Andhra HC (Pre-Telangana)
Yadiki Venkatalakshamma And Ors. vs Chindanur Indiramma And Ors. on 1 October, 2002
Equivalent citations: 2003(2)ALD270
JUDGMENT P.S. Narayana, J.
1. Heard Sri R. V. Prasad, the learned Counsel for the appellants, Sri Nagender Reddy representing Sri A. Prabhakar Sarma, Counsel representing the 1st respondent and Sri R.N. Hemendernath Reddy, Counsel representing 2nd respondent.
2. The short and the only question which had been elaborately argued in this appeal is in relation to item No. 1 of the plaint A schedule i.e., a bus route permit and whether such permit is capable of partition in between the mother and the daughters. Except this question, no other question had been raised by the Counsel on record.
3. The respective pleadings of the parties are as specified hereunder:
4. It was pleaded in the plaint that the suit properties are the exclusive properties of the late Yadiki Krishnaiah S/o. Hanumanthaiah of Penukonda. The said Krishnaiah died on 13-9-1965 leaving behind him his wife - 1st defendant, his daughters -the plaintiff and defendants 2 to 6, and except the plaintiff and defendants 2 to 6 none others would succeed to the properties of late Krishnaiah. Since Krishnaiah died long after the Hindu Succession Act came into force, the plaintiff and defendants are entitled to equal shares i.e., 1/7th share each in all the properties of late Krishnaiatt. Thus the plaintiff is entitled to 1/7th share and each defendant is entitled to 1/7th share in the suit A and B schedule properties and thus the plaintiff and defendants have become co-owners and their joint possession is not disturbed. Late Krishnaiah was running a bus from Madakasira to Mohammadabad in Kadiri Taluk and the bus number at that time was APA 1412. At the time when Krishnaiah died, the defendants 3 to 6 were minors under the care and protection of their mother, the 1st defendant and hence the 1st defendant took over the management of all the properties including item No. 1 route bus service. After the death of Krishnaiah, the permit was transferred in the name of 1st defendant and she has been running the bus in that route. For the last four or five years the route was extended up to Roddam from Madakasira via Pavagada. From the beginning, the family is in affluent circumstances. The income from item No. 1 is more than Rs. 15,000/- to Rs. 20,000/- per year excluding all expenses, taxes etc. The 1st defendant is liable to render proper and true accounts. The present bus number is APA 5169 of item No. 1. Item No. 2 of the plaint A schedule is a residential house in which the 1st defendant is residing. Item No. 3 is a shop situate in Darga street in Penukonda. The B schedule property is gold, silver and furniture with the custody of the 1st defendant. The 1st defendant has no independent source of income or property of her own except the suit property which originally belonged to late Krishnaiah, The defendants 3, 5 and 6 are given in marriage to members of the same family at Bellary, The defendants 3, 5 and 6 have formed one group and they are dominating over the affairs and the 1st defendant is completely under their control. The defendants 5 and 6 are residing in item No. 2 of A schedule. In order to secrete the movables, they have taken a house on lease and they have secreted some valuable movables. The plaintiff is residing at Anantapur. Now the defendants 1,3, 5 and 6 in collusion are acting adverse to the interests of the plaintiff. They are also trying to secrete the other valuable movables to keep away from the reach of the plaintiff. The plaintiff has been demanding for amicable partition and separate possession of the plaintiffs 1/7th share. The 1st defendant though admitting the share of the plaintiff, has given deaf ear at the instance and instigation of defendants 3, 5 and 6. The plaintiff feels it no longer beneficial to her to be in joint possession and hence the suit.
