CRP/196/2004 of State of Andhra Pradesh Vs Nalamati Dorayya on 31 December 2013

ORDER:

This Civil Revision Petition is filed under Section 21of the AP Land Reforms (Ceiling on Agricultural Holdings)Act, 1973 (for brevity, ‘the Act’) challenging the orderdt.29-07-2003 in L.R.A.No.13 of 2001 on the file of theLand Reforms Appellate Tribunal-cum-IV AdditionalDistrict Judge, East Godavari District at Kakinada.

2. The 1[st] respondent herein RimmalapudiLakshmidevi is the daughter of the declarant NalamatiDorayya. The proceedings were initiated under the Act tocompute the holdings of the declarant and it was held thathe was holding 0.0630 SH in excess. This determinationhad become final vide order dt.11-02-1993 inC.R.P.Nos.228 and 1549 of 1990 of this Court.

3. Subsequently orders under Section 10 (4) ofthe Act were passed on 22-11-1993 which werechallenged by the declarant in L.R.A.No.26 of 1994 andby the 1[st] respondent i.e his daughter in L.R.A.No.131 of1993.

4. In both the appeals, they contended that 1[st]respondent, the daughter of the declarant was a major ason 01-01-1975, the notified date, that she remainedunmarried till 1987 and therefore by virtue of Section 29-Aof the Act 13 of 1986 amending the Hindu Succession Act, 1956, she is entitled for a share. They contended thather share is to be deleted from the holding of thedeclarant. The appellate Tribunal accepted thiscontention but held that at the stage of proceedings forsurrender under Section 10 of the Act, such a plea cannotbe entertained and therefore rejected the appeals.

5. Aggrieved by the order of the appellateTribunal, the declarant and his daughter filedC.R.P.Nos.1408 and 1409 of 1994 before this Court. ThisCourt found that the daughter was a major as on 01-01-1975 and marriage took place on 06-06-1987 and she isentitled for the benefit of Section 29-A of the Act andremitted the matter back to the lower Tribunal.

6. The lower Tribunal after receipt of the ordersof the High Court dismissed the claim of the declarant andhis daughter on the ground that they did not appearbefore it and did not place any material. It was also heldthat the daughter can only be considered as an individualand as an unmarried daughter, she cannot be consideredas a sharer in view of Section 3 (f) of the Act.

7. This was challenged in L.R.A.No.13 of 2001by the declarant. Pending L.R.A., the daughter of thedeclarant died, and her son and daughter were impleadedas parties.

8. By order dt.29-07-2003, the Land Reforms

Appellate Tribunal-cum-IV Additional District Judge, EastGodavari District at Kakinada allowed the appeal. He heldthat the daughter of the declarant would be entitled to thebenefit of Section 29-A of the Hindu Succession Act,1956 as she was unmarried as on 05-09-1985, the dateon which the A.P. Amendment Act No.13 of 1986 to theHindu Succession Act, 1956 came into effect as hermarriage was performed on 06-06-1987. It therefore heldthat the daughter of the declarant became a coparcenerand is entitled to a share like a major son. It also held thatthe daughter of the declarant was aged about 19 years ason 01-01-1975, that this is clear from the declaration filedby the declarant and even if the parties did not appear, thelower Tribunal cannot escape from applying the law onthat ground and reject the claim of the declarant and hisdaughter. It therefore allowed the appeal and remitted thematter back to the lower Tribunal to consider the share ofthe daughter of the declarant and to exclude the saidshare from the holding of the declarant and thereaftercompute the holding of the declarant afresh.

9. Aggrieved thereby this Revision petition isfiled by the State.

10. Heard the learned Government Pleader forCeiling, appearing for the State and Sri G.Krishna Murthy,learned counsel for the respondents.

11. It is pertinent to note that the Hindu Succession Act, 1956 has been further amended by theCentral Act 39 of 2005 with effect from 09-09-2005 andSection 6 of the Hindu Succession Act, 1956 has beenamended giving equal rights to daughters in coparcenaryproperty.

12. This Court in Damalanka Gangaraju and Others Vs. Nandipati Vijaya Lakshmi and Others[[1]], has held that by virtue of the amendment made by theCentral Act 39 of 2005 to the Hindu Succession Act, 1956,Section 29-A (inserted by the AP State Amendment ActNo.13 of 1986) is deemed to have been repealed. Thislegal position is not disputed by either side.

13. But the question for consideration is - whenthe computation of holding of the declarant had attainedfinality even by 11-02-1993 (vide orders in C.R.P.No.228and 1549 of 1990 passed by this Court) and his holdingwas found to excess by 0.0630 S.H., is it permissible toreopen the computation proceedings at the instance ofthe declarant or his daughter.

