is a clear
variation of 4 years approximately between the age of the ink used
for putting the signature and the age of the ink used for filling up
the matter in the empty promissory note.

        6. In other words the only purpose for which the petitioner
wants to send the suit promissory note for examination by the
Handwriting Expert is to show that the age of the ink was nearly 5
years old and not one year old, when the suit was filed.
        7. But, prima facie, the attempt of the petitioner to establish
the age of the writing, appears to be far-fetched. According to the
petitioner, his signature was made on 13-08-2010 in the promissory
note. But Ex.A.1 bears the date 08-12-2012. The suit was filed in
December, 2015. The cheque allegedly issued by the petitioner and
which bounced, was dated 02-07-2014. The returned cheque and  
the cheque return memo are filed as Exs.A.3 and A.4. The petitioner
has not made any prayer for referring the age of the writing in the
cheque for examination by the Handwriting Expert.
        8. In any case, it is highly doubtful that it is possible for a
Handwriting Expert to fix the age of the ink where the dispute with
regard to the age is only 4 years. At least if the time gap is about 30
to 40 years, it may perhaps be possible for the handwriting expert to
fix the age. But when the time gap pleaded is just about 4 years, I do
not think it is possible to fix the age.
        9. Several decisions were cited on both sides and I shall take
up those decisions for consideration in the chronological order.
        10. In Shashi Kumar Banerjee and others v. Subodh
Kumar Banerjee , the Supreme Court quoted from the book of
Osborn, on Questioned Documents, to the effect that the chemical
tests to determine age also, as a rule, are a mere excuse to make a
guess and furnish no reliable data upon which a definite opinion can
be based. The Supreme Court actually cautioned that even if the
disputed documents are referred to experts and their opinion
obtained, such opinion constitutes only an opinion and cannot take
the place of substantive evidence.
        11. Taking clue from what the Supreme Court said in Shashi
Kumar Banerjee, a learned Judge of this Court extracted in Uppu
Jhansi Lakshmi Bai v. J. Venkateswara Rao , another passage
from the same author Osborn to the following effect:
         There are those also who pretend to say how old a writing is by
merely examining it with a hand magnifier or a microscope. This always
is an exhibition, either of ignorance or of dishonest presumption. The
chemical tests to determine age also, as a rule, are a mere excuse to
make a guess and furnish no reliable data upon which a definite opinion
can be based as can easily be demonstrated by fair tests on documents
of known age."

        12. However, Mr. Bhaskara Chari, learned counsel for the
petitioner placed strong reliance upon a three successive decisions
of a learned Judge of the Madras High Court to the effect that it is
possible for a Handwriting Expert to fix the age of the writing.  In his
decision in A. Sivagnana Pandian v. M. Ravichandran  and which
was followed in Elumalai v. Subbaramani , the learned Judge of
the Madras High Court quoted the certain excerpts from the latest
edition of Examination of Disputed Documents by Bhuvan. But
none of the portions extracted by the learned Judge from the book,
throw any light upon the question whether it is possible to identify
the age of the ink on a document when the time gap pleaded is only
about 4 years.
        13.  In a rather painstaking exercise, the learned Judge of the
Madras High Court has quoted extensively from (i) Forensic
Science in Criminal Investigation and Trials by B.R. Sharma, (ii)
Suspect Documents their scientific examination by Wilson Harrison
and (iii) Scientific Examination of Questioned Documents by Jan
Seaman Kelly. But none of those portions indicate any where that
the outcome of such examination of the ink could be very fruitful.
      14. It is an admitted fact that the science relating to forensic
examination of Handwriting, especially in relation to the fixation of
the age of the ink, is not perfect. In cases of this nature any
reference of a document to the Handwriting Expert just for the
purpose of finding out whether the ink was 5 years old at the time of
institution of the suit or 3 years old at the time of institution of the
suit, is not likely to bring any fruitful result.  Interestingly in one of the
books relied upon by the learned Judge of the Madras High Court,
namely Handwriting Forensics by B.R. Sharma, Chapter 25
contains a Glossary under the title Documenpaedia. In the said
chapter, there is an interesting portion relating to INK AGE.  This
portion reads as follows:
INK AGE: Age of the writing can sometime be given in relative terms.
Upkeep of the document plays an important role.  Ink has been
extensively studied to fix the age of the documents.  There are two
aspects which have been explored. 
        The compositions of inks in common usage have been changing   
continuously.  It was the carbon ink (known as Indian Ink) to start with.  It
changed to irontannin inks, then to water-soluble dye inks and later to
organic solvent inks as for ball pens.  New dye inks are coming up
continuously.  Thin Layer Chromatography (LTC) can easily identify the
ink dye even from an ink line without visibly damaging the writing line.
High Performance TLC gives better results.  The date of induction of a
particular ink, therefore can be ascertained with the help of its
manufacturer.  If a document is purported to be written prior to its
induction of the ink, it is obviously false.
In some countries data relating to induction of various inks is kept for
ready reference.
        Some inks fade with time.  The extent of fading may give some idea
about the age of the writing.
        Inks diffuse in the paper.  The extent of diffusion may give some guess
about the age of writing.
        Iron inks become darker in colour with age.  The shade of the ink may
give some idea of the age of writing.
        In some countries age marker chemicals, usually radioactive materials,
are added to the ink.  They indicate the age of the writing.
        Fresh ink is easily smudged.  Older inks do not smudge easily.  The
ease of smudging may give a rough estimate of the age of the writing.

