Bhavanam Ademma And Another vs The State Of A.P., And 2 Others
2021 Latest Caselaw 36 AP

    IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

          CIVIL REVISION PETITION No.3039 OF 2013


% Dated 07.01.2021

#

Bhavanam Ademma
w/o Siva Satyanarayana Reddy
R/o Vejendla, Chebrolu Mandal
Guntur District and another                    ..... Petitioners

Vs.

$
The State of Andhra Pradesh,
Rep. by its Authorized Officer
Land Reforms Tribunal,
Guntur and two others                          ..Respondents



JUDGMENT PRONOUNCED ON: 07.01.2021




    THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY


    1. Whether Reporters of Local newspapers
       may be allowed to see the Judgments?

    2. Whether the copies of judgment may be
       marked to Law Reporters/Journals

    3. Whether Their Ladyship/Lordship wish to see
       the fair copy of the Judgment?
                                                                       MSM,J
                                                          CRP.No.3039 of 2013


                                 2



       * THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY


          + CIVIL REVISION PETITION No.3039 OF 2013

% Dated 07.01.2021

#

Bhavanam Ademma
w/o Siva Satyanarayana Reddy
R/o Vejendla, Chebrolu Mandal
Guntur District and another                     ..... Petitioners

Vs.

$
The State of Andhra Pradesh,
Rep. by its Authorized Officer
Land Reforms Tribunal,
Guntur and two others                            ..Respondents

! Counsel for the petitioner     :   Sri Srinivas Emani

^ Counsel for the respondent  :
                       Government Pleader for Arbitration

<GIST:

> HEAD NOTE:

? Cases referred


    1. 1989 (3) ALT 187
    2. 1978 (2) ALT 234
    3. (1976) 05 ITR 849
    4. AIR 1980 AP 139
    5. AIR 1968 AP 291
    6. (1959) 2 MLJ 502
    7. AIR 2008 SC 2033
    8. AIR 1980 A.P 139
    9. 2001 (5) ALD 402 (F.B)
    10. 2007 (4) ALD 642
    11. 1978 (2) ALT 9 (NRC)
    12. 1992 (2) APLJ 66 (D.B)
    13. 1981 (2) An.W.R 263
                                                                       MSM,J
                                                          CRP.No.3039 of 2013


                                  3




THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

         CIVIL REVISION PETITION NO.3039 OF 2013

ORDER:

The appellants in Land Reforms Appeal No.17 of 2003 on the

file of the Chairman, LRAT-cum-II Additional District Judge, West

Godavari, Eluru, preferred this civil revision petition under

Section 21 of the Andhra Pradesh Land Reforms (Ceiling on

Agricultural Holdings) Act, 1973 (for short 'the Act') and the Rules,

1974 framed thereunder (for short 'the Rules').

The parties to the petition will hereinafter referred as arrayed

before this Court for convenience.

The facts of the case in nutshell are that, the petitioners are

the sisters and they are claiming to be the daughters of declarant

in C.C.No.1774/GNT/74 - late Adapa Venkata Subbareddy. The

declarant - late Adapa Venkata Subbareddy was blessed with three

daughters and they have substantial interest in the proceedings in

C.C.No.1774/GNT/74.

The petitioners and their younger sister Nagendramma are

the daughters to their parents Adapa Venkta Subbareddy and

Vardhanamma. The declarant - late Adapa Venkata Subbareddy,

announced pasupu kumkuma gifts to all the three daughters at

the time of their marriage, in view of the custom prevailing since

very long time in their community. Father of the petitioners being

the declarant was under obligation to maintain his daughters and

in view of his obligation, he had to give property to his daughters

at the time of their marriage. Accordingly, the declarant - late MSM,J CRP.No.3039 of 2013

Adapa Venkata Subbareddy performed the marriage of the first

petitioner with Bhavanam Siva Satyanarayana Reddy alias

Sivareddi of Vejendla Village on 12.04.1968 at 8-29 p.m and

performed the marriage of second petitioner with Kandi

Subbareddy of Karumurivaripalem Village, Tsunduru Mandalam

on 12.04.1968 at 1-20 a.m. Thus, the declarant performed both

the marriages of the petitioners on the same day at different times.

Further, the declarant announced pasupu kumkuma gift to the

first petitioner by giving Ac.5-75 cents in Sy.No.129-1 and Ac.0-25

cents in Sy.No.129-1 of Vejendla village to discharge his obligation

and accordingly, handed over possession of land to the first

petitioner after performing the marriage, in the presence of elders.

Since then, the first petitioner is claiming to be in possession and

enjoyment of the property by paying land revenue to the Revenue

Department to the knowledge of one and all in the village. The

Revenue Department also issued pattadar passbooks and title

deeds to the first petitioner for the above property, recognizing her

rights in the land mentioned above.

The marriage of the second petitioner - Kandi Sambrajyam

with Kandi Subbareddy of Karumurivaripalem Village, Tsunduru

Mandalam on 12.04.1968 at 1-20 a.m was performed. The

declarant announced pasupu kumkuma gift to the second

petitioner by giving Ac.3-79 cents in Sy.No.128-1 and Ac.0-37

cents in Sy.No.128-3 and Ac.1-39 cents in Sy.No.129-1 of Vejendla

village to discharge his obligation and accordingly, handed over

possession of land to the second petitioner after performing the

marriage, in the presence of elders. Since then, the second MSM,J CRP.No.3039 of 2013

petitioner is claiming to be in possession and enjoyment of the

property by paying land revenue to the Revenue Department to the

knowledge of one and all in the village. The Revenue Department

also issued pattadar passbooks and title deeds to the first

petitioner for the above property, recognizing her rights in the land

mentioned above.

