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2009 DIGILAW 645 (AP)

Tella Koteswara Rao v. Land Acquisition Officer

2009-09-14

A.GOPAL REDDY, B.CHANDRA KUMAR

body2009
Judgment :- A. GOPAL REDDY, J. This appeal under Section 54 of the Land Acquisition Act, 1894 (for shot “the Act”) is directed against the judgment and decree dated 11-10-2001 passed by the Senior Civil Judge, Bapatla in L.A.O.P.No. 5 of 1999 answering the reference under Section 31(C) of the Act holding that the claimants 1 to 5 together are entitled to half share and claimants 6 and 7 together entitled to the remaining half share in the compensation of the acquired lands. The fact in nutshell are as under: An extent of Ac. 5.83 cts. of land in Sy.No.49-3A of Palaparru village in Pedanandipadu Mandal was acquired for improvement of Vogero drain by publishing the substance of the notification under Section 4(1) of the Act in A.P. Gazette dated 20-02-1988. In view of dispute among the heirs of Peda Subbamma, owner of the land, the LAO referred the matter to the Civil Court under Section 30 of the Act to decide the entitlement of amount of compensation awarded. On reference being made to the civil Court, the appellants/claimants 1 to 5 filed claim statements stating that originally the land belongs to Peda Subbamma; on her death the property was devolved upon her daughter, Tella Venkayamma, who had two sons, namely, Koteswara Rao and Kasuri Narayana. Koteswara Rao is the 1st claimant and claimants 2 to 5 are his sons. Kasuri Narayana and his son, Venkaiah are claimants 6 and 7. In the partition, claimants 1 to 5 are entitled to Ac.13.20 cts., whereas claimants 6 and 7 are entitled to an extent of Ac. 4.25 cts. Out of 17.45 cts. Owned by Tella Venkayamma. Out of Ac.4.25 cts., the 6th claimant is entitled to Ac. 1.35 cts. and his son –7th Claimant is entitled to Ac.2.9. cts. In Sy.No.49/3 of Palaparru. Pattadar passbooks to the said extent were also issued in favour of 7th claimant, who availed loan from Cooperative Society of Pedanandipadu on giving security of Ac.2.90 cts. fell to his share. In the oral partition between the claimants 1 to 5 interse, the 1st claimant was allotted Ac.6.00 cts., Claimants, 2 to 5 were allotted Ac. 1.18 cts. Out of Ac.13.20 cts. After the oral partition, partition list was prepared on 15-01-1981, which was attested by 6th claimant, admitting title and possession of the Claimants 1 to 5 in the respect of the properties covered by partition. 1.18 cts. Out of Ac.13.20 cts. After the oral partition, partition list was prepared on 15-01-1981, which was attested by 6th claimant, admitting title and possession of the Claimants 1 to 5 in the respect of the properties covered by partition. Ever since the date of partition, the claimants are in possession and enjoyment of the properties. Pattadar pass books were also issued in their favour showing in respect of shares fallen to their share. The acquired property is the absolute property of claimants 2 to 5 and they are entitled to 1/4th share in the total compensation of Rs.4,97,047/-which is deposited to the credit of O.P. The 1st claimant has no objection for payment of the amount to the claimants 2 to 5. Alternatively, it was pleaded that Tella Venkayamma executed a registered will deed on 21-04-1982 while she was in sound and disposing statement of mind bequeathing an extent of Ac.13.20 cts. In Sy.No.49/3 to the 1st claimant and Ac.4.25cts. in the same survey number to the 6th claimant, who has figured as attester and identifying witness in the said will. On the death of Venkayamma on 31-12-1999 the compensation has to be paid to the claimants 2 to 5. Claimants 6 and 7 filed a separate claim statement alleging that the acquired land and along with other land in Sy.No.49/3 belongs to Tella Venkayamma, who is the mother of claimants 1 and 6. As per her direction, her sons divided the entire land into equal shares and each of them is in separate possessions and enjoyment of their respective shares. Since the entire land in Sy.No.49/3 belongs to Venkayamma, possession of land by their sons has to be considered as permissive. Therefore, with the consent of Venkayamma, her sons are entitled to half share each in the land acquired and the compensation deposited to the credit of O.P. The partition pleaded by claimants 1 to 5 is not true and Pattadar passbooks and title deeds are obtained by fraud. When Venkayamma was alive how the revenue authorities issued Pattadar Passbooks and title deeds to the claimants 1 to 5 is not known. Therefore, claimants 6 and 7 together are entitled to half of the compensation. To prove their right to receive the compensation, C.Ws.1 to 3 were examined on behalf of claimants 1 to 5 and Exs.A1 to A20 were marked. Therefore, claimants 6 and 7 