       The methods listed above look impressive. But in practice it is
seldom that correct age of the document can be determined as there are
many variables which affect the changes in the ink.

       Age markers can give correct age of the writings.  However, they
are not used in India.

      15. Therefore, it is clear that no useful purpose will be served
by referring the document to the Handwriting Expert. Hence, the
dismissal of the applications by the Court below cannot be found
fault with. Therefore, the Civil Revision Petitions are dismissed.

        As a sequel thereto, miscellaneous petitions, if any, pending
shall stand closed.
________________________  
V. RAMASUBRAMANIAN, J    
Date: 07-04-2017

whether one single application could have been filed by the petitioner/defendant for condonation of the delay and also to set aside the ex parte decree.= In M.A.QADER3, a Division Bench of this Court categorically held that where the grounds for seeking both such reliefs are the same, it would not be necessary that a separate application be filed for condonation of the delay. It was also pointed out that Section 5 of the Limitation Act, 1963, does not stipulate filing of a separate application there under.

THE HONBLE SRI JUSTICE SANJAY KUMAR        

CIVIL REVISION PETITION NO.911 OF 2017    

11-04-2017

P.Buchanna .. Petitioner

B.Yadagiri.. Respondent

Counsel for petitioner: Sri K.Sreenivas

Counsel for respondent:  --

<Gist:

>Head Note:    

? CASES REFERRED:    