5. The 1st defendant who is the mother of the plaintiff filed a detailed written statement and defendants 3, 5 and 6 had adopted the same. It was pleaded in the written statement that the relationship mentioned in the plaint is correct. Item No. 1 of the A schedule property cannot be the property of Krishnaiah which the plaintiff or the defendants 2 to 6 can claim a share. The permit was no doubt given in the name of Krishnaiah and he was running the bus from Madakasira to Mohammadabad. After Krishnaiah's death the permit ceased to be in existence after the expiry of the period for which the permit was granted. Subsequently the 1st defendant obtained a permit from the authorities and began to run the bus in her own right. The application of the 1st defendant for grant of permit was considered by the authorities independently and after finding that this defendant is entitled for the permit, it was rightly granted in her favour. Even as per Motor Vehicles Act the permit that is granted is the self-acquired property of the permit holder and so this defendant as per law is absolutely entitled for the permit and to run the services. Neither the plaintiff nor the defendants 2 to 6 have or had any right at any time and they were not at all co-owners nor they are in joint possession of item No. 1 of A schedule property. This defendant had been running the bus in her own right as a regular permit holder and so she alone has got right to deal with it. The B schedule properties shown in the plaint were and are not in existence nor owned by late Krishnaiah. The movables that are in possession of this defendant are all the movables owned by this defendant and they are her exclusive properties. It is true that the route was extended up to Boddam from Madakasira via Pavagada. The said route was got extended by this defendant as permit-holder and in her own right she had acquired it. The plaintiff or the defendants 2 to 6 have no right to claim any share in it, The allegation that there is considerable income of Rs. 15,000/- to Rs. 20,000/- per year and the family is in affluent circumstances are all totally false. The allegation that the present bus bearing No. APA 5169 is also a joint property of the plaintiff and the defendants is not correct and it is the exclusive property of the 1st defendant who had purchased it. The allegation that items 2 and 3 of the plaint schedule is her property got from Krishnaiah is not correct. Item No. 3 of the A schedule was previously an open land and after the death of Krishnaiah the 1st defendant spent money and got constructed a building. In item No. 2, the 1st defendant, the plaintiff and the other defendants were residing. During the life time of Krishnaiah, he celebrated the marriages of the defendants 2 and 3. Immediately after the marriages, the defendants 2 and 3 left Penukonda and have been residing with their husbands separately. The 1st defendant celebrated the marriages of the plaintiff and defendants 4 to 6 by spending amounts by herself and even the 1st defendant had borrowed the amounts in order to celebrate the marriages of the plaintiff and the defendants 4 to 6. The 3rd defendant is a permanent resident of Bellary. Defendants 5 and 6 are also the permanent residents of Bellary and they have temporarily come down to Penukonda and are living in a separate house. The 2nd defendant's husband and the 4th defendant's husband are natives of Penukonda. They have got their own houses separately. The husbands of the defendants 2 and 4 are powerful, rich and financial persons in the village. They have been demanding the 1st defendant to execute a document for all the properties including item No. 1 of the A schedule property in their favour as the 1st defendant was becoming old and the 1st defendant refused to do so and thereupon ill-feelings arose about two years back between the defendants 2 and 5. Since then they have been giving trouble to the 1st defendant. The plaintiff also prevailed upon the 1st defendant to get item No. 1 of A schedule property. The 1st defendant having not obliged had to face the plaintiff and her husband who had also joined with defendants 2 and 4. The husbands of defendants 2 and 4 who are well versed in litigation have set up the plaintiff to file the present suit with all false allegations. The plaintiff and the defendants 1 to 6 are all entitled to a share in item Nos.2 and 3 of A schedule property, but not in any items of the suit schedule property. The plaintiff and the defendants 2 to 6 have got their own movable properties including gold and silver. The plaintiff or the defendants 2 to 6 have no manner of right or any share in item No. 1 of the A schedule property or the movables found by the Commissioner. Item No. 3 of the suit property was forcibly occupied by the husbands of defendants 2 and 4 even prior to the filing of the suit and the 4th defendant is running a shop. The 4th defendant is bound to account for the same. The plaintiff is fully aware of the husband of the 4th defendant having occupied item No. 3 of the A schedule pererty. The suit as framed is bad in law and is not maintainable. The plaintiff ought to have filed the suit for declaration of item No. 1 of the A schedule property and B schedule property. The Court fee paid under Section 34(2) is not correct. The plaintiff is fully aware that item No. 1 of A schedule property is the exclusive property of the 1st defendant and item No. 3 of the A schedule property is in possession of the 4th defendant. The plaintiff or the defendants 2 to 6 never demanded for any share in item Nos.2 and 3 of the A schedule property and they were more harping upon item No. 1 of A schedule property which is owned by the 1st defendant. Late Krishnaiah owned landed property in Movatoor Village land limits in Penukonda Taluk, The land is Government dry and an extent of five acres and three cents in S.No. 231-3 devolved upon the 1st defendant, the plaintiff and the defendants 2 to 6 and are enjoying jointly according to convenience and the plaintiff had suppressed the same. The suit for partial partition is not maintainable and has to be dismissed in limine. The plaintiff is not entitled to claim the accounts of every day's income of item No. 1 of the A schedule property and she has no right to claim.