together are entitled to half of the compensation. To prove their right to receive the compensation, C.Ws.1 to 3 were examined on behalf of claimants 1 to 5 and Exs.A1 to A20 were marked. On behalf of claimants 6 and 7, C.Ws.4 and 5 were examined but no documents were got marked. The lower Court after evaluating the oral and documentary evidence that alleged partition deed dated 15-01-1981 is not produced into the court; the 7th Claimant, who examined as C.W.4, disputed execution of any such document and the alleged partition between claimants 1 and 6 and subsequent partition between claimants 1 to 5 is illegal and not biding upon Venkayamma, who is not a party to the said partition. Once Tella Venkayamma is the owner of property till her death, Pattedar passbooks and title deeds issued by the revenue authorities will not confer any right to the claimants 1 to 5 and answered point Nos.1 and 2, namely, whether partition pleaded by claimants 1 to 5 and 6 &7 is proved, against them. Since the claimants 1 to 5 are claiming property under a registered will dated 21-04-1982 executed by late Venkayamma under Ex.A17, who died on 31-12-1999; whereas the notification was issued on 20-02-1998; award was passed on 23-11-1998, so the bequest made under Ex.A17 became ineffective due to acquisition of land by the Government during the life time of Testator. In the Law Wills by C.R. Rao of 1996 edition published by Pullani and Pulian, Bangalore at page 312, this subject is dealt with. The following examples is given in that page which reads as follows. “A testator bequeathed a piece of what is known as revenue land to ‘A’ before his death, the land was acquired by the Government which paid him compensation. ‘A’ would not get bequest”. Since Venkayamma is entitled to receive the entire compensation of the acquired land, but no claim was put forth by her claming compensation, the claimants 1 to 5 are entitled to half share in the compensation whereas the claimants 6 and 7 together are entitled to remaining share in the compensation. Aggrieved by the same present appeal has been filed by the appellants-claimants 1 to 5. The only contention urged by Mr. Aggrieved by the same present appeal has been filed by the appellants-claimants 1 to 5. The only contention urged by Mr. M.S. Ramachandra Rao, learned counsel for the appellants/claimants 1 to 5 is that once Ex.A17-registered will has been proved in the manner prescribed, where Venkayamma bequeathed Ac.13.20 cts. In Sy.No.49/3 to claimant No.1 and Ac.4.25 cts. To claimant No.6, who is an attesting witness, the plea of claimants 6 and 7 that Ex.A17 was subsequently revoked has not been established . the legacy will not be adeemed under section 152 of the Indian succession Act, 1925 (for short “succession Act”), since the property was substituted by converting into money component by operation of law between the date of will and testator’s death the legacy is not adeemed by reason of such change in view of section 163 of succession Act. Therefore, the claimants 1 to 5 are entitled to receive the compensation. In support of such submission, reliance is placed on the judgment reported in D.N. Awasthi v. Board of Revenue. 1969 A.L.J.741. Per contra, Sri Ravi Sankar Jandhyala, learned counsel for the claimants 6 and 7, contended that once the landed property is converted into kind on determination of compensation the legacy is adeemed under Section 152 of Succession Act. Once the deceased –Venkayamma is entitled to receive the compensation during her lifetime on passing award, on her death, the claimants 1 to 5 and 6 & 7 are entitled to receive the compensation half share each. In view of rival submissions, the only point that arises for consideration in this appeal is: “On acquisition of the immovable property bequeathed during the life time of testator and on passing the award under the Land Acquisition Act, 1894 the legacy is adeemed or not”. Before we answering the submissions made by the counsel, it is useful to refer the statutory provisions of Sections 90, 152, 163 and 214 of Succession Act. Section 90 of the Succession Act reads thus: 90. Words describing subject refer to property answering description at testator’s death – The description contained in Will of property, the subject of gift, shall, unless a contrary intention appears by the Will, be deemed to refer to and comprise the property answering that description at the death of the testator. Section 152 of the Succession Act provides for ademption of legacies. Section 152 of the Succession Act provides for ademption of legacies. It reads thus: 152 Ademption explained – If anything which has been specifically bequeathed does not belong to the testator at the time of his death, or has been converted into property of a different