1. 2007 (6) ALD 819 = 2008 (1) ALT 475
2. 2002 (6) ALD 473 = 2002 (5) ALT 766
3. 1988 (1) ALT 783
4. 2005 (1) ALT 805

THE HONBLE SRI JUSTICE SANJAY KUMAR        

CIVIL REVISION PETITION NO.911 OF 2017    
O R D E R

      This Revision Petition under Section115 CPC arises out of the
order dated 07.11.2016 of the learned II Additional Senior Civil
Judge, Ranga Reddy District at L.B.Nagar, in I.A.No.1156 of 2014 in
O.S.No.555 of 2013. The said suit was filed by the respondent herein
for specific performance of the alleged agreement of sale dated
13.10.2012 and was decreed ex parte on 01.04.2014.  The petitioner
herein, the defendant in the suit, filed I.A.No.1156 of 2013 therein
under Order 9 Rule 13 CPC to set aside the said ex parte decree by
condoning the delay of 189 days in applying for the same.  By the
order under revision, the Court below dismissed the said I.A.
      Conventional means of service having failed, substituted service
of notice was effected upon the respondent/plaintiff by publication
thereof in Eenadu Telugu Daily newspaper, L.B.Nagar Edition. The
respondent/plaintiff however did not choose to enter his appearance
before this Court either in person or through counsel.
      Perusal of the order under revision reflects that the Court below
dismissed the I.A mainly on the ground that the petitioner/
defendant had failed to file separate applications, one under Section 5
of the Limitation Act, 1963, seeking condonation of delay, and the
other under Order 9 Rule 13 CPC to set aside the ex parte decree.
The Court below further found that sufficient grounds had not been
shown by the petitioner/defendant to set aside the ex parte decree.
      The issue that falls for consideration presently is whether one
single application could have been filed by the petitioner/defendant
for condonation of the delay and also to set aside the ex parte decree.
      At the outset, it may be noted that Rule 55 of the Civil Rules of
Practice and Circular Orders, 1980 (for brevity, the Rules of 1980),
provides that separate applications must be filed for each distinct
relief prayed for, but goes on to state that the same would not be
necessary if the reliefs sought are consequential.
      Reliance was placed by the Court below on S.SEKHAR BABU  
V/s. Y.RAMAKRISHNA REDDY  in support of its conclusion that two  
separate applications had to be filed for the reliefs sought. Perusal of
S.SEKHAR BABU1 reveals that the earlier decision of this Court in
M.NARASIMHA REDDY V/s. BEGARI SAMUEL , which held to the        
contrary, was distinguished on facts.  However, the basis for the ratio
in M.NARASIMHA REDDY2, to the effect that two such separate  
applications need not be filed, was the earlier decision of a Division
Bench of this Court in M.A.QADER V/s. MD.AZMAT ALI . Therein, it
was held that where the grounds for condonation of delay and for
setting aside an ex parte decree were the same, it would not be
necessary to file a separate application for condonation of delay.  The
Division Bench observed that the power to do so vests in the Court
and if sufficient material is placed before the Court, wherefrom the
required satisfaction can be gleaned, the Court can admit the set
aside petition even after the period of limitation.  The Division Bench
further pointed out that Section 5 of the Limitation Act, 1963, does
not in terms say that a separate application should be filed.
      Despite this edict being culled out in M.NARASIMHA REDDY2,
the learned Judge who decided S.SEKHAR BABU1 distinguished    
between the cases on the short ground that the defendant in
M.NARASIMHA REDDY2 was not served with summons unlike the      
defendant in S.SEKHAR BABU1  and therefore, filing of a condone
delay petition was held to be not even necessary in the earlier case.
Significantly, the learned Judge also failed to take note of KAVALI
NARAYANA V/s. KAVALI CHENNAMMA , wherein another learned        
Judge affirmed and followed the principle laid down in
M.NARASIMHA REDDY2.  The learned Judge observed therein that as    
per Rule 55 of the Rules of 1980, filing of individual applications for
separate reliefs is not a universal principle and as regards
applications under Order 9 Rule 13 CPC, condonation of delay,
whenever such applications are filed beyond the stipulated period of
limitation, is interconnected with the main relief, viz., setting aside of
the ex parte decree.  The learned Judge further observed that in such
cases, the grounds for both reliefs would be the same and the two
reliefs are so interconnected with each other that one cannot exist in
the absence of the other.  The learned Judge therefore concluded that
such reliefs can be said to squarely fall within the category of
consequential reliefs, which are exempted from the requirement of
Rule 55 of the Rules of 1980.
      The aforestated case-law demonstrates that the learned Judges,
who individually decided S.SEKHAR BABU1, on the one hand, and  
M.NARASIMHA REDDY2 and KAVALI NARAYANA4, on the other,          
disagreed on the issue. However, it is not necessary to refer the matter
to a Division Bench for consideration on this contentious issue as
there is already an authoritative pronouncement of a Division Bench
on this aspect.  In M.A.QADER3, a Division Bench of this Court
categorically held that where the grounds for seeking both such
reliefs are the same, it would not be necessary that a separate
application be filed for condonation of the delay.  It was also pointed
out that Section 5 of the Limitation Act, 1963, does not stipulate
filing of a separate application there under. Reference was made to the
power vesting in the Court, if sufficient material is placed before it, to
arrive at the required satisfaction that the delay could be condoned so
as to admit the petition for setting aside an ex parte decree even after
the period of limitation. Further, applicability of the exemption under
Rule 55 of the Rules of 1980, when the consequential relief of setting
aside an ex parte decree is sought by condoning the delay in applying
for the same, was lucidly dealt with in KAVALI NARAYANA4.
      This being the legal position, the Court below erred in applying
the law laid down in S.SEKHAR BABU1 overlooking the binding
Division Bench decision in M.A.QADER3, which held to the contrary.
      As regards the finding of the Court below that sufficient
grounds were not established for setting aside the ex parte decree in
the present case, the affidavit filed in support of the I.A. reflects that
the same reason was cited by the petitioner/defendant to explain the
delay on his part and also for setting aside the ex parte decree. He
claimed that he had failed to take necessary steps in this regard
owing to old age and age-related ailments.  The petitioner/defendant
is a senior citizen aged over 66 years.  That being so, the Court below
ought to have been more liberal in its approach and should have also
considered the fact that landed property rights were at stake in the
suit. The Court below should therefore have afforded an opportunity
to the petitioner/defendant to put forth his case.  Trite to state,
Courts are not expected to adopt a hidebound and pedantic approach
while dealing with applications of this nature and the larger
perspective must be kept in mind, balancing the interests of justice
and those of the rival parties.  It is a settled principle of law that when
valuable immovable property rights are involved, the Court should
ordinarily afford a hearing to both parties rather than taking a
decision by hearing just one side.  The Court below therefore ought
not to have brushed aside the ostensibly adequate reason put forth by
the petitioner/defendant while seeking such relief in the present case.
      The Civil Revision Petition is accordingly allowed.  The order
under revision is set aside and the delay on the part of the petitioner/
defendant, in filing the application to set aside the ex parte decree
dated 14.01.2014 in O.S.No.555 of 2013, is condoned.  I.A.No.1156
of 2014 in O.S.No.555 of 2013 is allowed and the said ex parte decree
is also set aside.  O.S.No.555 of 2013 is restored to the file of the
learned II Additional Senior Civil Judge, Ranga Reddy District at
L.B.Nagar, who shall endeavour to expeditiously try and adjudicate
the suit on merits and in accordance with law.
       Pending miscellaneous petitions, if any, shall stand closed.  No
order as to costs.
______________________  
SANJAY KUMAR, J  
11th APRIL, 2017

