Andhra HC (Pre-Telangana)
Annam Malla Reddy vs Bangi Nagaiah And Ors. on 21 March, 2007
Equivalent citations: 2007(5)ALD43
JUDGMENT P.S. Narayana, J.
1. This Court on 5-2-1998 made the following order:
Heard.
This second appeal is admitted to consider the following substantial question of law:
Whether the appellate Court failed to exercise jurisdiction in not considering I.A. No. 734 of 1994 filed in AS No. 50 of 1993 for additional evidence and as such the findings ultimately recorded are vitiated?
This Court in CMP No. 15455 of 1997 granted interim stay of drawing up the final decree and all other proceedings till that stage shall go on.
2. Sri P.V. Narayana Rao, the learned Counsel representing the appellants had pointed out that this specific ground was raised as a substantial question of law in ground No. 7(e) of the grounds of second appeal. Incidentally, the learned Counsel also had pointed out to the other substantial questions of law raised by him shown as ground No. 7(a), (b), (c) and (d) and the said grounds read as under:
7(a) Whether it is necessary under Section 8 of Hindu Minority and Guardianship Act to obtain prior permission for the sale of joint family property insofar as to the extent of share of respondent Nos. 1 and 2 in the joint family property for disposing off the undivided interest of minor son in the joint family property?
7(b) Whether the agreement of sale in Ex.B1 is void for non-mentioning of the survey number in Ex.B1 when the local name of the land is mentioned in Ex.B1 supported by evidence of DWs.1 to 4.
7(c) Whether the sale of the land under Ex.Bl by respondent No. 3 to meet the medical expenses for the treatment of his son, the family members, who suffered from polio and to pay the debts incurred for the said purpose namely treatment of his son is a legal necessity contemplated under Hindu Law?
7(d) Whether non-consideration of entire material evidence oral and documentary on record having a direct bearing on the disputed issue and non-application of law in proper perspective?
7(e) Whether the Court of Subordinate Judge at Huzurabad is justified in disposing the appeal in AS No. 3 of 1996 without passing any orders on the application in I.A. No. 734 of 1994 in AS No. 50 of 1993 on the file of the District Judge, Karimnagar without numbering I.A No. 734 of 1994 after transfer of AS No. 50 of 1993 from the Court of the District Judge, Karimnagar to the Court of Subordinate Judge at Huzurabad after establishment of Court of Subordinate Judge at Huzurabad in the month of December 1995?
The learned Counsel would submit that in the facts and circumstances the view expressed by the Apex Court in the decision in Sri Narayan Bal and Ors. v. Sridhar Sutar and Ors. , would be applicable and hence the findings recorded by the Courts below are unsustainable findings. The learned Counsel would also further submit that even otherwise when application for reception of additional evidence was moved without considering the same disposing of the appeal as such, would vitiate the decree and judgment of the appellate Court and on this ground alone the said decree and judgment are liable to be set aside. The learned Counsel also placed strong reliance on certain decisions to substantiate his submissions.
3. Per contra, Sri Gopal Reddy, the learned Counsel representing the respondents-plaintiffs had taken this Court through Section 8 of the Hindu Minority and Guardianship Act and also the findings recorded in relation to Ex.B1 the sale transaction and would submit that in the light of the concurrent findings recorded by both the Courts below it is not a fit matter to be interfered with in the second appeal. While making his submissions in elaboration, the learned Counsel pointed out to the findings, which had been recorded by the Court of first instance and also the appellate Court as well. The learned Counsel would also point out that inasmuch as this being a question of law, which had been decided, the consideration or non-consideration of the additional evidence said to have been placed would not seriously alter the situation and hence the second appeal is liable to be dismissed.