kind, the legacy is adeemed; that is, it cannot take effect, by reason of the subject matter having been withdrawn from the operation of the Will. Illustrations (i) A bequeaths to B. “the diamond ring presented to me by C”; “my gold chain”; “a certain bale of wool”; “a certain piece of cloth”; “all my household goods which shall be in or about my dwelling-house in M. Street in Calcutta, at the time of my death. “A in his lifetime. Sells or gives away the ring; converts the chain into a cup; converts the wool into cloth; makes the cloth into a garment; takes another house into which he removes all his goods. Each of these legacies is adeemed. (ii) A bequeaths to B. “the sum of 1, 000 rupees, in a certain chest”; “all the horses in my stable”. At the death of A, no money is found in the chest, and no horses in the stable. The legacies are adeemed. (iii) A bequeaths to B certain bales of goods. A takes the goods with him on a voyage. The ship and goods are lost at sea, and A is drowned. The legacy is adeemed. Section 163 of the Succession Act reads thus: 163. Change by operation of law of subject of specific bequest between date of Will and testator’s death – Where a thing specifically bequeathed undergoes a change between the date of the Will and the testator’s death, and the change take place by operation of law, or in the course of execution of the provisions of any legal instrument under which the thing bequeathed was held, the legacy is not adeemed by reason of such change. Illustrations (i) A bequeaths to B “all the money which I have in the 5-1/2 per cent loan of the Central Government”. Illustrations (i) A bequeaths to B “all the money which I have in the 5-1/2 per cent loan of the Central Government”. The securities for the 5-1/2 per cent loan are converted during A’s lifetime into 5 per cent stock; (ii) A bequeaths to B the sums of 2,000 invested in Consols in the names of trustees for A. The sum of 2,000 is transferred trustees into A’s own name; (iii) A bequeaths to B the sum of 10, 000 rupees in promissiory notes of the Central Government which he has power under his marriage settlement to dispose of by will. Afterwards, in A’s lifetime, the fund is converted into consols by virtue of an authority contained in the settlement. No one of these legacies has been adeemed. We have noticed from the illustrations referred to in both the sections refer to movable assets but not with regard to immovable property. Clause (2) of Section 214 of the Succession Act deals with the word ‘debt’. It reads thus: 214. Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons- (1) No Court shall (1) xxxxxxxxxxxxx (2) The word “debt” in sub-section (1) includes any debt except rent, revenue of profits payable in respect of land used for agricultural purposes. In D.N. Awasthi’s case (1 supra) the father of the appellant and respondent 5 and 6 executed a Will in respect of certain Bhumidhari holdings by giving specific plots to appellant and respondents 5 and 6 therein during the life time of testator under the provisions of U.P. Consolidation of Holdings Act the testator was allotted Chaks consisting of plots other than those he held and in respect of which he had executed the Will. On the death of testator the properties were mutated in the name of his three sons. Later respondents No.6 filed a suit for partition claiming 1/3rd share. The stand of the appellant that he is entitled to a share in accordance with the Will and not only to 1/3rd share was rejected by the Assistant Collector. The first appeal to the Additional Commissioner and second appeal to the Board of Revenue were dismissed. Later respondents No.6 filed a suit for partition claiming 1/3rd share. The stand of the appellant that he is entitled to a share in accordance with the Will and not only to 1/3rd share was rejected by the Assistant Collector. The first appeal to the Additional Commissioner and second appeal to the Board of Revenue were dismissed. On filing a writ petition the same was rejected by the learned single Judge and on appeal the Division Bench held Section 152 provides for the legacy to be adeemed under two circumstances mentioned therein (1) when the property specifically bequeathed does not belong to the testator at the time of his death, and (2) when it has been converted into property of a different kind. As against that Section 163 provides that where a thing specifically bequeathed undergoes a change between the date of the will and the testator’s death, and the change takes place by operation of law, the legacy is not adeemed by reason of such change. It is a case where in place of the property specifically bequeathed some other property came to be substituted of equal valuation in the life time of the testator, with the result that