when the suit property, being incapable of division in specie, there is no alternative but to resort to the process called Owelty, according to which the rights and interests of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of just compensation to the other. In view of the above facts and law, since the plaint schedule property is not amenable for either vertical or horizontal division as noted above, the only alternative is to follow a more pragmatic method In the result, this Appeal is allowed and final decree in O.S.No.1341 of 1997 is set aside with the following directions: a) The appellant/2nd defendant and respondent/1st defendant shall, within two(2) months from the date of this judgment, arrive at the value of the plaint schedule property and intimate to the trial Court as to which one among them is going to retain the property by paying Owelty to the other. b) Failing to follow the above direction, the trial Court shall ascertain the market value of the plaint schedule property with the assistance of a qualified Civil Engineer and after hearing both parties, and thereafter, taking the value fixed by it as upset price, conduct auction among both the brothers. c].If the parties are not agreeable for auction interse, then the Court shall after fixing the upset price as mentioned in direction No.2, conduct a public auction of the plaint schedule property and distribute the sale proceeds between the appellant/2nd defendant and respondent/1st defendant after defraying the expenses for holding auction and pass a final decree accordingly.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

C.C.C.A. No.35 of 2016

03-04-2017

Dr.P.Madan Mohan Rao. ... Appellant

1) Sri P.Surendranatha Rao 2) Smt. A.Bhavani Chandra 3) Smt. P.Raja Rajeshwari.
 Respondents  
 (Respondent Nos.2 and 3 are not necessary parties vide Cause Title)

Counsel for Appellant:Sri Eranki Phani Kumar

Counsel for Respondent No.1: Sri T.Viswanadha Sastry

<Gist:

>Head Note:

