Andhra HC (Pre-Telangana)
Eranki Venkata Ramanamma And Ors. vs Eranki Atchuta Venkata Subramanyam And ... on 6 February, 1996
Equivalent citations: 1996(1)ALT365, 1996 A I H C 5175, (1996) 3 ANDHLD 114 (1996) 1 ANDH LT 365, (1996) 1 ANDH LT 365
Author: Y.V. Narayana
Bench: Y.V. Narayana
JUDGMENT Y.V. Narayana, J.
1. The plaintiff in O.S.No. 42 of 1974 on the file of the learned Subordinate Judge, Rajahmundry preferred this appeal against the decree and judgment dated 15-7-1983 dismissing the suit.
2. The brief facts of the case are as under: Originally Eranki Sreeramamurthy (the deceased first plaintiff) filed the suit against his second son the first defendant and his grand-sons defendants 2 to 5 with the following averments. The first plaintiff belongs to Jegurupadu village. The first plaintiff and his sons possessed of Acs. 100-00 of wet land and Acs. 50-00 of dry land. In order to discharge the joint family debts, some of the properties were sold. In 1953 the remaining properties were partitioned between the first plaintiff and his sons. Since then the first plaintiff and his sons were in separate possession and enjoyment of their respective shares. Ever since the partition, the first defend ant is constantly requesting the first plaintiff to give a share to him in the personal property of the first plaintiff which he got from his mother, to which the first plaintiff did not agree. The first defendant created differences between the first plaintiff and his wife, the result of which is that the wife left the first plaintiff in his old age of 82 years. The first plaintiff has become weak both in body and mind. Therefore the first plaintiff had to depend on one of his sons. The first defendant represented to the first plaintiff that in his (the first plaintiff's) interest, it is better to execute some documents such as General Power of Attorney, etc. The first defendant took the signatures of the first plaintiff on some documents and also on some blank papers. The first plaintiff was not in a position to understand what those documents are. Later on the first plaintiff came to know that the first defendant got a settlement deed dated 25-8-1973 (Ex.A-8 or B-12) registered, which was signed by the first plaintiff. The first plaintiff also came to know that his signatures were taken on some false declarations to the extent of his lands and the same were filed to get over the legal prohibition against the execution and registration of the above said settlement deed. Therefore the settlement deed Ex.A-8 is null and void under the provisions of the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act 13 of 1972 (hereinafter referred to as '1972 Act'). The first defendant kept the first plaintiff with him till 13-2-1974. Being satisfied that a decent interval has elapsed, the first defendant informed the first plaintiff that he (the first plaintiff) executed a settlement deed in favour of the first defendant and his sons; and since the first plaintiff has no other property, the first plaintiff cannot expect to be fed by the first defendant and asked the first plaintiff to get out of his house. Even during the stay of the first plaintiff with the first defendant, the first defendant did not allow the first plaintiff to move alone, putting the first plaintiff under fear that if the first plaintiff goes out of the house alone, he will be beaten by the other sons. Being driven out of the house of the first defendant, the first plaintiff left Jegurupadu village and went to Secunderabad. In Secunderabad, the first plaintiff found a notice Ex.A-4 published in 'Samacharam' daily dated 24-2-1974 regarding the sale agreement, said to have been executed by the first plaintiff in favour of the first defendant. Then only the first plaintiff came to know that his signatures, obtained by the first defendant on blank papers, might have been utilised for forging the said agreement of sale. The first plaintiff also came to know that a settlement deed Ex.A-8 was managed to be executed by the first plaintiff in favour of the first defendant and his sons, conferring on them the remainder interest in respect of the suit schedule properties. Therefore, the first plaintiff got issued a notice Ex.A-5 to the first defendant. The first plaintiff also executed a registered deed Ex.A-7 dated 12-3-1974 cancelling the settlement deed dated 25-8-1973. The first plaintiff therefore filed the suit to cancel the settlement deed dated 25-8-73 (Ex.A-8) said to have been executed by the first plaintiff in favour of the defendants and also for a permanent injunction restraining the defendants from trespassing into the suit schedule properties.
3. The first defendant filed a written statement, which was adopted by defendants 2 to 4, denying in general the plaint averments and raising the following contentions. The first plaintiff did not treat his sons with equal affection. He was liked very much by the First plaintiff. After the partition, he alone has been helping the first plaintiff. Therefore out of love and affection towards him and his family members, the first plaintiff, out of his own will executed the settlement deed dated 25-8-1973 voluntarily, openly and publicly to the knowledge of the other members of the family. The first plaintiff himself proclaimed about the suit settlement deed to the village elders. On account of jealousy, the other sons of the first plaintiff hatched a plan to win over the first plaintiff and created disaffection towards him. The first plaintiff was a strong-willed person but not weak both bodily and mentally. He never played any fraud upon the first plaintiff nor made any misrepresentation to the first plaintiff in getting the settlement deed executed. The first plaintiff is very intelligent and literate person, fully conscious of every thing being done by him. The first plaintiff himself went to the Sub-Registrar's office at Rajahmundry and got the suit settlement deed registered. Before executing the settlement deed, he made repeated requests to the scribe to prepare a draft and having understood the same very carefully and thoroughly, then only the first plaintiff asked the scribe to engross the same on stamped papers. Even before executing the settlement deed in question, there was an agreement between the first plaintiff and the first defendant that the first defendant shall pay the first plaintiff a sum of Rs. 1,000/- and 15 kata bags of paddy every year for his sustenance and the first plaintiff himself put the first defendant in possession of the suit schedule properties in June, 1973 itself. The first plaintiff, besides the suit settlement deed executed an agreement of sale for a sum of Rs. 16,000/- and put him in possession of the properties agreed to be sold on 28-8-1973, with the hope that the first defendant should discharge the first plaintiff's debts etc. According to the first defendant, the first plaintiff was influenced and was forced to file the present suit and he suspects that a conspiracy was hatched upon at Hyderabad to get over the suit settlement deed, which was validly executed by the first plaintiff. The 1972 Act has no application to the first plaintiff. The mind of the first plaintiff was poisoned by his other sons. The first plaintiff is not entitled to any relief sought for in this suit, as he himself has voluntarily executed the settlement deed. He issued a registered notice Ex.B-26 dated 12-9-1973 requesting the first plaintiff to comply with the execution of the sale deed as per the terms of the agreement Ex.B-14, to which the first plaintiff sent a reply intimating his happiness for accepting the settlement deed and promised to comply with the terms of the agreement of sale at an early date. Therefore the first plaintiff is not entitled to any relief and the suit is liable to be dismissed with costs.
