REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. _3632__ OF 2008

(Arising out of SLP © No. 19445 of 2006)

N. Padmamma and others …. Appellants

Versus

S. Ramakrishna Reddy and others ….Respondents

J U D G M E N T

S.B. SINHA, J.

1.Leave granted.

2.Whether the civil court has jurisdiction to entertain a suit for partition

for division of respective shares amongst the members of a joint family,

when in respect of some of the lands, occupancy right has been granted in

favour of one of them in terms of the provisions of the Andhra Pradesh

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(Telangana Area) Abolition of Inams Act, 1955 (for short ‘the Act’) is the

question involved herein.

3.The basic fact of the matter is not in dispute

4.One S. Ramakrishna Reddy was the owner of the properties. He had

two sons, S. Ramachandra Reddy and S. Anantharam Reddy. S.

Ramachandra Reddy died in the year 1968. He had two wives. Plaintiffs-

Appellants are the first wife and the daughter of S. Ramachandra Reddy.

The Defendants-Respondents are the son, second wife and the daughter of

said S. Ramachandra Reddy.

5.The Legislature of the State of Andhra Pradesh enacted the Andhra

Pradesh (Telangana Area) Abolition of Inams Act, 1955 which came into

force on 20

th

July, 1955. In the year 1973, Section 8 was enacted in terms

whereof a person in possession could be registered as an occupant of the

land from the date of vesting thereof. The first respondent was granted

occupancy right by the R.D.O., Hyderabad in terms of Section 8 read with

Section 10 of the Act. A suit for partition was filed on 3

rd

September, 1981.

Some other persons claiming right as ‘Inamdars’ filed an application before

the District Collector under Section 24 of the Act. However, the right of

respondent No.1 thereover was found by the District Collector in terms of

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an order dated 5

th

August, 1985. A preliminary issue was raised as regards

the jurisdiction of the court which has been upheld by the impugned

judgment.

6.Mr. T.L. Viswanatha Iyer, learned senior counsel appearing for the

appellants, would submit that the decisions of the courts below is based

upon the decision of this Court in Lokraj and others vs. Kishan Lal and

others, [ (1995) 3 SCC 291 ], which cannot be said to have been correctly

decided. Learned counsel pointed out that this Court in Bhubaneshwar

Prasad Narain Singh v. Sidheswar Mukherjee, [ (1971) 1 SCC 556 ] upheld

the right of a co-sharer and recognized such right in the entire body of the

co-sharers.

7.Dr. Rajiv Dhawan, learned senior counsel appearing on behalf of the

respondents on the other hand, would submit that the said Act is a complete

Code itself. The contention of the appellants that the registration of the land

should not be granted in favour of respondent No. 1 is not correct in view of

the terminologies used in Section 8 of the Act. It was contended that having

regard to the provisions of Section 24 as also 29 of the Act, the civil court

has no jurisdiction to grant a decree of partition.

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8.We, at the outset, may notice the relevant provisions of the Act.

Sections 3, 8, 10, 24 and 29 of the Act are as under:-

“Sec. 3:Abolition and vesting of imams and

the consequences thereof:- (1) Notwithstanding

anything to the contrary contained in any usage,

settlement, contract, grant sanad order or

instrument, Act regulation, rules or order having

the force of law and notwithstanding any

judgment, decree or order of a Civil or Revenue or

Atiyat Court, and with effect from the date of

vesting, all imams shall be deemed to have been

abolished and shall vest in the State.