6. The 2nd defendant filed a written statement and the 4th defendant filed a memo of adoption and it was pleaded by the 2nd defendant in the written statement as follows:
7. This defendant is the eldest daughter of the six daughters of the 1st defendant and her husband late Krishnaiah. The father of this defendant had five brothers and out of the six brothers, the father of this defendant was the fourth. All the brothers while they were joint, were in affluent circumstances and were running number of service buses. Besides this, they had also lot of cash and other movable properties like gold jewels etc. At the time of the division of the six brothers' the father of this defendant got a service bus MSC 8236 for his share among other properties. Later the father of this defendant had a bus APA 1412 and these buses were fetching good income for the family. The husband of this defendant being the sister's son of Krishnaiah had married this defendant over 30 years ago and as Krishnaiah had no male issues, the husband of this defendant was also looking after the running of the bus. Besides this, this defendant's husband and her father were also having joint business in trunk and buckets factory. During the lifetime of this defendant's father, he was getting good income from different sources and was having enough surplus money at the time of death of Krishnaiah. After the death of her father, the bus and the route were transferred in the name of the 1st defendant and the same was also fetching good income for the family. After the death of Krishnaiah, the bus APA 1412 was sold and from out of its sale proceeds and from the money of Krishnaiah in the hands of the 1st defendant, a new bus was purchased and registered as APA 2658 in the name of the 1st defendant. After plying this bus for some years, the same was sold in the year 1969 and a new bus was purchased from its income and from out of the money of Krishnaiah and registered in the name of the 1st defendant as APA 3549. After running this bus for some years on the route this bus also was sold and a new bus was purchased from the sources and the same was continued to be registered in the name of the 1st defendant as APA 5169 which is shown as item No. 1 in plaint A schedule. Thus it will be seen the present bus APA 5169 was acquired in a continuous process and not newly acquired by the 1st defendant. The 1st defendant, except being registered as owner of the said bus, has no other independent and exclusive claim or right over the same. The 1st defendant had or has no other sources of income to invest or to purchase the bus in question. The 1st defendant hails from a very poor family who are even now living hand to mouth. So the bus in question being the family property of Krishnaiah -- the father of this defendant, this defendant also has got equal right, share and claim over the same as the other defendants and the plaintiff, as the father of this defendant died on 13-9-1965. The residential house, item No. 2 of the plaint schedule, has fallen to the share of this defendant's father at the time of division between the brother and so this house being the property of late Krishnaiah, this defendant also has got the legitimate right and share in the said house. Item No. 3 of the plaint schedule is a shop building and the site over which this building is located was acquired by this defendant's father as patta from the Government and was running a shop over the site and during the lifetime of this defendant's-father he was using the same for, his business. After the death of Krishnaiah the adjacent owner of this building one Honnurjirao had caused damage to the building of Krishnaiah and the 1st defendant had also issued registered notice on 1-12-1965 to the said Honnurjirao through her Advocate late G. Janikiram Sarma. The said Honnurjirao had paid some compensation to the 1st defendant for the damage he had caused to the building. So, from out of that amount and from out ofthe money of late Krishnaiah in the