when he died what belong to him was not the property which he had specifically bequeathed but the property which came to be substituted for it by operation of law, that is, by virtue of the provisions of the U.P. Consolidation of Holdings Act. At any rate it is not a case of conversion into property of a different kind. Moreover, the change having been brought by operation of law necessarily attracts Section 163. That being so, the case appears to be fully covered by the language of Section 163 and as such Section 152 can have no application to it. While agreeing the view taken by the learned single Judge the Division Bench concluded that Section 163 applies to the facts of the case and allowed the appeal. The fact cited in the above judgment have no application to the facts of the present case, since immovable property was converted into the form of money during the lifetime of testator. While agreeing the view taken by the learned single Judge the Division Bench concluded that Section 163 applies to the facts of the case and allowed the appeal. The fact cited in the above judgment have no application to the facts of the present case, since immovable property was converted into the form of money during the lifetime of testator. We must place on record that the learned counsel for the respondent except stating that claimants 6 and 7 are entitled to receive compensation has not brought to our notice any judgment in support of the same nor assisted properly as expected. In the process, we have to make a research of our own in view of the intricacy of the matter. In B.Sreeramulu V. B. Pushpavatamma 1967 (2) An.W.R. 83 the plaintiff filed a suit for declaration of his title to the building shown in the plaint plan and the site appertaining thereto and for recovery of exclusive of rooms shown as X and Y in the said house after evicting the defendants contending that the sites on which the building was constructed were purchased by himself and his grandmother under sale deeds. Thereafter, the house was constructed on the said site. His paternal grandmother executed a registered Will bequeathing all her properties to the plaintiff and later the testator and the plaintiff pooled their resources and jointly constructed a terraced building. On the death of testator her entire estate devolved on him. Both the courts below decreed the suit. On further appeal, Justice Chandrasehara Sastry held on a plain reading of the Will, I hold that Mr. Narayana Rao is right in his contention that what was bequeathed was only the property specifically described in the schedule and nothing more and that Mahalakshmamma’s share in the house, which was admittedly constructed long after the execution of the Will, was not bequeathed, and after referring Section 90 of the Indian Succession Act it was held language of the Will is quite clear and what was bequeathed was only the items specifically mentioned in the schedule to the Will. There is no clause in the Will bequeathing the residue of the estate to the plaintiff such as “and all other moveable and immoveable property” on the language of the Will, I am unable to hold that testator’s interest in the house also passed to the plaintiff. There is no clause in the Will bequeathing the residue of the estate to the plaintiff such as “and all other moveable and immoveable property” on the language of the Will, I am unable to hold that testator’s interest in the house also passed to the plaintiff. In my view, that interest passed to her son, the 1st defendant, under the Hindu law of inheritance, as it is not suggested in the Courts below that there is any other heir to Mahalakshmamma’s estate. After referring Section 152 of the Indian Succession Act it was further held that the site, which was bequeathed under the original of Exhibit-15, has been converted into property of a different kind (a terraced building) within the meaning of Section 152 of the Indian Succession Act and there is no vacant site as such. Therefore, the legacy is adeemed i.e., it cannot take effect by reason of the subject-matter having been withdrawn from the operation of the will. In Chaman Lal vs. Kundan Lal AIR 1979 DELHI 240 the question before the Delhi High Court was whether the property left by Shrimati Sham Piari in Delhi was held by her under a life estate and whether the property was to be divided amongst the plaintiffs, who are the grand-sons of her husband through his first wife, get a half share and the defendant, who is the son of Sham Piari, gets the other half share, or whether, the property was to go the defendant alone. As per the admitted facts her husband, father of defendant and grand-father of the plaintiffs, Seth Boota Mal Kapur has given her the life estate and then directed how the reversion was to