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AndhraPradesh

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rail way accident claim =Respondents/applicants are the wife, son and three daughters of the deceased. On 13.08.2001, when the deceased was travelling by train No.7405 Krishna Express from Chirala to Vijayawada, while standing near the door on account of heavy crowd, due to the jerks of the train, he slipped, fell down and died. The ticket was missing in that incident.

                            IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD                         PRESENT                         THE HON‘BLE SRI JUSTICE K.C.BHANU C.M.A.No.363 of 2010.            Date:23.08.2011   Between:- The Union of India, represented by its General Manager, South Central Railway, Secunderabad.       ..Appellant/Respondent And P.Lakshmi Sarojini and others      .. Respondents/Applicants JUDGMENT:- … Continue reading

senior civil judge courts of A.P. has got jurisdiction to entertain the cases under Indian succession act=This Court in R.O.C.No.40/So/72.2 – under the provision of Section 19 (1) of the Andhra Pradesh Civil Courts Act, 1972 (Act 19 of 1972) and in super cession of the previous Notification on the subject, authorized all Subordinate Judges (including the Additional Judges in the City Civil Courts) to take cognizance of any proceedings under the Indian Succession Act, 1925, (Act 39 of 1925) which cannot be disposed of by the District Delegates. 3. Therefore, in view of the above proceedings, this Court authorized all the Subordinate Judges to take cognizance of the proceedings under Indian Succession Act. Hence, the impugned order is not in accordance with law and the same is liable to be set aside.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH  AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.46 OF 2010 Between:   Ambadipudi Nagaratnamma ….. APPELLANT AND To whom so ever it may concern ….RESPONDENT     The Court … Continue reading

service matter= correction of date of birth in service register =1984 Rules were amended subsequently. By G.O. Ms. No. 383, Fin. & Plg., dated November 16, 1993, Rule 2-A was

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION   CIVIL APPEAL No. 6964 OF 2004 HIGH COURT OF A.P. … APPELLANT(s) Versus N. SANYASI RAO . RESPONDENT(s)   J U D G M E N T R.M. LODHA, J. The High Court of Andhra Pradesh, on the administrative side, through its Registrar … Continue reading

Indian Succession Act, 1925 – Will – Execution of – Testator bequeathing property in absolute terms in favour of her daughters – Latter part of bequest purporting to vest the same property in their female offspring – Interpretation of – Held: It is clear from the Will that testatrix had made an unequivocal and absolute bequest in favour of her daughters – By the latter part all such property as remained available in the hands of the legatees at the time of demise, were to devolve upon their female offspring – Latter part is redundant since it was repugnant to the clear intention of testatrix in making an absolute bequest in favour of her daughters – Stipulation made in the second part did not in the least affect the legatees being the absolute owners of the property bequeathed to them – Upon their demise the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by testatrix – Will. The original owner bequeathed certain properties in favour of her daughters `SA’ and `SR’. It was stipulated that after death of `SA’ and `SR’ the properties would devolve upon their female offsprings. `SA’ died intestate. The appellants, sons of `SA’, took possession of the property bequeathed in favour of `SA’. The respondents-daughter of `SA’ and others filed a suit for declaration of title over the suit property and for recovery of possession in view of the stipulation contained in the Will. The trial court dismissed the suit. The High Court set aside the order passed by the trial court and decreed the suit. Therefore, the appellants filed the instant appeal. =Allowing the appeal, the Court HELD:1.1 It is evident from a careful reading of Sections 84, 85, 86 and 87 of the Indian Succession Act, 1925 that while interpreting a Will, the courts would as far as possible place an interpretation that would avoid any part of a testament becoming redundant. The courts would also interpret a Will to give effect to the intention of the testator as far as the same is possible. Each document has to be interpreted