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This Product is Licensed to M.NAGASHYAM KIRAN, ADVOCATE, ANANTAPURAMU

2003 0 Supreme(AP) 1193
2004 3 ALD 45; 2004 1 ALT 406

Andhra Pradesh High Court

Judges : P.S.NARAYANA
Chenna Reddy - Appellant
Versus
D.Venkata Reddy - Respondent
Decided On : 09-26-03

AP Assigned Lands (Prohibition of Transfers) Act, 1977 - Section 2(6) - Assigned land - Transfer
of - Execution of will - Though testamentary disposition is permissible under the Act, but as the
will was executed in favour of sister s son who is a stranger to family, assignee has no right to
dispose of the property under the Act
Cases referred:

Katta Yesuratnam Vs Commissioner, Land Revenue, A.P., Hyderabad , 1997 6 ALT 829
Yeluri Vijayabharathi Vs Yeluri Manikyamma , 1998 2 ALT 623
DADAN BAI WD/O BHAGCHAND SINDHI Vs ARJUNDAS , 1995 AIR(SC) 1377

ANDHRA PRADESH ASSIGNED LANDS PROHIBITION OF TRANSFERS ACT : S.2(6)

P. S. NARAYANA, J.
( 1 ) THE appellant herein, Chenna Reddy, the 1st defendant in O. S. No. 60/92 on the file of
principal junior Civil Judge, Hindupur and 1 st respondent in A. S. No. 27/99 on the file of senior Civil
Judge, Hindupur, had preferred the present Second Appeal, aggrieved by the reversing Judgment and
decree made in a. S. No. 27/99 on the file of Senior Civil judge, Hindupur.
( 2 ) THE respondent herein, Venkat Reddy filed O. S. No. 60/92 on the file of the Principal junior
Civil Judge, Hindupur for the relief of permanent injunction relating to the plaint schedule property as
against defendants 1 to 3. The 3rd defendant was set ex parte. The appellant 1 st defendant filed written
statement and an adoption memo was filed by the 2nd defendant.
( 3 ) ON the strength of the respective pleadings of the parties, lssues were settled. In the Court of
first instance, on behalf of the respondent/plaintiff, P. W. 1 to P. W. 3 were examined and Exs. A-1 to A-
5 were marked. Likewise, on behalf of the defendants 1 and 2, D. W. 1 to D. W. 3 were examined and
exs. B-1 to B-8 were marked. On appreciation of the oral and documentary evidence, the Court of first
instance had dismissed the suit, with costs. Aggrieved by the said Judgment and decree, the plaintiff
had carried the matter by way of Appeal a. S. No. 27/99 on the file of Senior Civil judge, Hindupur and
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the appellate Court had allowed the appeal with costs, setting aside the Judgment and decree of the
Court of first instance. The 1st defendant/1 st respondent, aggrieved by the same, had preferred the
present Second Appeal.
( 4 ) SRI Sridhar Reddy, the learned counsel representing the appellant had pointed out to
substantial questions of law which had been raised in the Second appeal. The learned Counsel also had
taken me through the findings recorded by the court of first instance and the findings recorded by the
appellate Court. The learned counsel also pointed out that the appellate court had totally erred in arriving
at the conclusion that the appellant is a stranger and not a member of the family and hence the
deceased had no right to Will away the property which had been assigned to him. The learned Counsel
also had taken me through the provisions of A. P. Assigned lands (Prohibition of Transfer) Act 1977,
hereinafter in short referred to as "act" for the parpose of convenience. The learned counsel also had
contended that the expression "family" is not defined under the act and had drawn my attention to the
definition of the word "family" in websters Dictionary. While elaborating his submissions, the learned,
Counsel aiso had taken me through the evidence of D. W. I and d. W. 2 and had pointed out that Ex. B-1
was proved in accordance with law and the appellate Court had totally ened in reversing the well
considered Judgment and decree of the Court of first instance. The learned counsel also contended that
the mere mutation in revenue records may not be of any consequence since by virtue of these
documents, it cannot be said that the respondent/plaintiff has title to the suit property. Reliance was
placed on Nagar palika v. Jagat Singh and Y. Vijayabharathi v. Y. Manikyamma.
( 5 ) PER contra, Sri Prasad, the learned counsel representing the respondent/ appellant/plaintiff
made the following submissions. The learned Counsel would maintain that there is no controversy
