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Eranki Srerama Murthy and ors. Vs. Eranki Atchuta Venkata Subramanyam (Died) by Lrs. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberLPA No. 345 of 1998
Judge
Reported in2005(1)ALD817
ActsAndhra Pradesh Agricultural Lands (Prohibition of Alienation) Act, 1972 - Sections 5, 5(1) and 5(2)
AppellantEranki Srerama Murthy and ors.
RespondentEranki Atchuta Venkata Subramanyam (Died) by Lrs. and ors.
Appellant AdvocateM.V.S. Suresh Kumar, Adv.
Respondent AdvocateM.V. Suresh, Adv.
DispositionAppeal allowed
Excerpt:
.....interest in favour of the other is clearly hit by the said provisions contained in section 5 of the act, if it contravened the provision. 17. there is no challenge made by the defendants to the findings recorded by the trial court as well as learned single judge that in case the settlement deed is held to be null and void, the plaintiffs acquired all rights, title and interest to the property on the basis of the will ex. a-10 executed by the deceased plaintiff on 16.5.1974. 18. in view of the above, the appeal is allowed, the judgment and decree passed by the learned single judge as well as by the trial court are set aside......1 also openly told other brothers residing at jegurupadu that the plaintiff executed settlement deed in favour of defendants. this caused jealousy in the mind of the other sons and they hatched a plan to win over the plaintiff and created dissatisfaction between the plaintiff and defendant no. 1. defendant no. 1 thus denied allegations of practice of fraud and misrepresentation in getting the settlement deed executed saying that the plaintiff was in sound state of mind. he was taken away from his house whereafter the plaintiff was influenced by the other sons and was forced to file the suit after the other sons got the cancellation deed executed on 12.3.1974. thus, it was prayed that the suit based upon false allegations be dismissed.4. after the written statement was filed, the sole.....
Judgment:

Devinder Gupta, C.J.

1. This letters patent appeal arises out of the judgment and decree passed by the learned Single Judge of this Court in A.S. No. 2108 of 1993 dismissing the appeal of the plaintiffs/appellants thereby confirming the judgment and decree passed on 15.7.1983 by the Court of Subordinate Judge, Rajahmundry in O.S. No. 42 of 1974 dismissing the suit of the plaintiffs/appellants.

2. The suit was initially instituted on 21.3.1974 by Eranki Srirama Murthy, now deceased, against his son Eranki Atchuta Venkata Subrahmanyam and four others. Defendant No. 1 is the second son of the plaintiff, Eranki Srirama Murthy, whereas Defendants 2 to 5 are the sons of Defendant No. 1. Eranki Srirama Murthy - the plaintiff had seven sons. First son, Suryanarayana Murthy, predeceased him in 1969 leaving behind his widow, six daughters and four sons. Except his sixth son, who was living at Secunderabad and practising as an Advocate, the other sons were living at Jegurupadu. The plaintiff, his wife and the sons possessed more than 100 acres of wet land, 50 acres of dry land. In the year 1953, there was a partition in the family. The plaintiff and his sons in a family partition separated their shares. The plaintiff and his wife had been residing separately and each of the sons was living separately. Whatever share the plaintiff got in partition, he on 25.8.1973 by settlement deed Ex.B-12 settled in favour of the defendants. The settlement deed was registered on 27.8.1973. The plaintiff alleging that he had become old, having weak body and mind, the first defendant had created differences between him and his wife so that the plaintiff be deprived of assistance of his wife and thus become dependant upon one or the other sons. Slowly Defendant No. 1 started to take advantage of the weak mind and body of the plaintiff and on 24.8.1973 gave plaintiff to understand that he will have to execute some documents, such as Power of Attorney, etc. The plaintiff was not aware of the evil plans of Defendant No. 1 and did not know about the contents of the documents and was not in a position to understand implications thereof. He alleged that Defendant No. 1 got his signature on some documents and got the same registered. Later on, the plaintiff realized that Defendant No. 1 has got settlement deed Ex.B.12 signed from him and got the same registered. On realizing that Defendant No. 1 had got the settlement deed executed by practising fraud, undue influence and coercion, the plaintiff on 12.3.1974 cancelled the same by executing document, Ex.A-7. The plaintiff also alleged that the settlement deed otherwise was null and void since it was in violation of the provisions of the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act, 1972 (Act No. 13 of 1972). The plaintiff, thus, prayed for a decree for declaration of cancelling the settlement deed dated 25.8.1973 that it was not a voluntary act on the part of the plaintiff but was got executed by Defendant No. 1 by practising fraud or in any case to declare that the said document is null and void not creating any right, title or interest in favour of the defendants in respect of the plaint schedule property.

