Menukonda Veeramma vs Tummuri Veera Venkata Satyanarayana and Others

P.S. Narayana, J.

Short Episode:

The unsuccessful plaintiff in O.S. No. 21 of 1981 on the file of learned Subordinate Judge, Ramachandrapuram, being aggrieved of the dismissal of the said suit had preferred the present appeal. Respondents herein are the defendants in the said suit. Appellant/plaintiff instituted the suit aforesaid praying for declaration of title, recovery of possession and also for recovery of certain amounts as past and future profits as well. The learned Subordinate Judge, Ramachandrapuram, in the light of the respective pleadings of the parties having settled the issues recorded the evidence of P.Ws.1 to 4, D.Ws.1 to 5 marked Exs.A-1 to A-5 and Exs.B-1 to B-9 and ultimately came to the conclusion that appellant/plaintiff is not entitled to any of the reliefs prayed for and accordingly dismissed the suit. Aggrieved by the same, the unsuccessful plaintiff had preferred the present appeal.

Contentions of Sri T.V.S. Prabhakar Rao:

Sri T.V.S. Prabhakar Rao, learned Counsel representing appellant, had pointed out to the respective pleadings of the parties, the evidence available on record and also the findings recorded by the trial Court and would comment that in the light of the clear findings recorded by the trial Court relating to execution of Ex.A-1 dated 16-07-1979, the settlement deed, the other findings recorded by the trial Court relating to the validity of the said document in the light of the provisions of A.P.Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (hereinafter in short referred to as ''Act'' for the purpose of convenience), cannot be sustained. The learned Counsel also further pointed out to the evidence available on record and would maintain that when late Satteyya surrendered the excess land and when the surrendered lands also had been distributed to the beneficiaries in view of the fact that the purpose and object of the Act already had been fulfilled, the question of holding that Ex.A-1 is invalid on that ground, also cannot be sustained. The learned Counsel also would maintain that the object of the Act to be taken into consideration. The learned Counsel while elaborating the submissions also pointed out to the language employed in deed Ex.A-1 and would maintain that in the light of the life estate being resolved by the executant and giving vested interest to the appellant/plaintiff the same to be taken as a Will and as much as the will would not fall within the meaning of transfer, the bar imposed by the provisions of the Act cannot be made applicable. The learned Counsel also incidentally pointed out to the relationship between these parties and further, in particular, had taken this Court through the evidence of P.Ws.3 and 4. The learned Counsel also would contend that the bar imposed by the provisions of the Act may be operative otherwise but as far as in between private parties the said document executed by Satteyya being valid land binding, these contesting parties cannot challenge the same on any such grounds. The learned Counsel also specifically pointed out relating to the findings recorded by the trial Court regarding the validity of Ex.A-1 in the context of its execution. The learned Counsel also would maintain that the said findings recorded relating to the validity of Ex.A-1 i.e., the execution these findings had not been challenged by the successful defendants/respondents either by way of filing an independent appeal or atleast by raising cross-objections and hence, in the light of the facts and circumstances, the findings recorded by the trial Court, be set aside and the appeal to be allowed. The learned Counsel also relied on certain decisions to substantiate his submissions.

Contentions of Sri B.Kantha Rao, learned Counsel representing Sri G.Krishna Murthy:

Sri B.Kantha Rao, learned Counsel representing Sri G.Krishna Murthy, learned Counsel for the contesting respondents, had taken this Court through the respective pleadings of the parties and the evidence available on record and also pointed out to the relevant portions of the findings recorded by the trial Court and would maintain that in the light of the clear language of Sections 16 and 17 of the Act the findings recorded by the trial Court cannot be found fault. The learned Counsel also, no doubt, raised a preliminary objection relating to the maintainability of the appeal in the absence of a question of law being involved in the light of Section 96(4) of the Code of Civil Procedure. The learned Counsel also made elaborate submissions relating to the distinction between a settlement and a will and pointed out to the relevant provisions dealing with the definitions of these expressions both under the Indian Succession Act and also the Specific Relief Act. The learned Counsel also further made certain submissions relating to the transfer of property. The learned Counsel while further elaborating submissions would maintain that even if Ex.A-1 to be held to be valid as far as due execution is concerned, it is to be construed as a transfer of property or as an alienation. The said document would be void in the light of the specific bar imposed by Section 17 of the Act aforesaid. In the alternative, the learned Counsel also would maintain in the light of the recital reserving life interest in Ex.A-1 even if it is to be held to be a Will in as much as the said alleged Will Ex.A-1 not being the last testament of the deceased this also may not be of much help to the appellant/plaintiff. However, the learned Counsel would maintain that even if the recital of Ex.A-1 to be carefully examined this is to be taken as a settlement deed and hence, just to get over the rigor of bar imposed on operation of law by virtue of Section 17 of the Act this plea is being put forth that too for the first time at the stage of appeal. The learned Counsel also pointed out to the oral evidence available on record and would maintain that in the light of the facts and circumstances it cannot be said that finally the surrender proceedings had been determined or finalized at the relevant point of time. At any rate, the date of execution of the documents is to be taken as crucial for the purpose of deciding the validity of the document in question i.e., Ex.A-1. The learned Counsel also relied on several decisions to substantiate his submissions.

Heard the learned Counsel on record. Perused the oral and documentary evidence available on record and also the findings recorded by the trial Court in nutshell.

Before taking up further discussion on the relevant points which arise for determination in this appeal it may be appropriate to have a glance at the respective pleadings of the parties, the issues settled, the evidence available on record and also the findings recorded by the trial Court in nutshell.

Averments made in the plaint:

The appellant/plaintiff filed the suit for declaration of title, recovery of possession, recovery of past and future profits and for other reliefs. It is averred in the plaint that the plaintiff is the second daughter of one Thondapu Satteyya, S/o.Peda Tammayya of Arikirevula village in Rayavaram Taluk. The eldest daughter of the said Satteyya is married to one Mullangi Veera Raghavareddy of Voolapalli village. The said Satteyya had two sons who predeceased him. Late Satteyya was having extensive properties-movable and immovable.

The property, more particularly described in the schedule annexed to the plaint, was conveyed by the said Satteyya under a Registered Settlement Deed dated 16-07-1979 in favour of the plaintiff reserving life-interest for himself and the plaintiff has to enjoy the same with absolute rights thereof. The said Satteyya also in order to provide some cash to the plaintiff i.e., second daughter of Satteyya, on 28-06-1979 voluntarily gifted away his rights in a promissory note dated 19-08-1978 executed by one Mullangi Veera Venkata Reddy in his favour. Thus, the said Satteyya fulfilled his wish and promise to provide the plaintiff with some landed property as well as cash.

The said Satteyya gifted away the plaint schedule land and promissory note as stated supra voluntarily in favor of the plaintiff out of natural love and affection as she happens to be his younger daughter. Prior to the execution of the said settlement deed, the said Satteyya executed some wills of which the will dated 31-01-1979 was the last will. In the year 1972, the said Satteyya made some alienations. Later, in the year 1978 also the said Satteyya executed sale deeds in favour of Valluri Bhavannarayana and others. Thus, by the date of the last will dated 31-01-1979 the said Satteyya owned and possessed considerable properties including the plaint schedule property. The said Satteyya delivered surplus land as per the provisions of the Act to the authorities concerned who allotted the same on pattas to the needy Harijan families.

Later, i.e. on 16-07-1979, the said Satteyya with love and affection towards his second daughter i.e., the plaintiff herein, conveyed the plaint schedule property to the plaintiff under a registered settlement deed which was handed over to the plaintiff and the gift was duly accepted by the plaintiff. The said deed was attested by Satteyya''s confederates and it was scribed by one Gorigantula Venkanna of Arikirevula. The defendants 2 and 3 are the cultivating tenants of Satteyya in respect of the plaint schedule property. Items 2 and 5 of the plaint schedule are being cultivated by the second defendant for an annual maktha of 18 kata bags of paddy; while items 1, 3, 4 and 6 of the plaint schedule admeasuring Ac.2.76 cents are being cultivated by the third defendant for an annual maktha of 33 bags of paddy. Thus, the defendants 2 and 3 cultivated the plaint schedule land and delivered the makthas during the lifetime of Satteyya till 15-01-1980.