As the petitioners father was not worldly-wise and

marksman, the declaration was not prepared by the declarant and

it was prepared by one Vejendla Subbarayudu who do not know

the petitioners family affairs and the petitioners were not aware

anything about ceiling case till recently. Further, declarant- late

Adapa Venkata Subbareddy died on 15.11.1995. The petitioners

submits that the declarant - late Adapa Venkata Subbareddy lived

with their mother in their house till his death and the petitioners

came to know that the land of various extents was proposed to

take possession as excess land from their father's holding, which

the petitioners claim that their father had gifted to them at the

time of their marriage.

It is contended that, as the declarant - late Adapa Venkata

Subbareddy had no sons, their father treated them with equal

rights by giving the above property to the petitioners. Hence, it is

contended that the petitioners are the absolute owners of the

property who are put in possession and requested to exclude the

land from the holding of late Adapa Venkata Subba Reddy, which

was allegedly given to the petitioners at the time of their marriage

in different survey numbers.

MSM,J CRP.No.3039 of 2013

Declaration of Declarant - late Adapa Venkata Subbareddy

who filed declaration under Section 8(1) of the Act was considered

and passed an order dated 04.10.1975 holding the declarant - late

Adapa Venkata Subbareddy to be surplus land holder, he is liable

to surrender the excess land of 0.4641 standard holding and

proceedings including surrender of land was completed.

The Primary Tribunal observed that the petitioners filed the

petition claiming to be the daughters of declarant - late Adapa

Venkata Subbareddy who failed to prove their relationship with the

declarant - late Adapa Venkata Subbareddy; consequently, the

petition was dismissed by the Primary Tribunal.

The order passed by Primary Tribunal was was challenged

before the Appellate Tribunal under Section 20 of the Act. The

Appellate Tribunal also came to the same conclusion that the

petitioners miserably failed to establish their relationship with the

declarant - late Adapa Venkata Subbareddy. It is further observed

that the petitioners were not in possession of the property as on

the date of filing declaration and the names of these petitioners

were not shown as daughters of declarant - late Adapa Venkata

Subbareddy in the declaration filed under Section 8(1) of the Act.

The Appellate Tribunal also observed that the petitioners failed to

prove their possession over the land as claimed by them since

1968, but they are in possession since 1980 and dismissed Land

Reforms Appeal No.17 of 2003 on 25.02.2013.

MSM,J CRP.No.3039 of 2013

Aggrieved by the order passed by the Appellate Tribunal, the

present civil revision petition is filed under Section 21 of the Act,

raising several grounds.

The main grounds urged before this Court is; failure of both

Primary Tribunal and Appellate Tribunal to look into the material

available on record to infer that pasupu kumkuma gift was

declared at the time of marriage, donating property to the

petitioners by the declarant - late Adapa Venkata Subbareddy

which they are claiming.

It is further contended that, when the petitioners are in

possession of the property, a notice is required to be issued to the

petitioners even at the time of surrender proceedings under

Section 10 of the Act. But, no notice was served on these

petitioners which is a grave illegality. It is contended that the

petitioners are entitled to claim the property in different survey

numbers as stated in the earlier paragraphs being the donees

under oral pasupu kumkuma gifts, but for one reason or the other,

Appellate Tribunal did not consider the claim of the petitioners in

proper perspective and requested to set-aside the order passed by

the Appellate Tribunal in Land Reforms Appeal No.17 of 2003.

During hearing, Sri Srinivas Emani, learned counsel for the

petitioners reiterated the grounds urged in the petition, while

contending that the petitioners filed earlier applications to implead

them as legal heirs of the declarant - late Adapa Venkata

Subbareddy, which is pending before the Tribunal and not yet MSM,J CRP.No.3039 of 2013

decided by the Primary Tribunal. But, on the ground of delay,

dismissal of their claim before the Primary Tribunal is a grave

illegality, since right to property is a constitutional right and delay

cannot deprive the petitioners' constitutional right by deviating the

procedure. It is further contended that, a notice is required to be

issued when the petitioners are in possession and enjoyment of the

property, atleast at the time of surrender proceedings, but, no

such notice was issued. On this ground alone, revision is liable to

be allowed.

Whereas, learned Government Pleader for Arbitration

supported the order passed by the Appellate Tribunal in all

respects and requested to dismiss the civil revision petition.

Considering rival contentions, perusing the material

available on record, the points that arise for consideration are as

follows:

1. Whether the petitioners were daughters of declarant - late Adapa Venkata Subbareddy? and whether the oral pasupu kumkuma gifts allegedly announced at the time of marriage of petitioners by the declarant - late Adapa Venkata Subbareddy is legally valid and confers any title to the schedule property?. If so, whether the property claimed by these petitioners be deleted from the excess holding of declarant - late Adapa Venkata Subbareddy by re-computing the holding?

2. Whether a notice is mandatory to the persons in possession of the property at the time of surrender proceedings under Section 10 of the Act, in view of Section 7(7) read with Rule 6(1) of the Rules?

