N Padmamma and Ors. Vs. S.Ramakrishna Reddy & Ors
 INSC 973 (16
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL
APPELLATE JURISDICTION CIVIL APPEAL NO. _3632__ OF 2008 (Arising out of SLP )
No. 19445 of 2006) N. Padmamma and others .... Appellants Versus S. Ramakrishna
Reddy and others ....Respondents
S.B. SINHA, J.
1. Leave granted.
2. Whether the civil court has
jurisdiction to entertain a suit for partition for division of respective
shares amongst the members of a joint family, when in respect of some of the
lands, occupancy right has been granted in favour of one of them in terms of
the provisions of the Andhra Pradesh 2 (Telangana Area) Abolition of Inams Act,
1955 (for short `the Act') is the question involved herein.
3. The basic fact of the matter is
not in dispute
4. One S. Ramakrishna Reddy was
the owner of the properties. He had two sons, S. Ramachandra Reddy and S.
Anantharam Reddy. S.
Ramachandra Reddy died in the year
1968. He had two wives. Plaintiffs- Appellants are the first wife and the
daughter of S. Ramachandra Reddy.
The Defendants-Respondents are the
son, second wife and the daughter of said S. Ramachandra Reddy.
5. The Legislature of the State of Andhra Pradesh
enacted the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 which
came into force on 20th July, 1955. In the year 1973, Section 8 was enacted in terms whereof
a person in possession could be registered as an occupant of the land from the
date of vesting thereof. The first respondent was granted occupancy right by
the R.D.O., Hyderabad in terms of Section 8 read with Section 10 of the Act. A
suit for partition was filed on 3rd September,
Some other persons claiming right
as `Inamdars' filed an application before the District Collector under Section
24 of the Act. However, the right of respondent No.1 thereover was found by the
District Collector in terms of 3 an order dated 5th August, 1985. A preliminary issue was
raised as regards the jurisdiction of the court which has been upheld by the impugned
6. Mr. T.L. Viswanatha Iyer,
learned senior counsel appearing for the appellants, would submit that the
decisions of the courts below is based upon the decision of this Court in
Lokraj and others vs. Kishan Lal and others, [ (1995) 3 SCC 291 ], which cannot
be said to have been correctly decided. Learned counsel pointed out that this
Court in Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee, [ (1971) 1
SCC 556 ] upheld the right of a co-sharer and recognized such right in the entire
body of the co-sharers.
7. Dr. Rajiv Dhawan, learned
senior counsel appearing on behalf of the respondents on the other hand, would
submit that the said Act is a complete Code itself. The contention of the
appellants that the registration of the land should not be granted in favour of
respondent No. 1 is not correct in view of the terminologies used in Section 8
of the Act. It was contended that having regard to the provisions of Section 24
as also 29 of the Act, the civil court has no jurisdiction to grant a decree of
4 8. We, at the outset, may notice
the relevant provisions of the Act.
Sections 3, 8, 10, 24 and 29 of
the Act are as under:- "Sec. 3: Abolition and vesting of imams and the
consequences thereof:- (1) Notwithstanding anything to the contrary contained
in any usage, settlement, contract, grant sanad order or instrument, Act
regulation, rules or order having the force of law and notwithstanding any
judgment, decree or order of a Civil or Revenue or Atiyat Court, and with
effect from the date of vesting, all imams shall be deemed to have been
abolished and shall vest in the State.
(2) Save as expressly provided by
or under the provisions of this Act and with effect from the date of vesting
the following consequences shall ensure, namely:
(a) xxxx (b) all rights, title and
interest vesting in the inamdar, kabiz-e-kadim, permanent tenant, protected
tenant and non-protected tenant in respect of the inam land, other than the
interests expressly saved by or under provisions of this Act and including
those in all communal lands, cultivated and uncultivated lands (whether
assessed or not), waste lands, pasture lands, forests, mines and minerals,
quarries, rivers and streams, tanks and irrigation works, fisheries and
ferries, shall cease and be vested absolutely in the State free from all
(c) to (f) xxxxxxxx 5 (g) the
inamdar and any other person whose rights have vested in the State under clause
(b) shall be entitled only to compensation from the Government as provided for
in this Act;
(h) the relationship with regard
to inam land as between the inamdar and kabiz-e- kadim, permanent tenant,
protected tenant or non-protected tenant shall be extinguished' (i) xxxx (3)
xxxxxxxx Sec. 8: Registration of non-protected tenant as occupant:- (1) Every
non-protected tenant shall, with effect from the date of vesting subject to
Section 37 of the A.P. (Telangana Area) Tenancy and Agricultural lands Act,
1950 be entitled to be registered as an occupant of such inam lands in his
possession as may be left over after the allotment under Section 4 which,
immediately before the date of vesting, were under his personal cultivation and
which, together with any lands he separately owns and cultivates personally,
are equal to four and a half times the family holding.
(2) The non-protected tenant shall
be entitled to compensation from the Government, as provided under this Act in
respect of inam lands in his possession in excess of the limit prescribed in
sub- section (1) whether cultivated or not.