During the year 1980-81, the defendants 2 and 3 cultivated the schedule lands in their respective possession with paddy crops and even before the said crop was cut, the plaintiff''s father Thondapadu Satteyya died on 24-10-1980 at Arikirevula in his own house leaving behind him the plaintiff and her elder sister and Satteyya''s two daughters-in-law and their children as his nearest heirs entitled to the estate left by late Satteyya. The second and third defendants harvested paddy crop in due course and realized the produce. The plaintiff gave notices to both of them on 08-11-1980 calling upon the defendants 2 and 3 to deliver the makthas due to the plaintiff in respect of the plaint schedule property as she is entitled for the same under the registered settlement deed dated 16-07-1979 after the demise of the said Satteyya. Both the defendants 2 and 3 received the notices in due course but sent the separate reply notices dated 12-11-1980 through their Advocate at Kakinada alleging that the maktha payable by the second defendant was 10 kata bags of paddy and that the makthas payable by the third defendant were 25 bags of paddy. The alleged quantums of maktha is quite absurd as the lands are very fertile and every year two paddy crops are raised in the same and the normal rate of rent would be 13 to 16 bags of paddy per acre per year. As such, the second defendant has to pay 18 kata bags of paddy for Ac.1.47 cts. of land under his cultivation while the third defendant has to pay 33 kata bags of paddy for the extent of Ac.2.76 cts. of land under his cultivation.

The defendants 2 and 3 further alleged in their reply notices that after the death of Thondapu Satteyya on 24-10-1980, both of them were shown a registered will purported to have been executed by late Thondapu Satteyya on 14-09-1979 under which the first defendant was given the plaint schedule property and as such both the defendants attorned to the first defendant as their landlord and that on 28-10-1980, they executed separate rent deeds in favour of the first defendant. It is absolutely false to state that the alleged will was known to all the relations of Thondapu Satteyya including the plaintiff. In the last, the second and third defendants advised the plaintiff to establish her rights in the plaint schedule land in a Court of law. Not content with that the defendants 2 and 3 stated in their reply notices that they have already paid the rents to the first defendant. It is quite false and only stated by the defendants 2 and 3 in collusion with defendant No. 1 to gain unlawfully for themselves and to cause loss to the plaintiff. The defendants 2 and 3 have no property of their own which can be worth mentioned. As they have been trying to deprive the plaintiff of her legitimate possession of the plaint schedule land or the rentals therefrom in collusion with the first defendant, the plaintiff has every right to file the suit for declaration of her rights in the plaint schedule property and for possession of the same from the defendants 2 and 3 as they question the title of the plaintiff and for past profits etc., reliefs. The defendants are liable jointly and severally for the reliefs claimed by the plaintiff. The will alleged to have been executed by late Satteyya is not true, valid and in any view is not binding upon the plaintiff. It cannot affect the settlement deed dated 16-07-1979 in any way. The alleged will might have been the result of the scheme of Mullangi Veeraraghava Reddy and it cannot affect the just and legitimate rights of the plaintiff.

Averments made in the written statement of the first defendant:

It is averred in the written statement that this defendant''s great grand father Thondapu Satteyya while in a sound and disposing state of mind executed a registered will dated 14-09-1979 which is the last will and testament left by him. As is evident from the recitals in the said will the plaintiff and her son-in-law Vanga Veera Raghava Reddi by playing fraud and deceit obtained signatures of late Thondapu Satteyya on blank papers. Even the settlement deed dated 16-07-1979 under which the plaintiff now claims the plaint schedule land was also obtained by fraudulent misrepresentation, deceit and undue influence from Thondapu Satteyya which he never intended to execute. So immediately there after, late Thondapu Satteyya executed a registered will dated 14-09-1979 cancelling his previous wills and also bequeathing in particular the plaint schedule property to this defendant along with some other properties wherein he made unequivocal settlement regarding the circumstances under which the said settlement deed dated 16-07-1979 on which the plaintiff relies was fraudulently obtained from him by the plaintiff. So the said settlement deed dated 16-07-1979 under which the plaintiff claims the plaint schedule lands is not true, valid and binding upon this defendant.

Besides, late Thondapu Satteyya was a declarant under the Act, and his declaration was registered as LCC 109/75/RMM and in the said case he was held to be holding land in excess of the ceiling area. In pursuance of the said order u/s 9 of the Act the holding of late Thondapu Satteyya was determined and surrender proceedings were also started. Thereupon, late Thondapu Satteyya got filed L.R.A. No. 1576/76 on the file of the Land Reforms Tribunal, Rajahmundry, dated 04-12-1976 in LCC 109/75 Ramachandrapuram accepting the surrender of certain lands in Chodavaram village. Ultimately, the Land Reforms Appellate Tribunal, Rajahmundry, by its order dated 07-09-1978 set aside the order of the Land Reforms Tribunal, Rajahmundry, dated 04-12-1976 in LCC 109/75 Ramachandrapuram, accepting the surrender of certain lands of late Thondapu Satteyya in Chodavaram village and the Land Reforms Tribunal, Rajahmundry, was directed to call upon the declarant to file a fresh statement of surrender. In pursuance of the orders of the Land Reforms Appellate Tribunal, Rajahmundry, in L.R.A. No. 1576 of 1976, the Land Reforms Appellate Tribunal, Rajahmundry, passed orders dated 02-01-1979 ordering re-delivery of the lands originally taken in surrender of the surplus. But the order is not yet implemented and it is pending implementation even till now. Late Thondapu Satteyya even got filed separate petitions dated 18-03-1980 one before the Land Reforms Tribunal, Amalapuram, and the other before the Sub-Collector, Rajahmundry, for re-delivery of the lands taken in surrender as per the original order by implementing the orders of the Land Reforms Appellate Tribunal, Rajahmundry, and they are pending enquiry.

While matters stood thus, late Thondapu Satteyya died on 24-10-1980 leaving his last will and testament dated 14-09-1979. Late Thondapu Satteyya submitted a declaration u/s 8 of the Act and his holding was already determined and he was held to be holding in excess of the ceiling area as on 24-01-1971 and evidently the settlement deed dated 16-07-1979 on which the plaintiff bases her claim is subsequent to the notified date i.e., 01-01-1975 and the ceiling case of late Thondapu Satteyya is not yet completed and notification u/s 16 of the Act is not yet published and hence, the alleged settlement deed dated 16-07-1979 is also null and void. Hence, the suit based on the said void settlement deed is not maintainable.

Moreover, in pursuance of the orders of the Land Reforms Appellate Tribunal, Rajahmundry, dated 07-09-1978 in L.R.A. No. 1576 of 1976 late Thondapu Satteyya submitted a revised surrender which was received by the Land Reforms Tribunal, Rajahmundry, on 13-11-1978 as per which he surrender item-3 and part of item-6 of the plaint schedule lands. The said surrender proceedings are still pending. The allegations that late Thondapu Satteyya executed some other sale deeds before and after the notified date do not in any way help the plaintiff in validating the void settlement deed. It is with that view late Thondapu Satteyya executed the last will dated 14-09-1979 bequeathing his properties to whomsoever he wanted. That is why even with regard to the sale which he voluntarily and willingly effected in respect of which he executed sale deeds having come to learn that those sales are also void as hit by Section 17(1) of the Act, late Thondapu Satteyya, validated those sales which are otherwise valid by bequeathing the properties covered by the respective sale deeds in favour of the respective alianees under the registered will dated 14-09-1979. Since the alleged settlement deed dated 16-07-1979 obtained by the plaintiff from Thondapu Satteyya by playing fraud, deceit and misrepresentation was not validated by late Thondapu Satteyya by bequeathing the property covered by the said settlement deed in favour of the plaintiff, the said settlement deed recuramaied to the void.