relating to the relationship of the parties. The learned counsel also further submitted that the 3rd
defendant and the plaintiff are the family members and also the nature heirs of the deceased in whose
favour the land was assigned. The learned Counsel also had drawn my attention to Ex. A-3 and had
pointed out to the contention relating to heritabiiity and non-alienability of the property assigned in favour
of the deceased. The learned Counsel further contended that though testamentary disposition may be
permissible under the Act, such disposition cannot be made in favour of a stranger to the family and
hence Ex. B-1 is invalid and it does not confer any right whatsoever on the appellant. The learned
Counsel also had taken me through the findings recorded by the appellate Court and had submitted that
even otherwise, Ex. B-1 was not proved in accordance with law. The learned Counsel also had placed
strong reliance on k. Yesuratnam v. Commissioner, Land revenue, Hyderabad.
( 6 ) HEARD both the Counsel at length and also perused the oral and documentary evidence
available on record and the findings recorded by the Court of first instance and the appellate Court.
( 7 ) THE pleadings of the respective parties, in short, are as hereunder: the respondent/plaintiff had
pleaded that one Narayanappa is the original owner of the schedule property and he got patta in his
favour. The 3rd defendant is the brother of the said Narayanappa and father of the plaintiff.
Narayanappa was in possession and enjoyment of the schedule property during his lifetime and after his
death, the plaintiff and the 3rd defendant succeeded to the property and they are in possession and
enjoyment of the same. The plaintiffs name is mutated in revenue records. Defendants 1 and 2 have
nothing to do with the schedule property and are trying to interfere with the peaceful possession of the
schedule property.
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( 8 ) AS already stated supra, the 3rd defendant was sailing with the plaintiff, but however he was
set ex parte. The appellant/ 1st defendant filed a written statement and an adoption memo was filed by
the 2nd defendant. It was pleaded in the written statement by the appellant/1st defendant as hereunder:
( 9 ) DURING the lifetime of Narayanappa, he executed a registered Will dated 23-1-1985 in favour
of the 1st defendant in respect of all his properties including the schedule property. The 1st defendant
was enjoying the schedule property along with narayanappa during his lifetime. After his death, the 1st
defendant came into possession of the schedule property and cultivating the lands and was paying land
revenue. The 1st defendent is not aware of mutation of name of the plaintiff in the revenue records. The
mutation in favour of the plaintiff does not confer any right over the schedule property. The plaintiff and
the 3rd defendant are not in possession and enjoyment of the suit property. The plaintiff not a legal heir
of late D. Narayanappa.
( 10 ) ON the respective pleadings of the parties, the following Issues were settled: (1) Whether the
plaintiff is entitled for permanent injunction as prayed for? (2) Whether the plaintiff is not the legal heir of
late D. Narayanappa? (3) Whether the 1st defendant is entitled for the suit schedule property by virtue of
a will dated 23-1-1985? (4) Whether the suit for mere injunction without declaration of right and title is
not at all maintainable? (5) To what relief?
( 11 ) ON behalf of the respondent/plaintiff, p. W. 1 to P. W. 3 were examined. P. W. 1 is the plaintiff
in the suit and P. W. 2 and P. W. 3 are residents of Chilamathur. Ex. A-1 is a certified copy of chitta. Ex.
A-2 is the adangal. Ex. A-3 is the duplicate D Form patta in the name of Narayanappa. Ex. A-4 is the
patta standing in the name of the plaintiff and Ex. A-5 is 10 (1) account. Likewise, on behalf of the
appellant/defendant, D. W. 1 to d. W. 3 were examined and Exs. B-1 to B-8 were marked. D. W. 1 is the
appellant/1st defendant and D. W. 2 is the 2nd defendant. D. W. 3 is a resident of Chalivendala. Ex. B-1
is the registered sale deed dated 23-1-1985 executed by Narayanappa. Ex. B-2 is a copy of the notice
date 11-11-1991. Exs. B-3 and b-4 are postal acknowledgments. Ex. B-5 is the land revenue receipt in
the name of narayanappa. Exs. B-6 and B-7 are the land revenue receipts in the name of the appellant/1