? Cases referred:
1)      AIR 1978 SC 845
2)      AIR 1991 Ori 83


HONBLE SRI JUSTICE U. DURGA PRASAD RAO        

C.C.C.A.No.35 of 2016

JUDGMENT:  
        The challenge in this appeal, at the instance of the appellant/2nd
defendant, is the final decree proceedings dated 10.12.2015 in
I.A.No.970 of 2002 in O.S.No.1341 of 1997 on the file of I Senior Civil
Judge, City Civil Court, Hyderabad.
2)      The parties in the appeal are referred as they were arrayed in the
trail Court.
3a)     Initially, the 3rd respondent/plaintiff filed the suitO.S.No.1341
of 1997 against the 1st respondent/1st defendant, appellant/2nd defendant
and 3rd respondent/3rd defendant for partition of plaint schedule
mentioned double storied building situated in Adarshnagar, Hyderabad
and for allotment of 1/4th share therein. Plaintiff and defendants are
children of late P.Dhananjaya Rao who was the owner of plaint schedule
property. Pending suit, plaintiff and 3rd defendant compromised with the
defendants 1 and 2 and relinquished their respective 1/4th shares in
favour of defendants 1 and 2 by accepting monetary consideration.
Thus, defendants 1 and 2 became exclusive owners of the plaint
schedule property. While so, the 1st respondent/1st defendant filed
I.A.No.970 of 2002 for appointment of advocate commissioner for
ascertaining mesne profits and he also filed I.A.No.971 of 2002 for
passing final decree by dividing the suit property into two equal halves.
The trial Court appointed an advocate commissioner who upon securing
a report from a chartered engineer with regard to mode of bifurcation of
plaint schedule property, submitted his report on 07.03.2006 while
noting the objections and contentions submitted by either party. The
commissioner while agreeing with the Chartered Engineer opined that
the property could be vertically divided into two portions. In the process,
the advocate commissioner did not accede to the request of the
appellant/2nd defendant for horizontal division of property for the
reasons mentioned in his report.
b)      While so, the trial Court in its order dated 22.11.2006 in
I.A.Nos.970 and 971 of 2002 accepted the commissioners report in toto
for dividing the schedule property into two equal halves by constructing
a vertical wall as suggested by commissioner in his plan.  The trial Court
observed that both the parties were at liberty to construct their stair cases
in the portions allotted to them. It further observed that Northern side
portion was allotted to the share of appellant/2nd defendant and Southern
side portion to the 1st respondent/1st defendant as per Vastu Sastra, along
with the land in an extent of 300.2 square yards each.
c)      Challenging the above order, the appellant/2nd defendant filed
C.R.P.No.2155 of 2007 impugning the order mainly on the ground that
no allotment was made in respect of terrace in 2nd floor. A learned single
Judge of this Court while observing that no final decree was yet passed
by the trial Court, disposed of the CRP with a direction that the trial
Court shall take into consideration the terrace, effect the partition of
terrace and also by taking into consideration all the allied matters.
d)      Thereafter, the trial Court passed the impugned final decree dated
10.12.2015 and directed the office to engross the final decree and send
the same for registration.
        Hence the instant appeal.
4)      Heard arguments of Sri Eranki Phani Kumar, learned counsel for
appellant/2nd defendant and Sri T.Viswanadha Sastry, learned counsel
for 1st respondent/1st defendant. R2 and R3 are not necessary parties vide
cause title.
5)      Severely fulminating the final decree, learned counsel for
appellant would, firstly argue that the idea of having a longitudinal
bifurcation of plaint schedule property would bring down its utility to a
naught more importantly, at the point of dining-cum-drawing hall
situated in 1st floor which is presently under the occupation of appellant
since such lopsided division will truncate the area of drawing-cum-
dining hall. Further, the division will render the staircase totally useless
and drive each party to re-build separate staircases where availability of
vacant place is very much scant. The vertical division poses further
problems in the matter of using drainage pipes and electrical connection
and practically, each party has to remodel the drainage pipes, water
connection and electrical circuits. Above all, the vertical bi-section
defiles the aesthetic beauty of the structure. Therefore, he would
emphasize, since the inception by way of objections, he opposed the
idea of vertical division of the building and conversely suggested
horizontal division of the building by keeping the dining-cum-drawing
hall in the 1st floor under his occupation as intact and also by allotting
the entire 1st floor to him.  As an owelty, the appellant was prepared to
forgo the entire 2nd floor and the staircase to the 1st respondent/1st
defendant. He also suggested for having separate drainage stream for
each party in which case he expressed no objection for the sullage pipes
being run under his ground. Other little adjustments could be made
without much effort. His advices and objections were paid deaf ear by
the trial Court and Commissioner and they budged to the wish and
request of 1st defendant to make a vertical division. In effecting such
division the 1st respondent/1st defendant was allotted more constructed
area than the appellant/2nd defendant as evidently the 1st defendant was
allotted 3456 square feet of the constructed area consisting of ground, 1st
and 2nd floors, whereas the appellant was allotted only 2794 square feet
of the constructed area carved from cellar, ground and 1st floor. No