The allegations contra in the plaint are absolutely false and trumped up by the plaintiff for the purposes of the suit. It is not correct to allege that late Thondapu Satteyya delivered surplus land as per the provisions of the Act to the authorities concerned and that his ceiling case was closed. As stated above, the said surrender was set aside by the Land Reforms Appellate Tribunal, Rajahmundry, as the same is opposed to Section 10 of the Act and in pursuance of the orders of the Appellate Tribunal, the Land Reforms Tribunal ordered redelivery of the lands originally taken possession from the declarant for surrender by the Land Reforms Tribunal, Rajahmundry. The allegations in the plaint with regard to the promissory note dated 19-08-1978 executed by Mullangi Veera Venkata Reddi in favour of late Thondapu Satteyya in para 5 of the plaint are absolutely false and late Thondapu Satteyya never wanted to provide the plaintiff with any cash. Late Thondapu Satteyya only transferred the said promissory note in favour of the plaintiff for collection. Anyhow, that is the subject matter of the suit in O.S. No. 161 of 1980 and so it is sub-judice. Nor it is correct to allege that late Thondapu Satteyya wanted to gift the plaint schedule land to the plaintiff. Late Thondapu Satteyya never wanted nor promised to provide the plaintiff either with landed property or with cash. The allegations contra in paras 6 and 7 of the plaint are not true. The allegation that the will dated 31-01-1979 is the last will is not true. The allegations regarding the alleged settlement deed and pronote are all false and are denied. The allegation that late Satteyya executed the alleged settlement deed dated 16-07-1979 and the same was handed over to the plaintiff and the same was accepted by the plaintiff etc., are all false. The allegation that the alleged settlement deed was attested by Satteyya etc., are all false. The scribe and attestors are the henchmen of the plaintiff and her son-in-law Vanga Veera Raghava Reddi who is behind the suit.

Admittedly, defendants 2 and 3 are cultivating tenants in possession of the plaint schedule land even during the lifetime of late Thondapu Satteyya and they have been continuing in possession of the same. After the death of late Thondapu Satteyya when defendants 2 and 3 who were his tenants went to offer their condolences they were shown the registered will dated 14-09-1979 executed by late Thondapu Satteyya and having been satisfied with the truth and genuineness of it they got attorned to this defendant and as a matter of fact, defendants 2 and 3 separately executed letters of the attornment dated 28-10-1980 in favour of this defendant and they also paid the rents due by 15-01-1981 to this defendant.

It is stated that the rents due from the defendants 2 and 3 respectively are exaggerated by the plaintiff. The second defendant has to pay an annual rent of 10 kata bags of paddy and the third defendant has to pay an annual rent of 25 kata bags of paddy on or before 15th January of every year as per the terms of the lease that were granted in their favour by late Thondapu Satteyya. Since defendants 2 and 3 are cultivating tenants even as per the plaintiff''s case this is not the proper forum for the plaintiff to ask for possession of the plaint schedule lands. This Court has no jurisdiction to grant the relief of possession as prayed for in the plaint against the defendants 2 and 3.

The allegations of paras 8 and 9 of the plaint are not true and they are denied. The allegation that Satteyya died leaving the plaintiff, her elder sister, his daughter-in-law and their children and they are entitled to the estate left by late Satteyya etc., are not true. As late Satteyya executed his last will and testament dated 14-09-1979 in a sound and disposing state of mind, the terms of the said will operate and the allegations contra are not true and tenable. It is however true that notices were issued with false and concocted allegations and replies were sent with correct facts. The various allegations regarding the quantum of maktha are all false and are denied. The allegation that the defendants 2 and 3 have no properties and they are colluding with the first defendant etc., are all false. The allegation that the defendants are jointly and severally liable for the reliefs claimed by the plaintiffs is not true. The allegation that the registered will dated 14-09-1979 is not true, not valid and not binding on the plaintiff etc., are all false. The allegation that the will cannot affect the alleged settlement deed dated 16-07-1979 in any way is not true or tenable. As the alleged settlement deed is not true and void for the various reasons stated supra, the registered will executed by late Satteyya which was referred to by him, even during his life time, in the written statement filed by him in O.S. No. 161 of 1980 is perfectly valid, and the first defendant alone is entitled to the plaint schedule properties subject to the land ceiling proceedings. The allegation that the will was the result of the scheme of Mullangi Veera Raghava Reddi and it cannot effect the alleged just and legitimate rights of the plaintiff etc., are not true or tenable.

The plaintiff is fully conscious of the fact that the settlement deed dated 16-07-1979 obtained by her from late Thondapu Satteyya is not true, valid and binding upon this defendant and that it is also null and void and is also aware of the registered will dated 14-09-1979 which was executed by late Thondapu Satteyya and fraudulently suppressing all these facts mischievously got filed the suit with dishonest intention of obtaining wrongful gain by her and causing wrongful loss to this defendant.

There is no cause of action for the plaintiff for filing the suit and the various allegations mentioned in para 10 of the plaint are not correct. The valuation of the plaint is not correct. The value of the land, the profits are all exaggerated the past profits are grossly exaggerated both regarding the quantum and also value and the plaintiff is not entitled to profits past or future much loss at the rate claimed by the plaintiff. In any case, the plaintiff is not entitled to claim interest on the past profits.

Averments made in the written statement of D-2 and D-3:

As alleged in the plaint these defendants are cultivating tenants of late Thondapu Satteyya in possession of the plaint schedule lands by the time of his death on 24-10-1980. So the suit for possession of the plaint schedule lands is not the proper forum and since they cannot be evicted from the plaint schedule lands except by recourse to the Tenancy Tribunal under the Tenancy Act. Therefore, this suit for possession of the plaint schedule lands is not maintainable.

The second defendant is the cultivating tenant in respect of items 2 and 5 of the plaint schedule land while the third defendant is the cultivating tenant in respect of the items, 1, 3, 4 and 6 of the plaint schedule lands, the lease have been granted by late Thondapu Satteyya. The rents due from these defendants are highly exaggerated in the plaint. As per the terms of the lease granted by late Thondapu Satteyya, the second defendant has to pay only 10 kata bags of paddy while the third defendant has to pay an annual rent of 25 kata bags of paddy on or before 15th January of every year.

After the death of late Thondapu Satteyya when these defendants went to offer their condolences these defendants were shown the registered will dated 14-09-1979 and they having been satisfied with the truth and genuineness of the said will executed by late Thondapu Satteyya, they got attorned to the first defendant and so these defendant executed letters of attornment dated 28-10-1980 in favour of the first defendant and in pursuance of the said attornments these defendants also paid the rents to the first defendant due by 15-01-1981.

It is true that these defendants received notices from the plaintiff demanding payment of rents by which time these defendants already got attorned to the first defendant and in fact paid rents to him. So these defendants got sent separately reply notices dated 12-11-1980 through their advocate. In the said reply notices these defendants have stated the above facts and they further stated that they have no objection to pay the rents to whoever establishes his or her right to the plaint schedule lands. Thus, even now these defendants have no objection to pay the rents to whomsoever the court directs these defendants to pay rents.

The allegations that the defendants 2 and 3 are questioning the title of the plaintiff and therefore the plaintiff has every right to file the suit for declaration and possession etc., are all false. The notice was issued by the plaintiff only after these defendants attorned to the first defendant. Therefore, these defendants are not in a position to deny the title of the first defendant and mentioned in the notice that they are prepared to pay the rents to whomsoever the court directs. In the above circumstances, no question of these defendants denying the title of the plaintiff arises. The defendants 2 and 3 are the cultivating tenants entitled to the benefits of the Andhra Tenancy Act and their rights are protected by the provisions of the said Act. The defendants 2 and 3 are entitled to continue in possession and this Court has no jurisdiction to dispossess these defendants and has no jurisdiction to grant the relief of possession against the defendants 2 and 3.