st defendant. Ex. B-8 is the notice issued by the Mandal Revenue Officer dated 27-6-1992. The Court of
first instance, on appreciation of the oral and documentary evidence, by its Judgment and decree dated
21-5-1999 had dismissed the suit and aggrieved by the same, the plaintiff preferred a. S. No. 27/99 on
the file of Senior Civil judge, Hindupur and the appellate Court had reversed the Judgment and decree
on 24-10-2002 and aggrieved by the same, the 1st defendant/1st respondent preferred the present
Second Appeal.
( 12 ) THE two substantial questions of law which were raised and argued by the counsel for the
appellant are as hereunder: (1) Whether the Will by an assignee in favour of his sister s son can be
construed to be a testamentary disposition in favour of a stranger within the meaning of the Act? (2)
Whether the respondent/plaintiff is entitled to a decree on the ground that the mere revenue entries
would constitute title in his favour?
( 13 ) THE facts in nutshell had been dealt with supra. The appellant/1st defendant no doubt had
raised a plea that during the lifetime of Narayanappa, he was living with him and he was looking after
him and they constitute members of a composite family. The suit lands are self-acquisitions of d.
Narayanappa who died on 13-3-1991 testate by executing a Will dated 23-1 -1985, marked as Ex. B-1. It
is the specific case of the appellant that during the lifetime of late Narayanappa, the suit property was
being enjoyed jointly by them and they were raising different crops and were paying cist and the
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respondent/plaintiff or his father have nothing to do with the said properties and they never enjoyed the
said properties. The 3rd defendant, during the pendency of a. S. No. 27/99 on the file of Senior Civil
judge, Hindupur died and no legal representatives were impleaded since the plaintiff alone is the legal
heir of the 3rd defendant. As already referred to supra, the 3rd defendant is the brother of Narayanappa
and the father of the respondent/plaintiff. The court of first instance, on the strength of the will executed
by Narayanappa - Ex. B-1, ultimately had negatived the relief to the respondent/plaintiff.
( 14 ) IT is not in controversy between the parties that Condition No. 1 in D-Form Patta - Ex. A-3,
granted in favour of Narayanappa specifies about heritability and non- alienability of the assigned land.
No doubt, the evidentiary details had been pointed out by both the Counsel relating to the proof of the
execution of Ex. B-1. Section 2 (6) of the act defining transfer reads:"transfer means sale, gift,
exchange, mortgage with or without possession, lease or any other transaction with assigned lands, not
being a testamentary disposition and includes a charge on such property of a contract relating a
assigned lands in respect of such sale, gift, exchange, mortgage, lease or other transaction"from this
definition, it is clear that a testamentary disposition does not fall within meaning of transfer under the Act.
Hence, the right of the assignee-deceased narayanappa in making testamentary disposition cannot be in
any way doubted.
( 15 ) IT is no doubt true that the respondent/plaintiff had not specifically pleaded about the family or
the joint family as such, but the fact remains that the 3rd defendant is the brother and the respondent/
plaintiff is the brother s son belonging to the same family since Narayanappa died unmarried. It is also
not in dispute that the appellant is the sister s son. Since a sister s son also is a blood relative, such a
blood relative will not be a stranger and hence there could be testamentary disposition in favour of such
a blood relative, is the stand taken by the learned Counsel for the appellant. Since the term "family" is
not defined under the Act, the definition of the same in Webster s Dictionary had been relied upon
wherein on doubt it is stated that ail persons in the family related by blood or marriage also may fall
within the meaning of "family". However, apart from the condition of non-alienability, there is a condition
relating to the heritabilty also. The term or expression "heritable" can be definitely construed as one to
favour of the family members and all blood relatives Cannot fall within the fold of the family members. In
the decision referred (3) supra, it was held:"the lands are assigned to the land less poor persons for their