owelty was ordered to be paid by the 1st defendant in the final decree.
Thus, a lot of injustice was done to appellant/2nd defendant in that
regard. Though some adjustment was seemingly made in the order in
I.A.Nos.970 of 971 of 2002 dated 22.11.2006 to compensate the extent
of structural loss to the appellant, however, the finding in the said order
was not incorporated in the final decree, thereby, the injustice meted out
to the appellant remained unanswered. He, thus, requested to set aside
the final decree and submitted that the appellant is ready to either retain
the entire building by paying suitable amount to the share of 1st
defendant or for a vice versa adjustment.
6 a)    Per contra, severely opposing the appeal, Sri T.Viswanatha
Sastry, learned counsel for 1st respondent/1st defendant would submit
that the final decree was a consent decree, inasmuch as the appellant did
never object for vertical division either before the trial Court or the
Commissioner. He would submit that while preferring the
C.R.P.No.2155 of 1997 his only objection was that the trial Court did
not make allotment in respect of terrace and he had not questioned the
vertical division approved by the trial Court. Therefore, he is now
debarred from raising that issue for the first time at this belated stage
after passing of final decree.
b)      Nextly, learned counsel would argue, the difference in the
allotment of structural area was already well compensated by the trial
Court by exclusively allotting the entire constructed area in the cellar
and also garage situated in the Northern side portion to the share of
appellant/2nd defendant and therefore, he cannot plead injustice to him.
He thus prayed to dismiss the appeal.
7)      In the light of above rival arguments, the point for determination
is:
     Whether the final decree passed by the trial Court is factually
and legally sustainable?
8) POINT:       Admittedly, the suit schedule property is a double storied
building bearing H.No.5-9-22/91 standing in plot No.80 in Adarshnagar,
Shapurwadi, Hyderabad admeasuring 600.41 square yards.  The building
consists of cellar, 1st and 2nd floors with construction on the Southern
side and terrace on the Northern side in the 2nd floor. The building has
amenities like a garage, compound wall around, sump for collection of
public water, pump and over head tank etc. The cellar is below the
ground floor on the Northern side. Below the ground floor the sub-
garage comprises of rock sloping down to North. The drainage from the
building joins the manhole on the south west corner in the yard. The
sewerage disposal starts from the South West, skirting round the
building along the compound wall and drains off into the public
underground drain on the North West corner.
     The above are vital features of the building which is subject
matter of partition.
9)      For better appreciation of the arguments of either side, the mode
of partition effected by the trial Court in the final decree is extracted
below:
1)     That the Commissioner report is accepted in TOTO by
dividing the schedule property into two halves by constructing a
vertical wall as suggested by the Commissioner in the plan
annexed in this report dated 07.03.2006.
2)      That the P.Surender Nath/Petitioner/Defendant No.1 is
allotted southern side of the suit schedule property, admeasuring
3456 sq.ft constructed area of the building consisting of Ground,
First and Second Floors more particulars shown in the plan
(Shown in Green Colour) drawn by the Commissioner with all
absolute rights and title over the property and he is entitled to
enjoy the same as its absolute owner without interference by
anybody. The petitioner/defendant No.1 and respondent
No.2/defendant No.2 shall be entitled to equal area i.e, 300.20
sq.yds each out of 600.41 sq.yds.
3)      Sri P.Madan Mohan Rao, respondent No.2/defendant  
No.2 is allotted Northern side constructed portion of the suit
schedule property admeasuring 2794 sq.feet consisting of
Cellar, Ground and First Floor more particularly shown in the
plan drawn by the Commissioner with all rights and title over
the property allotted to him and he is entitled to enjoy the same
as its absolute owner without interference by anybody.  The
petitioner/Defendant No.1 and Respondent No.2/defendant No.2
shall be entitled to equal area i.e, 300.20 sq.yds each out of
600.41 sq.yds.
4)      The open terrace available on the First Floor that is on
the Northern side of the building of the suit property is allotted
to Dr.P.Madan Mohan Rao and he is entitled to enjoy all the
rights in and over the terrace portion as its absolute owner as
per Commissioner report dt.18.04.2008.
5)       That both the parties have liberty to construct their
respective staircase on the portion allotted to them as per Order
I.A.No.970/2002, dated: 19-2-2009.
6)      That the Commissioner Report dated: 07-03-2006 and
18-04-2008, along with plan shall form the part and parcel of
this Final Decree.
7)      Both parties shall enjoy existing amenities such as
borewell water, drainage and municipal water connection.
8) That the Stamp Duty paid on 11-11-2000 of Rs.87,050/- may
be taken to the account in full towards the compromise decree in
partition suit issued on O.S.No.1341/97, and register the Final
Decree before the Registrar for Registrations, Hyderabad on
receipt of balance Stamp Duty and Registered the Final
Decree.
10)     This Court after giving anxious consideration to the chartered
engineers report, commissioners report and final decree passed by the
trial Court, is of the firm view that vertical division made by the
engineer and approved by the commissioner and consequently by the
trial Court is quite eccentric and lopsided resulting in loss and injustice