Issues settled by the trial Court:

Whether the settlement deed dated 16-07-1979 is true, valid and binding on 1st defendant?

Whether the court has jurisdiction to grant the relief of possession?

Whether the plaintiff is entitled to the relief of declaration and possession?

Whether the plaintiff is entitled to past and future profits? If so, at what rate?

To what relief?

Evidence available on record:

P.Ws.1 to 4 and D.Ws.1 to 5.

Documents marked:

Exs.A-1 to A-5 and Exs.B-1 to B-9.

Findings recorded by the trial Court in a nutshell:

The learned Subordinate Judge, Ramachandrapuram, after referring to the respective pleadings of the parties and also the oral and documentary evidence available on record answered issues 1 and 3 recording reasons at para 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 and came to the conclusion that the settlement as far as a sale deed in favour of the third parties would be hit by Section 16 and 17 of the Act and hence, the same is not binding on the first defendant and the plaintiff cannot claim any right under the said document and further recorded certain findings relating to defendants 2 and 3, the tenants under late Satteyya and further recorded a finding that they would automatically become the tenants under the first defendant who got the property under

Ex.B-1 will executed by late Satteyya and further held that the first defendant is the owner of items 1 to 6 of the plaint schedule properties since such properties were conveyed in his favour under a will and hence, the first defendant is entitled to receive maktha from defendants 2 and 3 and accordingly answered these issues in favour of respondents/defendants. While answering issue No. 2 certain findings had been recorded at para 18 and the said issue also was answered in favour of defendants 1 to 3 and against the plaintiff and thus while answering issues 4 and 5 at paras 19 and 20 certain reasons had been recorded and ultimately, the suit was dismissed. Hence, the present appeal.

Points for determination: The following points for determination arise in this appeal:

1) Whether the findings recorded by the learned Subordinate Judge, Ramachandrapuram, relating to the validity and the binding nature of Ex.A-1 dated 16-07-1979, registered settlement deed to be confirmed or to be disturbed in the facts and circumstances of the case.

2) Whether the findings recorded by the learned Subordinate Judge, Ramachandrapuram, relating to Ex.B-2 to be confirmed or to be disturbed in the facts and circumstances.

3) Whether the findings recorded by the learned Subordinate Judge, Ramachandrapuram, relating to the applicability of the provisions of the Act aforesaid in the light of the oral evidence of P.Ws.1 to 4 and D.Ws.1 to 5 and the documentary evidence Exs.A-1 to A-5 and Exs.B-1 to B-9 to be confirmed or to be set aside in the facts and circumstances.

4) If so, to what relief the parties would be entitled to.

Point Nos. 1 to 3:

For the purpose of convenience, these points are being discussed together. The parties hereinafter would be referred to as shown in O.S. No. 21 of 1981 on the file of Subordinate Judge, Ramachandrapuram. The respective pleadings of the parties, the evidence available on record, the findings recorded by the trial Court in nutshell already had been specified supra. The respective stands taken by the parties in the plaint and also in the respective written statements would go to show that the plaintiff is strongly relying on Ex.A-1 the registered settlement dated 16-07-1979 and the contesting first defendant is strongly relying on Ex.B-2 the registered will dated 14-09-1979. Ex.B-1 is also a registered will dated 31-01-1979. The office copy of notice by D-3 and D-2 were marked as Exs.A-2 and A-3 and the reply notices of D-2 and D-3 were marked as Exs.A-4 and A-5. Apart from Exs.B-1 and B-2, Ex.B-3 copy of death extract of Thondapu Satteyya, Ex.B-4 copy of the order in L.R.A 1576/76 of LRA Tribunal, Rajahmundry, dated 24-10-1978, Ex.B-5 copy of the letter marked to late Satteyya dated 06-11-1978, Ex.B-6 the order passed by the LRA Tribunal, Rajahmundry, dated 02-01-1979, Ex.B-7 the certified copy of the written statement in O.S. No. 215 of 1979 on the file of Subordinate Judge, Rajahmundry, Ex.B-8 and B-9 the agreements executed by D-2 and D-3 also had been marked.

The translated version of Ex.A-1 reads as hereunder:

DOCUMENT No. 1871/1979

SETTLEMENT DEED in respect of land market value Rs. 47,000/- Rs. 47,000/- Jeroyati executed on 16-7-1979 in favour of Manukonda Veeramma, w/o. Satyanarayana, Hindu, cultivation, resident of Arikirevula village, Ramachandrapuram Taluk, East Godavari District by residents of ditto village, Hindu, Cultivation, Thondapu Satheyya, fostered son of Thondapu Peda Thammayya. You are my second daughter. At present you are looking after my welfare. Owing to my affection towards you-(sd) Thondapu Satheyya-2- without taking any considering from you and treating my affection as consideration, I am settling the schedule property to you free of cost through this settlement deed. As per this settlement deed, I am to enjoy the usufruct of schedule property during my life time without giving any rights over the property to anybody and without giving on long lease to others duly paying taxes. After my death you have to take possession of the schedule land and enjoy the same with absolute rights of sale, gift etc., for generations to come, paying taxes. If any hindrances arise in future in enjoying the schedule property by virtue of this deed by you claiming through or under me, I hereby undertake to clear all the hindrances-(sd) Thondapu Sasteyya-3- by me or by my heirs and made you or your free from such hindrances with our costs. I hereby assure you that I have not executed any document creating any rights over the schedule property to anybody, and there are no court attachments etc., over the schedule property, and the schedule property is my own acquired property and I am having absolute rights over the schedule property, and that the numbers, extent, boundaries and measurements given in the document are correct and made you believe the above facts, and created rights to you over the schedule property that will inherit to you after my death. Mutation forms are herewith submitted to implead you name in the concerned government records. The schedule land is not assigned land under G.O.2/77 of Government of Andhra Pradesh.

SCHEDULE

East Godavari District, Ramachandrapuram Sub Registry, Chodavaram village and Panchayat, Revision survey No. 40/7 Full Ac.0.04 cents or 0.016 Hectares, Section No. 91/2 Full Ac.0.05 centre or 0.020 Hectares, Section No. 53/5 Full Ac.1.58 cents or 0.638 Hectares No. 40/8 Full Ac.1.02 cents eastern side 0.30 cents or 0.156 Hectares within the following boundaries. East: Section No. 40/4 and 40/5 land, West: Lands in this number. North: Land in Section No. 40/6, South: Land in Section No. 38. Land in No. 91/3 Full Ac.3.33 cents Western side Ac.1.42 cents or 0.572 Hectares within the following boundaries: East: Tank Bund in this Survey No. West: Government Road, North: Land in Section No. 91/2, South: Land in 94.-(Sd) Thondapu Satheyya -5- No. 91/3 Full Ac.3.33 cents Eastern side Ac.0.5 cents or 0.303 Hectares within the following boundaries. East: Land in No. 90/2, West: Tank bund in this Section No. North: Government Panta bodi, South: Land in No. 95/1. The total extent of six items four acres twenty three cents land with all fruit bearing trees.