hands of the 1st defendant, the shop building has been renovated and therefore the 3rd item of the plaint schedule also is the family property of late Krishnaiah, the father of this defendant. It cannot be said that this shop building is the exclusive and separate property of the 1st defendant. The 1st defendant wanted to create exclusive rights in favour of this defendant and the 4th defendant with respect of this 3rd item of the plaint schedule at the mediation of some respectables like S. Ramakrishna Rao (bus owner), Sreenivasa Rao, Y. Surendranath (the brother's son of the 1st defendant's husband) and some others. The defendants 1, 5 and 6 have also executed a valid stamped agreement dated 30-6-1983 in favour of this defendant and the 4th defendant. The husband of this defendant had been looking after the family welfare of late Krishnaiah till very recently. The marriages of the defendants 3 to 6 and the plaintiff were also celebrated by the 1st defendant with the help of the husband of this defendant in a very gracious and decent manner from out of the income derived from late Krishnaiah's continuing business. Late Krishnaiah had got about five acres of land on assignment at Mavatur Village, This land was being looked after by the husband of this defendant and the income derived from out of this land was being given to the 1st defendant. So, this defendant has got a legitimate share in the said property. The same has not been disclosed in the plaint schedule. This defendant has got her legitimate share in item Nos. 1 and 2 of the plaint schedule properties and in the lands situate in Mavatur. In item No. 3 of the plaint schedule this defendant and the 4th defendant alone get the full and absolute rights by virtue of the document dated 30-6-1983. If for any reason the Court were to hold otherwise this defendant gets equal rights in the same along with the plaintiff and the other defendants.
8. Subsequent thereto, the plaintiff by way of an amendment had included item No. 4 of the plaint A schedule and also paragraph 4(a) in the plaint as per orders in IA No. 53/88 dated 11-4-1988 and the 1st defendant filed an additional written statement to the effect that the plaintiff had wantonly omitted the same and had filed the above suit and the said plea was taken up to fill up the lacunae and avoid an adverse decision in the suit and the suit is not maintainable as the same was filed for partial partition.
9. On the strength of the respective pleadings of the parties, the following Issues and additional Issues were settled.
Issues:
1. Is plaintiff entitled for partition and separate possession of 1/7th share in respect of plaint A and B schedule properties?
2. Are the properties of plaint B schedule in existence?
Additional Issues :
1. Are, defendants 2 and 4 exclusively entitled for item 3 of the plaint schedule?
2. Is 2nd defendant entitled for 1/6th share in items 1 and 2 of plaint schedule?
10. Before the Trial Court, on behalf of the plaintiff, PW1 was examined and Exs.A1 to A3 were marked and on behalf of the defendants DW1 to DW3 were examined and Exs. B1 to B6 were marked. The Trial Court on appreciation of both oral and documentary evidence had passed a preliminary decree directing partition of item 2 to 4 of the plaint A schedule into seven equal shares and also the plaintiff and defendants 1 to 6 are entitled to 1/7th share each in item No. 1 of the plaint schedule i.e., bus bearing No. APA 5169 and the bus route and the suit claim regarding plaint B schedule properties had been dismissed. It was further directed that the accounts relating to daily income of the bus in item No. 1 of the plaint A schedule will be determined in the final decree proceedings and in the circumstances of the case, each party was directed to bear their own costs. Aggrieved by the said judgment and decree, defendants 1,3,5 and 6 had preferred the present appeal, impleading the plaintiff, the 4th defendant and the legal representatives of the 2nd defendant as respondents.