14. It is not disputed that neither the declarantnor his daughter raised this issue in proceedings underSection 9 of the Act relating to the computation of holdingof the declarant, even though Section 29-A of the Actinserted by AP State Amendment Act No.13 of 1986 witheffect from 05-09-1985 and was on statute book.

15. A Division Bench of this Court in GaddaBalaiah and Others Vs. Joint Collector, Ranga Reddy District and Others[[2]](to which I am a party), hasconsidered the legal position as to whether it ispermissible in proceedings for surrender under Section 10of the Act to reopen the computation of the holding of adeclarant on any ground and had held that it is notpermissible. It held :

“ 37. From the catena of unvarying binding authorityreferred to, it is clear that when once final determinationof the holding has been completed and surplus land heldby the family of a declarant finally determined, at thestage of surrender proceedings, which are in the natureof execution proceedings, neither the declarant nor anyother person can be permitted to reverse the clock byraising fresh points. Of course, these decisions wererendered before Section 9-A was introduced in 2012. We are of the view that (except to the extent and in themanner provided in Section 9-A, discussedabove), no express power is conferred by the Ceiling Actto review and reopen proceedings that have becomefinal and no such power inheres in the LRT nor could beinferred by implication. In the absence of a power to re-open proceedings (which have attained finality afterdismissal of CRP Sr.24698 of 1976 by the High Court),de hors Section 9-A of the Ceiling Act, they cannot bereopened under any circumstances including on theground that claims of alleged protected tenants underSection 38-E of the Tenancy Act were not considered bythe LRT (before it declared Kastopa to be a surplusholder, by its order dated 9.12.1975).”

16. Therefore, I am of the opinion that even if thedaughter of the declarant was a major on the notified datei.e. 01-01-1975, on that ground, her share cannot be excluded from the holding of the declarant.

17. The learned counsel for the respondents, onthe other hand, while not disputing this proposition, reliedupon the decision in Makineni Venkata Sujatha Vs.

Land Reforms Tribunal and Another[[3]]. In that case,the petitioner before the Supreme Court claimed that shewas a minor daughter on 01-01-1975, that the excess ofher father’s unit had been computed under the Act; thatSection 29-A of the Hindu Succession Act 1956 (asamended) conferred a right on the unmarried daughter ason 05-09-1985 in Hindu Joint Family property for a shareby birth therein, her share was liable to be excluded. TheSupreme Court rejected the contention and held that theexcess land of the father as on 01-01-1975 would remainthe same and would not suffer any diminution on accountof subsequent event, i.e. the right acquired by thedaughter under Section 29-A and that Section 29-A didnot alter the factual position as the petitioner was a minoras on 01-01-1975. The Supreme Court also held thatSection 4-A of the Act, (as introduced in 1977) appliesonly to major sons as on 01-01-1975 and not to majordaughters and the petitioner, being minor daughter on 01-01-1975, her father’s unit did not get enlarged. It declinedto decide whether the principle that “male” includes a“female” under the General Clauses Act would apply toSection 4-A which mentions only major sons and not major daughters, as it was unnecessary to do so on thefacts of the case.

18. In my opinion, this decision does not help therespondents for the reason that the Supreme Court heldthat only term “major son” was mentioned in Section 4-A,therefore Section 4-A would not apply to major daughters,and the fact that there was major daughter as on 01-01-1975, would not benefit her father.

19. In fact, a learned Single Judge of this Courtin K.Ram Reddy Vs. The State of A.P. rep. by

the Special Tahsildar (Land Reforms), Sangareddy[[4]],held that in the light of the definition of the term “son”under Section 3 (3) of the AP General Clauses Act, itwould not be permissible to interpret the words “majorson” in Section 4-A of the Act as meaning a “majordaughter” also.

20. It is also pertinent to note that the AP LandReforms (Ceiling on Agricultural Holdings) AmendmentAct, 1977 (for short, “Act 10 of 1977”) (which alsointroduced Section 4-A) received the assent of thePresident on 29-04-1977 and the said assent waspublished on 13-04-1977 in the AP Gazette. Section 7 (1)of Act 10 of 1977, provides that notwithstanding anythingin the principal Act, if in any case to which provisions ofthe Principal Act as amended by the Amendment Act were applicable, and the Tribunal had determined underSection 9 of the Principal Act, the extent of the land inexcess of the ceiling area before the date on which theassent of the President to the Amendment Act was firstpublished in the AP Gazette, but a proceeding in respectthereof under Section 10 of the Principal Act was pendingbefore the Tribunal on the said date, the tribunal may suomotu or shall, on application of declarant, re-determineholding of the declarant.

