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

1

(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 20th 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 3rd 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

2

an order dated 5th 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.   

3

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

4

(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

5

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.”

6

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

Andhra  Pradesh  with  effect  from  20th July,  1955.   Occupancy  right  as

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

effect from 1st 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

7

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 24th October, 1978.  In terms of Section 8 of the Act the

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

8

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

9

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

10

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

11

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

12

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

13

came into force with effect from 17th June, 1956. By reason of a legal fiction

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

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  

14