11. Sri R. V. Prasad, the learned Counsel representing the appellants while commencing his submissions had made it clear that the parties are not disputing about other aspects except the relief granted by the Trial Court relating to item No. 1 of the plaint A schedule, the bus and the bus route. The learned Counsel also made in clear that except this point, he is not urging any other point in this appeal. The learned Counsel further submitted that in view of the provisions of the Motor Vehicles Act, 1939, in short hereinafter referred to as "Act", a bus route permit granted should be treated as personal property and it being personal, the permit comes to an end by the death of a person. The learned Counsel also had taken me through Sections 57 and 61 of the Act and had pointed out that even as per Ex.A3, notification issued under Section 57(3) of the Act, it is clear that the 1st defendant mother, was granted the permit and hence the daughters cannot claim any right over this item of the property on the ground that it forms part and parcel of the estate of the deceased husband of the 1st defendant i.e., father of the plaintiff and defendants 2 to 6. The learned Counsel also pointed out that certain of the daughters are sailing with the mother and certain of the daughters are disputing the same. The learned Counsel on the alternative had contended that even if it is held that the sale proceeds had been utilised for the purpose of purchase of the bus, the value of the bus alone can be estimated and at the best same may be partitioned between the shares and at any rate not the bus route permit which is the personal property of the 1st defendant - mother. The learned Counsel also had placed reliance on In Re Ramalakshmamma, and also J. Narayanamma v. The Regional Transport Officer, Anantapur, 1977 ALT 627.
12. Sri Nagender Reddy representing Sri Prabhakar Sharma, the learned Counsel for the 1st respondent/plaintiff on the contrary had contended that on the strength of the evidence available on record, a finding had been recorded that this bus route permit was transferred from the name of the deceased father in the name of the 1st defendant-mother. The learned Counsel also had pointed out both Exs. A1 and A3 wherein it was specifically referred that the transfer was affected relating to the bus route permit of the deceased husband in favour of the wife. The learned Counsel further contended that in the light of both oral and documentary evidence, the Trial Court had arrived at the correct conclusion and hence the said findings need not be disturbed.
13. Sri Hemendernath Reddy, the learned Counsel representing the 2nd respondent had advanced elaborate arguments and had explained the scope and ambit of different provisions of the Act and also the spheres in which Sections 57 and 61 of the Act operate. The learned Counsel further contended that if the contention advanced by the appellants has to be accepted, then in the case of partition actions in trading families, there will be several difficulties. The learned Counsel also had drawn my attention to Nasirabad urban Co-operative Bank v. Gyan Chand, , in this regard. The learned Counsel further contended that the test to be applied is whether the bus and the bus route permit had been acquired by the 1st defendant out of the joint family funds so as to form part and parcel of the estate of the deceased or whether it can be said to be the exclusive property of the 1st defendant. The learned Counsel also pointed out the finding which had been recorded by the Trial Court that the 1st defendant is not having any other independent source of income whatsoever and hence in this view of the matter also the appeal is liable to be dismissed. No doubt, the learned Counsel also had pointed out that the view expressed in the decision referred In Re Ramalakshmamma's case (supra) cannot be held to be good law in view of the decision of the Apex Court in Dhani Devi v. S.B. Sharma, .
14. Heard the Counsel at length.
15. As already stated supra, this was the only question on which elaborate arguments had been advanced by all the Counsel on record and hence the following points arise for consideration in this appeal:
1. Whether the bus and bus route permit shown as item No. 1 of the plaint A schedule is liable to be partitioned as the estate of the deceased husband of the 1st defendant amongst the mother and daughters?
2. To what relief the parties are entitled to?
Point No. l: The factual matrix need not be repeated again as the respective contentions of the parties are well reflected in the pleadings narrated supra. The plaintiff was examined as PW1 and the 1st defendant was examined as DW-1 and a conductor Nagabushanam, whose evidence may not be material, was examined as DW2 and T. Viswanatham was examined as DW-3. Ex.A-1, dated 14-2-1966, is the transfer of permit in the name of the 1st defendant. Ex.A2, dated 7-1-1966, is the proceedings of the Secretary, Regional Transport Authority, Anantapur regarding transfer of permit in the name of the 1st defendant. Ex.A3, dated 2-11-1966, is the notification issued under Section 57(3) of the Act by RTA, Anantapur. Ex.Bl, dated 30-6-1983, is the agreement for partition executed by defendants 1,5 and 6 in favour of defendants 2 and 3, which was marked subject to objection. Ex.B2 is a duplicate copy of the bus route permit in the name of the 1st defendant. Ex.B3 is the endorsement of the counter signature by the Karnataka State Transport Authority. Exs. B4 to B6 are the renewal endorsements of the bus permit.