3. Defendant No. 1 contested the suit by filing written statement. He denied the material allegations in the plaint alleging that the plaintiff had been affectionate towards him and liked him very much. He alone had been helping the plaintiff now and then and out of love and affection only towards him, the plaintiff lived with him for a period of two years prior to middle of February, 1974. Out of his free will, love and affection, the plaintiff executed settlement deed Ex.B.12 in favour of the defendants. It was a voluntary act on the part of the plaintiff to the knowledge of other sons and members of the family. After the document was got registered, the plaintiff proclaimed about the said document both before the village elders and his associates. Defendant No. 1 also openly told other brothers residing at Jegurupadu that the plaintiff executed settlement deed in favour of defendants. This caused jealousy in the mind of the other sons and they hatched a plan to win over the plaintiff and created dissatisfaction between the plaintiff and Defendant No. 1. Defendant No. 1 thus denied allegations of practice of fraud and misrepresentation in getting the settlement deed executed saying that the plaintiff was in sound state of mind. He was taken away from his house whereafter the plaintiff was influenced by the other sons and was forced to file the suit after the other sons got the cancellation deed executed on 12.3.1974. Thus, it was prayed that the suit based upon false allegations be dismissed.

4. After the written statement was filed, the sole plaintiff died on 8.4.1975. On his death, plaintiff, Plaintiffs 2 to 11, claiming themselves to be the legal heirs of the deceased-plaintiff on the basis of a registered will got them substituted as his legal representatives. The plaint was got suitably amended. Decree for possession was also claimed by the plaintiffs along with decree for mesne profits from November, 1974 till the delivery of suit property. Additional written statement was filed on 25.1.1980 by the first defendant denying the allegation of having trespassed upon the land. He raised plea that he was in possession of the suit schedule property as owner and was entitled to continue in occupation thereof. Defendant No. 5 filed separate written statement. Defendants 2 to 4 adopted the same written statement in which they claimed that the first defendant was in possession and they have nothing to do with the property. During pendency of the suit, eighth plaintiff died and his legal representatives were brought on record as Plaintiffs 12 to 16. Additional written statement was filed by the first defendant on 1.10.1980, which was adopted by Defendants 2 to 5, and in the said written statement he disputed that the will set up by the plaintiff was not binding upon him. Another additional written statement was filed on 6.4.1982 by the first defendant incorporating therein a plea that the question whether the settlement deed dated 25.8.1973 was null and void in view of the provisions of the Act No. 13 of 1972, is not within the jurisdiction of the Civil Court and the same has to be exclusively decided by the Tribunals constituted under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act. We need not note of the other pleas raised since our purpose would be served by making reference to the aforementioned pleadings only.

5. The Trial Court on 1.8.1974 framed issues. On 29.1.1980, 21.4.1982 and 17.7.1982 additional issues were framed. Issues were re-casted on 12.4.1983.