4. The first plaintiff filed a rejoinder denying the material averments in the written statement filed by the first defendant, and raising the following contentions. The first plaintiff has been looking after his affairs independently and the first defendant never helped him. He is not aware of the notices said to have been exchanged between him and the first defendant and if there is any notice issued by the first defendant and any notice issued on his behalf, the same must have been the manipulation of the first defendant. The documents filed by the first defendant were either stolen away from the boxes of the first plaintiff or might have been manipulated by the first defendant subsequent to the so-called settlement deed, which was obtained under fraud played by the first defendant.
5. On 8-4-1975 during pendency of the suit, the first plaintiff Eranki Sreeramamurthy died. Hence the plaintiffs 2 to 11, claiming to be the legal heirs of the deceased first plaintiff under an unregistered will, were brought on record and the plaint was suitably amended. In the amendment carried out in the plaint, it is stated that the defendants trespassed into the suit schedule properties in November, 1974, when the injunction petition filed by the deceased first plaintiff was dismissed. Since the defendants trespassed into the suit schedule property, the plaintiffs 2 to 11 are entitled to seek recovery of possession of plaint schedule properties and also mesne profits. Consequently the prayer in the original plaint was modified deleting the prayer regarding injunction and a relief seeking recovery of possession of the suit schedule property and mesne profits from November, 1975 onwards was incorporated.
6. On25-1-1980 the first defendant filed additional written statement. In that written statement the first defendant denied that the defendants were trespassers. The contention of the deceased first plaintiff that he was in possession of the suit schedule property was negatived both by the court below and also by this Court in the Inter-locutory Application filed for grant of injunction. The first defendant alone was in possession and enjoyment of the suit schedule property and the defendants 2 to 5 were never in possession of the same. Hence the relief sought for recovery of possession by the plaintiffs 2 to 11 against defendants 2 to 5 is untenable and cannot be granted. The relief of possession, being a separate and independent relief, separate court fee has to be paid under Section 27 of the A.P. Court Fees and Suits Valuation Act. He requested that the question of payment of court fees may be treated as preliminary question and to be decided first.
7. The first defendant filed a separate additional written statement, which the defendants 2 to 4 adopted, with the following averments. The first defendant alone was in possession of the suit schedule property and they have nothing to do with it. They are not tresspassers into the said property. They also requested to try the issue relating to payment of court fee as preliminary issue.
8. Subsequently during pendency of suit, the eighth plaintiff died. His legal representatives were brought on record as plaintiffs 12 to 16.
9. After plaintiffs 12 to 16 were brought on record, again the first defendant filed another additional written statement on 1-10-1980, which was adopted by the other defendants 2 to 5. In that written statement it is contended that the plaintiffs have no right, title or interest in the suit schedule property and the will relied on by the plaintiffs is not true, valid and does not bind the defendants. The will Ex.A-10 dated 16-5-1974 propounded by the plaintiffs is not binding on the defendants and the same ceased to be in force. The plaintiffs have to prove that it is the last will of the deceased first plaintiff. The deceased first plaintiff executed a will on 18-1-1975 in sound and disposing state of mind and that is the last and final will of the deceased first plaintiff. The defendants are entitled to the suit properties under the said will.
10. Again on 6-4-1982 the first defendant filed another additional written statement, in which he raised a plea that the question whether the settlement Deed dated 25-8-1973 is null and void in view of the provisions of 1972 Act, is not within the jurisdiction of the civil court for determination, as the same has to be decided exclusively by the Tribunals constituted under the Land Reforms Act. It is further pleaded that even if the Settlement Deed is null and void, it is null and void for the purpose of 1972 Act only, but not for all other purposes.
11. On 21-4-1982 the third plaintiff filed a rejoinder with the following averments: The civil court is not ousted from its jurisdiction, especially when any Tribunal, constituted under any of the special enactment, is not competent to grant all the reliefs claimed in the suit, then the civil court is competent to decide the issue, for granting the ultimate relief to the parties.
12. In view of the amendments to the plaint, and in view of the addition of the other plaintiffs and in view of the additional written statements filed by the defendants, the issues originally framed were re-cast on 12-4-1983.
13. In support of their claim, the plaintiffs examined P.Ws 1 to 9 and marked Exs.A-1- to A-42. The defendants examined D.Ws 1 to 10 and marked Exs. B-1 to B-92.
14. Upon hearing the arguments of the learned counsel for both parties and after appreciating the entire evidence - both oral and documentary on record, the court below dismissed the suit without costs. Against that the plaintiffs filed the present appeal.
15. The respondents in the appeal filed Cross - Objections, claiming the costs of the suit.
16. Heard the arguments of the learned counsel for both sides.
17. The main important points that arise for consideration in this appeal are:
1. Whether the settlement Deed dated 25-8-1973 marked as Ex.B-12 was validly executed by the deceased first plaintiff or was it vitiated by fraud, misrepresentation and coercion as pleaded by the deceased first plaintiff?
2. Whether the Settlement Deed dated 25-8-1973 marked as Ex.B-12 is hit by the provisions of 1972 Act and hence it is a null and void document?
18. Before discussing the main points in the case, two incidental matters may be disposed of. The plaintiffs have set up Ex.A-10 registered will dated 16-5-1974 executed by the first plaintiff in favour of other plaintiffs, who were brought on record as his legal representatives. The said will Ex.A-10 is proved by the attestor and other witnesses and it is a holograph will executed by the first plaintiff in his own hand-writing. The Court below has found correctly that the execution of the will Ex.A-10 is proved. If the Settlement Deed Ex.B-12 is set aside, than the first plaintiff can dispose of the properties covered by Ex.A-10 will, but not otherwise. Hence the finding of the court below on this issue is confirmed.
19. So far as the will Ex.B-76 dated 18-1-1975 executed by the first plaintiff is concerned, the Court below has clearly recorded a finding that there is absolutely no proof of the execution of the will, as no attestor was examined. Hence I hold that the finding recorded by the Court below is correct. Hence there is no need to discuss about the above two wills any further.
Point No. 1:
20. Regarding the genuineness of Ex.B-12 Settlement Deed, the case of the plaintiffs is that when the deceased first plaintiff was mentally and bodily weak on account of filarial fever in his old age of 82 years in August, 1973, the first defendant played fraud on the deceased first plaintiff and obtained a document by falsely representing to him that the said document is a power of Attorney in his favour to manage the properties. The case of the defendants, on the other hand, is that the deceased first plaintiff was hale and healthy and was in a sound disposing state of mind and executed the Settlement Deed Ex.B-12 out of his own will, love and affection voluntarily, openly, publicly to the knowledge of the other sons and members of the family and that the first defendant never played any fraud on the first plaintiff and never made any representations, much less false representation, that it is a deed of General Power of Attorney to manage the properties.