I executed this settlement deed with my full consent.-(Sd) Thondapu Satheyya. Witnesses: 2. Manukonda Apparao. Scribe: Gonisanthala Venkanna, Arikirevula, E.G.Dt. Dt. Licence No. 115/79, Chodavaram Village No. 91/3, No. 40/8, No. 91/2, No. 40/7, No. 50/3 lands value is Rs. 11,111/- per acre. (sd) Thondapu Sathiyya. No. 507 Rupees Seven hundred fifty only sold to Sri Thondapu Satheyya, S/o. Peda Tammayya, Arikirevula, Ch. No. 2417 dt.16-7-70 P.V.V.S.S. Narasimharao, P.V.S.S. Narasimharao 16-7-79 Ex-Officio Vendor Ramachandrapuram No. 506 Rupees five hundred only sold to Sri Thondapu Satheyya, S/o. Peda Tammayya of Arikarevula, Ch. No. 2417 dt.16-7-79 P.V.S.S. Narasimharao 16-7-79 P.V.S.S. Narasimharao Ex-Officio Stamp Vendor Ramachandrapuram, No. 2208 Rs. 75.00 dated 16-7-79 Thondapu Satheyya father Peda Thammayya, Arikarevula M.B.S. Kantamma, Stamp Vendor, Ramachandrapuram (Town)n No. 2210 Rs. 10.00 Date 16-7-79 Thondapu Satheyya father Peda Satheyya Arikarevula, M.B.S. Kantham, Stamp Vendor, Ramachandrapuram Five Stamps-Rupees Fourteen hundred ten.

The translated version of Ex.B-2 reads as hereunder:

Will executed on 14th September, 1979 by Thondapu Satheyya, son of Thondapu Papayya and fostered son of Thondapur Peda Thammayya, Cultivation. Resident of Arikirevula village, Arikirevula Post, Ramachandrapuram Taluk, East Godavari District.

I am now aged 91 years. My wife Venkayyamma, my sons 1. Veera Raghavareddy, 2. Thammayya died. Satyavathi, wife of my eldest son Veera Raghavareddy, 2. Thammayya died. Satyavathi, wife of my eldest son Veera Raghava Reddy is my grand daughter. She has no children. Venkayamma, wife of my second son Thammayya is also my grand daughter. She is having one major son named Thondapu Srinivasa Giri, one minor son named Govindraju Babu, one unmarried minor daughter named Devi Sridevi. I am having two daughters. My eldest daughter Mullangi Gurramma is having two sons and four daughters. Her elder daughter Venkayamma is my second daughter-in-law. Husband of my younger daughter Manukonda Veeramma died. She is having two sons and four daughters. Her eldest daughter Satyavathi is my elder daughter-in-law. I am living at Arikirevula Village in my own house and at present staying at Voolapalli village for getting treatment. My son-in-law Mullangi Veera Raghava Reddy and his children are looking after my welfare. Owing to old age, recently I am not feeling well. I am taking medical treatement from Kakarla Venkatramayya, M.B.B.S., resident of Voolapalli. As life is immortal and as it is better to make arrangement with regard to my movable and immovable properties to be carried out after my death while I am mentally and physically fit, I got scribed this will. Previously, on 14.03.1956 I have executed a Will and got it registered in Sub Registrar''s Office, Ramachandrapuram in Book No. 3, Volume 32, Pages 105 to 107 registered as Document No. 8/1956. On 8-12-1977 I have cancelled my previous will and executed another will and got it registered in Sub-Registrar''s Office, Ramachandrapuram, in Book No. 3, 49 volume, Pages 58 to 59 as Document No. 53/1977. On 27-01-1979 cancelled the above will and executed another will and got it registered in Sub-Registrar''s Office, Ramachandrapuram in Book No. 3, volume 50, pages 106 to 108 as document No. 10/1979. Later I cancelled the above said will and on 31-01-1979 I got scribed another will and registered it in Sub-Registrar''s Office, Ramachandrapuram on 3-2-1979 in Book No. 3, volume 51, pages 21 to 26 registered as No. 29/1979.

But later my second daughter and my - Manukonda Veeramma, w/o Satyanaayana Murthy and her son-in-law Vanga Veera Raghava Reddy etc. obtained my signatures on some papers by misrepresenting and cheating me. Later I came to know that she has scribed a settlement document on 16-07-1979 registered in Sub Registrar''s Office, Ramchandrapurm on16-07-1979 in Book No. 1, Volume 1155, pages 215 to 217 registered as Document No. 1871/1979 and as if I got registered that document, I have alienated Ac.4.23 cents to her. That document was not voluntarily executed by me. If I were know that it is a settlement deed, I would not have executed it. It was got executed by me by cheating and misrepresenting. On filing my declaration in L.C.C. 109/RMM/75, my holding was finalized as surplus one. As the surrender proposals are in pending, as Gazette notification was not made as per Section 16, as per Section 17 of Andhra Pradesh Land Reforms Act, Act 1 of1973 it is void, my pleaders advised me that the deed executed by me is not tenable as per law. I am not having any intention to bequeath any property to my second daughter Manukonda Veeramma after my death. As the above incident occurred after execution of registered will Document No. 29/79 dated 31-1-1979, the above mentioned dated 31-1-1979 will registered as Document No. 29/79 in Sub Registrar''s Office, Ramachandrapuram,

I thought it better to cancel that will, cancelled that will and voluntarily and with y free will I have got scribed this will. After my death, my movable and immovable properties are to be bequeathed as detailed below.

Previously I have sold to the following persons on various dates various lands. I have also gave them registered documents. The properties pertaining to those documents belong to those purchasers only, but I have no connection with them. If for any reason, if those lands were treated as of mine, those respective possession with absolute rights. I have no connection with them. The particulars of my previous sales affected by me.

Details of land sold on 10-02-1972 to 1. Srinivasa Giri, 2. Givindaraju babu, sons of Thondapu Thammayya through registered sale deed No. 996/1972 of District Registrar''s office.

Chodavaram village, Survey No. 66/4 Ac.0.32 cents, No. 68/4 Ac.0.20 cents, No. 68/5 Ac.0.26 cents, No. 70/3 Ac.0.26, No. 72/2 Ac.0.23 cents, No. 66/3 Ac.0.59 cents, No. 68/1 Ac.0.59 cents, No. 68/2 Ac.0.93 cents, No. 68/3 Ac.0.97 cents, No. 69/2 Ac.0.94 cents, No. 69/3 Ac.1.72 cents, No. 70/1 Ac.3.06 cents total Ac.10.07 cents were sold to them duly receiving full consideration and handing over possession. I have no connection whatsoever with those lands.

Details of land sold on 10-2-1972 to Srinivasa Giri and Govindarajubabu, sons of Thondapu Thammayya, situated in Dontamuru village Survey No. 178 Ac.41.20 cents and executed sale deed in their favour and registered in District Registrar''s office as Document No. 997/1972. I have received the full consideration and handed over possession of the above land to them. The said land is in their possession and enjoyment. I have no connection whatsoever with this land.

On 09-08-1978 I have sold Ac.1-00 land in Survey No. 49/2 of Chodavaram village to Magapu Prakasarao, S/o.Gangaraju and executed sale deed in his favour and registered the sale deed in District Registrar''s office as No. 1601/1978 duly receiving the full consideration and handed over possession of the land to him. The said land is in his possession and enjoyment. I have no connection whatsoever with this land.

On 28-07-1978, I have sold the following lands to Valluri Mahendranadh Swamiji, S/o.Bhavannarayana, being minor represented by guardian and father Valluri Bhavannarayana, s/o.Veeranna. Chodavaram village, Revision Survey No. 50/1 Full Ac.2.67 cents Southern side Ac.1.33 1/2 cents, Ditto village survey No. 51/3 Full Ac.2.80 cents Norhtern side Ac.0.16 1/2 cents, total in both the numbers Ac.1.50 cents and executed sale deed in their favour registered in the Sub Registrar''s Office, Ramachandrapuram document No. 1496/1978 and received the full sale consideration and handed over the said land to them. The said land is in their possession and enjoyment. I have nothing to do with the said land.

I have sold land in Section No. 51/3 Full Ac.2.80 cents middle Ac.1.50 cents relating to Chodavaram village to Valluri Veera Venkata Ramana, S/o.Bhavannarayana, being minor represented by guardian father Valluri Bhavannarayana, S/o.Veeranna and executed sale deed in their favour on 28-07-1978 registered in the Sub Registrar''s Office, Ramachandrapuram Document No. 1497/1978 and handed over the said land to them receiving full sale consideration. The said land is in their possession and enjoyment. I have no connection whatsoever with it.