6. We will notice, at this stage, a fact that the plaintiffs propounded registered Will, Ex.A-10, dated 16.5.1974, alleged to have been executed by the sole plaintiff in favour of the other plaintiffs, brought on record as his legal representatives. It is not in dispute that the said Will, Ex.A-10, stood duly proved by the attestor and other witnesses, to have been duly executed by the sole plaintiff being a holograph Will. The finding that the Will Ex. A. 10 is a genuine document and is the last will of the testator was approved by the learned Single Judge in appeal, who observed that only in the event of settlement deed Ex.B-12 being set-aside by a decree in favour of the plaintiffs that the Will Ex.A-10 will become operative. Will Ex.B-76 dated 18.1.1975 was propounded by Defendant No. 1, alleged to have been executed by the sole plaintiff. In the absence of proof of due execution of the said will, non-examination of any attestor, the said will was held as not proved. There is no dispute by the parties on these findings.

7. The Trial Court in its judgment held the suit to be maintainable in Civil Court. Document Ex. B-12, the settlement deed dated 25.8.1973 was held as not vitiated by fraud, undue influence, misrepresentation or coercion. Defendant No. 1 was held to be in possession of the property on the basis of settlement deed, Ex.B-12 and it was held that the settlement deed, Ex.B-12, was not null and void and was not violative of any of the provisions of the Act No. 13 of 1972. The suit was, thus, dismissed without costs.

8. The learned Single Judge by his judgment rendered in appeal concurred with the findings of fact recorded by the Trial Court holding that there was no reason to differ with the same. The conclusions arrived at by the Trial Court as regards due execution of Ex.B-12, the settlement deed are the correct conclusions in law. Validity of the settlement deed, Ex.B-12, was examined under Point No. 2 and it was held that the same is also not null and void because of provisions of Act No. 13 of 1972. By the same judgment, cross-objections of the defendants for costs were also dismissed. Thus, confirming the judgment and decree of the Trial Court, the appeal was dismissed. This letters patent appeal is against the said judgment and decree.

9. We heard the learned Counsel for the parties and were taken through the record. On the issue that the settlement deed, Ex.B-12, was a result of fraud, undue influence, misrepresentation or coercion, in view of the concurrent findings of fact recorded by the Trial Court and of the learned Single Judge that Ex.B.12 is not vitiated by fraud, undue influence, misrepresentation or coercion, no interference is called for by us in this letters patent appeal. We have gone through the record and are satisfied that the findings recorded are borne on record and the view taken by the Trial Court as well as the learned Single Judge is the only view which is possible. Findings are not shown to be perverse. Therefore, it must be held that the settlement deed Ex.B.12 was executed by the sole plaintiff out of his free will, voluntarily, without any influence and there was no fraud practiced on the said plaintiff while executing settlement deed Ex.B.12.

10. The sole question, which was then urged before us and remains to be decided, is about the effect of Section 5 of the Act No. 13 of 1972 on document Ex. B-12, the settlement deed.

11. Act No. 13 of 1972 on being passed in the State Legislature, was reserved by the Governor on 13.7.1972 for consideration and assent of the President which was received on 29.7.1972 and was published on 31.7.1972 in the A.P. Gazette. It came into force on 2.5.1972. The Act was brought on the statute book in order to prohibit alienation of agricultural lands by certain categories of persons in the State of Andhra Pradesh. Section 5 of the Act, which contains prohibition of alienation, reads as under:

'(1) No person whose holding as on the date of commencement of this Act or at any time thereafter exceeds the specified limit shall alienate such holding or any part thereof by way of sale, lease for a period exceeding six years, gift, exchange, usufructory mortgage or otherwise or effect a partition or create a trust of such holding or any part thereof; and any alienation made or partition effected or trust created in contravention of this section shall be null and void.

(2) No member of family, the holdings of all the members of which in the aggregate as on the date of commencement of this Act or at any time thereafter exceed the specified limit, shall alienate his holding or any part thereof by way of sale, lease for a period exceeding six years, gift, exchange, usufructory mortgage or otherwise or effect a partition or create a trust of such holding or any part thereof; and any alienation made or partition effected or trust created in contravention of this section shall be null and void.