MSM,J CRP.No.3039 of 2013

P O I N T NO.1:

The petitioners are claiming to be the daughters of the

declarant - late Adapa Venkata Subbareddy and they are claiming

that the property was gifted to them at the time of their marriage,

announcing "pasupu kumkuma oral gift" as per the custom

prevailing in their community and that the petitioners are

continuing in possession and enjoyment of the property, obtained

pattadar passbooks and title deeds for the lands by paying land

revenue to the revenue department. Whereas, the learned

Government Pleader for Arbitration contended that there is no

relationship between the petitioners and the declarant - late Adapa

Venkata Subbareddy and in the absence of any relationship

between them, the petitioners are not entitled to claim the relief in

the petition.

The Primary Tribunal and Appellate Tribunal concluded that

the petitioners failed to establish the blood relationship between

the petitioners and declarant - late Adapa Venkata Subbareddy, as

the declaration filed under Section 8(1) of the Act did not disclose

the details of the children. Though the proceedings in the Primary

Tribunal were commenced in the year 1975, till date, none of the

petitioners approached either the Primary Tribunal or any other

authority claiming any right in the property. But, after death of the

original declarant - late Adapa Venkata Subbareddy, his wife was

impleaded as legal heir of the deceased and even the wife also did

not disclose the details of their children. If really, the original

declarant was blessed with children, he ought to have mentioned MSM,J CRP.No.3039 of 2013

the details of children in the proforma of declaration itself, but did

not disclose the details of the children of the declarant in the

declaration filed under the Act. If the declaration relates to a family

unit, details of family members of the family unit as on the

specified date shall be disclosed. But, for one reason or the other,

the petitioners did not disclose the details of family unit and the

members of the family or the details of the children. In the absence

of any details in the declaration, it is incumbent upon the

petitioners to prove that the petitioners are the daughters of

declarant - late Adapa Venkata Subbareddy. No iota of evidence is

placed on record before the Primary Tribunal or before the

Appellate Tribunal to substantiate their case that they are the

children of declarant - late Adapa Venkata Subbareddy. In the

absence of proof of relationship, the alleged pasupu kumuka oral

gift is not believable. Before the Primary Tribunal or the Appellate

Tribunal, no oral or documentary evidence is produced to

substantiate their claim. Therefore, the Primary Tribunal and the

Appellate Tribunal disbelieved the relationship of the petitioners

and declarant - late Adapa Venkata Subbareddy and this Court

cannot interfere with such finding, since the power of this Court

under Section 21 of the Act is limited and identical to the

jurisdiction of the Court under Section 115 of C.P.C.

According to Section 21 of the Act, an application for revision

from any party aggrieved, including the Government, shall lie to

the High Court, within the prescribed period, from any order MSM,J CRP.No.3039 of 2013

passed on appeal by the Appellate Tribunal on any of the following

grounds, namely:-

(a) that it exercised a jurisdiction not vested in it by law, or

(b) that it failed to exercise a jurisdiction so vested, or

(c) that it acted in the exercise of its jurisdiction illegally or with material irregularity.

Therefore, only in three circumstances, this Court can

exercise such jurisdiction in view of the limited scope.

The jurisdiction vested in all the authorities is to determine

the holding with reference to the various provisions of the Act and

declare surplus land for the purpose of giving it to the landless

poor. Hence, every error of law which is committed by the

authorities in the exercise of their jurisdiction would be very vital

and it must be held that it is an error of law which touches the

jurisdiction of the Tribunal. If an authority commits an illegality

and determines the holding incorrectly and if the same cannot be

corrected in revision, then the revisional jurisdiction of the High

Court would be rendered nugatory and purposeless. Every error of

law in reaching the decision is a vital error of law and must be

considered as error of jurisdiction. (vide State of A.P. v. Raji

Reddy1). The Tribunal under the Act have to scrutinise carefully

the claims of alienations alleged to have been made under

unregistered agreements of sale. (vide P. Mahendar Reddy v.

State2).

In view of the law declared by the Court in the judgments

referred supra, if the Court finds that there is any error of law

1989 (3) ALT 187

1978 (2) ALT 234 MSM,J CRP.No.3039 of 2013

which is vital in determining the standard holding of a declarant, it

must be considered as error of jurisdiction. But, in the present

case, the relationship between the petitioners and the declarant -

late Adapa Venkata Subbareddy is a question of fact that is to be

decided by the authority, who are claiming to be the daughters of

the declarant - late Adapa Venkata Subbareddy and

Vardhanamma. Surprisingly, mother of the petitioners who is

competent to speak about the blood relationship between the

petitioners and declarant - late Adapa Venkata Subbareddy was

not impleaded to this civil revision petition. This creates any

amount of suspicion on the claim of these petitioners. More so,

though the petitioners appears to be literates, they did not produce

any piece of evidence like birth extract issued by competent

authority, marks lists and transfer certificate issued by any school

to prove relationship of petitioners with late Adapa Venkata

Subbareddy. No piece of evidence is produced before the Primary

Tribunal or the Appellate Tribunal or before this Court to

substantiate their claim. Hence, in view of the limited jurisdiction

conferred on this Court, this Court cannot interfere, since the

relationship between the petitioners and declarant - late Adapa

Venkata Subbareddy and Vardhanamma is a question of fact.

Consequently, the contention of the petitioners is rejected.