On 29-07-1978, I have sold Ac.1.50 cents comprising of Ac.1.33 1/2 cents on Northern side out of Full Ac.2.67 cents in Revision Survey No. 50/1 and Ac.0.16 1/2 cents on northern side out of Full Ac.2.80 cents in Section No. 51/1 relating to Chodavaram village and executed sale deed in their favour and registered it in the Sub Registrar''s Office, Ramachandrapuram as Document No. 1503/1978 duly giving possession of the said land to them, receiving full sale consideration. The said land is in their possession and enjoyment. I have no connection whatsoever with it.

On 28-7-1978 I have sold Ac.0.97 cents on southern side out of full Ac.2.80 cents in Survey No. 51/3 of Chodavaram village to Sri Valluri Bhavannarayana, son of Veeranna and registered sale deed in their favour in Sub Registrar''s Office, Ramachandrapuram as document No. 1495/1978 and handed over possession of the land to them receiving full consideration.

The lands pertaining to the above 7documents belong to the respective purchasers and the same are in their possession and enjoyment. I have no connection whatsoever with those lands. If for any reason those lands were treated as belonging to me, after me, those purchasers have to enjoy those lands with absolute rights for generations to come. The said lands should not be bequeathed to anybody.

At present I am having the following lands. Ramachandrapuram Taluk, Chodavaram village, Survey No. 37/1 Ac.2.06 cents, No. 91/2 Ac.0.05 cents, No. 91/3 Ac.3.33 cents, No. 69/1 Ac.1.01 cents, No. 40/7 Ac.0.04 cents, No. 40/8 Ac.1.02 cents, No. 66/5 Ac.0.10 cents, No. 53/5 Ac.1.58 cents Total Ac.9.19 cents and Arikirevula Village, Survey No. 118/4 Ac.0.14 cents, No. 118/5 Ac.0.16 cents, No. 118/8 Ac.0.34 cents Total Ac.0.64 cents and Donthamuru Village Survey No. 176 Ac.2.36 cents, No. 177 Ac.10.44 cents Total Ac.12.80 cents only.

After my filing declaration in Land Reforms Tribunal, Rajahmundry in L.C.C. No. 109/RMM/75, it was decided that I am having excess holding of 0.5343 SH. Later when I submitted surrender statement for some lands, a dispute arose and I have filed an appeal in L.R.A. No. 1576/1976 in Land Reforms Appellate Tribunal, Rajahmundry and a judgment delivered to hand over me the lands except Ac.0.10 cents in Section No. 66/5 relating to Chodavaram village and to surrender lands as per my wish towards excess holding. This matter is pending with the Government. After my death, as Thummuri Veera Venkata Satyanarayana, son of Thummuri Veeramma, Daughter of my eldest daughter Mullangi Guramma and son of Thummuri Abbulu, Resident of Voolapalli is affectionate to me, so after my death, the said Thummuri Veera Venkata Satyaanrayana has to surrender the lands that are to be surrendered to the Government from the above lands and take possession of the remaining lands and enjoy the same with absolute rights like Gift, Sale etc. for the generations to come. Thummuri Veera Venkata Satyanarayana has to act as my legal representative in the land ceiling affair and receive the compensation payable to me for the surrendered land and pay the debts if any payable by me to others and pay the arrears of tax if any and pay the balance amount to Srinivasa Giri, eldest son of my second son and obtain receipt from him.

I am having Daba tiled house and house site in Arikirevula village. After my death, 1. Thondapu Srinivasa Giri, 2. Thondapu Govinda Raju Babu, sons of my second son have to take possession of the said house and site and partition the same equally between them and enjoy the same with gift, sale etc. absolute rights for their generations to come.

If I have any movable property, and debts due to me from other people, after my death, sons of my second son 1. Thondapu Srinivasa Giri, 2. Govindaraju Babu have to collect the same and enjoy in equal shares.

After my death, if there are any lands other than the lands mentioned above, Thondapu Srinivasa Giri, eldest son of my second son, has to take possession of such lands and enjoy the same with Gift, Sale etc. absolute rights. My eldest daughter Mullangi Guramma, my younger daughter Manukonda Veeramma, my daughter-in-laws Satyavathi, Venkayamma my other grand sons, grand daughters have received whatever I desired to give them. So I am not giving anything to them in this Will. At present there are no debts payable by me to others.

Mullangi Veera Venkata Reddy has paid me the entire promissory note debt to me previously. I have deposited that amount equally in the names of my grand sons Thondapu Srinivasa Giri, Thondapu Govindaraju Babu equally in Andhra Bank, Ramachandrapuram.

This Will should come into force only after my death. I am reserving the right to alter, cancel this will during my lifetime. I have got scribed this Will voluntarily with good consciousness and free will. I have signed my name and put my left hand thumb impression on each page in the presence of the following witnesses. I executed this will with my free will.

The recitals of these documents Exs.A-1 and B-2 which had been referred to supra being self-explanatory the same need not be elaborated. Incidentally, submissions were made by the learned Counsel representing the parties pointing out the relevant portions of the findings recorded by the trial Court and also the evidence available on record, the evidence of P.Ws.1 to 4, D.Ws.1 to 5 apart from the documents which had been referred to above.

P.W.1 deposed that she is the plaintiff in the suit and the first defendant is the son of her eldest sister''s daughter and D-2 and D-3 are cultivating the plaint schedule land. Satteyya was her father and he was a resident of Arikirevula. Satteyya had only two daughters, P.W.1 and her elder sister. He got two sons but they predeceased him. Her mother predeceased her brothers. Late Satteyya got the properties. Her father Satteyya conveyed the plaint schedule property in her favour by means of a registered gift deed dated 16-07-1979. Ex.A-1 is the gift settlement deed dated 16-07-1979 executed by her father for the plaint schedule property. The extent is Ac.4.23 cents at Chodavaram. He also transferred a pronote in her favour with an intention to give her some money. She did not force him to execute gift deed or transfer pronote in her favour. In the land ceiling matter he filed some declaration and he also gave some land to Government, the Government had taken possession of the surrendered land and distributed it to Harizans. Her father also sold Ac.6-00 of land as on the date of Ex.A-1, the plaint schedule land was under possession of D-2 and D-3. On 24-10-1980 her father died. After the death of her father she asked D-2 and D-3 to pay maktha to her. Then she got issued a notice to D-2 and D-3. Ex.A-2 is the office copy of notice issued to D-3. Ex.A-3 is the office copy of the notice issued to D-2. But the defendants do not pay the maktha. D-2 and D-3 issued reply notice to Exs.A-2 and A-3. Those are Ex.A-4 and A-5. She had taken specific stand that the first defendant has no right in the property and he is not entitled to receive the maktha. The will is not binding on her. By fraud and misrepresentation it was obtained. When her father was unconscious, the thumb mark had been obtained. P.W.1 also deposed that she is entitled to recover past profit, possession of the property and the defendants are also liable to pay damages. This witness also deposed that by the time of registered settlement deed her father already filed the land ceiling declaration. In 1976 itself, he surrendered the land to the Government. Only once the Government took the same land from her father. This witness in cross-examination of the first defendant deposed that her father partitioned and divided the properties about twenty years ago. Fifteen years after the partition the gift deed was executed in her favour. About ten years ago both the sons were married. She gave her daughter in marriage to her eldest brother. He has no children. Her sister''s daughter was given in marriage to her second brother. The second brother had two sons. Both brothers died. This witness also deposed that an extent of Ac.25-00 of wet land fell to the share of each of the brothers at the time of partition. The lands are at Chodavaram. The sons of second brother are enjoying the lands. She cannot say the survey numbers, boundaries or the extent of these lands. Satteyya gave Ac.12-00 of land at Belura to his eldest son and Ac.100-00 of dry land to his second son. After partition, Satteyya got Ac.12-00 of wet land at Chodavaram and Ac.12-00 of dry land fell towards his share. At the time of marriage, Satteyya gave Ac.6-00 of wet land and gave Ac.8-00 of wet land to her eldest sister. He also purchased an upstair house in her name. The land was given to her and her sister prior to partition. The youngest son used to reside in Voolapalli where his eldest son resides in Arikirevula village. This witness also deposed that prior to Ex.A-1 Satteyya executed two wills. Satteyya informed that he executed one will and she came to know about it when he executed the gift deed. She saw that will in the Court prior to execution of settlement deed in her favour. She does not know the contents of the will. One year prior to Ex.A-1, she saw the will. For the first time she came to know that Satteyya executed the will that he informed her about it at the time of execution of settlement deed. Subsequent there to, she saw the will. She did not see the will actually but her father informed her. This witness also deposed that she does not know her father saw the will or not. She informed her that under the will he bequeathed the property in favour of the first defendant. He conveyed Ac.6-00 of land in favour of the first defendant as per the will. For one or two months Satteyya was unconscious. In the first instance he was attacked with fever. Later, he became sick and unconscious. During that time the will was obtained. This witness also deposed that she obtained certified copies of the order passed by the land ceiling authority and she had given several details about the family. This witness also deposed that she came to know through papers that the land ceiling matter came to an end in the last year only three months prior to Ex.A-1 pronote was transferred in her name. This witness also deposed that it is not true to say that Satteyya''s second daughter in law used to bring meals carriage to Arikirevula to Satteyya. This witness also further deposed that it is not true to say that P.W.1 her son-in-law played fraud on Satteyya and obtained gift settlement deed. In the suit filed by her on the strength of pronote Satteyya filed written statement contending that he played fraud on him. At the instance of his second son he filed written statement contending that she played fraud and obtained pronote. She obtained certified copy of the will dated 14-09-1979 executed by Satteyya. She found that there is a thumb impression of Satteyya in the will. She saw the will in the office of Biccavole one week after its execution. Under the will, Satteyya bequeathed Ac.6-00 of land in favour of the vendee. The property covered by Ex.A-1 is not referred to in the will. This witness also deposed that it is not true to say that the will is genuine one and it is binding on her. She also deposed that it is not true to say that the land ceiling matter is resolved even now. She further deposed that she will file documents to show that the land ceiling matter is closed before the Court and also certain suggestions put to this witness in relation to D-2 and D-3 also had been denied in the cross-examination by D-2 and D-3. She had denied the suggestions put to this witness P.W.1.