21. By the time of trial, since the first plaintiff was no more and was not available for cross-examination about his voluntary execution and registration of Ex.B-12 Settlement Deed, I have necessarily to depend on the original pleadings pleaded by the deceased first plaintiff; on the notices and the cancellation deed Ex.A-7 dated 12-3-1974 to know the circumstances under which the deceased first plaintiff signed the Settlement Deed Ex. B-12 and the manner in which Ex.B-12 was registered. According to the first defendant, the registered notices and Ex.A-7 cancellation deed are all fictitious measures of the first plaintiff and his other sons to get over Ex.B-12 settlement Deed.
22. It is to be seen in the rejoinder filed by the deceased first plaintiff an 22-7-1974, he asserted that he is a very strong-willed person and he had been always looking after his own affairs even in his old age of 82 years; that his wife deprived him of her company at that old age and that his sons were living separately, leaving him alone. It is also to be noted that a notice Ex.A-1 dated 16-10-1972 was issued by P.W.1 on behalf of his mother, who is living separately from her husband the first plaintiff, calling upon the first plaintiff for rendition of accounts relating to her property; for return of jewellery and claiming maintenance. In Ex.A-2 reply dated 19-10-1972 the deceased first plaintiff stated that his sons residing at Jegurupadu village were behind his wife and instigated her to issue Ex.A-1 notice, with false allegations. In Ex. A-3 Police report dated 27-9-1972 given by the deceased first plaintiff, he stated that his sons were trying to grab at his property and he, being a single person, sought police protection. FrornEx.A-18 letter dated 28-9-1972 written by the first defendant to his brother P.W.9, it is clear that the deceased first plaintiff found it not safe to reside at jegurupadu and he was spending his time at Rajamundry since September, 1972, not returning to Jegurupadu and incurring debts. Thus in September, 1972 the deceased first plaintiff was disowned by his sons; that his wife made claims against him; that he was spending time alone at Rajamundry, being afraid to stay at Jegurupadu, and that he went to the extent of giving a police report also. The first plaintiff returned to Jegurupadu in October, 1972 and was residing with the first defendant. Except the Police report Ex.A-3, there is nothing on reford to show that there are differences between the first plaintiff and the first defendant. It is the admitted case of the plaintiffs, that the first plaintiff had gone to the house of the first defendant on 23-8-1973 and since then he lived there till 13-2-1974 and during that period, the first defendant and his family members were attending on him. It is also the admitted case of the plaintiffs that before the first plaintiff went to the house of the first defendant in August. 1973, there was a quarrel between the first plaintiff and P.W.I. Thus the relationship between P.W.I and the first plaintiff became strained. It is to be noted that at that stage there were no differences between the first plaintiff and the first defendant or between the first defendant and his brothers. In the normal course, it is natural for the first defendant, who is the eldest of the surviving sons of the first plain tiff, to look after the first plaintiff, who was in old age and was suffering with filarial fever.
23. Now let us see whether Ex.B-12 settlement deed was executed out of love and affection towards first defendant or by playing fraud and misrepresentation by the first defendant on the first plaintiff. When fraud and misrepresentation are pleaded, naturally they are to be proved by the executant of the document. In the plaint it is stated that the first plaintiff was sick and was suffering with filarial fever. But in the re-joinder it is stated by the first plaintiff that he was a strong-willed person, but due to old age and due to some other factors he was in troubled-situation during that period and he was made to lose the stability of his mind, especially by the mechanisations of the first defendant. Except this there is nothing mentioned either in the plaint or in the rejoinder to show that the first plaintiff was suffering with filarial fever, Moreover P.W.1 had categorically admitted that after the first plaintiff got-treated, he became alright and that was before the first plaintiff joined the first defendant in August 1973.
24. From the manner in which the first plaintiff scribed, the registered cancellation deed Ex.A-7and the will Ex.A-10 dated 16-5-1974, it is clear that the first plaintiff was a person capable of writing legibly and clearly even at his old age of 82 years and he is a man of clear and definite ideas of his own, capable of putting them in action. The partition in the family took place in 1956. It is the case of the first plaintiff as seen from the plaint, that ever since that partition the first defendant is approaching him and trying to take an opportunity of grabing the property of the first plaintiff. If that is true and if the first plaintiff was not willing to give any property to the first defendant, the first plaintiff, who had a suspicion against the first defendant, would not have stayed with the first defendant and would not have executed any document at all or sign on any blank papers.
25. It is pleaded by the first plaintiff in the plaint that the first defendant represented to him that it is a power of Attorney Deed and obtained the Settlement Deed Ex.B-12 duly signed and executed by him. It is to be noted that in Ex.A-7 the deed of cancellation, which was in the own handwriting of the first plaintiff and registered on 12-3-1974, the first plaintiff did not mention that the first defendant obtained the settlement deed by representing to him that it was a Power of Attorney and believing the same as Power of Attorney, he signed Ex.B-12 Settlement Deed. The recitals in Ex.A-7 cancellation deed show that the first defendant never represented to the first plaintiff that it was a Power of Attorney. If really the first plaintiff signed Ex.B-12 settlement deed, thinking that it is only, a General Power of Attorney, naturally he would have mentioned about the same in the notice Ex.A-5 and also in the publication Ex.A-6. More over the contents of Ex.A5 notice show that the first defendant seems to have managed to take the first plaintiff to Jegurupadu and got executed a settlement deed dated 25-8-1973 and the first plaintiff put his signatures wherever the first defendant directed him to sign. Therefore the grievance of the first plaintiff was that he signed the settlement deed without knowing the contents of the same. There was nothing in his earlier statements that a misrepresentation or false representation was made to him by the first defendant that the document which he signed was a Power of Attorney.
26. Now let us see whether there are any circumstances compelling the first plaintiff to execute a Power of Attorney in favour of the first defendant. Even when the first plaintiff was suffering with filarial fever and was weak bodily, it is not his intention that he wanted the first defendant to manage the' properties. It is also not the case of the first plaintiff that he had got affairs which he had to attend and due to old age and because of his weakness, he could not attend and manage those affairs and hence he wanted to execute a Power of Attorney authorising the first defendant to attend to those affairs. When there was no necessity at all for the first plaintiff to entrust the management of his' affairs to the first defendant by executing a Power of Attorney, it is highly unbelievable that the first plaintiff, being induced by the first defendant that the document is a Power of Attorney authorising the first defendant to manage the affairs and properties of the first plaintiff, executed and registered Ex.B-12 settlement deed. When mere were no circumstances warranting execution of ' Power of Attorney and when the first plaintiff did not mention in his earlier statements that the first defendant represented to him that the document is a Power of Attorney and that mistake vitiates the transaction, the explanation given by the first plaintiff for his signing Ex.B-12 settlement deed and registering the same cannot be accepted and given any weight at all.