(2)Save as expressly provided by or under the

provisions of this Act and with effect from the

date of vesting the following consequences shall

ensure, namely:

(a)xxxx

(b)all rights, title and interest vesting in

the inamdar, kabiz-e-kadim, permanent

tenant, protected tenant and non-protected

tenant in respect of the inam land, other than

the interests expressly saved by or under

provisions of this Act and including those in

all communal lands, cultivated and

uncultivated lands (whether assessed or

not), waste lands, pasture lands, forests,

mines and minerals, quarries, rivers and

streams, tanks and irrigation works,

fisheries and ferries, shall cease and be

vested absolutely in the State free from all

encumbrances:

(c) to (f)xxxxxxxx

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(g)the inamdar and any other person

whose rights have vested in the State under

clause (b) shall be entitled only to

compensation from the Government as

provided for in this Act;

(h)the relationship with regard to inam

land as between the inamdar and kabiz-e-

kadim, permanent tenant, protected tenant

or non-protected tenant shall be

extinguished’

(i)x x x x

(3)x x x x x x x x

Sec. 8: Registration of non-protected tenant

as occupant:- (1) Every non-protected tenant shall,

with effect from the date of vesting subject to

Section 37 of the A.P. (Telangana Area) Tenancy

and Agricultural lands Act, 1950 be entitled to be

registered as an occupant of such inam lands in his

possession as may be left over after the allotment

under Section 4 which, immediately before the

date of vesting, were under his personal

cultivation and which, together with any lands he

separately owns and cultivates personally, are

equal to four and a half times the family holding.

(2)The non-protected tenant shall be entitled to

compensation from the Government, as provided

under this Act in respect of inam lands in his

possession in excess of the limit prescribed in sub-

section (1) whether cultivated or not.

(3)No non-protected tenant shall be registered

as an occupant of any land under sub-section (1)

unless he pays to the Government as premium an

amount equal to sixty-times the land revenue for

dry and twenty times for wet land. The amount of

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premium shall be payable in not more than ten

annual instalments along with the annual land

revenue and in default of such payment, shall be

recoverable as an arrears of land revenue due on

the land in respect of which it is payable.

Sec.10:Enquiry by Collector in certain cases:

The Collector shall examine the nature and history

of all lands in respect of which an inamdar, Kabiz-

e-kadim, permanent tenant, protected tenant or

non-protected tenant, claims to be registered as an

occupant under Sections 4, 5, 6, 7 and 8 as the

case may be, and decide-

(a)in whose favour, and in respect of

which inam lands, the claims should

be allowed;

(b)the land revenue and the premium

payable in respect of such lands.

Sec.24 :Appeals from orders under Section 10

to prescribed authority:- (1) Any person aggrieved

by a decision of the Collector under Section 10

may, within 30 days from the date of decision, or

such further time as the prescribed authority may

for sufficient cause allow, appeal to the prescribed

authority and its decision shall be final.

(2)If any question arises whether any building

or land fails within the scope of Section 9 the

same shall be referred to the prescribed authority

whose decision shall be final.

Sec. 29. Savings:- Save as otherwise provided in

this Act, no order passed by the Collector or by

Special Tribunal under this Act shall be liable to

be cancelled or modified except by the High Court

as aforesaid or be questioned in any Court of law.”

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9.In terms of Section 3 of the Act all inam lands vest in the State of

Andhra Pradesh with effect from 20

th

July, 1955. Occupancy right as

contemplated under Section 8 of the Act, however, was to be granted with

effect from 1

st

November, 1973. No doubt, grant of such occupancy right is

hedged with conditions as mentioned in Section 8 read with Section 10 of

the Act; personal cultivation and possession inter alia being the relevant

condition for grant of such right.

10.What would be the meaning of the ‘personal cultivation’ and

‘possession’ is the question. The properties were in possession of S.

Ramachandra Reddy despite the vesting of the land. Upon his death the

parties hereto inherited his right title and interest in the properties.

Respondent No.1 being the only male member, assuming he had been

cultivating the said land, must be held to have been doing so for and on

behalf of the members of the joint family. There were 14 items of joint

family properties. They were living in a house. There is no dispute in

regard to item Nos. 7 to 14. Item Nos. 1 to 6 of the Schedule of the Plaint

only were the subject matter of the said Act.