16. As already stated supra, except relating to item No. 1 of the plaint A schedule, there is no other dispute at all between the parties. No doubt, the plaintiff filed a suit for partition and separate possession of 1/7th share in all the plaint A and B schedule properties and for rendition of accounts regarding the income from item No. 1 of the plaint A schedule. The relationship that the plaintiff and defendants 2 to 6 are daughters of late Krishnaiah and the 1st defendant is the wife of late Krishnaiah is not in dispute. The stand taken by the plaintiff and also the defendants 2 and 4 is to the effect that all these properties are liable to be partitioned as the estate of their deceased father. However, the mother-1st defendant and also defendants 3, 5 and 6 who are the appellants herein, are taking a specific stand that as far as item No. 1 of the plaint schedule, the bus and the bus route permit, is concerned, it cannot be partitioned inasmuch as that is the separate personal property of the 1st defendant, DW1- the 1st defendant, had deposed about the details of the family and her acquaintance with the family even during the days of her father-in-law and six sons of her father-in-law and the properties which had fallen to the share of the her husband and the bus route relating to Mohammadabad to Madakasira falling to the share of her husband. DW3 is the husband of the 2nd defendant who had narrated about all the details and also about the acquaintance with the family and the details of the division of the family properties and he had also narrated about several aspects i.e., during the lifetime of Krishnaiah, the sale of bus and purchase of another bus and the expansion of the bus route and the transfer of the bus route in the name of DW1, she being the eldest member of the family at the relevant point of time. The evidence of DW3 is clear and categorical. As already referred to supra, DW2 is the conductor and his evidence does not throw much light on the present dispute. No doubt, as far as this aspect is concerned, DW1 had stated that after the death of her husband she obtained a permit in her name after filing application at Anantapur along with four or five other applicants for Madakasira-Mohammadabad bus route, but she was given the permit. But however, she deposed that she does not know whether any enquiry was conducted and permit was given in her name and that her husband did not transfer the permit in her name and that after the permit was given she has been running the said bus in the said route. DW1 also deposed that about seven years back her permit was extended up to Roddam and she was purchasing the buses and running them in the said route and thus her daughters have nothing to do with the buses and permit for the said route. DW1 also deposed that Ex.B2 is the bus route permit and the bus also runs in Karnataka State and the Karnataka State also issued permit in her name and Ex.B3 is the endorsement and Exs.B4 to B6 are the renewal endorsements of the permit.
17. It is pertinent to note that the 1st defendant had not placed any evidence to show that in view of the independent application made by her along with other applicants and after an independent enquiry de hors the permit which stood in the name of the husband, this permit was granted independently in her favour. In the absence of the said evidence, the Trial Court, in my considered opinion, is well justified in recording a finding that this item of the property also forms part and parcel of the estate of the deceased Krishnaiah and hence all the heirs - the wife of Krishnaiah and the daughters of Krishnaiah, are entitled to their respective shares. I had gone through the findings recorded by the Trial Court in this regard and the oral and documentary evidence had been discussed in detail and ultimately a finding had been recorded and hence it being a finding of fact which had been recorded on appreciation of the oral and documentary evidence in proper direction, I am not inclined to disturb the said finding of fact.