in the peculiar circumstances in which the same has been executed and keeping in view the language employed by the testator. That indeed is the requirement of Section 82 of the Succession Act also inasmuch it provides that meaning of any clause in a Will must be collected from the entire instrument and all parts should be construed with reference to each other. [Para 16] [821-F-H; 822-A] 1.2 It is evident from a careful reading of clause 6 of the Will that the same makes an unequivocal and absolute bequest in favour of daughters of testatrix. The use of words like “absolute rights of sale, gift, mortgage etc.” employed by the testatrix make the intention of the testatrix abundantly clear. The testatrix desired that after the demise of her daughters the property vested in them would devolve upon their female heirs only. There is no dispute that the testatrix had in no uncertain terms made an absolute bequest in favour of her daughters. The submission that the absolute estate of the `SA’ ought to be treated only as a life estate though attractive on first blush, does not stand closer scrutiny. It is said so because the ultimate purpose of interpretation of any document is to discover and give effect to the true intention of the executor, in the instant case, the testatrix. The intention of the testatrix to make an absolute bequest in favour of her daughters is unequivocal. Secondly, the expression “after demise of my daughters the retained and remaining properties shall devolve on their females children only” does not stricto sensu amount to a bequest contrary to the one made earlier in favour of the daughters of the testatrix. The expression extracted does not detract from the absolute nature of the bequest in favour of the daughters. [Paras 6 and 17] [815-A-B; 822-C-D] 1.3 All that the testatrix intended to achieve by the latter part of clause 6 was the devolution upon their female offsprings all such property as remained available in the hands of the legatees at the time of their demise. There would obviously be no devolution of any such property upon the female offsprings in terms of the said clause if the legatees decided to sell or gift the property bequeathed to them as indeed they had every right to do under the terms of the bequest. Thus, there is no real conflict between the absolute bequest which the first part of clause 6 of the Will makes and the second part of the said clause which deals with devolution of what and if at all anything that remains in the hands of the legatees. The two parts of clause 6 operate in different spheres, namely, one vesting absolute title upon the legatees with rights to sell, gift, mortgage etc. and the other regulating devolution of what may escape such sale, gift or transfer by them. The latter part is redundant by reason of the fact that the same was repugnant to the clear intention of the testatrix in making an absolute bequest in favour of her daughters. It could be redundant also because the legatees exercised their rights of absolute ownership and sale thereby leaving nothing that could fall to the lot of the next generation females or otherwise. The stipulation made in the second part of clause 6 did not in the least affect the legatees being the absolute owners of the property bequeathed to them. The corollary would be that upon their demise the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by the testatrix. [Para 17] [823-A-F] 1.4 The judgment and order passed by the High Court is set aside and that passed by the trial court restored. [Para 18] [823-G] Sasiman Chowdhurain and Ors. vs. Shib Narain Chowdhury and Ors. AIR 1922 PC 63; (Kunwar) Rameshwar Bakhsh Singh and Ors. v. (Thakurain) Balraj Kuar and Ors. AIR 1935 PC 187; Radha Sundar Dutta v. Mohd. Jahadur Rahim and Ors. 1959 SCR 1309; Ramkishore Lal v. Kamal Narain (1963) Supp 2 SCR 417; Mauleshwar Mani and Ors. v. Jagdish Prasad and Ors. (2002) 2 SCC 468; Pearey Lal v. Rameshwar Das (1963) Supp 2 SCR 834; Ramachandra Shenoy and Anr. v. Mrs. Hilda Brite and Ors. 1964 (2) SCR 722; Kaivelikkal Ambunhi (Dead) By Lrs. and Ors. v. H. Ganesh Bhandary (1995) 5 SCC 444 – referred to. Case Law Reference: AIR 1922 PC 63 Referred to. Para 4 AIR 1935 PC 187 Referred to. Para 8 1959 SCR 1309 Referred to. Para 9 (1963) Supp 2 SCR 417 Referred to. Para 10 (2002) 2 SCC 468 Referred to. Para 11 (1963) Supp 2 SCR 834 Referred to. Para 12 1964 (2) SCR 722 Referred to. Para 13 (1995) 5 SCC 444 Referred to. Para 14 CIVIL APPELLATE JURISDICITION : Civil Appeal No. 2758 of 2004. From the Judgment & Order dated 4.3.200 of the High Court of Andhra Pradesh at Hyderabad in Appeal No. 1530 of 1998. Y. Raja Gopala Rao for the Appellants. I. Venkatanarayana, A. Chandramohan, T. Anamika for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO.2758 OF 2004 Sadaram Suryanarayana & Anr. …Appellants Versus Kalla Surya Kantham & Anr. …Respondents JUDGMENT T.S. THAKUR, J. 1. This appeal by special leave is directed against an order dated 4th March, 2003 passed by the High Court of Andhra Pradesh whereby … Continue reading