deal with. The parties are residents at Hoti Mardan in the North Western Frontier Province, (now in Pakistan). As per the will deed executed by her husband, Sham Piari will have a life estate and after her death property was to go in equal shares to Shri Kundan Lal Kapur, her son, on the one hand and to his grand-sons through his first wife on the other. Seth Boota Mal was alive even at the time of partition and he came to India but died before the claims were verified under the Claims Act of 1950. Seth Boota Mal was alive even at the time of partition and he came to India but died before the claims were verified under the Claims Act of 1950. As a result of those verified claims, Shrimati Sham Piari was able to get compensation under the terms of the Displaced Persons (Compensation and Rehabilitation) Act. The actual compensation that Shrimati Sham Piari got was cash compensation amounting to Rs. 8,000.00 and for the balance, she utilized the claim to purchase properties at New Delhi and even after that, there was some compensation left which was used by Shri Kudan Lal to get flat at Delhi. In the suit filed by the grand sons it is claimed that there still remained other compensation which was used by the defendant to purchase some other property of which the details are not known. It was contended that life estate holder purchased properties and also got Rs. 8,000.00 compensation and on her death, the question is whether the property is to be treated as being the same property that was left under the Will are whether the property is to pass as the absolute and complete estate of the lady and, therefore, has to go to her own heirs and not in accordance with the terms of the Will. The learned single Judge held the restrictions in the Will only state that Shrimati Sham Piari cannot sell the property which has been left to her during her lifetime. She is a limited owner. But suppose she is made to sell it under a statutory power, for instance, if the property in Mardan had been acquired and compensation had been given to Shrimati Sham Piari, then there would be no limitation on her regarding the utilization of the money. Even in the case of compensation received in India as a refugee under the rehabilitation schemes promulgated by Government for the purpose of resettling refugees, she gets the compensation without any restriction at all. There is no legal ficition available by which the compensation amount can be treated as being the same as the land, property or houses in Mardan. The result would be that Smt. Sham Piari could utilize the compensation amount in whatever way she liked. There is no legal ficition available by which the compensation amount can be treated as being the same as the land, property or houses in Mardan. The result would be that Smt. Sham Piari could utilize the compensation amount in whatever way she liked. It is too much to say that this compensation money has to be preserved forever in whatever form it goes and treated as if it is property in Mardan. After referring the doctrine of ademption and its operation as described in ‘Halsbury’s Laws of England, Third Edn., Vol. 39, Art. 1412 at P. 934 by quoting the paragraph: “1412. Methods of ademption. A testamentary gift may be adeemed or taker away from the donee in several ways (1) by a subsequent disposition by the testator of the subject-matter of the gift (2) by a change in the ownership or nature of the property; and (3) by the presumption that the testator does not intend to provide double portions for his children or other persons to whom he stands in loco parentis. If, however, in a will there are gifts of two properties settled in trust, one by reference to the trusts of the other (for example where heirlooms are settled to follows the trusts of realty), the subsequent alteration of the trusts of one property by a deed executed by the testator in his lifetime will not affect earlier testamentary limitations relating to the other property. Apart from the presumption as to double portions, there can be no ademtpion of a residuary gift.” It was held that in the absence of any direction in the Will that any compensation received in respect of that property will go to the persons who would otherwise have got the property in Mardan. This means that the gifts has been adeemed because it cannot be given effect to. In a sense this is unfortunate because if this situation had at all been in the mind of the testator, he could have made a direction regarding the same. As it happened, the testator died in India after partition and he could have a made a codicil to the Will or made a new Will regarding the compensation. He could have altered the old Will to cover the amount of compensation. But he never made any new Will. The Court cannot alter