Assuming for a moment that there was subsisting blood

relationship between the petitioners and declarant - late Adapa

Venkata Subbareddy and his wife Vardhanamma, the alleged oral MSM,J CRP.No.3039 of 2013

pasupu kumkuma gifts announced by the declarant at the time of

the petitioners' marriage are not valid for various reasons.

According to the Law Lexicon by P. Ramanatha Iyer., Pasupu

Kumkuma is a gift, settlement or assignment of land to a daughter.

At the time of Manu, a daughter along with her brothers had a

right to share in the father's property. With the passage of time, it

became a duty of the father to maintain the daughter covering all

the reasonable expenses.

Marriage is a sacred Hindu tradition where a father offers his

daughter to become a part of the other family and therefore out of

love and affection, he is allowed to offer the daughter some

property, movable or immovable as gift. It is the very basic instinct

of the society to claim what it thinks it has a right on and therefore

moving with their instinct disputes started arising on the nature of

the property that was given by a father to his daughter in

marriage.

Questions were raised whether the property thereby offered

falls within the ambit of term 'gift' as laid under Section 122 of the

Transfer of Property Act, then requires lawful registration of the

immovable property, or can it be transferred by a mere oral

declaration because the property offered is a part of the duty

imposed by Section 3 of the Hindu's Adoption and Maintenance

Act.

The society changes and with it the laws are modified to

maintain the normative culture. The final remnant is that it is the

obligation of a father to maintain his daughter within in the limited

scope as laid down by Section 3 of the Hindu Adoption and MSM,J CRP.No.3039 of 2013

Maintenance Act including marriage expenses. With this an

opinion grew in the mind of the society that since Section 3 covers

the ambit of expenses incurred in marriage, any property offered to

the daughter for marriage cannot be termed as a 'gift' within the

meaning of Section 122 of Transfer of Property Act. The mode of

giving a property by the way of 'Pasupu Kumkuma' is involuntary

transfer without consideration and does not hold the essential

ingredients of a gift. Once the property is out of the ambit of

Section 122 of Transfer of Property Act, it does not require a

written document or a registration by law; such property can be

transferred by mere oral declaration, as per traditional approach.

The oral gift is a non-testamentary instrument governed by

the provisions of Transfer of Property Act, it is a transfer inter-

vivos. Section 122 of Transfer of Property Act, defined the gift as

follows:

"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person called the donor, to another, called the donee, and accepted by or on behalf of the donee."

Here, the donor was the father of the petitioners. According

to Section 123 of Transfer of Property Act, when the immoveable

property is gifted, the transfer must be affected by a registered

instrument signed by or on behalf of the donor, and attested by at

least two witnesses. From a bare reading of Section 123 of

Transfer of Property Act, when the immoveable property is

transferred by way of gift, it must be by way of registered

document. According to Section 17(a) of Registration Act, an MSM,J CRP.No.3039 of 2013

instrument of gift of immoveable property is to be compulsorily

registered. Under Section 49 of Registration Act, no document

required by Section 17 or by any provision of the Transfer of

Property Act, 1882, to be registered shall, affect any immovable

property comprised therein, or confer any power to adopt, or be

received as evidence. Thus, a document which is compulsorily

registerable under Section 17(a) of Registration Act, when not

registered, the same cannot be admitted in evidence and such

document would not confer any right or title over the immovable

property extinguishing the right of the other. Apart from that, the

property covered by gift, according to the petitioners as defined

under Section 122 of Transfer of Property Act and governed by the

provisions of Indian Stamp Act. Such gift of immoveable property

is liable to be stamped according to Sl.No.29 of Schedule 1-A of

Indian Stamp Act (A.P. Amendment Act, 1922) and the stamp duty

is payable as conveyance for the value mentioned in the gift deed,

equivalent to the market value of the property which is the subject

matter.

In C.G.T v. Chandrasekhara Reddy3, it was held by the

Court that, "a Hindu father, mother or other guardian has to give

his or her daughter in marriage to a suitable husband as one of

their legal as well as a moral obligation. The daughter for the

purpose of her marriage is moreover entitled to set apart a portion

of the family property. In enacting Section 3(b)(ii) of the Hindu

Adoptions and Maintenance Act, 1956, the legislature codified the

(1976) 105 ITR 849 MSM,J CRP.No.3039 of 2013

well settled principles of the Hindu Law and payment of reasonable

expenses incurred at the time of the marriage is obligatory. Hence,

both under general Hindu law and the Hindu Adoptions and

Maintenance Act, 1956, father has a duty to give some property on

the occasion of her marriage. If the conveyance is made to

discharge the obligation of the father to provide maintenance to the

daughter and the share of reasonable expenses incidental to the

marriage, it can be said to be a transfer for consideration and as

such it will not be a 'gift' liable to gift tax under the Gift-tax Act,

1958."

The debates and discussions were put to rest by the

judgement delivered by the High Court in Bhubaneswar Naik

Santoshrai and etc. vs. The Special Tahsildar Land Reforms

Tekkali and Ors4 The court unhesitatingly held that it was evident

from the case at hand that the so-called gift of the property

purported to have been made by the petitioner is legal, valid and

binding. Since it does not fall in any of the categories of

transactions enumerated in Section 122 of the T.P Act and is not a

gift with this the meaning of the aforementioned provision, such

transfer does not require any registration.