4. Heard the Counsel on record.
5. It is stated that R3 is no more and R1 and R2 are already on record as legal representatives of R3. The parties hereinafter would be referred to as "plaintiffs" and "defendants" for the purpose of convenience as arrayed in OS No. 855 of 1988 on the file of the Court of District Munsif, Huzurabad. The plaintiffs in the said suit then minors represented by the next friend, their mother Bangi Nandamma filed the suit for partition of the plaint schedule property into three equal shares and for separate possession. The first defendant in the suit is the third respondent in the present second appeal. On the respective pleadings of the parties, the Court of first instance having settled the issues, recorded the evidence of PWs.1 to 4 and DWs.1 to 4 and marked Exs.A1 to A44 and Exs.B1 to B11 and ultimately came to the conclusion that the plaintiffs are entitled for a preliminary decree for partition. Aggrieved by the same, the second defendant in the suit carried the matter by way of appeal, AS No. 50 of 1993 on the file of the Court of First Additional District Judge, Karimnagar. It is stated that the appellant filed I.A. No. 734 of 1992 in AS No. 50 of 1993 for reception of additional evidence under Order 41 Rule 27 of CPC. As can be seen from the affidavit filed in support of the application public documents appear to have been filed. The application was resisted by filing counter. But as can be seen from the docket, repeatedly the matter was adjourned and recorded as BNR. It is stated that the said application was not disposed of at all. The said appeal AS No. 50 of 1993 referred to supra was renumbered as AS No. 3 of 1996 on the file of the Court of Subordinate Judge, Huzurabad and it is not clear whether pendency of the said application was brought to the notice of the Subordinate Judge, Huzurabad or not but the fact remains that the said application was not referred to in the said judgment and no orders as such either dismissing the application or allowing the application had been made. The plaintiffs then minors represented by the next friend, the natural mother filed the suit for partition stating that the first defendant who was alive then the father refused to effect partition and give separate possession to each of the plaintiffs in the plaint schedule property and hence the suit for partition was instituted. The father of the first defendant did not contest the matter. The second defendant in the suit i.e., appellant in AS No. 3 of 1996 on the file of the Court of Subordinate Judge, Huzurabad and the present appellant in the second appeal filed written statement pleading that one Bangi Nagaiah the common ancestor of the family was the owner and pattedar of the land admeasuring Acs:5-24 guntas in survey No. 673/B and the said Bani Nagaiah was having three sons and each of them got 1/3rd share in the properties of deceased Bangi Nagaiah and the defendant No. 1 and his brother Bhadraiah and their elder brother's adopted son Nagaiah jointly executed an agreement of sale in his favour and put him in the possession of the land. It was also pleaded that the first defendant at the relevant point of time was the kartha of joint family and the plaintiffs are the members of the joint family.
6. Before the Court of first instance, the following issues were settled:
(1) Whether the plaintiffs are entitled for partition and separate possession of their 1/3rd share each in the suit land?
(2) To what relief?
7. After recording the evidence, the Court of first instance decreed the suit. The matter was carried by way of appeal, which ultimately was transferred and renumbered as AS No. 3 of 1996 on the file of the Court of Subordinate Judge, Huzurabad as already specified above and at para No. 7 the appellate Court framed the following point for consideration:
Whether the appellant can claim his ownership over the joint family property of respondents 1 to 3 under the agreement of sale, which is stated to have been executed in his favour by 3rd respondent, his brother and his elder brother's son?
8. The appellate Court had recorded certain reasons at para Nos. 8 and 9 and ultimately dismissed the appeal with costs. Aggrieved by the same, the present second appeal is preferred.
9. Both the Counsel on record made elaborate submissions touching the merits and demerits of the matter and validity of the transfer in question and the binding nature of the same. Strong reliance was placed on the decision of the Apex Court referred in Sri Narayan Bal and Ors. v. Sridhar Sutar and Ors. (supra), wherein at paras 5 and 6 the Apex Court held:
With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the Legislature in this beneficial legislation becomes manifest Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the Court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The Joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the Joint Hindu Family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a Joint Hindu Family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said Joint Hindu Family property. The question posed at the outset therefore is so answered.
In the instant case the finding recorded by the Courts below is that Jagabandhu, the eldest male member in the family acted as a Karta in executing the sale and had joined with him the two widows for themselves and as guardians of the minor members of Joint Hindu Family, as supporting executants.