the Will, it must be read strictly as it is. He could have altered the old Will to cover the amount of compensation. But he never made any new Will. The Court cannot alter the Will, it must be read strictly as it is. In the strictest sense the Will gave the plaintiffs the right to get a half share in the property which is now in Mardan. The Will is silent regarding the compensation and it cannot be made operative qua the compensation. A Division Bench of this court in Ali Mohd. V. SPL.DY. Collector, L.A. Industries AIR 1974 AP 18 held as under: “…..The liability to pay compensation under the Land Acquisition Act arises the moment the land is acquired. It is in respect of that liability that an award is made determining the sum of money payable towards compensation. It is thus a liability or debt to be paid on ascertainment of the money equivalent for the property acquired under the provisions of the Act. Since that liability to pay compensation in money is there even before the decree or award of the Court, it falls within the ambit of sub-section (1) (b) of S. 214…….The amount payable under the Land Acquisition Act is not a future contingent liability nor an inchoate liability in its embryo stage. The money payable under the Land Acquisition Act is an ascertainable sum. It is, therefore, is liquidated money obligation for the recovery of which an action will lie”. In State Bank of India V. V.S. Ramachandra Rao AIR 1964 AP 378 it was held that the amount left by the deceased is without doubt a ‘debt’ due from the Bank to the heirs and if the Bank has no notice as to whether the finds are joint family funds, there is no duty upon it to make any investigation or enquiry into the nature of the funds and it can only treat the claimants as persons claiming successions and demand the production of a succession certificate. In Daya Narain v. Suresh Kumar Gupta 1998 (2) Arb.L.R. 478 the order passed by the Additional District Judge for bringing the legal representative of the deceased in proceedings under Sections 14 and 17 of the Arbitration Act subject to production of Succession certification with respect to claim was justified or not was in issue. In Daya Narain v. Suresh Kumar Gupta 1998 (2) Arb.L.R. 478 the order passed by the Additional District Judge for bringing the legal representative of the deceased in proceedings under Sections 14 and 17 of the Arbitration Act subject to production of Succession certification with respect to claim was justified or not was in issue. The Delhi High Court held that ‘debt’ is a sum of money due by certain and express agreement, a specific sum of money owing to one person from another, indicating not only obligation or debtor to pay but right of creditor receive and enforce payment. Holding so confirmed the order passed by the Additional District Judge. In the light of the above referred judgments the inescapable conclusion that emerges is it is always open for the testator to utilize the compensation during her life time and there is no reflected right for her to utilize the compensation for acquiring other property either moveable or immoveable. Once the property is not same as was left under the Will it can by no stretch of imagination be treated as property covered by Will to receive the same on the death of the testator unless the testator alters the Will during her life time to cover the amount of compensation in favour of the legatees under the Will by making another Will it must be held the Court cannot alter the Will and must be read strictly as it is. Once the Will is silent with regard to receipt of compensation it cannot be operative qua the compensation. On conversion of immoveable property into form of money during the life time of testator the legacy is deemed to have been adeemed on such ademption and succession opens and all the heirs will have a right to receive the compensation as per the provisions of Hindu Succession Act. On reference being made to the civil Court under Section 30 of the Act, all the heirs can participate in the trial and claim compensation. In view of the same, the impugned order passed by the lower court answering the reference that the claimants 1 to 5 together are entitled to half share and claimants 6 and 7 together are entitled to the remaining half share in the compensation for the acquired land deposited to the credit of O.P. is in accordance with law. In view of the same, the impugned order passed by the lower court answering the reference that the claimants 1 to 5 together are entitled to half share and claimants 6 and 7 together are entitled to the remaining half share in the compensation for the acquired land deposited to the credit of O.P. is in accordance with law. The appeal is accordingly dismissed with no order as to costs.