11.The said Act did not intend to deprive a co-sharer of his right to

which he or she was otherwise entitled to. The word ‘person’ cannot be

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given a limited meaning. It may be a body of persons or association of

person. When an occupancy right is granted in the name of the Manager of

the joint family it would enure for the benefit of the entire family. The

lands vested in the State. But as soon as the occupancy right is granted, in

the event it is held that the same inured to the benefit of the entire family, it

becomes partible. Occupancy right in favour of the first respondent has

been granted on 24

th

October, 1978. In terms of Section 8 of the Act the

same would be deemed to have been granted on or from 20

th

July, 1955.

The provisions, therefore, are required to be assigned proper and effective

meaning.

12.This aspect of the matter has been considered in Bhubaneshwar

Prasad Narain Singh v. Sidheswar Mukherjee, [ (1971) 1 SCC 556 ]

wherein it was held

“9. In our view the above decision is no authority

for this broad proposition. In that case the

appellants who were mortgagees of an estate

including Bakasht lands and other lands filed a

suit on their mortgage and tried to follow up the

preliminary decree which was obtained before the

Act came into force by a petition for passing a

final decree. One of the questions before this

Court was whether the mortgage decree had

become unexecutable in view of the provisions of

the Act. It was held that the net effect of Sections

3, 4 and 6 was that although on the vesting of the

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lands in the State a settlement was deemed to be

effected with the person in Khas possession in

law, there were two different transactions and the

deemed settlement was in effect a separate

transaction creating new rights. The Court came to

the conclusion that the only remedy open to the

decree-holders was that provided in Chapter IV of

the Act i.e. a claim under Section 14 before the

Claims Officer for determining the amount of debt

legally and justly payable to each creditor in

respect of his claim.

10. The Court was there dealing with the rights of

the mortgage creditors after the Act had come into

force. Chapter IV of the Act made special

provisions for dealing with the rights of secured

creditors and Section 4(1)(d) expressly provided

for the abatement of all suits and proceedings for

the recovery of any money through proceedings

which might be pending on the date of vesting

arising out of securities created by mortgage or a

charge on an estate or tenure. Here, however, we

are not dealing with the claims of mortgagees

under Chapter IV. In this case we have to consider

whether the appellants had laid a claim which a

co-sharer could not put forward except by

pleading ouster or any other independent ground.

Even if they were in actual Khas possession within

the meaning of Section 2(k) of the Act it must be

held that the plaintiff who was a co-sharer was in

constructive possession through the appellants as

“under the law possession of one co-sharer is

possession of all the co-sharers”. We see no reason

to hold that the observations of this Court to the

above effect in P.L. Reddy v. L.L. Reddy are not

applicable to the case before us. The appellants do

not claim to be trespassers on the property: neither

did they claim any title to the lands adversely to

the plaintiff-respondent. The deeming provision of

Section 6 must therefore ensure for the benefit of

all who in the eye of law would be regarded as in

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actual possession. It follows that the plaintiff had

not lost his share in the Bakasht lands and had a

right to them though not as tenure-holder or

proprietor but certainly as a Raiyat under the

provisions of the Land Reforms Act. The appeal

must therefore be dismissed with costs.”

13.We will assume that the Act is a complete Code but its operation must

be limited to the purpose for which it was enacted. It is a well settled

principle of law that a provision in the statute ousting jurisdiction of the

Court must receive strict construction.

14.The question, therefore, which arises for consideration is as to

whether the civil court’s jurisdiction is completely ousted.

15.In Lokhraj (supra) this Court referred to Bhubaneshwar Prasad Narain

Singh (supra). The judgment of this Court in Bhubaneshwar Prasad Narain

Singh (supra) was, with respect, not correctly read in Lokhraj (supra).

Paragraph 4 of the said decision reads, thus:-

“4. Consequent to the abolition, the pre-existing right,

title and interest of the inamdar or any person having

occupation of the inam lands stood divested and vested

the same in the State until re-grant is made. The inamdar,

thereby lost the pre-existing right, title and interest in the

land. The right to partition itself also has been lost by the

statutory operation unless re-grant is made. We are not

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concerned with the consequences that would ensue after

re-grant of this appeal. Therefore, it is not necessary for

us to go into the question that may arise after the re-

grant.”