The High Court in A. Gangadhara Rao v. G. Ganga Rao5

refused to accept the contention that a gift made during marriage

is not required to be registered by law. Justice Ekbotate stated his

refusal and dissent in these words:

AIR 1980 AP 139

AIR 1968 AP 291 MSM,J CRP.No.3039 of 2013

"It is difficult to accept the contention that a gift made at the time of marriage is not required to be in writing by any law. Any such contention would be flying in the face of Section 123, Transfer of Property. Act. It may be that under the Traditional Hindu Law no writing for the validity of transfer of property made at the time of marriage was necessary. There was no transaction under Hindu Law which absolutely required a writing.

But after the T. P. Act came into force, to say that the oral gift can be made at the time of marriage by way of Pasupu Kumkuma would be inconsistent with Section 123 of Transfer of Property Act. That is a provision applicable to all gifts which transfer Immovable property. It is therefore necessary in order to constitute a valid gift that not only it should be in writing but it must also be registered".

In Serandaya Pillai And Anr. vs Sankaralingam Pillai And

Anr6, learned single Judge of Madras High Court observed that,

where a transaction is a gift of the immovable property, it should

be registered and effected by writing.

In view of law declared, it is now a well settled principle of

law that any gift of immovable property to a daughter by the way of

'Pasupu Kumkuma' during marriage is required to be stamped and

registered since it is a gift within the meaning of Section 122 of the

Transfer of the Property Act and shall be registered within the

meaning of Section 123 which says that the transfer must be

effected by a registered instrument signed by or on behalf of the

donor and attested by atleast two witnesses. It is not permissible to

give away oral gifts by the way of 'Pasupu Kumkuma'.

(1959) 2 MLJ 502 MSM,J CRP.No.3039 of 2013

It is believed that the rule of Hindu Law, where the delivery

of possession is considered essential to the validity of a gift has

been abrogated by application of Transfer of Property Act, 1882 in

regards to Hindu gifts. By virtue of this Act, mere delivery is not

sufficient to constitute a gift; movable property being an exception

to the rule. Moreover, delivery of the possession is not required to

complete a gift either. Section 123 of the Act provides manner in

which a gift must be effected.

While discussing the provisions of Section123 the author in

the Mulla's Hindu Law states that:

"This section applies to Hindus. It applied to Hindus even before the amending Act 20 of 1929 for it was made applicable to Hindus by the old section 129 which expressly abrogated the Hindu rule. The section was held to abrogate the rule of Hindu Law that delivery of possession is essential to the validity of a gift"

In Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs &

Ors7 Apex Court decided the question of validity of 'Pasupu

Kumkuma" gift, the Court silenced all the debates, discussions

and verdicts but overturned judgements. The case was dragged

through the courts for over 30 years until the apex court upheld

the decision of first appellate court to make the registration of the

gifts given by way of 'Pasupu Kumkuma' is mandatory. Therefore,

oral 'Pasupu Kumkuma' gift is not valid.

The petitioners claimed that they are in long continuous

possession and enjoyment of the property having occupied the

AIR 2008 SC 2033 MSM,J CRP.No.3039 of 2013

same in the year 1968 and obtained pattadar passbooks in their

favour. The next contention is that, at the time of the petitioners'

marriage, their father original declarant - late Adapa Venkata

Subbareddy agreed to gift the above mentioned property as pasupu

kumkuma and announced the same at the time of their marriage;

since then, the petitioners are in possession and enjoyment of the

property. These contentions are not consistent with one another

for the reason that, if really, pattadar passbooks were granted in

their favour, when the petitioners were in possession and

enjoyment of their property, the question of gifting the property at

the time of their marriage as pasupu kumkuma by their father i.e.

original declarant - late Adapa Venkata Subbareddy does not arise.

The plea of gift by way of pasupu-kumkuma falsifies their earliest

version of assignment of the property in recognition of their

unauthorized occupation. Even otherwise, in view of these

inconsistent pleas, it is the duty of the Court to examine the case

in two different angles; the first one is with regard to assignment

and the second one is oral pasupu kumkuma gift by the father of

the petitioners i.e. original declarant - late Adapa Venkata

Subbareddy at the time of her marriage. Further, the burden is

upon the petitioners to prove that the property was orally gifted to

them by their father at the time of their marriage.

From the beginning, the case of the petitioners is that their

father orally gifted the property at the time of their marriage.

However, the original declarant, the father of the petitioners

allegedly announced 'Pasupu kunkuma' gift at the time of their

marriage and their specific contention is that the 'Pasupu MSM,J CRP.No.3039 of 2013

kumkuma' gift requires no registration. In fact, Sl. No. 29 Schedule

1-A of A.P. Amendment 1922 to Indian Stamp Act or Section 17(a)

read with Section 49 did not say that 'Pasupu kunkuma' gift need

not be stamped and registered as per the provisions of Indian

Stamp Act and Registration Act. Even as per Section 123 of

Transfer of Property Act, the alleged document of gift of

immoveable property is required to be registered and attested by

two witnesses. Thus, it is a compulsorily registrable document.

Though the statue did not exempt such gift styled as

'Pasupu kunkuma' gift from the application of provisions of Indian

Stamp Act, Registration Act and Transfer of Property Act, obviously

the law laid down by High Court is contrary to the provisions of

those statutes. In a decision reported in Bhubaneswar Naik

Santoshrai and others v. The Special Tahsildar Land Reforms

Tekkali and others8, this Court is of the view that, Expressions of

intention to give away the property for provisions of marriage of

daughter or sister is not a gift within Section 122 of the Act,

therefore the non-registration of such deed would not hit its

validity.