27. Coming to the question whether Ex.B-12 settlement deed was executed voluntarily in a sound and disposing state of mind, by the first plaintiff, it is to be noted that the first plaintiff was disowned by his wife and other sons by 25-8-1973 and it is only the first defendant and his family members that were attending on him. The relationship then between the first plaintiff and the first defendant was cordial. If really the first defendant intended to defraud the first plaintiff and obtain the property of the first plaintiff by misrepresentation and undue influence or fraud, the first defendant could have obtained the gift of the property without any reservation of a right of enjoyment of the income on the properties by the first plaintiff till his death. The fact that under Ex.B-12 the first plaintiff reserved his right to enjoy the income on the property by himself, itself negatives the plea of the first plaintiff that the first defendant played fraud on him in obtaining the Settlement Deed Ex.B-12. Further the recitals in Ex.B-12 settlement deed make it clear that it is not the mechanisations of the first I defendant that played an important role in execution of the settlement deed, but it is the voluntary and spontaneous wish of the first plaintiff that is incorporated in the settlement deed. In the subsequent will Ex.A-10 dated 16-5-1974 said to have been executed by the first plaintiff, the first plaintiff created perpetuities and he does not want to give absolute rights to his sons or his daughters-in-law. He only gave vested remainder with absolute rights to his grand-sons under Ex.A-10 will. From this it can safely be inferred that the first plaintiff does not like his properties to be wasted away by his sons and he had the idea of giving the property to his grand-sons only. Unless Ex.B-12 settlement deed was voluntarily executed in accordance with the desires of the first plaintiff, in a sound disposing state of mind, the settlement giving absolute rights to the sons of the first defendant, reserving rights of enjoyment of income for himself throughout his life and also enjoyment of the income by the first defendant throughout his life, would not have been incorporated in the Settlement Deed. The way in which the rights were created under Ex.B-12 in the property which is in consonance with his subsequent conduct, the first plaintiff gives an impression that Ex.B-12 is the settlement made by him knowing fully well the dispositions made therein in favour of the defendants.
28. The scribe of Ex.B-12 settlement deed D.W.2 and the attestor P.W.5 in one voice said that the first plaintiff signed Ex.B-12 knowing its contents fully well. D.W.2 is the Sarpanch of the Village and D.W.5 is the Asst. karnam of Jegurupadu. Both are respectable persons and they are independent and disinterested witnesses. Their evidence is not shaken in their cross-examination. No reason is shown as to why their testimony that the first plaintiff signed Ex.B-12 settlement deed knowing fully well about the contents and knowing that it is a settlement deed, cannot be believed.
29. D.W.9 is the Sub-Registrar who registered the settlement deed Ex.B-12. He deposed that the first plaintiff was hale and healthy at the time of registration of Ex.B-12 settlement deed; that he elicited from the first plaintiff about the nature of the document; that the first plaintiff stated to him that he is voluntarily executing the settlement deed in favour of his grandsons. D.W.12 is one of the identifying witnesses of the executant. He also deposed that the first, plaintiff was hale and healthy at the time of presenting Ex.B-12 settlement. Admittedly the first plaintiff came from Jegurupadu village to Rajahmundry and presented Ex.B-12 settlement deed for registration. P.W.1 does not know the health condition of the first plaintiff at that time as he quarreled with the first plaintiff just one week earlier and he never went to the first plaintiff thereafter. No neighbour nor any villager of Jegurupadu was examined to show that on 27-8-1973 the first plaintiff was both mentally and physically weak and was unable to know what he was doing. When such is the case, the evidence of D.W.9 the Sub-Registrar and D.W.2 the identifying witness which shows that the first plaintiff was hale and healthy and was in a sound disposing state of mind and that he is aware of the contents of Ex.B-12, cannot be ignored and it must be given more weight.
30. P.W.9 one of the sons of the deceased first plaintiff and who is practising as an Advocate at Hyderabad, deposed that he visited the first plaintiff at the house of the first defendant. It is not his case that the first plaintiff told him (P.W.9) that the first defendant took a Power of Attorney or that his signatures were obtained by the first defendant on some blank papers and that the first defendant is authorised by him to manage the properties. If really the first defendant played fraud and by misrepresentation, obtained Ex.B-12 settlement deed, naturally the first plaintiff would have informed of the same to P.W.1, which he did not do so. P.W.9 also admitted that though he visited the first plaintiff in the house of the first defendant in November, 1973 and again in January 1974, the first plaintiff, at no occasion informed him anything about any document taken by the first defendant from the first plaintiff. If really Ex.B-12 is not a voluntary document executed by the first plaintiff with his own free will and in a sound disposing state of mind and if the first plaintiff did not know the contents of the same, and if any representation is made by the first defendant to him to execute and register a Power of Attorney deed, then naturally the first plaintiff would have informed P.W.9 at least through a letter. The contents of Ex. A-16 letter dated 26-11-1973 written by the first plaintiff to P.W.9, clearly establish that the first plaintiff was hale and healthy and was even able to know the paper-news and also to write 'Rama Koti'. The facts that during his stay in the house of the first defendant, the first plaintiff himself executed and registered some deeds and received registered letters etc. establish that the first Plaintiff is keeping good physical health and also mental condition. Thus the first plaintiff is aware, from the time he executed Ex.B-12 deed, that it is a settlement deed executed by him, giving his properties to the defendants.
31. On a consideration of all the facts, circumstances and probabilities mentioned above, it is clear that the case of the first plaintiff that Ex.B12 settlement deed is vitiated by reason of fraud, misrepresentation, coercion etc. cannot be accepted. There is dear variation and development from stage to stage with regard to this aspect right from the earlier point of time viz. Ex.A-5 notice and Ex.A-6 Samacharam daily newspaper; the recitals made in revocation deed Ex.A-7 dated 12-3-1974; the pleadings in the plaint originally instituted and also the evidence of P.W.I and others. It is also brought out very clearly that at the time of execution of Ex.B-12 settlement deed, the deceased first plaintiff was admittedly residing with the first defendant. All other sons of the deceased first plaintiff and his wife have serious differences with the deceased first plaintiff and the first plaintiff had necessarily to take shelter under the first defendant and that the first plaintiff has lost his love and affection towards his wife and other sons at that time. It is therefore clear that the deceased first plaintiff's affection was centred round only with the first defendant, as he was the only person who was looking after and attending on the needs of the first plaintiff at that time. The irresistable inference therefore is that the first plaintiff at that time intended to give away the properties covered by Ex.B-12 Settlement Deed to the first defendant and his sons, keeping life interest in himself and the first defendant. Therefore it is a natural sentiment which the first plaintiff had at that time and this is undeniable, as already discussed above Ex.B-12 Settlement Deed is proved by independent evidence, including that of the Sub-Registrar, D.W.9 who registered the same. The Court below has also considered the issue at length and came to the conclusion that Ex.B-12 Settlement Deed was executed by the first plaintiff voluntarily, openly, publicly to the knowledge of his other sons and members of the family, with his own will, love and affection towards the first defendant and his sons, in a sound state of mind when he is keeping good health. There is absolutely no reason for me to come to a different conclusion other than the one reached by the Court below. I therefore confirm the finding of the Court below on this point. Point No. 2:-
