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Andhra Pradesh High Court
Judges : S.SUBHASHAN REDDY, SARDAR ALI KHAN
V.Ramakrishna - Appellant
Versus
Smt.N.Sarojini - Respondent
Decided On : 04-21-92
LICENCE RENEWAL - RAILWAY PLATFORM STALL - ADOPTION - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - O. 41, R. 33 OF C. P. C. - RENEWAL OF LICENCE IN FAVOUR OF LEGAL REPRESENTATIVES - ADOPTION DECREE - EX PARTE DECREE - INJUNCTION - FRAUD - NATURAL HEIRS - PREFERENTIAL RIGHT - WIDE DISCRETION OF APPELLATE COURT - COMPLETE JUSTICE.
Fact of the Case:
The appellant claimed to be the adopted son of the deceased licencee of a railway platform stall and sought renewal of the licence in his name. The 1st respondent, the deceased's daughter, also sought renewal of the licence in her name. The appellant had obtained an interim order for renewal of the licence in his name, but later withdrew the writ petition in which he had obtained the interim order. The railway authorities renewed the licence in the appellant's name pursuant to the interim order, but the renewal was non est under law due to the withdrawal of the writ petition.
Finding of the Court:
The court held that the appellant's adoption was void ab initio under the Hindu Adoptions and Maintenance Act, 1956, as it was made after the birth of a natural son to the adoptive father. The court also held that the ex parte decree of adoption obtained by the appellant was obtained fraudulently and was not binding on the 1st respondent and her sisters. The court further held that the appellant had no right to the renewal of the licence and that the 1st respondent, as the legal representative of the deceased licencee, was entitled to the renewal of the licence.
Issues: 1. Whether the appellant's adoption was valid under the Hindu Adoptions and Maintenance Act, 1956? 2. Whether the ex parte decree of adoption obtained by the appellant was valid and binding on the 1st respondent and her sisters? 3. Whether the appellant had a right to the renewal of the licence? 4. Whether the 1st respondent, as the legal representative of the deceased licencee, was entitled to the renewal of the licence?
Ratio Decidendi: 1. The court held that the appellant's adoption was void ab initio under the Hindu Adoptions and Maintenance Act, 1956, as it was made after the birth of a natural son to the adoptive father. The court relied on Section 11 of the Act, which prohibits the adoption of a child if the adoptive father has a son, whether legitimate or illegitimate. 2. The court held that the ex parte decree of adoption obtained by the appellant was obtained fraudulently and was not binding on the 1st respondent and her sisters. The court noted that the appellant and his father had manipulated the proceedings to obtain the decree and that the 1st respondent and her sisters were not properly served with notice of the proceedings. 3. The court held that the appellant had no right to the renewal of the licence. The court held that the appellant's licence was non est under law due to the withdrawal of the writ petition in which he had obtained an interim order for renewal of the licence. 4. The court held that the 1st respondent, as the legal representative of the deceased licencee, was entitled to the renewal of the licence. The court held that the 1st respondent was the natural heir of the deceased licencee and that she was entitled to the renewal of the licence in accordance with the railway authorities' guidelines.
Final Decision: The court allowed the 1st respondent's writ petition and directed the railway authorities to renew the licence in her name.
( 1 ) THIS writ appeal is directed against the order dated 10-9-1991 passed by the learned single Judge in Writ Petition No. 9951/90 wherein the writ appellant who was the 4th respondent in the writ petition was directed to deposit Rs. 2,000. 00 per month with effect from 1-8- 1990, arrears payable by the end of the year 1991, and the current amounts by 15th day of succeeding month. The writ petition was filed by the 1st respondent herein seeking renewal of licence enabling her to continue to run the stall on railway platform No. 5 at Vijayawada Railway Station. We shall refer to the parties as they are arrayed in this writ appeal.
( 2 ) ONE Mr. V. Srinivas Rao was running a stall at Platform No. 5 of Vijayawada Railway Station since 1965 till his death on 14-3-1981. His wife pre-deceased him. He left behind him, 5 daughters and a son and of the said children, three daughters were majors and two daughters, namely, Vijayalakshmi and Varalakshmi and the last one, a son by name Prasad, were minors. The eldest daughter Sarojini has filed the writ petition seeking the issuance of a writ of mandamus for renewing the licence in her name, and it is a fact that on her application for transfer of licence consequent on the death of her father, the said transfer was in fact made by the railway authorities in the year 1981 soon after the death of V. Srinivas Rao.
( 3 ) THE grant of licences including renewals thereof is guided by the executive instructions issued by the Railway Board from time to time. The guidelines dated 1-8- 1978 contained under Railway Board s proceedings Nos. 78-TG 1ii/670/a1 and 7/otc/3/670/a, dated 28-7-1978 and 11-7- 1979 respectively were relied upon for the said transfer of licence. The said circulars contemplated the transfer of licence to the legal representatives of the licencees in the event of death and it is on humane consideration and with an avowed object of affording an opportunity and providing livelihood to the dependants of the deceased contractor to work, earn and live. These guidelines held the field when V. Srinivas Rao died and as such, on the application of the 1 st respondent for the issuance of licence in the name of herself and her minor brother, V. Prasad, the railway authorities had granted the same and by the said act of transfer of licence, the said two persons, became the licencees and it was not subject to re-opening on the basis of any other plea. Even after the expiry of unexpired period of licence held by V. Srinivas Rao in the year 1981, for which the licence was transferred in the name of the 1st respondent and her minor brother, the renewal was granted independently for a period of 3 years and again after the expiry of the said period of 3 years, it was renewed to be in force till 31-3-1988. But, an unfortunate event had occurred on the death of the 1st respondent s minor brother, Prasad, in June, 1985. Manipulations were made to incorporate the name of the appellant in place of the said deceased Prasad along with the name of the 1st respondent and for this substitution of name of. the appellant, there are no valid proceedings and per se, it was illegal. It is stated that for the purpose of said substitution, a letter was produced by tbe appellant and his father purporting to have been signed and issued by the 1st respondent consenting for such a substitution and on coming to know about the same, the 1st respondent has launched prosecution and the criminal proceedings are pending adjudication in C. C. No. 104/88 on the file of 10th Metropolitan Magistrate, Hyderabad.
( 4 ) AFTER the expiry of 31-3-1988, the licence was to be renewed in favour of the 1 st respondent. But, it could not be allowed to happen because of interruptions and claims made by the appellant projecting himself as an adopted son of late V. Srinivas Rao. The appellant had even filed Writ Petition No. 1865/89 seeking the issuance of a writ for renewal of the licence in his name, even mentioni
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