18. However, the problem does not stop there. In the decision referred in In Re Ramalakshmamma's case (supra), it was held that a permit is transferable from one person to another when its holder is alive under Section 59 of the Motor Vehicles Act and is transferable on his death to the person succeeding to the possession of the vehicles covered by the permit under Section 61 only on the permission of the Transport Authority, but these two provisions relate only to permits and do not refer or relate to applications for permits which are pending before the Transport Authority and it is not therefore possible to derive any assistance from these provisions in deciding whether in a pending application for a stage carriage permit the legal representative can be brought on record when the applicant dies. In the decision referred in Dhana Devi's case (supra), it was held by the Apex Court as follows:
"Under Section 57 an application for a stage carriage permit or a public carrier's permit must be made within the appointed time and published in the prescribed manner. The representations relating thereto must also be made before the appointed time. In the event of the death of an applicant after the expiry of the time appointed for making the applications, the person succeeding to the possession of the vehicle cannot, having regard to the lapse of time, make another application in his own right. The successor cannot obtain the permit unless he is allowed to prosecute the application filed by his predecessor and we see no reason why he cannot be pennitted to do so. Where the successor is allowed to prosecute the application, the Regional Transport Authority may have to take into consideration many matters personal to the successor, such as his experience, the facilities at his disposal for operating the services and his adverse record, if any. The matter personal to the deceased applicant can no longer be taken into account. The rival applicants should, if necessary be given suitable opportunity to file objections against the grant of the permit to the successor. Section 57 does not deal with the situation arising on the death of an applicant nor has it prescribed anytime for the making of an application for substitution of the successor or for the filing of objections against the grant of the permit to him. In the absence of any statute or statutory rule, the Regional Transport Authority may devise any reasonable procedure for dealing with the situation. As stated in American Jurisprudence, 2nd Vol. 2 (Administrative Law), Article 340 P.155 "where the statute does not require any particular method of procedure to be followed by an administrative agency, the agency may adopt any reasonable method to carry out its functions." (See also Corpus Juris Secondum, Vol. 73 (Public Admmistrative Bodies and Procedure, Article 73, p.399)). The Regional Transport Authority has complete discretion in the matter of allowing or refusing substitution. It is not bound to embark upon prolonged investigation into disputed questions of succession. Nor is it bound to allow substitution if such an order will delay the proceedings unreasonably or will otherwise be determintal to the interests of the public generally.
Under Section 57(1) an application for a contract carrier's permit or a private carrier's permit may be made any time, and if the Regional Transport Authority can more readily allow the successor to prosecute the application filed by his predecessor. The Regional Transport Authroity may similarly deal with the situation arising on the death of an applicant for the variation of the permit under Section 57(8) or the renewal of the permit under Section 58. Likewise in the case of the death of an applicant during the pendency of an appeal under Section 64, or a revision petition under Section 64A the appellate or the revisional authority has power if it thinks fit to substitute the successor in place of the deceased applicant in the record of the proceedings."
In the decision referred in J. Narayanamma 's case (supra), while dealing with the question whether the successor of the permit-holder, the widow of the original permit-holder who informed about the death within one month and obtained permit as successor is liable for any penalty on the ground that there was delay of six days beyond the period of three months, it was held as follows:
"The permit accorded to the 'Successor' before or after expiration of 3 months should not make any difference for the delay thus occasioned is not due to the appellant-successor. The 'Successor' cannot be held culpable for the time taken by the Transport Authorities in considering the application. There is an added reason why the successor is not liable. If the order under Section 61 is not granted within three months under Section 61 he is not expected to stop plying the vehicle as that would be affecting the facilities to the travelling public. The route permits are granted under the Act for the benefit of the traveling public. The Courts therefore will so interpret the statutes and avoid such a painful sequence."
Section 57(3) of the Motor Vehicles Act, 1939, reads as follows:
"On receipt of an application for a stage carriage permit or a public carrier's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, not being less than thirty days from such publication, in which, and the time and place at which, the application and any representations received will be considered:
Provided that, if the grant of any permit in accordance with the application or with modifications would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the application relates, beyond the limit fixed in that behalf under Sub-section (3) of Section 47 or Sub-section (2) of Section 55, as the case may be, the Regional Transport Authority may summarily refuse the application without following the procedure laid down in this sub-section".