That act by itself is not indicative of the minors having a divided interest in the Joint Hindu Family property commencing before or at the time of the sale. In this view of the matter, Section 8 of the Act can be of no avail to the appellant's claim to nullify the sale.
10. Reliance was also placed on the decision of the Gwalior Bench of the Madhya Pradesh High Court in Mithu Khan v. Pipariyawali and Ors. .
11. Elaborate submissions were made by both the Counsel relating to the binding nature of the transaction. Both the Counsel would submit that the appellate Court had not disposed of the application, I.A No. 734 of 1993 which was filed in AS No. 50 of 1993 while pending on the file of District Judge, Karimnagar. It is needless to say that the same was subsequently transferred as AS No. 3 of 1996 on the file of Subordinate Judge, Huzurabad. It is not clear from the record whether the said application was renumbered along with AS No. 3 of 1996 and whether this fact was brought to the notice of the learned Judge while disposing of the appeal. Be that as it may, the learned Counsel representing the appellant placed strong reliance on the decision of the High Court of Punjab and Haryana in Ashok Kumar v. Surinder Kumar , wherein the learned Judge of Punjab and Haryana High Court observed at para No. 7:
As referred to above, the defendant appellant had filed an application under Order-41 Rule 27 CPC for production of additional evidence during the pendency of the appeal. Notice in the said application was given to the other side, who had filed the reply and the case was fixed for arguments in the main appeal as also on the application for additional evidence. However, without deciding the application for additional evidence, learned Additional District Judge proceeded to dismiss the appeal filed by the defendant-appellant. Under these circumstances, in my opinion, the decision of the appeal without deciding the application for additional evidence has resulted in miscarriage of justice. In my opinion, it was the duty of the lower appellate Court to have decided the application for additional evidence and could not have decided the appeal without deciding the aforesaid application for additional evidence.
12. The Apex Court in Premier Automobiles Ltd., Bombay v. Kabirunissa and Ors. , at para 5 observed:
The learned Counsel for the appellant has also placed before us several material pieces of evidence and circumstances including an important admission of the original plaintiff, and in reply the learned advocates for the respondents have relied upon the evidence led on their behalf and accepted by the first two Courts. We do not consider it appropriate to deal with them as in our view, the entire evidence led by the parties requires a fresh consideration by the Court of facts. Accordingly, we allow the appeal, set aside the judgments of the appellate Court and the, High Court, and remit the case to the appellate Court for a fresh decision in accordance with law. The Court will, in the first instance, hear and dispose of the application under Order 41 Rule 27, Civil Procedure Code and only thereafter take up the final hearing of the appeal.
13. In the light of the views expressed by the Apex Court and also the learned Judge of Punjab and Haryana High Court referred to supra, this Court is of the considered opinion that by virtue of non-disposal of the application for reception of additional evidence by the learned Subordinate Judge at Huzurabad, the decree and judgment are vitiated since in a way prejudice is caused to the appellant by virtue of non-consideration of the said application either way. In view of the same, without expressing any further opinion relating to the other merits and demerits of the matter, the decree and judgment or me appellate Court are set aside and the matter is remitted to the appellate Court to decide the matter afresh after taking into consideration the application for reception of additional evidence, which is said to be pending along with the appeal as well.
14. The learned Counsel for the appellant also relied upon the decision of this Court in Dongala Gouramma and Ors. v. Jakkula Kanakaiah, in SA No. 546 of 1995, dated 18-6-1996. At this stage, Sri Gopal Reddy states that this litigation was commenced by the then minors and the matter is pending for sufficiently for a long time. In view of the same, the appellate Court to give top priority to this matter and to dispose of the same at the ear1iest point of time.
15. Accordingly the decree and judgment of the appellate Court are hereby' set aside and the matter is remanded for fresh disposal as specified supra in accordance with law. It is needless to say that the parties not to suffer because of the act of the Court and in the light of the peculiar situation the parties to bear their own costs.