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION=medical negligence = Coming finally to the assessment of the expert committee of AIIMS, we find that on the fall of the patient in the bathroom, it says— “It has been established from the record that the patient had a fall on the day 15 of the treatment, but the details of the fall, injury sustained if any, clinical condition post fall and/or CT scan are not available. There is a mention of altered sensoriumon day 16 which may be a part of Intra Cranial event (which may be a neurological manifestation) or Neutropenic shock because of infection.” 9. We have already noted the observation of the expert committee that in the absence of record of the clinical condition of the patient from 15th afternoon to 16th morning, they were not in a position to comment whether there was medical negligence or not. These observations of the expert committee of AIIMS and the records of treatment clearly show that on 15.12.2000, after deciding not to discharge the patient, respondent/NIMS has committed two serious lapses— a. While the condition of the patient warranted assessment of the effect of fall in the bathroom (whether by CT scan or any other investigation) it was not done. b. In fact there was no further investigation or treatment till the morning of the fateful day 16.12.2000. This is established by absence of record of treatment after 4 PM. Even the oral testimony of OP-3 examined above does not travel beyond 5 PM on 15.12.2000. The total gap from 5 PM on 15.12.2000 and 8 AM on 16.12.2000 has remained completely unexplained. 10. What compounds these two lapses is that the patient was running high temperature. In fact, it was serious enough for the OPs to postpone his discharge fixed for 15.12.2000. Secondly, as per their own evidence, the OPs knew that sudden deterioration in the condition of the patient was a strong possibility. Thirdly, OP-3 knew about high fever and had been telephonically informed about the fall. In our considered view, these lapses amount to deficiency of service, within the meaning of Section 2(1)(g) of the Consumer Protection Act 1986. 11. In view of the above, the appeal is partially allowed. The allegation of deficiency of service is upheld to the extent of the lapses discussed above. A lump sum compensation of Rupees three lakhs is therefore awarded, with interest at 7% from the date of the complaint. The same shall be paid to the complainants by the OPs, jointly and severally, within a period of three months. Failing this, the amount shall carry interest at 12% for the period of delay.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   FIRST APPEAL NO. 202  OF 2006 (Against the order dated 31/12/2005 in C.D. No.116 of 2001  of the State Commission, Andhra Pradesh)   Smt. N. Shree Mani W/o late Sri N. Vinayaka Rao Aged about 42 years, Indian, Occ: Accounts Officers in Telephones N. Purnima, daughter of late No. Vinayaka Rao, Aged about 21 years, Student N. Lakshmi, … Continue reading

Arbitration and Conciliation Act, 1996: s.34, Explanation – Public policy – Award induced or affected by fraud – Held: It falls within the grounds of excess of jurisdiction and lack of due process and is opposed to public policy – Concealed facts disclosed after passing of award having causative link with the facts constituting or inducing the award are relevant to demonstrate that there was fraud in making of the award – In the instant case, amendment application filed by plaintiff for bringing materials on record for seeking the setting aside of the award – Ground being that there was fraud in making of the award – In the interest of justice, plaintiff allowed to bring those materials on record as the same were not wholly irrelevant and might have bearing on the plaintiff’s prayer for setting aside the award – Administration of justice – Abuse of process of law – Fraud – Code of Civil Procedure, 1908 – O.8 r.9. Code of Civil Procedure, 1908: O.8 r.9 – Filing of amendment petition and additional pleadings – Permissibility – Held: In dealing with a prayer for amendment, courts normally prefer substance to form and techniques, and interest of justice is one of the most relevant considerations – Therefore, if a party is entitled to amend its pleadings, having regard to the justice of the case, the right of the party to amend cannot be defeated just because a wrong section or a wrong provision was quoted in the amendment petition – In the instant case, High Court erred in rejecting the plaintiff’s prayer for amendment on a hyper technical ground that a wrong provision was quoted in the amendment petition – Practice and procedure. The appellant having its principal office in USA entered into an agreement with the first respondent for establishing a company (second respondent). Dispute arose between them and the matter was referred to arbitration. An arbitration award was passed on 3rd April, 2006 whereby the appellant was required to transfer its entire shareholding in the second respondent to the first respondent. The first respondent filed a petition for enforcement of award before the U.S. District Court. On 28th April, 2006, the appellant filed a suit for declaration in the civil court to set aside the award and also prayed for a permanent injunction against the transfer of shares under the arbitral award. On 7th January, 2009, the chairman and founder of the first respondent confessed that the balance sheets of the first respondent were fraudulently inflated. As a result, the auditors of the first respondent, declared that the financial statements could no longer be considered accurate or reliable. In the light of these developments the appellant filed an interim application before the trial court to bring certain facts on record and also filed additional pleadings in respect of the same under Order 8 Rule 9, CPC. The trial court allowed the application of the appellant. The High Court allowed the revision petition filed by the first respondent and held that an application under Order 8 Rule 9, CPC for bringing additional pleadings on record was not maintainable. The judgment of High Court was challenged by filing the instant appeal. It was contended for the respondents that the grounds which were sought to be incorporated by way of amendment were not relevant and did not come within the concept of public policy as explained in the Explanation to Section 34 of the Arbitration and Conciliation Act, 1996; and that the facts which were sought to be brought on record, even if they were accepted to be true, had no bearing on the material facts on which the award was based. =Allowing the appeal, the Court HELD: 1. In dealing with a prayer for amendment, courts normally prefer substance to form and techniques, and the interest of justice is one of the most relevant considerations. Therefore, if a party is entitled to amend its pleadings, having regard to the justice of the case, the right of the party to amend cannot be defeated just because a wrong section or a wrong provision was quoted in the amendment petition. The approach of the High Court in the instant case, in rejecting the appellant’s prayer for amendment, inter alia, on the ground that a wrong provision was quoted in the amendment petition, was a very hyper technical one. [Para 22] Venture Global Engineering v. Satyam Computer Services Ltd. and another (2008) 4 SCC 190; State of Maharashtra v. M/s Hindustan Construction Company Ltd. AIR 2010 SC 1299; Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and ors. AIR 1957 SC 363; L.J. Leach and Company Ltd. and another v. Jardine Skinner and Co. AIR 1957 SC 357 – referred to. 2.1. The concept of public policy, in the realm of arbitration law, is a vexed concept, in the sense that different countries have different concepts of public policy. In view of such varying standards of public policy in different countries, an attempt is made to arrive at a somewhat acceptable standard by construing that, something is opposed to public policy where there is an excess of jurisdiction and a lack of due process. The concept of public policy in Arbitration and Conciliation Act, 1996 as given in the Explanation to Section 34 virtually adopted the international standard that, if anything is found in excess of jurisdiction and depicts a lack of due process, it will be opposed to public