Andhra HC (Pre-Telangana)
Katta Yesuratnam vs Commissioner, Land Revenue, A.P., ... on 20 September, 1993
Equivalent citations: 1993(1)ALT200
ORDER
1. This writ petition questions the order of cancellation of assignment of land made in favour of Turka Chennaiah. Turka Chennaiah was assigned with a land of Ac. 1-93 cents in S.No.492/7 of Gorentla village. The assignment was made in the year 1974. The dispute regarding the agreement to share the profits is not at all relevant. Suffice it to say that assignment was ordered in the name of T. Chennaiah and patta was issued consequent thereto. The assignment was granted under B.S.O.15 (12) (3). The conditions enumerated are that the assignment is heritable but not alienable, that the land should be brought under cultivation within three years thereof and that the assignee and his family members alone shall be in possession of the same. Initially the order of cancellation was made. Against that order an appeal was preferred. The Appellate authority remanded the matter for fresh disposal to the primary authority. The primary authority confirmed the order. Against that order an appeal was filed before the appellate authority and the appellate authority again remanded the matter to the primary authority. The primary authority again confirmed the order of cancellation and it was continued even for the third time. It is the fourth round of litigation in which the Collector has recorded a finding holding that the petitioner is not the adopted son of late T. Chennaiah and that he is not entitled to be in possession of the property. The assignment was cancelled ordering resumption of the land by the Government. The revision to the 1st respondent also met the same fate and the result is this writ petition.
2. Mr.V.V.S. Rao, the learned Counsel for the petitioner raises three-fold contention; (1) that the petitioner, though an adopted son, has got to be considered as natural son and as such he is one of the family members of tate T.Chennaiah and as such he is entitled to continue in possession; (2) when the injunction suit filed by T.Chennaiah was decreed and when an appeal was filed against that decree and when Chennaiah died during the pendency of that appeal, the L.R. petition was filed by the petitioner to bring him on record as L.R. in the place of T.Chennaiah and since that L.R. petition was allowed, it is the conclusive proof diat the petitioner is the adopted son of late T.Chennaiah; and (3) even if the adoption is not proved, the learned Counsel contends, that in view of the fact that late T.Chennaiah has left behind him a Will executed in favour of the petitioner bequeathing the land in question and since T.Chennaiah died in the year 1989, the petitioner has stepped into his shoes and as transfer of the land under Section 2(6) and Section 3 of Act 9 of 1977 does not attract testamentary disposition, his possession is authorised but not unauthorised.
3. In so far as the faction of adoption is concerned, there is absolutely no proof on record. It is pertinent to note that factum of adoption has got to be proved followed by proper pleadings and evidence which are patently absent in this case. The finding of fact recorded by the authorities below that the petitioner is not the adopted son is based on valid material and mere is no infirmity or illegality to assail the same. As such, I confirm the finding that the petitioner is not the adopted son of late T. Chennaiah.
4. Coming to the next contention of Mr. V.V.S.Rao that the ordering of LR. petition in civil action tantamounts to accepting the petitioner as a legal heir, I am not accepting this argument for the reason that there was no contentious issue as to whether the petitioner was the adopted son of T.Chennaiah in the petition filed by the petitioner herein to prosecute the case as L.R. of late T.Chennaiah and the same was ordered in the ordinary course. There was no enquiry under Order 22 Rule 5 C.P.C. as such the ordering of L.R. petition was only to facilitate the petitioner to defend the appeal brought against T. Chennaiah. By no means, the same can be constitutes as declaring the rights of the petitioner as the adopted son of T. Chennaiah. This contention, thus, fails.
5. Coming to the last and most important contention that even assuming that the adoption is invalid, but the possession is authorised because of bequeathment under a Will, first of all, there was no Will filed before the authorities below. But now Mr.V.V.S.Rao has produced before me a photostat copy of a registered Will dated 22-9-1982. This ought to be proved in accordance with the provisions contained in the Indian Evidence Act. But, it is not so proved. "Even assuming that such a Will was executed, the word 'transfer' contained and defined in sub-section (6) of Section 2 of A.P.Act No.9 of 1977 has to be construed having regard to the objects of the Act. It may be true that a Will executed under common law operates on the death of the testator/testatrix, and it is a testamentary disposition. May be that it is not a transfer under the provisions of Transfer of Property Act. The argument of Mr.V.V.S. Rao, is that even the definition of 'transfer' under Section 2(6) of the Act excludes the testamentary disposition and as the Will is a testamentary disposition, it is outside the purview of A.P.Act No.9 of 1977. A.P.Act.No.9 of 1977 titled as "The Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977" enacted to prohibit transfer of certain lands assigned to landless poor persons in the State of Andhra Pradesh, is a legislation made as a measure of social justice to provide livelihood to the landless poor persons and is a beneficial legislation for such landless poor persons. The lands are assigned to the landless 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(6) 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 Section 2(6) of the Act is not in general 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 life time 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 a 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 the guise of a Will, the lands which are otherwise precluded from alienation or transfer can easily be transferred labelling 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 the Act should be adopted even bypassing the common and general notions. As such, I hold that the Will, eventhough 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 members and not to strangers. As such, this contention also fails.
6. In the circumstances, I confirm the order passed by the authorities below and dismiss the writ petition. However, it is made clear that in view of the fact that the land is resumed by the Government and if the land is going to be assigned to the landless poor persons, the concerned revenue authorities shall consider the claims of all the eligible landless poor persons for such assignment of land including that of the writ petitioner and respondents 3 and 4 and dispose it of in accordance with law under the guidelines provided therefor. No costs.