32. Now let us consider the validity of the Settlement Ex.B-12.
33. It is contended by the learned counsel for the plaintiffs that the Settlement Deed Ex.B-12 is null and void on two grounds - firstly the declaration Ex.A-17 filed along with the Settlement Deed Ex.B-12, given by the first plaintiff is a false declaration as the land owned by the wife of the first plaintiff was not shown in it and secondly the Settlement Deed Ex.B-12 is hit by the provisions of 1972 Act and also the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act I of 1973 (hereinafter referred to as '1973' Act')-
34. To appreciate this contention it is necessary to state the relevant Statutory Provisions of these two Acts. The Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Ordinance I of 1972 (the Ordinance) was promulgated on 2-5-1972. In substitution of this Ordinance, the 1972 Act was enacted which came into force from 2-5-1972 itself. Thereafter 1973 Act was enacted which came into force with effect from 1-1-1975. The Ordinance was repealed by 1972 Act and 1972 Act was repealed by 1973 Act.
35. In order to appreciate the contentions raised by the learned counsel for the plaintiffs, it is also necessary to state the objects and intendment of the legislation in bringing up these Acts.
36. As the norms for fixing the ceiling on the Agricultural Holdings was under active consideration, it was thought that the land-holders would alienate their lands so as to defeat the provisions of the Act which is yet to be enacted and is in the offing. To prevent any such activity, in the first place the Ordinance was promulgated on 2-5-1972 and was published in the Gazette on the same day. The said Ordinance was replaced by 1972 Act. The intention of the Ordinance and 1972 Act is to prevent large scale transfers of agricultural lands in order to defeat the purpose of the impending legislation. The ultimate object of the afore-said legislation is only to safeguard the interests of the Government in securing surrender of excess lands which will ultimately come into effect after the Act is brought into force, pending determination of various ceiling limits. 1973 Act has been finally brought into force with effect from 1-1-1975, providing the ceiling area of one Standard Holding depending upon the nature of the lands in various places.
37. With this object in view, I have to examine the contentions relating to the validity of Ex.B-12 Settlement Deed in the light of the provisions of the aforesaid Acts.
38. It is necessary to give the relevant provisions of these two Acts.
1972 Act Section 4:-
The specified limit of the holding for purposes of Section 5 shall be--
(a) in the case of wet land -- 4 hectares
(b) in the case of dry land --10 hectares.
Explanation : For the purpose of computing the specified limit in a case where the holding of any person includes both dry and wet land, one hectare of wet land shall be deemed to be equal to two and half hectares of dry land.
(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, usufructuary 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.
(Emphsis supplied).
(2) No member of a family, the holding 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, usufructuary 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-sections (1) and (2) shall apply to any transaction of the nature referred to therein in execution of decree or order of a civil court or of any award or order of any other authority.
(Explanation - omitted) Section 7 of 1973 Act:-
(1) Where on or after the 24th January, 1971 but before the notified date, any person has transferred whether by way of sale, gift, usufructuary mortgage. exchange, settlement, surrender or in any other manner whatsoever, any land held by him or created a trust of any land held by him, then the burden of proving that such transfer or creation to trust has not been effected in anticipation of, and with a view to avoiding or defeating the objects of any law relating to a reduction in the ceiling on agricultural holdings, shall be on such person, and where he has not so proved, such transfer or creation of trust, shall be disregarded for the purpose of the computation of the ceiling area of such person.
(2) Notwithstanding any thing in Sub-section (1) any alienation made by way of sale, lease for a period exceeding six years, gift, exchange, usufructuary mortgage or otherwise, any partition effected or trust created of a holding or any part thereof, or any such transaction effected in execution of a decree or order of a civil court or of any award or order of any other authority, on or after the 2nd May. 1972 and before the notified date, in contravention of the provisions of the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act, 1972 shall be null and void.
(3) Omitted (4) Omitted (5) Omitted (6) Omitted (7) If any question arises-
(a) Whether any transfer or creation of a trust effected on or after the 24th January, 1971 had been effected in anticipation of, and with a view to avoiding or defeating the objects of, any law relating to a reduction in the ceiling on agricultural holdings;
(b) Whether any alienation made, partition effected or trust created on or after the 2nd May, 1972 is null and void.
(c) Whether any conversion of agricultural land into non-agricultural land had taken place within a period of five years before the notified date;
(d) Whether any dissolution of a marriage had taken place on or after the 24th January, 1971 either on an application made on or after the said date, or in accordance with any law or custom;
(e) Whether any person had been given in adoption on or after the 24th January, 1971; such question shall be determined by the Tribunal, after giving an opportunity of being heard to the affected parties, and its decision thereon shall, subject to an appeal and a revision under this Act, be final.
(8) If the Tribunal decides that any transfer, or creation of trust had been effected in anticipation of, and with a view to avoiding or defeating the objects of any law relating to a reduction in the ceiling on agricultural holdings or that any alienation made or partition effected or trust created is null and void and if as a result of such transfer, alienation or creation of trust, the holding of the person or the family unit, that remains on the notified date does not exceed the extent of land that he or the family unit is liable to surrender then the Tribunal shall treat the entire holding thus left over as the extent of land to be surrendered under the provisions of this Act by the person or the family unit, as the case may be;
Provided that the balance of extent of land that remains liable to be surrendered by the person or family unit shall, subject to such rules as may be prescribed be surrendered by the alienee who is in possession of such holding by virtue of any transaction effected in contravention of the provisions of the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act, 1972.
Section 17:-
(1) No person whose holding, and no member of family unit, the holding of all the members of which in the aggregate, is in excess of the ceiling area as on the 24th January, 1971 or at any time thereafter, shall on or after the notified date, alienate his holding or any part thereof, by way of sale, lease, gift, exchange, settlement, surrender, usufructuary mortgage or otherwise, or effect a partition thereof, or create a trust or convert an agricultural land into non-agricultural land, until he or the family unit, as the case may be, has furnished a declaration under Section 8, and the extent of land, if any, to be surrendered in respect of his holding or that of his family unit has been determined by the Tribunal and an order has been passed by the Revenue Divisional Officer under this Act taking possession of the land in excess of the ceiling area and a notification is published under Section 16; and any alienation made or partition effected or trust created in contravention of this section shall be null and void and any conversion so made shall be disregarded.
(2) For the purpose of determining the whether any transaction of the nature referred to in Sub-section (1) in relation to a land situated in this State, took place on or after the notified date, the date on which the document relating to such transaction was registered shall, notwithstanding anything in Section 47 of the Registration Act, 1908, be deemed to be the date on which the transaction took place, whether such document was registered within or outside the state.
