Back
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
C. PRAVEEN KUMAR, R. RAGHUNANDAN RAO, JJ.
K. Rama Naidu – Petitioner
Versus
E. Durvasulu Naidu – Respondent
A.S. Nos. 1361 of 2017, 302, 379 of 2018
Decided On : 05-01-2021
Hindu Law - Joint family properties -Defendant No. 4 and 5 were arrayed as parties to the suit as they are said to be nominal purchasers of certain extents of land-5th respondent filed an application to get the ex-parte decree set aside but was not successful and the preliminary decree became final
Finding of the Court: An amendment of forum would not necessarily be an issue of procedure. It was concluded in the above judgment, that where the question is of change of forum, it ceased to be a question of procedure, and becomes substantive and vested, if proceedings stand initiated before the earlier prescribed forum (prior to the amendment having taken effect). This Court clearly declared in the above judgment, that if the appellate remedy had been availed of (before the forum expressed in the un-amended provision) before the amendment, the same would constitute a vested right. However, if the same has not been availed of and the forum of the appellate remedy is altered by an amendment, the change in the forum, would constitute a procedural amendment, as contended by the learned counsel for the appellant. Consequently even in the facts and circumstances of the present case, all such appeals as had been filed by the Board, prior to 29-10-2002, would have to be accepted as vested, and must be adjudicated accordingly
Result: Appeals are returned to the appellants to present the same before the appropriate District Judge, who would have jurisdiction
JUDGMENT :
R. RAGHUNANDAN RAO, J.
1. One Durvasula Naidu had filed O.S. No. 2 of 1975 in the Court of the Additional Senior Civil Judge, Tirupati, against his father Sri. Enugu Rangaiah Naidu (Defendant No. 1), his mother Smt. Enugu Yengamma (Defendant No. 2), his sister Smt. Yenugu Neelamma (Defendant No. 3), Sri. Pulivanthi Subba Naidu (Defendant No. 4) and Sri. Killa Adivi Naidu (Defendant No. 5) for partition of properties described in Schedule B, C and D annexed to the Plaint, on the ground that they were joint family properties. Defendant No. 4 and 5 were arrayed as parties to the suit as they are said to be nominal purchasers of certain extents of land in Schedule B and C from Sri. Enugu Rangaiah Naidu. Shedule B consisted of about 25 Acres of Land and Schedule C consisted of Ac. 6.84 cents of land in various survey numbers of Thimminaidupalem Village, Chittoor District. Schedule D was livestock consisting of Two Bullocks and one Buffalo and at this point of time is irrelevant. The suit was valued at one place in the Plaint at Rs. 30,000/- for the purposes of Jurisdiction and Court fees and in the “Particulars of Valuation” in the Plaint it was shown at Rs. 22,625/-. This valuation assumes importance as we proceed with the case.
2. The Trial Court passed an ex-parte Preliminary decree on 24.04.1982. Under this decree, the trial court had directed that Item No. 1 of Schedule B and C, be divided by metes and bounds into two equal shares, taking the good and bad qualities thereon, and deliver one such share to the plaintiff and the remaining half share to be divided to the 1st defendant.
3. The 5th respondent filed an application to get the ex-parte decree set aside but was not successful and the preliminary decree became final. In the meanwhile, the plaintiff filed I.A. No. 626 of 1983 for passing a final decree, and a part final decree, distributing the lands in Schedule B and C came to be passed on 04.06.1990.
4. Aggrieved by the said part final decree, the plaintiff filed A.S. No. 2391 of 1990 and the 1st defendant filed A.S. No. 1183 of 1991 before the erstwhile High Court of Andhra Pradesh. By a common order dated 16.08.1991, in A.S. No. 2391 of 1990, a learned single Judge had set aside the order of the Trial Court and dismissed A.S. No. 1183 of 1991.
5. Aggrieved by the said order, the Plaintiff filed L.P.A. No. 261 of 1991, which was dismissed on 24.08.1994. Against this order, the Defendant No. 5 in the suit approached the Supreme Court, by way of Civil Appeal No. 8416 of 1995, which was allowed in part and remanded to the Trial Court, by order dated 11.09.1995, with the following observation:
“Having considered the respective contentions, we are of the view that since the preliminary decree was allowed to become final, the trial Court need to give effect to it. It is settled law that alienees of the alinees have no right to equities. Equally, it is settled law that a coparcener has no right to sell his undivided share in the joint family property and any sale of undivided and specified items does not bind the other coparceners. Since the specific properties were purchased prior to the institution of the suit for partition, though the appellants have no right to equities, it could be said that the respective share to which their principal alienor was entitled would be allotable to them as a special case. However, since the preliminary decree specifically directed that the good and bad qualities of the land should be taken into consideration in effecting the partition. It should in letter and spirit, be given effect to while passing final decree, if the lands purchases by the appellants are found more valuable than the land to be allotted to the respondents, the respective values thereof should be ascertained and the respondents need to be compensated in monetary value. That would be the effect of the preliminary d
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