P.W.2 deposed about the execution of settlement deed in favour of P.W.1. P.W.2 also deposed that he was present at the time of registration of the settlement deed. Ex.A-1 bears his signature as identifying witness before Sub-Registrar. The scribe is Gonikathula Venkanna. This witness also deposed that nobody misrepresented the facts while Satteyya executing Ex.A-1. This witness also deposed about the other facts. In the cross-examination certain suggestions put to this witness had been denied.

P.W.3 deposed that Satteyya surrendered certain lands to Government under the Land Ceiling Act and the Government granted pattas to them in respect of the lands surrendered by him and he was also given Ac.0-50 cents of land about 14 years ago, and since that time this witness has been cultivating the same.

P.W.4 also deposed that Satteyya surrendered certain lands and the Government gave him Ac.0.44 cents of land which had been surrendered by him to the Government and the Government granted pattas to 14 people. This witness also deposed about the respective parties cultivating these lands. This witness also was cross-examined.

D.W.1, the first defendant in the suit, deposed that he is the great grand son of Satteyya and Satteyya used to reside in Arikirevula as well as at Ulapalli. Satteyya executed a will. Ex.B-1 is the will dated 31-01-1979. Under Ex.B-1 he bequeathed the remaining property in his favour. The land ceiling Court declared that the alienations are not valid therefore under the will he bequeathed the alienated property in favour of the vendees under the respective sale deeds. Satteyya was conscious and in a sound and disposing state of mind at the time of execution of Ex.B-1. Ex.B-1 also covers the plaint schedule property. On 14-09-1979, late Satteyya executed another will Ex.B-2. Even under Ex.B-2 also he bequeathed the remaining properties in his favour. Even under Ex.B-2 he made a reference about the alienations made. Satteyya executed Ex.B-2 because the plaintiff obtained a settlement deed in respect of plaint schedule property in her favour and therefore, he made a reference about it in Ex.B-2. D.W.1 also deposed that Satteyya was hale and healthy and in a sound disposing state of mind he executed Ex.B-2. At the time of execution of Ex.B-2 Satteyya was residing at Ulapalli. Ex.B-3 is the certified copy of the death extract of Satteyya. Ex.B-4 is the carbon copy of the order in L.R.A. No. 1576 of 1976, LRAT, Rajahmundry. Satteyya held excess land than the ceiling limits. The Government passed orders canceling the previous surrender and asked fresh surrender of the land. Ex.B-5 is the copy of the letter marked to late Satteyya addressed by Additional Revenue Divisional Officer-Sub-Collector under which Satteyya asked fresh surrender of the land. Ex.B-6 is the order passed by Land Reforms Tribunal, Rajahmundry, dated 02-01-1979 under which the lands are ordered to be redelivered to the declarant late Satteyya. This witness also deposed that the plaintiff filed suit against Satteyya in O.S. No. 215 of 1979 on the file of Subordinate Judge, Rajahmundry, which was transferred to the Subordinate Judge, Ramachandrapuram, and re-numbered as O.S. No. 161 of 1982. Late Satteyya filed written statement in that suit. Ex.B-7 is the certified copy of the written statement filed by Satteyya. D-2 and D-3 are cultivating the plaint schedule land on lease. Four days after the death of Satteyya, D-2 and D-3 came. He has shown them Ex.B-2 and as per it the maktha paid to him. Then D-2 and D-3 executed two agreements under which they agreed to pay maktha to him in terms of the lease. Exs.B-8 and B-9 are the agreements executed by D-2 and D-3. Since the death of Satteyya D-2 and D-3 are paying maktha regularly. The land ceiling case of Satteyya is still pending. He also filed an application for summoning the land ceiling record. Satteyya informed him that the plaintiff took the settlement deed by playing fraud on him. In the cross-examination this witness also deposed that Satteyya handed over Ex.B-1 two months after its execution. Along with Ex.B-1 he also handed over the ceiling record. He filed those papers into Court and except these papers he is not in possession of the other papers relating to the ceiling case. Satteyya also asked him to look after the ceiling case after his demise. Under Ex.B-1 will he bequeathed Ac.9-19 cents at Chodavaram, 0.64 cents at Arikirevula and Ac.12-80 cents at Dontamuru. The above three items were in his possession. Satteyya surrendered Ac.7-22 cents in 1979 to the government. Pattas were distributed for the above land. The above land was in the possession of Harijans of Chodavaram. Satteyya preferred an appeal. The above land of Ac.7-22 cents was also bequeathed in his favour under Ex.B-1. The above land of Ac.7-22 cents inclusive of Ac.9-19 cents was bequeathed in his favour. The remaining land situated at Chodavaram was in his possession and he cannot say the extent. He lived for 18 months subsequent to the execution of Ex.B-1. Satteyya sold some lands two years prior to the execution of Ex.B-1. In the will he also bequeathed the lands sold by him in favour of the vendees since the land ceiling case was not yet disposed of. This witness also deposed about the sale deeds and other facts relating to the ceiling case as well. This witness also was added as legal representative in the ceiling case and the land ceiling tribunal observed that after the disposal of the ceiling case, it will be decided as to whether he is the legal representative of late Satteyya or not. In the appeal filed by Satteyya the Court ordered for delivery of land of Ac.7-12 cents to him and he was also asked to file fresh surrender. On 13-11-1978, he filed fresh surrender. The fresh surrender shows the lands of Ac.2-90 cents at Chodavaram and Ac.12-80 cents at Dontamuru. The Government had not yet taken possession of those lands. The second will was executed on 14-09-1979. He was not present at the time of registration or execution. By the time of execution of second will he was at Ulapalli. This witness also deposed relating to several facts regarding execution of Exs.B-1 and B-2 as well. However, certain suggestions put to this witness had been specifically denied.