(3) The provisions of Sub-section (1) shall apply to any transaction of the nature referred to therein execution of a decree or order of a civil court or of any award or order of any other authority.
39. It is contended by the learned counsel for the plaintiffs that Ex.A-17 declaration given by the first plaintiff is a false declaration as the land owned by the wife of the first plaintiff was not shown in it and in view of the incorrectness in Ex.A-17 declaration, the transaction under Ex.B-12 settlement is null and void. On the other hand it is contended by the learned counsel for the defendants, relying on the provisions of the Ordinance and also the definition given to the word 'Person' in 1972 Act, that the wife of a 'person' is not included in the definition of the word a 'person' under 1972 Act and the 'holding' according to 1972 Act means 'the entire land held by a person as owner' and therefore the first plaintiff need not show the land held by his wife in the declaration Ex.A-17 made by him.
40. Firstly the declaration under Ex.A-17 was not made under the Ordinance. Secondly by the date of Ex.B-12 settlement came into existence, the Ordinance was repealed by 1972 Act. Hence the prohibition if any under the Ordinance has no application to Ex.A-17 declaration.
41. In my opinion the declaration is given by the first plaintiff knowing fully well that he is making a declaration of the land held by him and hence Ex.A-17 is not vitiated by any provisions of the Land Reforms Acts.
42. It is next contended that Section 5 of 1972 Act prohibits alienation of any kind which was effected during the period commencing from 2-5-1972 to 1-1-1975. Section 5 of 1972 Act which is extracted above, prohibits certain classes of transfers which are enumerated there. It is worthy of note that the expression 'settlement' does not find a place in that section. It is also a golden rule of interpretation that words not found in the Text of the Statute cannot be added for attracting the Penal provisions. It is also contended by the learned counsel for the plaintiffs that Section 7(1) of 1973Act also includes the expression 'settlement' and hence also Ex.B-12 settlement deed is void. He also relied on Section 7 (2) and 17 of 1973 Act for advancing his contentions. The learned counsel for the defendants on tended that Section 5 of 1972 Act has no application and does not govern the suit transaction as it is a settlement and the expression 'settlement' is not used in Section 5 of 1972 Act. He also contended that the word 'alienation' used in Section 5 of 1972 Act cannot be construed to mean a settlement in question. He also contended that Section 7(1) of 1973 Act has not declared the transactions covered by it as null and void. Section 7(2) of 1973 Act does not prohibit 'settlement' Section 17of 1973 Act has no application to the facts of the case as it refers only to sales after the Act.
43. For a better appreciation of these arguments, I first deal with the interpretation of the words 'gift' and 'settlement'. It is no doubt contended by the learned counsel for the plaintiffs that 'gift' and 'settlement' mean only one and the same transactions and there is no difference between those two words. He has also referred to Section 123 of the Transfer of Property Act to advance his contention and also referred to the Dictionary meanings given to those two expressions. The learned counsel for the defendants also cited some decisions to show that both the words are not one and the same transaction and they are two different and distinct words carrying different meanings.
44. In view of the rival contentions made by the learned counsel for the parties, I have to see whether 'gift' and 'settlement carry one and the same meaning in law and they can be treated as one and the same as contended by the learned Counsel for the plaintiffs; or whether 'gift' and 'settlement' are two different and distinct transactions and cannot be equated with each other as contended by the learned counsel for the defendants.
45. According to Flunk & Wagnalls Standard Desk Dictionary, gift' means: (1) Something that is given, present; (2) The action on right of giving; (3) A natural aptitude; talent. 'Settlement' means: (1) The Act of setting, or the state of being settled; especially an adjustment of affairs by public authority; (2) The settling of a new region; colonization; (3) An area of country newly occupied by those who intend to live and labor there; a colony; (4) A collection of frontier dwelling forming community; (5) A regular or settled place of living (6) An accounting; adjustment; liquidation in regard to amounts; (7) The conveyance of property in such form as to provide for some future object, especially the support of members of the settler's family; also the property so settled; (8) A welfare institution established in a congested part of a city, that conducts educational and recreational activities for the community; also settlement of house.
46. Thus according to dictionary meanings, the words 'gift' and 'settlement' are two different words carrying two different and distinct meanings.
47. In Black's Law Dictionary IVth Edition, 1951 the words 'gift'; 'settlement'; Deed of settlement' and 'Family settlement' are defined as under:
GIFT:-
(1) A voluntary transfer of personal property without consideration; (2) A parting by owner with property without pecuniary consideration; (3) A voluntary conveyance of land, on transfer of goods, from one person to another, made gratuitously; and not upon any consideration of blood or money.
The essential requisites of 'gift' are capacity of donor, intention of donor to make gift, completed delivery to or for donee and acceptance of gift by donee. In popular language, a voluntary conveyance or assignment is called a 'deed of gift'. An absolute gift, or gift inter vivos, as distinguished from a testamentary gift, or one made in contemplation of death, is one by which the donee becomes in the lifetime of the donor the absolute owner of the thing given whereas a donation mortis cause leaves the whole title in the donor, unless the event occurs (the death of the donor) which is to divest him.
SETTLEMENT:-
Act or process of adjusting on determining; an adjusting; an adjustment between persons concerning their dealings or difficulties; an agreement by which parties having disputed matters between them reach or ascertain what is coming from one to the other; arrangement of difficulties; composure of doubts or differences; determination by agreement; and liquidation. In legal parlance, implies meeting of minds of parties to transaction or controversy.
DEED OF SETTLEMENT A deed made for the purpose of settling property i.e. arranging the mode and extent of the enjoyment thereof. The party who settles property is called the 'settlor' and usually his wife and children or his creditors or his near relations are the beneficiaries taking interests under the settlement.
FAMILYSETTLEMENT:-
An agreement between members if a family settling the distribution of family property among them.
An arrangement or an agreement, between heirs of a deceased person, by which they agree on distribution or management of estate without administration by court having jurisdiction of such administration proceedings.
An agreement made between a father and his son or children or between brothers to dispose of property in a different manner from that which would otherwise take place. A term of practically the same signification as 'family arrangement'.
48. Thus even according to Black's Law Dictionary also the words 'gift' and 'settlement' give different and distinct meanings and are used in two different and distinct manners.