policy of India. When an award is induced or affected by fraud or corruption, the same will fall within the grounds of excess of jurisdiction and a lack of due process. [Paras 44, 46] Renusagar Power Co. Ltd. v. General Electric Co. AIR 1994 SC 860 – relied on. Central Inland Water Transport Corporation Ltd. and another v. Brojo Nath Ganguly and another AIR 1986 SC 1571 – referred to. Richardson v. Mellish (1824-34) All E.R. 258;; Enderby Town Football Club Ltd. v. Football Association Ltd. 1971 Chancery Division 591 – referred to. Redfern and Hunter on International Arbitration, 5th Edition – referred to. 2.2. It is well known that fraud cannot be put in a strait jacket and it has a very wide connotation in legal parlance. The expression `fraud in the making of the award’ should not be narrowly construed primarily because fraud being of `infinite variety’ may take many forms, and the expression `the making of the award’ has to be read in conjunction with whether the award `was induced or affected by fraud’. There is no substance in the argument made by the respondents that the facts which surfaced subsequent to the making of the award, and have a nexus with the facts constituting the award, are not relevant to demonstrate that there has been fraud in the making of the award. Concealed facts in the very nature of things surface subsequently. If the concealed facts, disclosed after the passing of the award, have a causative link with the facts constituting or inducing the award, such facts are relevant in a setting aside proceeding and the award may be set aside as affected or induced by fraud. The question in the instant case, was regarding the relevance of the materials which the appellant wanted to bring on record by way of amendment in its plea for setting aside the award. It is different question whether the award will be set aside or not, and that has to be decided by the appropriate court. Judged from that angle, in the interest of justice and considering the fairness of procedure, the appellant is allowed to bring those materials on record as the same are not wholly irrelevant and might have bearing on the appellant’s plea for setting aside the award. [Paras 47, 51, 52, 58- 60] Frank Reddaway and Co. Ltd. v. George Banham, 1896; Elektrim S.A. v.Vivendi Universal S.A. and Ors. (2007) EWHC 11 (Comm); Profilati Italia S.R.L. v. Painewebber Inc. and Anr. (2001) 1 Lloyd’s Law Reports 715 – referred to. Kerr on Fraud and Mistake, 7th Edition; Russell (Russell on Arbitration, 23rd Edition) – referred to. Case Law Reference: (2008) 4 SCC 190 referred to Para 11 AIR 2010 SC 1299 referred to Para 18 AIR 1957 SC 363 referred to Para 21 AIR 1957 SC 357 referred to Para 21 (1824-34) All E.R. 258 referred to Para 39 AIR 1986 SC 1571 referred to Para 40 1971 Chancery Division 591 referred to Para 40 AIR 1994 SC 860 relied on Para 41 (2007) EWHC 11 referred to Para 55 (2001) 1 LLR 715 referred to Para 56 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6519 of 2010. From the Judgment and order dated 19.02.2010 of the High Court of Judicature at Andhra Pradesh at Hyderabad in Civil Revision Petition No. 5712 of 20009. K.K. Venugopal, V.K. Misra, Rajat Taimni, Gopal and Devendra Singh for the Appellant. Harish N. Salve, K. Ramakrishna Reddi, Mohan Rao, S. Udaya Kumar Sagar, Bina Madhavan, Vivek Reddi, Anindita Pujari and Lawyer’s Knit & Co. for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO._____ OF 2010 (Arising out of SLP (Civil) No.9238 of 2010) Venture Global Engineering ..Appellant(s) Versus Satyam Computer Services Ltd. & Another ..Respondent(s) J U D G M E N T GANGULY, J. 1. Leave granted. 2. The judgment and order dated 19th … Continue reading

interim maintenance =Though a lengthy counter is filed, the appellant never stated about his actual salary received by him and no document is filed to that effect. Therefore, the Court below was of the opinion that though there was no record with regard to the rental income from the house, the appellant herein has not filed any document to prove that he is not drawing a net salary of Rs.75,000/-. Therefore, the Court below has taken into account that the appellant herein has been drawing net salary of Rs.75,000/- per month. However, the Court below granted interim maintenance @Rs.3,500/- only per month to each of the respondents, totaling Rs.10,500/- per month from the date of petition pending disposal of the main OP. Therefore, it cannot be said that the interim maintenance granted by the Court below is exorbitant and excessive. We do not see any infirmity legal or otherwise to interfere with the impugned order.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE MR JUSTICE V.ESWARAIAH & THE HON’BLE MR JUSTICE VILAS V. AFZULPURKAR F.C.A.No.145 of 2011 Between: Bathula Naga Veerabhadra Ganga Rajesh ….. APPELLANT AND Bathula Vijaya Durga Bhavani and 2 others …..RESPONDENTS The … Continue reading