to the appellant/ 2nd defendant. In the considered view of this Court, the
pliant schedule property is amenable for neither horizontal nor vertical
bifurcation.
11)     Horizontal bi-section which was proposed by appellant, may at
best effectuate a paper division but not an effective partition by metes
and bounds. The reason is not far to seek. If the entire 1st floor is allotted
to the appellant/2nd defendant and 2nd floor to the 1st defendant and the
ground and cellar are either divided or kept joint, the resultant division
would be that one sharers property overlaps on the other causing severe
problems and litigations in the matter of future expansion, demolition
and alienation. Hence, horizontal severing is not a solution much-less a
partition by metes and bounds. Hence, the same has to be rejected.
12)     The vertical bifurcation made by the Commissioner and approved
by the Court is also beset with many incongruities evident from the
reports of Chartered Engineer and Commissioner themselves.
a)      Firstly, the report of the Engineer would show that when the
building was markedly divided vertically down by a wall, more or less
in the center, right through from the top to foundations, there arises a
difficulty for equal partition of dining-cum-drawing hall situated in the
first floor. The Engineer expressed that he tried to make a vertical
division in line with the central hall but that would foul the practical
bifurcation because of the dining-cum-drawing hall in the first floor
which he noted as Gordian knot (intricate knot) to be resolved.  He
further noted that however much they pondered over the problem of
equal bifurcation satisfactorily, they found themselves in a predicament,
since the single dining-cum-drawing hall in the first floor was designed
for any one single family only.  When vertical division was tried to be
made through the central line, the beams located at the center of the
dining-cum-drawing hall coinciding with the central wall to be
constructed. Therefore, to effect the vertical bifurcation, the Engineer
suggested that the partition wall has to be constructed asymmetrically
nearly 3ft. from the center line of the drawing-cum-dining hall. In which
event, the drawing-cum-dining hall will have to be truncated and the two
wings of the building will have to be suitably modified to the best
possible orientation.  By this asymmetrical division, the stair case has
also to be cut unequally and thereby the stair case will become unuseful
for either of the two brothers. Thus one of the most intricate problem in
the vertical division is the cutting at the drawing-cum-dining hall in the
first floor. At the central point of the drawing-cum-dining hall, there
appears to be a beam and the said beam will coincide with the central
line of division causing severe problem in the matter of future utility,
expansion, demolition and alienation of the respective portions of either
party. To obviate that problem, it appears, the Engineer suggested for
moving the central line away from the central beam to an extent of 3ft at
the cost of truncating one wing of the drawing-cum-dining hall and also
the corresponding stair case which almost becomes useless.
b)      The second incongruity is that due to the asymmetrical division,
the respondent/defendant No.1 gets 3556 sq.ft of constructed area of the
building consisting of ground, first and second floors whereas the
appellant/2nd defendant gets 2794 sq.ft consisting of Cellar, ground and
first floor and thereby the appellant falls short of 762 sq.ft of constructed
area.  In the final decree proceedings, though the said difference was
noted, nothing was mentioned about the Owelty to be payable by the 1st
defendant.  No doubt in the common order in I.A.No.970/2002 and
971/2002 in O.S.No.1341/1997 dated 22.11.2006 the difference was
mentioned as if 68.48 sq.ft and it was observed that since the garage
situated in the Northern side portion of the schedule property was
allotted to the share of the 2nd defendant, the difference in the
constructed area was thus compensated.  It must be noted that as per
final decree proceedings, the difference is 762 sq.ft but not 68.48 sq.ft as
mentioned in the common order.  Further, in the final decree it was not
specifically mentioned that the loss in the constructed area was
compensated by allotting garage to 2nd defendant.  Above all, nowhere
the particulars of the garage and its area are mentioned to know whether
allotment of garage could be an effective substitution for the loss of
constructed area.  This is another lacuna in the vertical bifurcation.
c)      The third problem in vertical division is ofcourse, in respect of
usage of the underground drainage system.  As of now, the underground
drainage for the Southern half is located towards Northwest corner i.e,
the sewerage line starts from the Southwest, skirts the building alround
the rear and joins the road lower down on the Northwest corner.  If the
property were to be divided North South wise, the holder of South block
has to depend on the other owner to pass his sewerage line through the
Northern part to reach the municipal manhole situated in the Northwest
corner.
d)      Therefore, for all these reasons, the vertical division is also not
feasible. However, the trial Court failed to consider all these aspects in a
pragmatic manner and simply carried away by the report of the
Commissioner and accepted it mechanically.
13)     When symmetric division of a property is not possible without
truncating the utility of the portion allotted to one or more sharers and
without defiling structural ambiance and aesthetic beauty, necessarily
other mode of partition has to be adopted.  In this regard it is beneficial