49. Now I consider the scope and effect of Section 5 of 1972 Act. According to Section 5 of 1972 Act, a person whose holding is in excess of the specified limit, shall not alienate such holding or part thereof by way of sale, lease for a period exceeding six years, gift, exchange, usufructuary mortgage or otherwise or effect a partition or create a trust of such holding or any part thereof and the alienation if any made by such holding or any part thereof and the alienation if any made by such person in contravention of that section shall be null and void. This section clearly gives a list of alienations which shall be treated as null and void and that list includes 'gift' only and 'settlement' was not at all listed in the manner of alienations listed therein: So a reading of Section 5 of 1972 Act clearly goes to show that "the alienation by way of "gift" is prohibited and it is silent with regard to the "alienation by way of 'settlement'". By this it can be said that the transaction under settlement deed Ex.B-12 is not attracted by the prohibition of alienations mentioned in Section 5 of 1972 Act. Even for argument sake if we take the word 'alienation' in Section 5 of 1972 Act includes the expression 'settlement' also, even then the alienation of property under Ex.B-12 settlement deed does not become void firstly on the ground that the alienation by way of 'settlement' is not included in the list of alienations mentioned therein and secondly the alienation under Ex.B-12 settlement deed is not made in contravention of that section.
50. It is also necessary to notice that the word 'alienate' occurs in the first limb of the Section and the words 'any alienation' occurs in the second limb of Section 5 of 1972 Act. The first expression 'alienate' occurring in the first limb of the Section is followed by the expression "by way of sale, lease for a period exceeding six years" etc. This does not include 'settlement'. The second expression "any alienation" also declares the same as null and void. It can be said that the expression "any alienation" occurring in the second limb of the Section is limited only to those classes of sales listed in the first limb and the second expression extends to other types of transactions not covered by the list of alienations mentioned earlier in the first limb of the Section. It is also settled rule of interpretation that the words used at different places carry the same meaning and not a different meaning. As mentioned above Statutes taking away property rights and imposing burden have to receive strict construction and the benefit of doubt if any, has to be given to the subject (citizen). It is also necessary to avoid giving different or inconsistent meanings to the same word. It is clear that the Legislature used both the expressions 'gift' and 'settlement' in Section 7(1) of 1973 Act. This usage of two expressions clearly establishes that the Legislature treated these two transactions as different and distinct transactions. If the meaning is the same for these two transactions, then the Legislature has to be faulted for using words unnecessarily giving rise to the necessity of rejecting unnecessary words. The Legislature cannot be stated to have used the words redundantly. One expression has to be simply discarded and eschewed. Rules of interpretation do not permit such a method. It is in this context I have to refer to 1973 Act for better understanding the Section 5 of 1972 Act. When Section 5 of 1972 Act does not list out 'settlement' but confined the scope to 'gift' only, it is not permissible to construe the provision by giving wide meaning and including all transactions which were specifically and deliberately omitted by the Legislature. Therefore I am not prepared to give an enlarged and widened meaning to the expression "any alienation" occurring in the second limb of the Section 5(1) of 1972 Act.
51. It is contended by the learned counsel for the plaintiffs that the expression 'otherwise' occurring immediately after the words "usufructory mortgage" in Section 7(2) of 1973 Act covers Ex.B-12 settlement deed also and the transfer 'in any other manner whatsoever' used in Section 7(1) of 1973 Act is general in nature and these expressions comprehend every transaction and relied on a decision of this court reported in Laxminarayan Reddy v. Joint Sub-Registrar, 1974 (2) An.W.R. 401. It is to be interpreted strictly as per the expressions specifically used therein. The intendment of the Statutes cannot be brought into effect by 'adding' any words or 'expanding' the scope of the actual expression. Such construction if made, is impermissible. The decision relied upon by the learned counsel in Laxminarayan's case,1 related to a case of mortgage. In that case the learned Judge held that the expression "or otherwise" has to be read distinctly, the words preceding expression. It was held by the learned Judge that the expression "or otherwise" takes in all alienations including simple mortgage. That case is not applicable to the present case for three reasons:
Firstly the provisions of Section 7 of 1973 Act were not taken into consideration in that judgment and the interpretation is made without reference to the scope and object of 1973 Act. Moreover Section 7(1) of 1973 Act does not specifically mention that the transactions are void, but they will be disregarded for purpose of computation of the ceiling area of the 'person' only.
Secondly the use of the expression 'settlement' in Section 7(1) of 1973 Act and omitting the same in Section 7(2) of 1973 Act was not at all noticed. That case was not at all concerned with the transaction by way of 'settlement' and it is confined to the transaction by way of mortgage only. The observation in that decision has to be confined to the facts of that case only and any observations with reference to other types of transfer have to be ignored as obiter. The intention of bringing 1973 Act into existence is to put certain restrictions on the transfers made with a view to avoiding or defeating objects of any law relating to a reduction in the ceiling on agricultural holdings only and if any such transfer is made, it shall be disregarded for purpose of the computation of the ceiling area of such person only, but not to declare the transaction as null and void. This fact was not noticed in that decision.
Thirdly in the decision reported in J. Ramachandra Rao v. Authorised Officer, L.R., 1980 (1) An.W.R. 255, which is subsequent to the decision relied on by the learned counsel for the plaintiffs, it was held that the expression 'otherwise' has to be construed only to control the preceding word 'usufructuary mortgage' only, and if so construed, it can only be held to mean not only usufructuary mortgage but also any mortgage of similar nature can also be deemed to be 'alienation' and therefore the word 'otherwise' by extension of the principle of ejusdem generis, cannot be extended to sale, lease, gift, exchange, but is confined to 'usufructuary mortgage' only. Hence the expression 'otherwise' is to be confined only to mortgages but not to any other transfer.
52. Learned counsel for the defendants also cited some decisions with regard to the meanings given to the words used in the Statutes. It is to be noted that following are the decisions governing the same:
When in relation to the same subject-matter, different words are used in the same Statute, there is a presumption that they are not used in the same sense Board of Revenue v. A.P. Benthall, and when there is possibility of giving two types of interpretations, the benefit of interpretation must be given to the subject (citizen) but not to the State (Ramchhoddas v. Union of India, .
53. In Section 5 of 1972 Act, the alienation by way of 'gift' is only mentioned and the alienation by way of 'settlement' is not mentioned. The benefit must be given to the first plaintiff holding that the 'alienation by way of settlement' under Ex.B-12 settlement deed does not fall under the prohibitions listed in Section 5 of 1972 Act.
54. As mentioned above this conclusion regarding the omission of the word 'settlement' in Section 5 of 1972 Act has to be considered with reference to 1973 Act wherein also the expression 'gift' and 'settlement' were used. Section 7(1) of 1973 Act used the expression 'settlement' while Section 7(2) of 1973 Act omitted it. It is also worthy of note that Section 7(1) of 1973 Act used both expressions 'gift and 'settlement' treating them as two separate transactions. This will also confirm my earlier view expressed on the question that the transactions by way of 'gift' and 'settlement' are two different and distinct transactions. The omission of the word 'settlement' in Section 7(2) of 1973 Act is very significant and it aids us in construing the words 'gift' and 'any alienation'. As already mentioned above, I can take the aid of latter legislation in interpreting the earlier Statutes. The purpose of the legislation is only to fix the ceiling limit and prevent bogus and duping alienations meanwhile. Whether this purpose is achieved or not can also be considered on the facts of the particular case which I will refer to latter.