16.The said decision, therefore, is not an authority for the proposition

that only the person in whose name occupancy right is granted became the

sole beneficiary thereof. Furthermore Bhubaneshwar Prasad Narain Singh

(supra) was, in our opinion, again with respect, had not been correctly

applied. The Act contemplates resolution of dispute between the Inamdar

on the one hand and his lessees and assignees on the other. It does not take

into consideration the dispute, if any, inter se amongst the members of the

joint family, particularly when as on the date of grant of occupancy right

there did not exist any such dispute. The Act contemplates grant of decree

for partition. It does not contemplate a case where occupancy right is taken

in the name of a person as representing the entire joint family property.

Application of doctrine of trust is not contemplated in the said provision.

Section 8 of the Act must, therefore, be considered having regard to the

provisions contained therein. The Act contemplates registration of

permanent tenants, protected tenants and non-protected tenants. There are,

thus, different types of tenants. Section 10 merely creates a forum for

determination of the entitlement under Sections 4 to 8 of the Act. It does

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not create a forum for determination of the rights inter se between the

parties claiming under the same title.

Useful reference in this connection may be made to Shaik Sharfuddin

alias Bukka Sharfuddin vs. Joint Collector, R.R. District & ors 2003 (5) A.

L.T. 108.

Right of inheritance and succession is a statutory right. A right in a

property which is vested in terms of the provisions of the Hindu Succession

Act cannot be taken away, except in terms of provisions of another statute,

which would have an overriding effect.

Such special statute should be a complete code. It shall ordinarily be

a later statute. Ordinarily again it must contain a non-obstante clause.

Law of Primogeniture is no longer applicable in India. Such a

provision may be held to be unconstitutional being hit by Article 14 of the

Constitution.

See Bhe and others v. Magistrate, Khayelistha and others [18 BHRC

52]

17.Where the civil court’s jurisdiction is barred expressly it must mean

that the same would be confined to the matters covered thereby or

connected therewith. The right or the claim must be necessarily required to

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be dealt with by the authorities under the Act. The grievance/adjudicatory

forum provided therein must be competent to resolve the dispute. The right

of property is a human right. The Act contemplates divesting of right of an

Inamdar. It does not contemplate cessation of a right of a co-sharer or

recognition of a right in favour of other co-sharer. The right has to be

determined having regard to the possession by way of personal cultivation.

The word ‘possession’ in such cases should be given a broader connotation.

Possession of one sharer would be deemed to be the possession of others.

It is a legal concept. This legal concept cannot be held to have been done

away with under the Act. If a right of property is a human right as also a

constitutional right, the same cannot be taken away except in accordance

with law. Article 300 A of the Constitution protects such right. The

provisions of the Act seeking to divest such right, keeping in view of the

provisions of Article 300 A of the Constitution of India, must be strictly

construed. (See - Hindustan Petroleum Corpn. Ltd. v. Darius Shapur

Chenai, [ (2005) 7 SCC 627 ].

18.The principle laid down in the said decision, having regard to concept

of Article 300 A of the Constitution of India may be held to have some

application in a case of this nature. In terms of Hindu Succession Act, 1956

the right of succession is determined by reason of the provisions thereof. It

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came into force with effect from 17

th

June, 1956. By reason of a legal fiction

created under the Act, the occupancy right is granted with effect from 20

th

July, 1955. S. Ramachandra Reddy was alive then. What would be his

status on that date would be relevant. The legal fiction as is well known

must be given its full effect.

19.We are, therefore, of the opinion that the decision of this Court in

Lokhraj (supra) had not been correctly rendered. The matter, therefore,

requires consideration by a larger Bench. It is directed accordingly. Let the

records of the case be placed before the Hon’ble the Chief Justice of India,

………………………….J.

[S.B. Sinha]

..…………………………J.

[Lokeshwar Singh Panta]

New Delhi;

May 16, 2008

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