(3) The provisions of Sub-section 91) and (2) shall apply to any transaction of the nature referred to therein in execution of a decree or order of a civil Court or any award or order of any other authority.

Explanation :-For the purposes of this section-

(a) the expression 'family' shall mean an individual, his or her spouse and their minor children; and they shall be deemed to be members of such family;

(b) where the individual is a divorced husband or a divorced wife who had not re-married such individual together with the minor children in his or her custody shall be deemed to constitute a family; and such individual and such minor children shall be deemed to be members of such family;

(c) in calculating the holding of any person being an individual or any member of a family, share of such individual or member in the lands held by an undivided Hindu family shall also be taken into account and for this purpose, such share shall be deemed to be the extent of land which would be allotted to such individual or member had there been a partition of the lands by the undivided Hindu family.'

12. We are concerned with Sub-section (2) of Section 5, which prohibited a member of a family, when the holding of all members put together, as on the date of commencement of Act or at any time thereafter, exceeded 'specified limit' from alienating his holding or any part thereof by way of sale, lease for a period exceeding six years or gift, exchange, usufructory mortgage or otherwise or effect a partition or create a trust of such holding or any part thereof. It further stipulated that 'any alienation made' or 'partition effected' or 'trust created' in contravention of the section shall be null and void. The expression 'family' was also explained to mean - an individual, his or her spouse and their minor children - that they also are deemed to be members of such family. Sub-section (3) of Section 5 provided that the prohibition contained in Sub-sections (1) and (2) shall apply also to transactions of the nature referred to therein even in case of an execution of decree or order of the Civil Court. Section 4 of the Act prescribed specified limits of holdings of wet and dry lands for the purpose of Section 5.

13. It is not in dispute that as on the date when the settlement deed was executed, the provisions of the Act applied. It is also not disputed that the document Ex.B-12 will have to be treated as null and void for all purposes in case it was hit the prohibition contained in Section 5. It was not disputed before us that the holding of the sole plaintiff, as on the date of the commencement of the Act as also as on the date of execution of the settlement deed along with the holding of his wife exceeded the 'specified limit'. The only defence put forth by learned Counsel appearing for the defendants, during the course of arguments before us, was two fold; (a) absence of such a plea that such a transaction was hit by the provisions of Act No. 13 of 1972 in the pleadings or proof in support thereof, and (b) transfer by the settlement deed is not such which would come within the bar created under Section 5 of the Act.

14. The Trial Court and the learned Single Judge gave their own reasonings in coming to the conclusion that the transaction evidenced by settlement deed, Ex.B-12, is not hit by the provisions of Section 5. Even they expressed their separate opinions in support of the reasons recorded in their judgments that the wife's holding cannot be clubbed with that of the sole plaintiff in order to apply the bar and that the transfer by settlement is not one of the transactions referred to either in Sub-section (1) or Sub-section (2) of Section 5 of the Act. Therefore, even if the holding of husband and wife being members of the same family put together exceeded the specified limit, the transfer by settlement would not come within the mischief of Sub-sections (1) and (2) of Section 5 of Act No. 13 of 1972.

15. As regards the first objection raised by the learned Counsel for the defendants/ respondents that there is complete absence of pleadings or proof, the same is misconceived and is a result of overlooking plea raised in the plaint itself. In the plaint, as originally instituted, the plaintiff while alleging that his signatures were obtained on few papers and he learnt later on that his signatures were also taken by Defendant No. 1 to a false declaration as to the extent of his holding and the same were filed in order to get over the legal obstruction against the execution of the settlement deed, he alleged that the settlement deed was null and void under the A.P. Agricultural Lands (Prohibition of Alienation) Act. Thus, the foundation was laid in the original plaint itself by the plaintiff, which was explained in the rejoinder filed to the written statement, specifically alleging that the settlement deed was null and void and was hit by the provisions of Section 5 of the Act No. 13 of 1972. Not only there was specific plea raised in the plaint, issues were also framed and evidence was also led by the plaintiffs which remained unrebutted. Issue No. 4, as re-casted on 12.4.1983 reads as under:

'Whether the settlement deed dated 25.8.1973 is null and void in view of the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act, 1972?'