The same principle is reiterated by the learned single Judge

of this Court in P. Buchi Reddy v. Anathula Sudhakar (referred

supra). Thus, from the principle laid down by the Division Bench of

this Court in Bhubaneswar Naik Santoshrai and others v. The

Special Tahsildar Land Reforms Tekkali and others (referred

supra) and reiterated by the learned single Judge of this Court

AIR 1980 A.P. 139 MSM,J CRP.No.3039 of 2013

P. Buchi Reddy v. Anathula Sudhakar (referred supra), a 'Pasupu

kunkuma' gift requires no registration as per the provisions of

Registration Act i.e., Section 17(a). Fortunately, in a Full Bench

judgment of this Court in Gandevalla Jayaram Reddy Vs.

Mokkala Padmavathamma and others9, it was held that transfer

of immovable property by way of 'Pasupu kunkuma' gift to a

daughter at the time of marriage given under a document requires

stamp duty and registration in terms of provisions of Section 17 of

Registration Act, and such document is inadmissible in evidence,

overruled the judgment of Division Bench of this Court rendered in

Bhubaneswar Naik Santoshrai and others v. The Special

Tahsildar Land Reforms Tekkali and others (referred supra) and

judgment of learned single Judge of this Court rendered in P.

Buchi Reddy v. Anathula Sudhakar (referred supra) while holding

in para Nos. 7 and 8 as follows:

"The learned Judges committed a manifest error in holding that the daughters have a share in the property. The daughters have and except under a customary or statutory right cannot have any share in a joint family property. Even assuming that she has such right, she can only claim partition, but it is beyond any cavil of doubt that if a transaction is effected in writing, the same would require registration. The division Bench, in our opinion, further committed a manifest error in holding that the 'pasupu kumkuma' being both involuntary as we will as for consideration, the same would not be a gift within the meaning of Section 122 of the Transfer of Property Act. Evidently such a transaction would create right in immoveable property in one and the right of the owner thereof shall be extinguished and thus the same would attract the provisions of Section 17(1)(b) of the Registration Act. No authority has been cited by the learned Division Bench in support of their opinion that pasupu kumkuma could very well be done orally.

Furthermore, the learned Judges proceeded on a wrong

2001 (5) ALD 402 (FB) MSM,J CRP.No.3039 of 2013

premise in holding that the pasupu kumkuma is not a gift. 'Pasupu Kukuma' as defined in P. Ramanatha Iyer's Law Lexicon means a gift, a settlement or assignment or land to a daughter. Inevitably therefore, such a gift of immoveable property, the consideration whereof would be love and affection could come within the meaning of Section 123 thereof."

Thus, the law is clear that 'Pasupu Kumkuma' gift orally

cannot be done, it may be done by way of document in compliance

of Stamp and Registration Laws. Consequently, oral 'Pasupu

Kumkuma' gift is not valid in the eye of law as held by the

Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (Dead)

By LRs & Ors (referred supra). Therefore, unwritten and

unregistered gift deed is not admissible in evidence in view of the

settled legal position. In another Judgment of reported in

Nangineni Radhakrishna Murthy v. Kanneganti

Nagendramma (died) by L.Rs10, this Court reiterated the same

principle.

In order to make a valid transfer of property to a daughter at

the time of marriage by the way of 'Pasupu Kumkuma' it must be

by way of registered gift within the meaning of Section123 of

Transfer of Property Act and in compliance of Section 17 of the

Registration Act.

In view of the law declared by the Apex Court and Full Bench

of High Court of Judicature at Hyderabad and persuaded by the

principles laid down by the other High Courts in the judgments

referred supra, I find that oral pasupu kumkuma gift announced

at the time of marriage of the petitioners allegedly is not valid in

2007 (4) ALD 642 MSM,J CRP.No.3039 of 2013

the eye of law and such agricultural land cannot be deleted from

the holding of the original declarant - late Adapa Venkata

Subbareddy on the basis of such 'Pasupu Kumkuma' gift.

Accordingly, the point is answered.

P O I N T NO.2:

The petitioners are claiming to be the owners of the land

being the donee under oral pasupu kumkuma gift and they are in

possession and enjoyment of the property, paying land revenue to

the Revenue Department, obtained pattadar passbooks and title

deeds for the property from the Revenue Department. To

substantiate their claim, the petitioners produced certain

documents before the Appellate Tribunal and copies of those

documents are also filed along with this petition, evidencing

payment of land revenue to the government i.e. revenue receipts,

adangal copies/pahanis vide Village Account No.3 to establish that

they are in possession and enjoyment of the property in their right.

All these documents clinchingly establish that the petitioners are

in possession and enjoyment of the property since 1980, but failed

to prove that they are in possession and enjoyment of the property

from 1968 to 1979. Undisputedly, as per the finding of the

Appellate Tribunal in the last lines of Paragraph No.16, the

petitioners are in possession of the claimed property since 1980

and this finding is supported by documentary evidence. When the

petitioners are in possession and enjoyment of the property since

1980, now the question to be determined by this Court is whether MSM,J CRP.No.3039 of 2013

the petitioners are the persons interested and if, so, whether a

notice is required to be issued at the time of surrender proceedings

taken up under Section 10 of the Act.

The surplus holding of the original declarant - late Adapa

Venkata Subbareddy was determined by order dated 04.10.1975.