Section 61 of the Act dealing with the Transfer of permit on death of holder specifies as hereunder:
(1) Where the holder of a permit dies, the person succeeding to the possession of the vehicles covered by the permit may, for a period of three months, use the permit as if it had been granted to himself:
Provided that such person has, within thirty days of the death of the holder, informed the Transport Authority which granted the permit of the death of the holder and of his own intention to use the permit;
Provided further that no permit shall be so, used after the date on which it would have ceased to be effective without renewal in the hands of the deceased holder.
(2) The Transport Authority may, on application made to it within three months of the death of the holder of a permit, transfer the permit to the person succeeding to the possession of the vehicles covered by the permit.
No doubt, much strees was laid on the words "...person succeeding to the possession of the vehicles covered by the permit" in Sub-section (2) of Section 61 of the Act and a contention was advanced that necessarily such transfer need not be in favour of the heirs and it may be in favour of the other parties who come into possession of the vehicles and even in this view of the matter, the bus route permit should be treated as the personal property of the 1st defendant. Yet another contention which had been seriously advanced is by pointing out to both Exs.A1 and A3, and Ex.A3 in particular, to the effect that when once a notification had been issued under Section 57(3) of the Act, it should be taken that the official acts had been performed properly in accordance with the provisions of the Act and hence the procedure under Section 61 was not followed and in such a case it should be taken that the permit was granted in favour of the 1st defendant independently, not being concerned with the prior bus route permit which stood in the name of her deceased husband Krishnaiah.
19. I am not inclined to accept with the said contention for the reason that a careful reading of Exs.A1 and A3 itself will clearly point out that the transfer was affected relating to the bus route permit in favour of the 1st defendant only as the wife of Krishnaiah and the proceedings are self-explanatory and hence I need not further elaborate on this point. Even otherwise, there is clear evidence available on record that the sale proceeds had been utilised for the purpose of purchase and the 1st defendant had no other independent income to claim this item as her separate and personal property not falling within the estate of her deceased husband and when that being so, I do not think that the contentions which had been advanced in this regard by the Counsel for the appellants can be legally sustained. Viewed from any angle, I do not see any illegality or legal infirmity in the findings, which had been recorded by the Trial Court. In the decision referred in Nasiraba Durban Co-operative Bank case (supra), while dealing with the business of a contractor, the Division Bench had observed:
"Learned Single Judge had struck down this mortgage because he seems to think that in the absence of any evidence to show that Paras Das deceased had left behind any job of a contractor, as unfinished, any fresh work undertaken by the surviving members of the family as contractors after a lapse of more than 10 years of the death of Paras Das must be regarded as a new business, and that since the starting of a new business cannot be regarded, under decisional law, as something for the need of the family or to the benefit of the estate, the mortgage must be held to be an alienation made without legal necessity and therefore null and void. With all respect, we are unable to accept this view. A contractor's business does not become a new business merely because after the execution of the earlier job, a new job is undertaken for execution. Similarly, if such a business came to a standstill after the death of the father who died leaving him surviving infant sons and a widow, it does not become a new business if the widow, or one of the sons, on attaining the age of majority, revives the same business."
It is needless to point out that in the trading or business families, the permits of this nature or the other permits in general also will be obtained in the names of several of the family members and if the narrow construction and interpretation as advanced by the learned Counsel for the appellants is to be accepted, then in such matters though the Court arrives at conclusion that these are the properties of the family, they cannot be partitioned. I do not think that this view can be in accordance with justice, equity and good conscience. Viewed from any angle, there are no merits in the present Appeal.
20. Point No. 2: In view of the findings recorded above, the Appeal is devoid of merits and accordingly the same is dismissed. But in view of the close relationship between the parties, this Court makes no order as to costs.