Indian Partnership Act, 1932: ss.42 and 4 – Deemed dissolution of firm – Two partners – Death of one partner – LRs of deceased partner not interested in continuing the firm or in constituting a fresh firm – Effect of – Held: Since there were only two partners constituting the partnership firm, on death of one of them, there was deemed dissolution of the firm, despite existence of a clause in the partnership deed which said otherwise – A partnership is a contract between partners – There cannot be any contract unilaterally without acceptance by the other partner – LRs of the deceased partner could not be asked to continue the partnership, as there was no legal obligation upon them to do so, as partnership is not a matter of heritable status but purely one of contract, which is also clear from definition of partnership under s.4. ss.14 and 48 – Property of firm – Partnership firm, constituted for construction of a cinema theatre, consisted of two partners – While the first partner offered her land for construction of cinema theatre, the second partner constructed cinema theatre and other allied constructions by procuring funds – Deemed dissolution of the firm in view of death of the first partner – Distribution of residual property amongst the partners – Held: On facts, there was no intention from either partner to treat the land, building, structures etc. as properties of the firm – As the partnership got dissolved on death of a partner, it would be reasonable to allow both the parties to take their respective properties – First partner entitled to exclusive possession of the land while second partner entitled to take away the movables and recover the value of buildings and structure embedded to the land. Appeal – Second appeal – New plea – Question of law, based on pleadings and evidence on record, not raised before lower courts – Held: Such question of law can be permitted for the first time before the High Court. Constitution of India, 1950 – Article 136 – Powers under – Not to be exercised, until grave injustice is shown to be caused to the aggrieved party by way of the impugned order. The partnership firm in question, constituted for construction of a cinema theatre, consisted of two partners. One of the partners filed suit for dissolution of the partnership firm alleging that the other partner mismanaged the business of the firm, manipulated the account books and stopped payment of the minimum guarantee profit, as envisaged under the partnership deed, to the plaintiff-partner. In terms of the partnership deed, the plaintiff-partner offered her land for construction of the cinema theatre, while the defendant-partner constructed the cinema theatre and other allied constructions by procuring necessary funds. During pendency of the suit, the plaintiff-partner died and her legal representatives, i.e. the appellants, were brought on record. The trial court held that there was deemed dissolution of the partnership firm due to death of the plaintiff-partner, and since the appellants were not agreeable to enter into partnership with the defendant-partner, they were entitled for rendition of accounts and to be handed over the entire cinema theatre with allied structures as per the deed of partnership. Meanwhile the defendant-partner also died, and his legal representatives, i.e. the respondents were brought on record before the First Appellate Court, which confirmed the decree passed by the trial court. The respondents filed appeal before the High Court, which also held that the partnership firm stood dissolved on account of death of one of the partners, but permitted the respondents to take away the movables from the cinema theatre and recover the value of the building and structures embedded to the land. On a combined reading of the terms of the partnership deed, the High Court held that the land and the cinema were not the properties of the firm but were properties of the respective parties, and thus the appellants were entitled to exclusive possession of the land and the