Aggrieved by the order, an appeal was preferred in L.R.A.No.7 of

1975 and on dismissal, filed revision before the High Court in

C.R.P.No.793 of 1996. The High Court, rejected the claim of the

declarant that the land given to his illatum son-in-law has to be

excluded from his holdings and remanded the matter for fresh

consideration on other points. The Primary Tribunal has

considered the claim of the declarant with regard to the nature of

the lands and passed order on 10.11.1992 dismissing the claim.

However, the declarant filed an application seeking correction in

the order, but it was also dismissed. Against the said order, the

declarant preferred appeal in L.R.A No.124 of 1994, however, the

appeal was also dismissed on 24.04.1995. Thereafter, a notice in

Form-VI was issued to the declarant calling upon to surrend the

determined surplus land i.e. Ac.0.4641 S.H before 15.01.1996. By

that time, the petitioners allegedly made a representation on

17.01.1996 for grant of adjournments, as original declarant died.

The Primary Tribunal, basing on the report of Mandal Revenue

Officer, Chebrole, impleaded the wife of the declarant - late Adapa

Venkata Subbareddy as next legal heir and issued revised Form-VI

notice on 26.09.1998. Thereafter, as the wife of the declarant

failed to file surrender statement, the suitability report was called MSM,J CRP.No.3039 of 2013

for and Mandal Revenue Officer, Chebrole who in-turn submitted a

report on 04.08.2020 identifying Ac.6-96 cents in Sy.No.129 of

Vejandla village. Thereafter, a notice in Form-VIII was issued on

08.10.2002 which was published on 23.10.2002. At this stage, the

petitioners approached the Primary Tribunal by filing

miscellaneous petition. However, the Primary Tribunal and the

Appellate Tribunal recorded a specific finding about petitioners'

continuous possession of the properties since 1980. But,

Vardhanamma who is the alleged wife of the original declarant -

late Adapa Venkata Subbareddy was not impleaded. When once

the petitioners are allegedly found in possession of the property

and notice(s) is required to be issued to them, being the persons

affected.

The major contention of the learned counsel for the

petitioners Sri Srinivas Emani is that, the petitioners are in

possession and enjoyment of the property, as held by the Appellate

Tribunal, a notice is required to be issued before exercising power

under Section 10(5) of the Act and drawn attention of this Court to

Section 7(7) of the Act and Rule 6(1) of the Rules framed therein.

According to Section 7 of the Act, where on or after the 24th

January, 1971 but before the notified date, any person has

transferred whether by way of sale, gift, usufructuary mortgage,

exchange, settlement, surrender or in any other manner

whatsoever, any land held by him or created a trust of any land

held by him, then the burden of proving that such transfer or

creation of trust has not been effected in anticipation of, and with MSM,J CRP.No.3039 of 2013

a view to avoiding or defeating the objects of any law relating to a

reduction in the ceiling on agricultural holdings, shall be on such

person. A notice is required to be issued to the person in whose

name such interest was created or transfer is affected. Therefore,

the procedure to be followed under Section 7(7) of the Act is limited

to determine the illegality of the interest created or transfer

affected between 24.01.1971 and the notified date. But, in the

present case, the contention of the learned counsel for the

petitioners is that, transfer was affected in the year 1968, prior to

24.01.1971. When the marriage of these petitioners was allegedly

performed by original declarant - late Adapa Venkata Subbareddy,

the oral pasupu kumkuma gifts themselves are not legal and not in

accordance with law as held in Point No.1. Therefore, issue of

notice to determine the standard holding of the declarant - late

Adapa Venkata Subbareddy is an exercise in futility. Therefore,

failure to issue notice(s) as contemplated under Section 7(7) of the

Act is not a ground to set-aside the order passed by the Appellate

Tribunal.

Coming to Rule 6(1) of the Rules, issue of notice pertains to

an enquiry and determination of ceiling area. A notice in Form-V is

required to be issued to the declarant intimating the date, time and

place of enquiry in respect of the declaration or information

published and in respect of the objections, if any, received thereto.

Therefore, it is only an intimation about the date, time and place of

enquiry to the declarant and not to the person who allegedly is

claiming right. If, the petitioners are in possession of the property MSM,J CRP.No.3039 of 2013

as on the notified date, then a notice is necessary. In the present

case, the petitioners if proved that they are in possession of the

property as on the notified date or atleast as on the date of

verification report submitted by the Land Reforms Tahsildar to the

Revenue Divisional Officer, the person in possession is entitled to a

notice which is mandatory and any enquiry without issuing notice

to such person is illegal, as held by the High Court in K. Buchi

Reddy v. State of A.P11).

Similarly, the expression employed in Rule 6 and Rule 16(7)

"to the other persons interested" are also entitled to a notice. But,

in the present case, the interest the petitioners by oral 'Pasupu

Kumkuma' gift is not legal, as held by the Court while deciding

Point No.1 and they were not in possession and enjoyment of the

property as on the date of notified date or verification report.

Therefore, the notice under Rule 6 is a notice about intimating the

date, place and time of enquiry on the declaration, objections

received thereon from the declarant or any third party, but the

present case is at the stage of surrender proceedings initiated

under Section 7 of the Act.