to extract Sec.2 of Partition Act, 1893:
Section 2: Power to court to order sale instead of division in
partition suits.Whenever in any suit for partition in which, if
instituted prior to the commencement of this Act, a decree for
partition might have been made, it appears to the court that, by
reason of the nature of the properly to which the suit relates, or
of the number of the shareholders therein, or of any other
special circumstance, a division of the property cannot
reasonably or conveniently be made, and that a sale of the
property and distribution of the proceeds would be more
beneficial for all the shareholders, the court may, if it thinks fit,
on the request of any of such shareholders interested
individually or collectively to the extent of one moiety or
upwards, direct a sale of the property and a distribution of the
proceeds.
        Thus as per the above provision, it is clear that when it appears to
the Court that by reason of nature of the property to which the suit
relates, as in the present case, or of the number of shareholders therein,
or of any other special circumstance, a division of the property cannot
reasonably or conveniently be made, then the Court may direct the sale
of property and distribute the sale proceeds among the shareholders.
a)      In similar circumstances, the Apex Court in the case of Badri
Narain Prasad Choudhary and others vs. Nil Ratan Sarkar , held as
follows:
Para 19: Thus considered, it is clear that the provisions of
Sections 2 and 3 of the Partition Act are not applicable to the
peculiar circumstances of the case. At the same time, there is a
concurrent finding of fact recorded by the courts below that the
suit property is so small, that it cannot be conveniently and
reasonably partitioned by metes and bounds, without destroying
its intrinsic worth. This finding is unassailable. In our opinion in
such a situation, the Court can devise such other feasible mode
for effecting partition as may appear to it to be just and
equitable in the circumstances of the case.
Para 20: The suit property, being incapable of division in
specie, there is no alternative but to resort to the process called
Owelty, according to which the rights and interests of the parties
in the property will be separated, only by allowing one of them
to retain the whole of the suit property on payment of just
compensation to the other. As rightly pointed out by K. Subba
Rao, C. J. (speaking for a Division Bench of Andhra High Court
in MANU/AP/0118/1957 : A.I.R. 1958 A P 647), in cases not
covered by Sections 2 and 3 of the Partition Act, the power of
the Court to partition property by any equitable method is not
affected by the said Act.
b)      In Fakir Khan vs. Kuanr Khan and others  case, the High Court
of Orissa came to a similar conclusion.
c)      In view of the above facts and law, since the plaint schedule
property is not amenable for either vertical or horizontal division as
noted above, the only alternative is to follow a more pragmatic method.
14)     In the considered view of this Court, the right of preemption must
at first be extended to the appellant and first defendant to retain the
property by paying suitable Owelty to other party and in their failure,
auction the property and distribute the sale proceeds between both the
brothers.
15)     In the result, this Appeal is allowed and final decree in
O.S.No.1341 of 1997 is set aside with the following directions:
a)      The appellant/2nd defendant and respondent/1st defendant shall,
within two(2) months from the date of this judgment, arrive at the
value of the plaint schedule property and intimate to the trial
Court as to which one among them is going to retain the property
by paying Owelty to the other.
b)      Failing to follow the above direction, the trial Court shall
ascertain the market value of the plaint schedule property with the
assistance of a qualified Civil Engineer and after hearing both
parties, and thereafter, taking the value fixed by it as upset price,
conduct auction among both the brothers.
c)      If the parties are not agreeable for auction interse, then the Court
shall after fixing the upset price as mentioned in direction No.2,
conduct a public auction of the plaint schedule property and
distribute the sale proceeds between the appellant/2nd defendant
and respondent/1st defendant after defraying the expenses for
holding auction and pass a final decree accordingly.
        As a sequel, miscellaneous petitions pending, if any, shall stand
dismissed.
_________________________  
U. DURGA PRASAD RAO, J    
Date: 03.04.2017

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

HONBLE SRI JUSTICE V.RAMASUBRAMANIAN ANDHONBLE SMT JUSTICE ANIS                

APPEAL SUIT No.349 of 2016  

27-04-2017

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

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

Counsel for the Appellant : Mr. Ch. Ramesh Babu

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

<GIST:

>HEAD NOTE:  

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

Court made the following Judgment


HONBLE SRI JUSTICE V.RAMASUBRAMANIAN          
AND
HONBLE SMT JUSTICE ANIS    

A.S.No.349 of 2016

JUDGMENT: (per V. Ramasubramanian, J.)  

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

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

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

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

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

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

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

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

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