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2007 Supreme(AP) 319
Andhra Pradesh High Court
Judges : P.S.NARAYANA
Annam Malla Reddy - Appellant
Versus
Bangi Nagaiah - Respondent
Decided On : 03/21/2007
Case No : Second Appeal No.770 of 1997
Headnote:
Civil Procedure Code - Order 41, Rule 27 - Hindu Minority and Guardianship Act, 1956 – Section 8 and 12 - Substantial question of law - Sale of joint family property - Agreement of sale – Learned counsel representing appellants had pointed out that this specific ground was raised as a substantial question of law in ground of grounds of second appeal – Incidentally learned counsel also had pointed out to other substantial questions of law raised by him shown as ground – Whether court of Subordinate Judge is justified in disposing the appeal in without passing any orders on the application on file of District without numbering IA. after transfer of from Court of District Judge to Court of Subordinate after establishment of Court of Subordinate Judge – Learned counsel would submit that in the facts and circumstances expressed by Apex Court in decision would be applicable and hence the findings recorded by the courts below are unsustainable findings – Learned counsel would also further submit that even otherwise when application for reception of additional evidence was moved without considering same disposing of appeal as such would vitiate decree and judgment of appellate court and on this ground alone said decree and judgment are liable to be set aside – Learned counsel also placed strong reliance on certain decisions to substantiate his submissions – Held, Learned counsel for appellant has also placed before us several material pieces of evidence and circumstances including an important admission of original plaintiff, and in reply the learned advocates for respondents have relied upon the evidence led on their behalf and accepted by first two Courts – We do not consider it appropriate to deal with them as entire evidence led by parties requires a fresh consideration by the Court of facts – Accordingly we allow appeal set aside the judgments of appellate Court and High Court and remit case to appellate court for a fresh decision in accordance with law – Court will in first instance hear and dispose of application under Order 41, Rule 27 – Civil Procedure Code and only thereafter take up final hearing of appeal – In light of expressed by Apex Court and also learned Judge of Punjab and Haryana High Court referred to supra this court is of considered that by virtue of non-disposal of the application for reception of additional evidence by learned Subordinate Judge at Huzurabad decree and judgment are vitiated since in away prejudice is caused to appellant by virtue of non-consideration of said application either way – Application is disposed.
This Court on 5-2-1998 made the following order:
Heard.
This second appeal is admitted to consider the following substantial question of law:
Whether the appellate court failed to exercise jurisdiction in not considering I.A.Njo. 734 of 1994 filed in AS.No. 50 of 1993 for additional evidence and as such the findings ultimately recorded are vitiated? This Court in CMP.No. 15455 of 1997 granted interim stay of drawing up the final decree and all other proceedings till that stage shall go on.
2. Sri P.V. Narayana Rao, the learned counsel representing the appellants had pointed out that this specific ground was raised as a substantial question of law in ground no.7 (e) of the grounds of second appeal. Incidentally, the learned counsel also had pointed out to the other substantial questions of law raised by him shown as ground no.7 (a), (b), (c) and (d) and the said grounds read as nder:
7(a) Whether it is necessary under section 8 of Hindu Minority and Guardianship Act to obtain prior permission for the sale of joint family property in so far as to the extent of share of respondent no.1 and 2 in the joint family property for disposing off the undivided interest of minor son in the joint family property ?
7(b) Whether the agreement of sale in Ex.B1 is void for non-mentioning of the survey number in Ex.B1 when the local name of the land is mentioned in Ex.B1 supported by evidence of DW1 to 4.
7(c) Whether the sale of the land under Ex.B1 by respondent no.3 to meet the medical expenses for the treatment of his son, the family members, who suffered from polio and to pay the debts incurred for the said purpose namely treatment of his son is a legal necessity contemplated under Hindu law ?
7(d) Whether non-consideration of entire material evidence oral and documentary on record having a direct bearing on the disputed issue and non- application of law in proper perspective?
7(e) Whether the court of Subordinate Judge at Huzurabad is justified in disposing the appeal in AS.No.3 of 1996 without passing any orders on the application in I.A.No.734 of 1994 in AS.No.50 of 1993 on the file of the District Judge, Karimnagar without numbering IA.No.734 of 1994 after transfer of AS.No.50 of 1993 from the Court of the District Judge, Karimnagar to the Court of Subordinate Judge at Huzurabad after establishment of Court of Subordinate Judge at Huzurabad in the month of December 1995?
The learned counsel would submit that in the facts and circumstances the view expressed by the Apex Court in the decision in SRI NARAYAN BAL AND ORS. V/s. SRIDHAR SUTAR AND ORS (AIR 1996 SC-2371)., would be applicable and hence the findings recorded by the courts below are unsustainable findings. The learned counsel would also further submit that even other wise when application for reception of additional evidence was moved without considering the same disposing of the appeal as such, would vitiate the decree and judgment of the appellate court and on this ground alone the said decree and judgment are liable to be set aside. The learned counsel also placed strong reliance on certain decisions to substantiate his submissions.
3. Per Contra, Sri Gopal Reddy, the learned counsel representing the respondents-plaintiffs had taken this court through Section 8 of the Hindu Minority and Guardianship Act and also the findings recorded in relation to Ex.B1 the sale transaction and would submit that in the light of the concurrent findings recorded by both the courts below it is not a fit matter to be interfered with in the second appeal. While making his submissions in elaboration, the learned counsel pointed out to the findings, which had been recorded by the court of first instance and also the appellate court as well. The learned counsel would also point out that inasmuch as this being a question of law, which had been decided, the consideration or non-consideration of the additional evidence said to have been placed would not seriously alter the situation and hence the secon