enjoyment, as also the enjoyment of their heirs. As such, the conditions that the assigned land is
heritable but not alienable and that it should be in cultivation of the assignee and his family members,
have to be read together and in this context, the definition of the word transfer under section 2{g) of the
Act has to be tested including the exclusion of testamentary disposition from the said word transfer . This
exclusion of testamentary disposition from the word transfer under Sec. 2 (6) of the Act is not in genera
sense and the testamentary disposition is not used or understood as in common parlance. It should be
read down and understood in the context of the objects and intendment of the Act, which totally prohibits
the induction of strangers to the family of assignee either during his lifetime or thereafter. As such, the
words testamentary disposition employed under Section 2 (6} of the Act have to be understood that the
assignee can execute a Will choosing some of his family members to succeed to the assigned lands
excluding one or some among his family members. As such, the will even if it is a testamentary
disposition can only be among the family members of the said assignee but not to a stranger. This is the
proper construction to be given to beneficial legislation of this nature, as otherwise, it is capable of being
abused and misused. If bequeathing of the assigned land to a stranger to a family is allowed, then under
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the guise of a will, the lands which are otherwise precluded from alienation or transfer can easily be
transferred labeling it as a will and then the very purpose of the Act will be frustrated. While interpreting
the beneficial statutes, one which furthers the object of Act should be adopted even by passing the
common and general notions. As such, that the will, even though a testamentary disposition, is not
permissible in the case of assigned land covered by A. P. Act no. 9 of 1977 in favour of strangers to the
family. A will can be executed by the assignee under A. P act No. 9 of 1977 only in favour of his family
member/s and not to strangers. "though testamentary disposition is permissible under the Act, inasmuch
as ex. B-1 was executed in favour of sister s son who is a stranger to the family, in my considered
opinion, the appellate Court had arrived at the correct conclusion relating to the validity of Ex. B-1. It is
no doubt true that the evidence of D. W. 1 and D. W. 2 had been let in to prove the execution of Ex. B-1.
In the light of the view expressed by me, the other evidentiary details need not be discussed in this
regard.
( 16 ) THE next question which has been elaborately argued is that the mere entries in revenue
records relied upon by the respondent/plaintiff would not constitute title. Reliance was placed on the
divisions referred (1) and (2) supra. There cannot be any controversy about this proposition. Ex. B-8,
notice given by the Mandal Revenue officer subsequent to the suit, also had been explained by the
appellate Court and clear findings had been recorded at para 15 in this regard. Apart from the evidence
of P. W. 1, the evidence of P. W. 2 and P. W. 3 and also the documentary evidence Exs. A-1 to A-5 is
available on record. As already referred to supra, the subsequent events i. e. , the death of the brother of
Narayanppa, the 3rd defendant, during the pendency of the appeal and the respondent/plaintiff alone
being the sole heir of the deceased, also may have to be taken into consideration and in the light of the
same, I have no hesitation in holding that the respondent/plaintiff alone is the family member of the
deceased narayanappa and in view of the clear condition in D-Form Patta, the execution of ex. B-1 by
the deceased Narayanappa is of no consequence and accordingly the respondent/plaintiff is bound to
succeed. The appellate Court had recorded several other findings in detail which are all findings relating
to the factual aspects. In the light of the object and also the provisions of the Act and also in the light of
the condition in ex. A-3, I have no hesitation in holding that the appellate Court is well justified in
reversing the Judgment and decree of the court of first instance.
( 17 ) HENCE, I do not find any merit in the second Appeal and accordingly the same shall stand
dismissed, but in the facts and circumstances of the case, without costs.