(3) No non-protected tenant shall
be registered as an occupant of any land under sub-section (1) unless he pays
to the Government as premium an amount equal to sixty-times the land revenue
for dry and twenty times for wet land. The amount of 6 premium shall be payable
in not more than ten annual instalments along with the annual land revenue and
in default of such payment, shall be recoverable as an arrears of land revenue
due on the land in respect of which it is payable.
Sec.10: Enquiry by Collector in certain
The Collector shall examine the
nature and history of all lands in respect of which an inamdar, Kabiz- e-kadim,
permanent tenant, protected tenant or non-protected tenant, claims to be
registered as an occupant under Sections 4, 5, 6, 7 and 8 as the case may be,
and decide- (a) in whose favour, and in respect of which inam lands, the claims
should be allowed;
(b) the land revenue and the
premium payable in respect of such lands.
Sec.24 : Appeals from orders under
Section 10 to prescribed authority:- (1) Any person aggrieved by a decision of
the Collector under Section 10 may, within 30 days from the date of decision,
or such further time as the prescribed authority may for sufficient cause
allow, appeal to the prescribed authority and its decision shall be final.
(2) If any question arises whether
any building or land fails within the scope of Section 9 the same shall be
referred to the prescribed authority whose decision shall be final.
Sec. 29. Savings:- Save as
otherwise provided in this Act, no order passed by the Collector or by Special
Tribunal under this Act shall be liable to be cancelled or modified except by
the High Court as aforesaid or be questioned in any Court of law."
9. In terms of Section 3 of the
Act all inam lands vest in the State of Andhra Pradesh with effect from 20th
July, 1955. Occupancy right as contemplated under Section 8 of the Act,
however, was to be granted with effect from 1st November, 1973. No doubt, grant
of such occupancy right is hedged with conditions as mentioned in Section 8
read with Section 10 of the Act; personal cultivation and possession inter alia
being the relevant condition for grant of such right.
10. What would be the meaning of
the `personal cultivation' and `possession' is the question. The properties
were in possession of S.
Ramachandra Reddy despite the
vesting of the land. Upon his death the parties hereto inherited his right
title and interest in the properties.
Respondent No.1 being the only
male member, assuming he had been cultivating the said land, must be held to
have been doing so for and on behalf of the members of the joint family. There
were 14 items of joint family properties. They were living in a house. There is
no dispute in regard to item Nos. 7 to 14. Item Nos. 1 to 6 of the Schedule of
the Plaint only were the subject matter of the said Act.
11. The said Act did not intend to
deprive a co-sharer of his right to which he or she was otherwise entitled to.
The word `person' cannot be 8 given a limited meaning. It may be a body of
persons or association of person. When an occupancy right is granted in the
name of the Manager of the joint family it would enure for the benefit of the
entire family. The lands vested in the State. But as soon as the occupancy
right is granted, in the event it is held that the same inured to the benefit
of the entire family, it becomes partible. Occupancy right in favour of the
first respondent has been granted on 24th October, 1978. In terms of Section 8
of the Act the same would be deemed to have been granted on or from 20th July,
The provisions, therefore, are
required to be assigned proper and effective meaning.
12. This aspect of the matter has
been considered in Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee, [
(1971) 1 SCC 556 ] wherein it was held "9. In our view the above decision
is no authority for this broad proposition. In that case the appellants who
were mortgagees of an estate including Bakasht lands and other lands filed a
suit on their mortgage and tried to follow up the preliminary decree which was
obtained before the Act came into force by a petition for passing a final
decree. One of the questions before this Court was whether the mortgage decree
had become unexecutable in view of the provisions of the Act. It was held that
the net effect of Sections 3, 4 and 6 was that although on the vesting of the 9
lands in the State a settlement was deemed to be effected with the person in
Khas possession in law, there were two different transactions and the deemed
settlement was in effect a separate transaction creating new rights. The Court
came to the conclusion that the only remedy open to the decree-holders was that
provided in Chapter IV of the Act i.e. a claim under Section 14 before the
Claims Officer for determining the amount of debt legally and justly payable to
each creditor in respect of his claim.
10. The Court was there dealing
with the rights of the mortgage creditors after the Act had come into force.
Chapter IV of the Act made special provisions for dealing with the rights of
secured creditors and Section 4(1)(d) expressly provided for the abatement of
all suits and proceedings for the recovery of any money through proceedings
which might be pending on the date of vesting arising out of securities created
by mortgage or a charge on an estate or tenure. Here, however, we are not
dealing with the claims of mortgagees under Chapter IV. In this case we have to
consider whether the appellants had laid a claim which a co-sharer could not
put forward except by pleading ouster or any other independent ground.
Even if they were in actual Khas
possession within the meaning of Section 2(k) of the Act it must be held that
the plaintiff who was a co-sharer was in constructive possession through the
appellants as "under the law possession of one co-sharer is possession of
all the co-sharers". We see no reason to hold that the observations of
this Court to the above effect in P.L. Reddy v. L.L. Reddy are not applicable
to the case before us. The appellants do not claim to be trespassers on the
property: neither did they claim any title to the lands adversely to the
plaintiff-respondent. The deeming provision of Section 6 must therefore ensure
for the benefit of all who in the eye of law would be regarded as in 10 actual
possession. It follows that the plaintiff had not lost his share in the Bakasht
lands and had a right to them though not as tenure-holder or proprietor but
certainly as a Raiyat under the provisions of the Land Reforms Act. The appeal
must therefore be dismissed with costs."
