V. BHASKARA RAO, J.

( 1 ) ONE Papayya, the declarant, having executed a will on 15-5-1975 be queathing properties in favour of his brothers, died pending the land ceiling proceedings. After the Appellate Tribunal by order dated 5-6-78 remanded the matter to the primary Tribunal, the Primary Tribunal without issuing any notice to the legatees and in their absence decided the validity of the will by holding mat it was not proved. The husband of the present petitioner, who also died, was the son of the said Papayya. When the petitioner challenged the order of the primary Tribunal as regards the validity of the will, the Appellate Tribunal rendered a finding that the declaration has to be decided as on 1-1-75 and therefore the wiltdated 15-5-75 needs no consideration being of no consequence. Hence this revision.

( 2 ) THE first contention of the learned counsel. Sri Narayana Rao, is that the will is not a transfer and therefore not hit by Section 17 of the Land Reforms Act. The learned Government Pleader, on the other hand, contended that the will was executed after filing of the declaration and therefore even though the declarant died, his holding has to be decided as though he were alive. To resolve the controversy, it is necessary to have a look at Section 17 of the Act, which reads:"17. Prohibition of alienation of holding: (1) No person shall on or after the notified date; alienate his holding or any part there of 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. . . "from a reading of this section, it cannot be said that will is either an alienation or a transfer and therefore will cannot be said to be hit by this section. Therefore if the will executed is proved, the same merits consideration for purposes of computation of the holding. This view is also fortified by two judgments of this Court in Appalaswamy Naidu vs. State of A. P. and G. Naga latehmi vs. State of A. P.

( 3 ) THE declaration filed by Papayya is not only on his behalf but also on behalf of the family, including his major son, the husband of the petitioner.

( 4 ) IT is not disputed that the husband of the petitioner, being the son (major) of Late Papayya, is entitled to one holding apart from that of Papayya, who is also entitled to a separate holding as on the notified date. In case the will is proved, the properties covered by the will , if exceed one holding to which alone the testator is entitled, the legatees under the will, whether or not individually hit by the Act, are bound to surrender the same.

( 5 ) IT is next contended that the proceedings, which were held without issuing any notice to the legatees, are void. In case it is found that the declarant was holding excess land, he having died, the legatees alone are the affected parties inasmuch as it is they that have got to surrender the excess land, and therefore failure to issue notice to the legatees while adjudicating the ceiling proceedings is basically hit by the principles of natural justice. It is also pertinent to refer to rule 6 of the A. P. Land Reforms Rules, 1974, which reads:"6. Enquiry and determination of ceiling area: (1) The Tribunal shall fix the date on which and the time and place at which an enquiry. . . will be held and intimate the same by a notice in form V, to the declarant or the Holder of the land in respect of which the information has been received, to the other persons interested. . . "constituting the scope and ambit of the term other persons interested in the light of Rule 6, this Court held that (i) the persons in possession to whom the land was sold by the declarant, (ii) the mortgage decree -holder against the declarant, and (iii) the maintenance holders pending decision befere the Estate abolition Tribunal, are persons interested in 1978 (2) APLJ (SN) para 9, 1980 (1) ALT 45 (NRC) and 1980 (1) ALT 1

Click Here to Read the rest of this document