Turning to Rule 16(7) of the Rules, any person other than a

party who satisfied the Revenue Divisional Officer, District

Collector, Tribunal or the Appellate Tribunal having substantial

interest in the matter, may at any time during the pendency of the

proceedings, be permitted to appear and be heard and to adduce

evidence and cross-examine witnesses. Therefore, Rule 16(7)

1978 (2) ALT 9 (NRC) MSM,J CRP.No.3039 of 2013

permits any person other than a party, having substantial interest

in the matter, may at any time, during pendency of the

proceedings can participate in the proceedings.

In the present case, the petitioners are claiming to be the

owner under the oral pasupu kumkuma gifts claiming right in the

property and requested to determine the standard holding of the

declarant - late Adapa Venkata Subbareddy. Thus, as on date, the

proceedings to determine the standard holding were concluded,

except surrender proceedings. Thus, the word "during pendency of

the proceedings" is inclusive of surrender proceedings under

Section 10 of the Act. in such case, on the ground of delay, the

Court cannot reject the claim of these petitioners and they be

permitted to hear and adduce evidence and cross-examine the

witnesses. If, the surrender proceedings are concluded, the

proceedings are deemed to have been terminated and in such case,

either Primary Tribunal or the Appellate Tribunal or this Court

cannot permit the third parties/persons having substantial

interest in the matter to adduce evidence as contemplated under

Sub-Rule (7) of Rule 16 of the Rules. At the same time, when there

is a mistake in computation of holding, such an application cannot

be entertained under Rule 16(5) for rectification if mistake in

computation of Holding is not sustainable unless it is for

rectification of clerical or arithmetical mistake. (vide Lakshma

Reddy v. State of A.P12)

1992 (2) APLJ 66 (D.B) MSM,J CRP.No.3039 of 2013

At the same time, the Court time and again clarified that, a

person who has no substantial interest in the lands, such a person

cannot be impleaded as a party in the proceedings. (vide Krishna

Kumar v. Authorised Officer (C.R.P.No.6646 of 1978 dated

11.07.1979 unreported)). A third party stranger who has no

interest in the property declared by the declarant has no locus

standi to prefer an appeal before the Tribunal (vide N. China

Basavaiah v. State of A.P and another13)

The petitioners are claiming to be the owners of the property,

in view of the oral pasupu kumkuma gifts announced at the time

of their marriage in the year 1968 and such oral gifts are invalid

under law, as held by various Courts in the catena of judgments

referred above, as discussed in Point No.1. When the basis of

substantial interest claimed by these petitioners is not legal, the

question of permitting them to appear and adduce evidence,

affording an opportunity to hear the argument is an exercise in

futility. However, undisputedly, the surrender proceedings are

pending before the authorities concerned and Notice in Form-IX

was issued by the Revenue Divisional Officer, Tenali calling upon

the wife of the original declarant - late Adapa Venkata Subbareddy

- Smt. Adapa Vardhanamma to surrender the land in excess of the

ceiling area to deliver possession to Mandal Revenue Officer. But,

she did not file her objections to the authorities under the Act. At

this stage, these petitioners appeared before the Tribunal.

However, proviso to Subsection (5) of Section 10 obligates the

1981 (2) An.WR 263 MSM,J CRP.No.3039 of 2013

Tribunal, in every case, to serve a notice on the person concerned

requiring him to surrender any other land in lieu thereof when a

surrender statement is filed and not accepted by the authorities.

The language employed in various subsections of Section 10 of the

Act, "the person is liable to surrender" the land in excess of ceiling

area assumes importance to determine whether a notice at the

time of surrender is necessary. But, here, the petitioners are

claiming to be the daughters of the declarant - late Adapa Venkata

Subbareddy who failed to prove the blood relationship between

them and declarant - late Adapa Venkata Subbareddy before the

Tribunal by adducing any evidence or producing any document,

but claimed that they are in possession of the property and the

same was accepted by the Appellate Tribunal holding that they

were in possession of property since 1980, however, they are not

the persons liable to surrender the land in excess of the ceiling

area, as a result notice under Section 10 of the Act, is not

necessary. Hence, the contention of the learned counsel for the

petitioners that no notice was served is rejected, while holding that

the petitioners are not the persons liable to surrender the land in

excess of the ceiling area, in view of the language employed in

various subsections of Section 10 of the Act.

Even Rule 16(7) of the Rules also does not permit these

petitioners to appear and adduce evidence, since their claim or

substantial interest based on oral pasupu kumkuma gift is invalid.

Hence, I find no substance in the contentions urged by the learned

counsel for the petitioners Sri Srinivas Emani and consequently, I

am of the considered view that no notice need be served on the MSM,J CRP.No.3039 of 2013

petitioners, without any hesitation. Accordingly, the point is

answered in favour of the respondents and against the petitioners.

In view of my foregoing discussion on Point No.1, the alleged

oral pasupu kumkuma gift announced at the time of marriage is

invalid and such gifts will not create or confer any right or title on

the donee, thereby, the petitioners claimed that they have

substantial interest in the matter is rejected.

Similarly, in view of my finding on Point No.2, the petitioners

are not entitled to any notice when the proceedings are at the stage

of surrender under Section 10 of the Act, so also, under Rule 16(7)

of the Rules framed under the Act, as the basis for claiming

substantial interest is the oral pasupu kumkuma gifts allegedly

announced at the time of their marriages are invalid, as discussed

in Point No.1. Consequently, the civil revision petition is liable to

be dismissed.

In the result, civil revision petition is dismissed.

Consequently, miscellaneous applications pending if any,

shall also stand dismissed. No costs.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:07.01.2021

Note: LR copy to be marked b/o SP