13. We will assume that the Act is
a complete Code but its operation must be limited to the purpose for which it
was enacted. It is a well settled principle of law that a provision in the
statute ousting jurisdiction of the Court must receive strict construction.
14. The question, therefore, which
arises for consideration is as to whether the civil court's jurisdiction is
15. In Lokhraj (supra) this Court
referred to Bhubaneshwar Prasad Narain Singh (supra). The judgment of this
Court in Bhubaneshwar Prasad Narain Singh (supra) was, with respect, not
correctly read in Lokhraj (supra).
Paragraph 4 of the said decision
reads, thus:- "4. Consequent to the abolition, the pre-existing right,
title and interest of the inamdar or any person having occupation of the inam
lands stood divested and vested the same in the State until re-grant is made.
The inamdar, thereby lost the pre-existing right, title and interest in the
land. The right to partition itself also has been lost by the statutory
operation unless re-grant is made. We are not 11 concerned with the
consequences that would ensue after re-grant of this appeal. Therefore, it is
not necessary for us to go into the question that may arise after the re-
16. The said decision, therefore,
is not an authority for the proposition that only the person in whose name
occupancy right is granted became the sole beneficiary thereof. Furthermore
Bhubaneshwar Prasad Narain Singh (supra) was, in our opinion, again with
respect, had not been correctly applied. The Act contemplates resolution of
dispute between the Inamdar on the one hand and his lessees and assignees on
the other. It does not take into consideration the dispute, if any, inter se
amongst the members of the joint family, particularly when as on the date of
grant of occupancy right there did not exist any such dispute. The Act
contemplates grant of decree for partition. It does not contemplate a case
where occupancy right is taken in the name of a person as representing the
entire joint family property.
Application of doctrine of trust
is not contemplated in the said provision.
Section 8 of the Act must,
therefore, be considered having regard to the provisions contained therein. The
Act contemplates registration of permanent tenants, protected tenants and
non-protected tenants. There are, thus, different types of tenants. Section 10
merely creates a forum for determination of the entitlement under Sections 4 to
8 of the Act. It does 12 not create a forum for determination of the rights
inter se between the parties claiming under the same title.
Useful reference in this
connection may be made to Shaik Sharfuddin alias Bukka Sharfuddin vs. Joint
Collector, R.R. District & ors 2003 (5) A.
Right of inheritance and
succession is a statutory right. A right in a property which is vested in terms
of the provisions of the Hindu Succession Act cannot be taken away, except in
terms of provisions of another statute, which would have an overriding effect.
Such special statute should be a
complete code. It shall ordinarily be a later statute. Ordinarily again it must
contain a non-obstante clause.
Law of Primogeniture is no longer
applicable in India. Such a provision may be held to be unconstitutional being
hit by Article 14 of the Constitution.
See Bhe and others v. Magistrate,
Khayelistha and others [18 BHRC 52]
17. Where the civil court's
jurisdiction is barred expressly it must mean that the same would be confined
to the matters covered thereby or connected therewith. The right or the claim
must be necessarily required to 13 be dealt with by the authorities under the
Act. The grievance/adjudicatory forum provided therein must be competent to
resolve the dispute. The right of property is a human right. The Act contemplates
divesting of right of an Inamdar. It does not contemplate cessation of a right
of a co-sharer or recognition of a right in favour of other co-sharer. The
right has to be determined having regard to the possession by way of personal
The word `possession' in such
cases should be given a broader connotation.
Possession of one sharer would be
deemed to be the possession of others.
It is a legal concept. This legal
concept cannot be held to have been done away with under the Act. If a right of
property is a human right as also a constitutional right, the same cannot be
taken away except in accordance with law. Article 300 A of the Constitution
protects such right. The provisions of the Act seeking to divest such right,
keeping in view of the provisions of Article 300 A of the Constitution of
India, must be strictly construed. (See - Hindustan Petroleum Corpn. Ltd. v.
Darius Shapur Chenai, [ (2005) 7 SCC 627 ].
18. The principle laid down in the
said decision, having regard to concept of Article 300 A of the Constitution of
India may be held to have some application in a case of this nature. In terms
Succession Act, 1956 the right of succession is determined by reason of the
provisions thereof. It 14 came into force with effect from 17th June, 1956. By reason of a
legal fiction created under the Act, the occupancy right is granted with effect
from 20th July, 1955. S. Ramachandra Reddy was alive then. What would be his
status on that date would be relevant. The legal fiction as is well known must
be given its full effect.
19. We are, therefore, of the
opinion that the decision of this Court in Lokhraj (supra) had not been
correctly rendered. The matter, therefore, requires consideration by a larger
Bench. It is directed accordingly. Let the records of the case be placed before
the Hon'ble the Chief Justice of India, ...............................J.
[Lokeshwar Singh Panta] New Delhi;
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