respondents were entitled to take away the projectors and other machineries, the furnitures and all other items, which can be safely removed from their place and that the appellants should pay the respondents the value of the remaining portions of the structures which could not be removed without any damage, after proper valuation of the same. In appeal to this Court, the questions which arose for consideration were: 1) whether the High Court erred in permitting the respondents in raising a question for the first time in second appeal, which was not in the pleadings before the Trial Court or the First Appellate Court; 2) whether the High Court erred in holding that there had been dissolution of the partnership firm on account of death of a partner and 3) whether the High Court also erred in permitting the Respondents to remove the movables from the cinema theatre. =Dismissing the appeals, the Court HELD: 1. The contention that the High Court erred in permitting the respondents to raise a new plea for the first time in the second appeal has no substance. The new plea which was allegedly raised before the High Court for the first time was that all assets of the firm including the land and building is to be dealt with under Section 48 of the Partnership Act, 1932 and the proceeds is to be disbursed to the two partners in accordance with the respective shares as per the partnership deed. The High Court had dismissed this plea. The Respondents did not appeal against the said finding of the High Court. That apart, when a question of law is raised on the basis of the pleadings and evidence on record which might not have been raised before the courts below, it is difficult to hold that such question of law cannot be permitted for the first time before the High Court. Therefore, one fails to see how the Appellants are aggrieved by this finding of the High Court even assuming the High Court had formulated a new question of law, which was not raised before the Courts below. There is thus no scope for exercise of powers by this Court under Article 136 of the Constitution. [Paras 17 and 19] [889-g-h; 890-a-c; 891-a-b] Santakumari & Ors. v. Lakshmi Amma Janaki Amma (D) By Lrs. & Ors. (2000) 7 SCC 60, relied on. Hardayal Gir v. Sohna Ram 1970 (3) SCC 635 and Chandra Singh v. State of Rajasthan (2003) 6 SCC 545, referred to. 2.1. Dissolution of a partnership firm on account of death of one of the partners is subject to the contract entered into by the parties. Though Clause 22 of the Partnership deed herein reads that “the partnership deed shall be in force for a period of 42 years certain from this date and the death of any partner shall not have the effect of dissolving the firm”, this clause clearly states that death of any partner shall not have the effect of dissolving the firm. However, in the facts and circumstances of the case, absolute effect to this clause cannot be given. [Paras 22 and 23] [892-a-d] 2.2. When there are only two partners constituting the partnership firm, on the death of one of them, the firm is deemed to be dissolved despite the existence of a clause which says otherwise. A partnership is a contract between the partners. There cannot be any contract unilaterally without the acceptance by the other partner. The appellants, the legal representatives of the deceased partner were not at all interested in continuing the firm or constitute a fresh firm and they cannot be asked to continue the partnership, as there is no legal obligation upon them to do so as partnership is not a matter of heritable status but purely one of contract, which is also clear from the definition of partnership under Section 4 of the Partnership Act, 1932. Therefore, the trial court was justified in holding that the firm dissolved by virtue of death of one of the partners and the first appellate court as well as the High Court have taken the correct view in upholding the same. [Para 26] [893-d-f] Smt. S. Parvathammal v. CIT 1987 Income Tax Reports 161, approved. 