16. The first objection thus has to be turned down as meritless. Settlement of the entire holding by the sole plaintiff in favour of defendants is through settlement deed Ex.B-12. He as on the date of execution was a member of family of which his wife has also formed part. Their holding put together admittedly exceeded the specified limit as on the date of execution of the settlement deed. As such whether this transaction has to be termed as null and void; or in other words the alienation by settlement deed is or is not prohibited is the next question raised by the learned Counsel for the respondents only by asserting that since the expression 'settlement deed' is not specifically mentioned in Sub-section (1) or Sub-section (2) of Section 5, therefore, transfer by settlement deed will be deemed to have been excluded. Such an argument has no force. Bar as contained in Sub-section (1) or Sub-section (2) is for alienating the holding or any part thereof. While illustrating further, certain modes of alienation are expressly stated that whether alienation it is by way of sale, lease exceeding six years, gift, exchange, usufructory mortgage or otherwise. Use of word 'otherwise' relates to alienation. After all what is the effect of 'settlement' in law. 'Settlement' has not been defined in the Act and we have to refer to the word as it is commonly understood. 'Settlement' in common parlance means settling the property, right or claim -conveyance or disposition of property for the benefit of another. Admittedly the effect of execution of settlement deed is transfer of all rights, title and interest, which hitherto vested in the settlor in favour of the settlee. By execution of the settlement deed, Ex.B-12, the sole plaintiff purported to have transferred, conveyed or parted with all his rights, title or interest in the property, in favour of Defendant No. 1. Such a conveyance or disposition of property by the sole plaintiff for the benefit of Defendant No. 1 by any mode whatsoever has to be treated as alienation for all intents and purposes. On and from the date of execution of such a deed, if it is not hit by Section 5 of the Act, had the effect of vesting all such rights, title and interest in the property in favour of Defendant No. 1 thereby depriving the plaintiff of any right, title or interest therein. The Legislature in its wisdom in Section 5 did not mention all instances of alienation but elaborated it as 'sale, lease, gift, exchange, usufructory mortgage, partition or creation of trust'. In case we read literally the provision that 'alienation of holding or any part thereof by sale, etc., or otherwise' shall be null and void that alone would convey the meaning of the term used in Sub-sections (1) and (2) that alienation of the property in any form, whatsoever; which has the effect of conveying right, title or interest in favour of the other is clearly hit by the said provisions contained in Section 5 of the Act, if it contravened the provision. Therefore, the reasonings and finding of the trial Court and of the learned Single Judge of this Court deserves to be set aside and it must be held that the transfer by the sole plaintiff in favour of Defendant No. 1 by the settlement deed, Ex.B-12, dated 25.8.1973 as registered on 27.8.1973 was in contravention of Section 5 of Act No. 13 of 1972 and thus is null and void, thereby conferring no right, title or interest in favour of Defendant No. 1 and for that reason alone the suit of the plaintiffs deserves to be decreed.

17. There is no challenge made by the defendants to the findings recorded by the Trial Court as well as learned Single Judge that in case the settlement deed is held to be null and void, the plaintiffs acquired all rights, title and interest to the property on the basis of the will Ex.A-10 executed by the deceased plaintiff on 16.5.1974.

18. In view of the above, the appeal is allowed, the judgment and decree passed by the learned Single Judge as well as by the Trial Court are set aside. The suit of the plaintiff is decreed declaring the settlement deed dated 25.8.1973 to be null and void and of no effect conferring no right, title or interest in favour of the defendants. Consequently decree for possession is passed in favour of the plaintiffs and against the defendants in respect of the plaint schedule properties. The parties are left to bear their own costs throughout.


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