21. In the present case, the computation ofholding of the Tribunal under Section 9 of the Act attainedfinality only in the year 1993 and not by 30-04-1977, thedate on which the assent of the President was publishedin the AP Gazette to the Amendment Act 6 of 1977. Therefore, the respondents are not entitled to seekreopening of the issue of computation of the holding of thedeclarant under sub Section (1) of Section 7 of theAmendment Act 10 of 1977.

22. In Nagubandi Pullamma and Others Vs.

The State of A.P. through Authorised Officer,

L.R.T.No.1 Khammam[[5]],cited by the respondents, theCourt considered what issues could be raised in aproceeding under Section 7 (1) of the Amendment Act 10of 1977 and held that all contentions that could be raisedunder Sections 8 and 9 of the Principal Act could beraised and they ought to be determined afresh. This judgment has no application to the present case since therespondents are not entitled to invoke sub Section (1) ofSection 7 of the Amendment Act 10 of 1977 at all.

23. Learned counsel for the respondents alsorelied upon the decisions in Utukuri Sarat Kumar andOthers Vs. Authorized Officer, Land Reforms,Ongole[[6]],Nimmagadda Sambasiva Rao Vs. State ofA.P.[[7]]and B.Chandrasekhar Reddy (D) by Legal.Representatives Vs. State of Andhra Pradesh[[8]]

24. The Supreme Court in B.ChandrasekharReddy (D) by Legal Representatives (8 supra) held thatbenefit of Section 29-A could be invoked by majordaughters if they were not married prior to thecommencement of Section 29-A. But in this case, theSupreme Court did not say that at the stage of surrenderi.e a proceeding under Section 10 of the Act , the holdingof a declarant which had attained finality, could be alteredby giving benefit of the provisions of Section 29-A. Thisdecision therefore would apply only if benefit of S.29-Awas sought in proceedings under Section 9 of the act andnot at stage of Section 10 proceedings. In my opinion, thesame holds good even after amendment by Central ActNo.39 of 2005 to the Hindu Succession Act, 1956amending Section 6 thereof giving rights to daughters incoparcenary property. The following decision fortifies my view.

view.

25. A Division Bench of this Court in UtukuriSarat Kumar and Others (6 supra) held that as on 01-01-1975, the notified date, a major daughter was not acoparcener in a Hindu Joint Family and she was made soonly by virtue of AP Amendment Act No. 13 of 1996 witheffect from 05-09-1985 and that by 05-09-1985, the ceilinglaw had already operated. Consequently, an unmarriedmajor daughter cannot claim a separate standard holdingunder the Act notwithstanding the provisions of Section29-A. It overruled the judgment in A. Alivelemma Vs. The r[[9]].Special Tahsildar, Ongole and Anothe

26. But without noticing this Division BenchJudgment, a learned Single Judge of this Court inNimmagadda Sambasiva Rao Vs. State of A.P., LandReforms, Guntur[[10]]followed the decision inA.Alivelamma (9 supra) and took a view contrary to thejudgment of the Division Bench in Utukuri Sarat Kumarand Others (6 supra).27.No case has been cited by the respondentsshowing that the holding of the declarant could bereopened on any ground after its computation hadattained finality and proceedings at surrender stage werepending.

28. Therefore, following the judgment in Gadda Balaiah (2 supra), I allow the Revision Petition. The Orderdt.29-07-2003 in L.R.A.No.13 of 2001 of the LandReforms Appellate Tribunal-cum-IV Additional DistrictJudge, East Godavari, Kakinada is set aside. It is declared that the computation of holding of the declarant,which had already become final, cannot be altered onaccount of Section 29-A of A.P. Act 13 of 1986 or afterit’s repeal, by Section 6 of the Hindu Succession Act,1956 (as amended by Central Act No.39 of 2005),conferring equal rights to daughters in coparcenaryproperty. No costs.

29. As a sequel, the miscellaneous petitions, ifany pending, shall stand closed.

__________________________________

JUSTICE M.S.RAMACHANDRA RAO

Date: 31-12-2013

Note:

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[1]2007 (5) ALT 4472007 (5) ALT 447

[2]2013 (4) ALD 725 (D.B.)2013 (4) ALD 725 (D.B.)

[3]AIR 2000 S.C. 3191AIR 2000 S.C. 3191

[4]1978 (1) A.L.T. 43 (NRC)1978 (1) A.L.T. 43 (NRC)

[5]1980 (1) A.P.L.J. 3241980 (1) A.P.L.J. 324

[6]1998 (1) ALD 716 (DB)1998 (1) ALD 716 (DB)

[7]1999 (4) ALT 3531999 (4) ALT 353

[8]2003 (4) ALT 9 (SC)2003 (4) ALT 9 (SC)

[9]1987 (2) APLJ 92 (AP)[10]1999 (4) ALT 353