3. As to the issue related to removing the movables from the Cinema and allowing the Respondents to recover the value of the building and structures embedded to the land, from the appellants, it is true that there was no intention from either of the parties to treat these properties as the properties of the firm. A careful perusal of Clause 24 of the Partnership Deed clearly indicates that the land as well as the building with the fixtures etc., to be vested with the plaintiff-partner (since deceased), after the expiry of term of 42 years. It is also true that directing the delivery of the entire property to the appellants would cause prejudice to the rights of the Respondents and would put him to loss. As the partnership got dissolved on the death of the plaintiff-partner, it would be reasonable to allow both the parties to take their respective properties. The appellants are entitled to the exclusive possession of the land and the respondents are entitled to take away the movables from the property and recover the value of the buildings and structure embedded to the land. It has to be assessed by the technically qualified person. The appellants are liable to pay the value of the remaining structures after adjusting the amount if any due to the appellants. [Paras 27 and 41] [893- g; 897-h; 898-a-d] Arjun Kanoji Tankar v. Santaram Kanoji Tankar (1969) 3 SCC 555; Arm Group Enterprises Ltd. v. Waldorf Restaurant (2003) 6 SCC 432; Commissioner of Income Tax, Madhya Pradesh v. Dewas Cine Corporation (1968) 2 SCR 173; Narayanappa v. Krishtappa (1966) 3 SCR 400; Malabar Fisheries Co. Calicut v. CIT (1979) 4 SCC 766 and S.V. Chandra Pandian v. S.V. Sivalinga Nadar (1993) 1 SCC 589, referred to. Mills v. Clarke 1953 (1) AER 779, referred to. Halsbury’s Law of England, 4th Edition, referred to. Case Law Reference: AIR 1978 AP 257 referred to Para 4 1970 (3) SCC 635 referred to Para 18 (2003) 6 SCC 545 referred to Para 19 (2000) 7 SCC 60 relied on Para 19 1987 ITR 161 approved Para 25 (1969) 3 SCC 555 referred to Para 31 (2003) 6 SCC 432 referred to Para 32 1953 (1) AER 779 referred to Para 34 (1968) 2 SCR 173 referred to Para 36 (1966) 3 SCR 400 referred to Para 38 (1979) 4 SCC 766 referred to Para 39 (1993) 1 SCC 589 referred to Para 39 CIVIL APPELLATE JURISDICTION : Civil Appeal No.6933-6934 of 2002. From the Judgment & Order dated 9.4.2002 of the High Court of Judicature, Andhra Pradesh at Hyderabad in A.S. Nos. 1048 & 1050 of 2001. WITH C.A. Nos. 4411-4412 of 2002. Dr. K. Parasaran, Rakesh Dwivedi, R.F. Nariman, A.D.N. Rao, A. Subba Rao, Roy Abraham, Kishore Rai, Seema Jain, Anant Prakash, Shantanu Krishna, Mukti Choudhary, Preetika Dwivedi, Rahul Dua, Himinder Lal for the appearing parties.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6933-6934 OF 2002 Mohd. Laiquiddin & Anr. ..Appellants Versus Kamala Devi Misra (Dead) By L.Rs & Ors. ..Respondents WITH CIVIL APPEAL NOS. 4411-4412 of 2002 Smt. Kamala Devi Misra (Dead) By L.Rs & Ors .Appellants Versus Mohd. Laiquiddin Khan & Anr. ..Respondents … Continue reading

The appellant herein filed claim petition i.e., Execution Application No. 215 of 2007, and in the said claim petition, he stated that originally the property belongs to the deceased borrower and after his death, respondent No.3 herein /Judgment debtor No.3, being the son, acquired the schedule property and sold away the same under Ex.A.1 to the appellant herein. However, the Court below dismissed the said application on the ground that since respondent No.3 / judgment debtor No.3 is not having any right to execute Ex.A.1, the appellant is not having any right to convey the title over the suit schedule property. Hence, the present Civil Revision Petition. 3. Originally the property sought to be attached and sold in execution proceedings owned by the father of judgment debtor No.3. Father of judgment debtor No.3 died intestate leaving behind the respondents herein as legal heirs. Therefore, judgment debtor No.3 has no absolute right to convey the title in respect of schedule property to any third party. At best he is having a share in the property. Further, claim petitioner is an agreement holder. It does not confer any title to him. The appellant herein is sold the E.P. schedule property to one Challa Vijaya Kumar under a registered sale deed, dated 07.05.2007 under a registered document No.1060. By virtue of this document, appellant already sold away the property in question. Hence, he has no interest or title to the property.

            IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN             PRESENT             THE HON‘BLE SRI JUSTICE K.C.BHANU             APPEAL SUIT NO.154 OF 2011 Between : Nagubandi Venkata Rambabu                                 …APPELLANT A N D Adapa Satyanarayana and others.                            …RESPONDENTS             THE HON’BLE SRI JUSTICE K.C. BHANU … Continue reading

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