Posts

when the suit property, being incapable of division in specie, there is no alternative but to resort to the process called Owelty, according to which the rights and interests of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of just compensation to the other. In view of the above facts and law, since the plaint schedule property is not amenable for either vertical or horizontal division as noted above, the only alternative is to follow a more pragmatic method In the result, this Appeal is allowed and final decree in O.S.No.1341 of 1997 is set aside with the following directions: a) The appellant/2nd defendant and respondent/1st defendant shall, within two(2) months from the date of this judgment, arrive at the value of the plaint schedule property and intimate to the trial Court as to which one among them is going to retain the property by paying Owelty to the other. b) Failing to follow the above direction, the trial Court shall ascertain the market value of the plaint schedule property with the assistance of a qualified Civil Engineer and after hearing both parties, and thereafter, taking the value fixed by it as upset price, conduct auction among both the brothers. c].If the parties are not agreeable for auction interse, then the Court shall after fixing the upset price as mentioned in direction No.2, conduct a public auction of the plaint schedule property and distribute the sale proceeds between the appellant/2nd defendant and respondent/1st defendant after defraying the expenses for holding auction and pass a final decree accordingly.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

C.C.C.A. No.35 of 2016

03-04-2017

Dr.P.Madan Mohan Rao. ... Appellant

1) Sri P.Surendranatha Rao 2) Smt. A.Bhavani Chandra 3) Smt. P.Raja Rajeshwari.
 Respondents  
 (Respondent Nos.2 and 3 are not necessary parties vide Cause Title)

Counsel for Appellant:Sri Eranki Phani Kumar

Counsel for Respondent No.1: Sri T.Viswanadha Sastry

<Gist:

>Head Note:

? Cases referred:
1)      AIR 1978 SC 845
2)      AIR 1991 Ori 83


HONBLE SRI JUSTICE U. DURGA PRASAD RAO        

C.C.C.A.No.35 of 2016

JUDGMENT:  
        The challenge in this appeal, at the instance of the appellant/2nd
defendant, is the final decree proceedings dated 10.12.2015 in
I.A.No.970 of 2002 in O.S.No.1341 of 1997 on the file of I Senior Civil
Judge, City Civil Court, Hyderabad.
2)      The parties in the appeal are referred as they were arrayed in the
trail Court.
3a)     Initially, the 3rd respondent/plaintiff filed the suitO.S.No.1341
of 1997 against the 1st respond…

Whether the declarations filed by the respondent and the father before the Land Reforms Tribunal, as evidenced by Ex.B.7 are sufficient to hold that there was a valid partition before the commencement of the Hindu Succession (Amendment) Act, 2005?= As we have stated earlier, Ex.B.7 is dated 23.01.1976. It is only since no actual division by metes and bounds had taken place as on the date of Ex.B.7 that under Ex.B.1-Will dated 20.04.1990, the father conveyed his half undivided share in the properties. If a partition had actually taken place and the properties had been divided by metes and bounds, way-back in 1975 or 76, there was no question of the father bequeathing his half undivided share under the Will executed in 1990. The very fact that what was bequeathed under Ex.B.1 was the half undivided share of the father establishes that no partition took place either before or under Ex.B.7. Hence the third issue arising for determination is answered in favour of the appellant/plaintiff.; whether mere execution of the Will prior to 20.12.2004 was sufficient to make a Will come within the purview of the expression disposition under the proviso to Section 6(1) of the Hindu Succession (Amendment) Act, 2005, especially when the testator admittedly died only after 20.12.2004. = Therefore, we are of the considered view that in cases where the testator was alive as on 20-12-2004, the Will, even if any executed by him genuinely before the said date, would not make it a case of testamentary disposition which had taken place, so as to make the case fall under the proviso and to take it out of the application of section 6(1);Insofar as the other two items are concerned, the sale of a part of the lands described in Item Nos.11 and 12 of the plaint schedule is virtually admitted by the appellant/plaintiff. But the date of the sale is not known. However, the plaintiff herself has admitted during cross- examination that the sale of a part of items 11 and 12 of the plaint schedule took place long back. Therefore, we have no alternative but to presume that the sale took place before 20.12.2004. .

HONBLE SRI JUSTICE V.RAMASUBRAMANIAN ANDHONBLE SMT JUSTICE ANIS                

APPEAL SUIT No.349 of 2016  

27-04-2017

Smt. R. Seethamma @ Seetha Lakshmi, W/o. Sri R.Vema Reddy, R/o. Door No.134, CIEFL Colony,East Anand Bagh, Safilguda, Malkaj      

M. Thimma Reddy,S/o. Late M. Satyanarayana Reddy Occ: Advocate/Ryot,R/o. Gudur Village, Kurnool District. Respondent    

Counsel for the Appellant : Mr. Ch. Ramesh Babu

Counsel for the Respondent: Mr. K.S. Gopalakrishnan

<GIST:

>HEAD NOTE:  

? Cases referred
1.      (2016) 2 SCC 36
2.      (1991) 3 SCC 647
3.      (1993) 4 SCC 392
4.      AIR 2012 SC 169

Court made the following Judgment


HONBLE SRI JUSTICE V.RAMASUBRAMANIAN          
AND
HONBLE SMT JUSTICE ANIS    

A.S.No.349 of 2016

JUDGMENT: (per V. Ramasubramanian, J.)  

Aggrieved by the dismissal of her suit for partition, the unsuccessful
plaintiff has come up with this regular appeal.
      2. Heard Sri Ch. Ramesh Babu, learned counsel for the appellant
and Sri K. Gopala…

Once such a layout is prepared, submitted and got approved, it must be taken that such area is required to be used for common purposes such as park, school, playground, roads etc., and the owner cannot subsequently wriggle out of such a situation.

THE HONBLE SRI JUSTICE M.S.K.JAISWAL      

A.S.Nos.2091  of 1991 and batch

07-04-2017

Bharathiya Vignana Mandiram (Regd.) Rep.by its Secretary and others
.Appellants

Veddi Sankara Rao and others ..Respondents  

Counsel for the Appellants:Sri VSR Anjaneyulu and
                            Sri TVS Prabhakara Rao

Counsel for the respondents: Sri MSR Subhrahmanyam and  
                              Sri P.N.Murthy

< Gist  :

>Head Note:

?  Cases Referred:
1)(1995) 1 SCC 47
2)AIR 1972 A.P., 178

HONBLE SRI JUSTICE M.S.K.JAISWAL      

A.S.Nos.2091 and 2305 of 1991,

1850 and 2074 of 1992

COMMON JUDGMENT:-      
        These four appeals arise out of common Judgment in
O.S.No.623 of 1982 and O.S.No.110 of 1983 on the file of the
learned I-Additional Subordinate Judge, Vijayawada, dated        16-
09-1991, by and under which, O.S.No.623 of 1982 filed by the
land owner of the schedule property for recovery of possession was
partly decreed, O.S.No.110 of 1983 filed by the possessor of th…