55. In the same manner since 'transfers' by way of 'gift' and 'settlement' are listed in Section 7(1) of 1973 Act and only 'alienation' by way of 'gift' is mentioned and intentionally omitting the 'alienation' by way of 'settlement' in Section 7(2) of 1973 Act, the benefit of interpretation must be given to the deceased first plaintiff, holding that the expression 'alienation by way of settlement' under Ex.B-12 settlement deed, does not fall within the ambit of Section 7of 1973 Act. It is also to be noticed that 1972 Act was repealed by Section 30 of 1973 Act. Hence the prohibition if any, under 1972 Act does not survive for consideration at this stage. I therefore hold that Section 5 of 1972 Act has no application to Ex.B-12 settlement deed and the same is not hit by the provisions of 1972 Act.
56. Now let us examine the scope and applicability of 1973 Act. It is to be seen that Section 7(1) of 1973 Act clearly says that during the period between 24-1-1971 and 1-1-1975 when the 1973 Act came into effect, if a person transfers any land held by him by way of sale, gift, usufructuary mortgage, exchange, settlement surrender or in any other manner whatsoever, and if he fails to prove that the said transfer has not been effected in anticipation of, and with a view to avoiding or defeating the objects of any law relating to a reduction in the ceiling on agricultural holdings, then such transfer shall be disregarded for purpose of computation of the ceiling area of such person. So according to this Section 7(1) of 1973 Act, transfer by way of 'settlement' is included in the word 'transferred' used in that section. Therefore the words 'or in any other manner whatsoever' do not include 'settlement' as it was specifically mentioned. More over that transfer will be disregarded for purpose of computation of the holding of the person only. In the present case the question of' computation' does not arise, because the computation of the first plaintiff was already made by the Tribunal and the declaration of the first plaintiff was accepted and he was declared as not holding any excess of land than the specified one. So Ex.B-12 settlement deed is not hit by this section.
57. Section 7(2) of 1973 Act also says that during the period from 2-5-72 and 1-1-1975 if any 'alienation' is made in contravention of the provisions of 1972 Act, by way of sale, lease for a period exceeding six years, gift, exchange, usufructuary mortgage or otherwise, any partition effected or trust created of a holding or any part thereof, such 'alienation' shall be null and void. Even in this Sub-section also the modes of alienation are listed which include 'gift'. But the alienation by way of 'settlement' is not included and it is omitted from the modes of alienation mentioned therein. The transfer by way of 'gift' and the 'alienation' by way of 'gift' were mentioned in the lists where they can be treated as null and void. But though the transfer by way of 'settlement' is mentioned in Section 7(1) of 1973 Act, the 'alienation' by way of 'settlement' was intentionally omitted from the modes of transfers listed in Section 7(2) of 1973 Act, which means the intention of Legislature is that the list of modes of 'alienations' mentioned therein does not include the 'alienation' by way of 'settlement'. This using of two words 'gift' and 'settlement' in Section 7(1) and intentionally omitting the word 'settlement' in Section 7(2) of 1973 Act, clearly goes to show that the alienations under 'gift' and 'settlement' are two different and distinct alienations and since the 'alienation' by way of 'settlement' is intentionally omitted by the Legislature in Section 7(2) of 1973 Act, the alienation made under Ex.B-12 settlement deed does not fall within the ambit of Section 7(2) of 1973 Act. Hence the provisions of 1972 and 1973 Acts have no application to the Settlement Deed Ex.B-12.
58. It is to be seen that the first plaintiff had admittedly executed sale deeds in respect of some of his lands even in February, 1974 and in November, 1973. Those sale deeds were not attacked in the suit on the ground that the first plaintiff was holding land in excess of ceiling limit. Ex.B-27dated 11-10-1974 is the sale deed executed by the first plaintiff in favour of Y. Venkataramanamma. At the time of the registration of the said Ex.B-27 sale deed, the first plaintiff would have definitely given a declaration similar to Ex.A-17 declaration. When the plaintiffs did not dispute the validity of Ex.B-27 sale deed, they cannot now dispute the validity of Ex.B-12 settlement deed. It is also to be seen that when the first plaintiff was residing with the first defendant, both the first plaintiff and the first defendant jointly executed Ex.B-3 sale deed in favour of one Garapati Satynarayana. For the registration of this Ex.B-3 sale deed also, the first plaintiff would have given a declaration similar to that of Ex.A-17. When the sale deeds Exs.B-3 and B-27 are not questioned by the plaintiffs to be null and void documents, it is not open to the plaintiffs now to contend that Ex.B-12 settlement deed alone is a null and void document.
59. I have earlier mentioned that I would refer to the fact whether the purpose of the 1972 Act or 1973 Act is defeated in executing Ex.B-12 settlement deed. It is now clear from the evidence on record that the deceased first plaintiff and his family members have submitted different declarations before the Land Ceiling authorities and they were declared to be having no excess of land than the specified extents. The order dated 8-4-1981 in L.C.C. No. 15/RJY/75 on the file of the Land Reforms Tribunal, Amalapuram, determining the holding of the first plaintiff and declaring that there was no excess land held by the first plaintiff was filed in this case as Ex.B-92. This order, which has become final, makes it clear that the purpose of 1972 Act or 1973 Act was not defeated, as there is no excess land held by the deceased first plaintiff. As seen earlier, Section 7 (1) of 1973 Act states that any 'alienation' is to be disregarded only for purpose of ceiling and for surrender only, but not for any other purpose. There is no reason shown why Ex.B-12 settlement deed should be disregarded and declared to be a null and void document. I therefore have no hesitation to held that the transaction under Ex.B-12 settlement deed is not hit by 1972 Actor 1973 Act. The second point is answered accordingly.
60. For all the above reasons, I hold that the plaintiffs have miserably failed to establish their case and there are no merits in the appeal and the same deserves to be dismissed.
Cross Objections
61. The defendants filed the cross-objections claiming the costs of the suit, solely on the ground that costs should follow the events, and the close relationship between the parties is not a valid ground for rejecting the costs.
62. Though this contention was raised by way of filing cross-objections, the learned counsel for the defendants did not seriously argue on this point. More over it is to be noticed that the relationship between the parties is already strained to some extent and drove them into litigation. If costs are also awarded, the gulf between the parties will be further widened. Hence I feel it just and proper not to award costs to the defendants, though they succeeded in the litigation. Hence the cross-objections are to be dismissed.
63. In the result the appeal is dismissed confirming the decree and judgment passed by the court below. The cross-objections are also dismissed. Each party is directed to bear its own costs throughout.