D.W.2 is a medical practitioner and this witness deposed that he knows Satteyya and he gave treatment to Satteyya for his weakness due to his oldage. He was physically weak. But he was mentally alert but not weak. He gave treatment in September, 1979 to him. In those days she used to reside in Vulapalli. Late Satteyya executed Ex.B-2 will in September and he attested the will. He was present at the time when the will was scribed. Satteyya gave instructions for drafting the will. Sitaramasastry is the scribe of the will. Ambati Ramakrishna also present at that time. Pothula Buliramayya was also present then. Satteyya was having conscious state of mind and he was in disposing state of mind at the time of execution of Ex.B-2. Satteyya subscribed his signature or thumb mark on every page of the will. He also saw when this witness and Ambati Ramakrishna subscribing their signatures on Ex.B-2. Sitaramasastry also witnessed the testator signing the will and the attestors attesting the will. The scribe read over the contents of the will to Satteyya. Satteyya satisfied the contents of the will and subscribed his signature on it. Later the scribe signed the will after they attest it. In cross-examination the suggestions put to this witness had been denied and this witness again asserted that Satteyya was in a sound disposing state of mind at the time of execution of Ex.B-2.

D.W.3 is a licenced document writer. This witness also deposed that the first will was scribed in January, 1979. Under Ex.B-1 Satteyya cancelled the previous wills. Ex.B-1 was scribed by him at Arikirevula at the house of Satteyya. Ex.B-1 was registered at the house of Satteyya at Arikirevula. Satteyya gave instructions to him for scribing Ex.B-1. In September, 1979, late Satteyya executed another will and he scribed it. The second will was executed at Vulapalli. It was registered at Biccavole Registrar''s office. Late Satteyya gave instructions for scribing Ex.B-2 will. Late Satteyya was in sound and disposing state of mind at the time of execution of Ex.B-2. By seeing the document this witness stated that Venkataramayya, Ramakrishna attested the will. Under Ex.B-2 will, he made a bequest in favour of D.W.1. He saw when late Satteyya subscribing his signature and thumb mark on Ex.B-1 on every page. After he read over the contents of the will having satisfied with them he subscribed his signature and thumb mark. Later, the attestor signed the wills. He saw when the attestors and Satteyya subscribed their signatures on the wills. Satteyya executed Ex.B-2 will out of his free will and consent. In the cross-examination several questions were put to this witness. This witness also deposed that Exs.B-8 and B-9 also were scribed by him. Within one week from the date of death of late Satteyya he scribed Exs.B-8 and B-9. This witness also deposed that D.W.1 had given the survey numbers of these lands. Certain suggestions put to this witness had been denied.

D.W.4 deposed that he has been the cultivating tenant of some extent under Satteyya and this witness also deposed how they had seen the will and Satteyya telling them about the execution of the will. D-1 asked them to execute a Khararunama. Ex.B-8 is the Khararunama letter executed by him under which he agreed to pay maktha to D-1.

D.W.5 also deposed that he had been cultivating Ac.2.76 cents of land on lease. This witness had given the details of the maktha which was paid to Satteyya and D-1 informing him about Satteyya executing the will in his favour and he read over the contents of the will to this witness and he asked this witness and also D.W.4 to come to Ulapalli and there this witness also executed a Khararunama Ex.B-9 in favour of D-1. This witness also was cross-examined and certain suggestions put to this witness also had been specifically denied.

The contents of Ex.A-1 and Ex.B-2 already had been referred to above relating to the nature of conduct of P.W.1. Certain submissions were made in relation to Ex.B-7. The certified copy of the written statement filed by Satteyya as second defendant in O.S. No. 215 of 1979 on the file of Subordinate Judge, Rajahmundry. The contents thereof and the specific stand taken by Satteyya relating to the conduct of the plaintiff/daughter also had been pointed out.

On a careful reading of the recitals of Ex.A-1, though the rights in prasenti had been conferred the enjoyment had been postponed reserving life interest and a recital is there relating to mutation as well. Section 2(h) of the Indian Succession Act, 1925 defines will as in this Act, unless there is anything repugnant in the subject or context "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Section 2(b) of the Specific Relief Act, 1963 defines the settlement as in this Act, unless the context otherwise requires,- "settlement" means an instrument other than a will or codicil as defined by Succession Act, 1925, whereby the destination or devolution of successive interests movable or immovable property is disposed of or is agreed to be disposed of;

Further strong reliance was placed on Section 5 of the Transfer of Property Act, 1882 and the said provision reads as hereunder:

In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and "to transfer property" is to perform such act. In this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

In Reddi Demudu v. Kannuru Demudamma 1996 AIHC 4983, a learned Judge of this Court at para 15 observed:

When "settlement" is not defined in the Transfer of Property Act and as it can be brought within Section 5 of the Act, it can be termed as a conveyance inter-vivos in regard to Immovable property. In the absence of such a definition in the Transfer of Property Act, any other definition in any other statute in regard to that can be legally adopted. Patently, ''settlement'' is defined in Section 2(b) of the Specific Relief Act and Section 2(24) of the Indian Stamp Act. Since we are dealing with settlement operating as the transfer of property inter-vivos, the Registration and Stamp duty and also the purpose of such a contract are to be taken as consequences operating such laws. Among them the Specific Relief Act, 1963 being the substantive law, the definition therein of ''settlement'' would have a more legal bearing than the definition in the enactments like Stamp Act etc., which are intended for a particular purpose. Section 2(b) of the Specific Relief Act reads thus-

Settlement, means an instrument, other than the Will or codicil as defined by the Indian Succession Act, 1925, whereby the destination or devolution of successive interests in the moveable or Immovable property is disposed of or is agreed to be disposed of.

Section 2(24) of the India Stamp Act reads as follows:--

Settlement'' means any non-testamentary disposition in-line or moveable or immovable property whether by way of declaration of trust or otherwise made-

(a) in consideration of marriage;

(b) for the purpose of distributing the property of the settlor among his family or those for whom he desires to provide or for the purpose of providing for some persons depending on him; or

for any religious or charitable purpose and needs an agreement in writing to make such a disposition and where any such disposition has not been made in writing and any instrument regarding whether by way of declaration of trust or otherwise, permits of any such disposition.

It is true that Section 2(24) of the Indian Stamp Act is more elaborate in its expression than Section 2(b) of the Specific Relief Act. The reason appears to be that whenever an instrument intending to transfer Immovable property has to be examined for the purpose of charging Stamp duty that may require more elaboration than the document purporting to create a right in the enactments like Specific Relief Act. However, to understand and enforce such instruments, both the definitions would become relevant and useful. One thing is certain that settlement would never be a Will that being a non-testamentary disposition of property. That is how there is a specific category of an instrument called ''Will'' under the Indian Succession Act, as has been defined u/s 2(h), which reads thus-

2(h): ''Will means the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death.

Therefore, on the face of it, a settlement can never be a Will and the contrary cannot be always true, because under a Will there will be a settlement of property by a declaration of the intention of the testator that his property which he desires to be carried into effect after his death whereas under the settlement the intention of such a person takes effect immediately. It is said that the distinction between the two documents is a nicety in law and has a thin veil. At this stage to conclude on the definition and meaning of ''settlement'' as different from ''Will'' it would be an instrument (meaning that it should be in writing) whereby the destiny of devolution of successive interest in movable or immovable property is agreed to be disposed of. It is here the meaning of ''conveyance'' has to be borrowed from Section 5 of the Transfer of Property Act. A doubt may arise whether a settlement could be inter-vivos as in the case of a gift. A settlement can be unilateral as in the case of a Will land the beneficiary need not agree for the same. The word ''agree'' used in Section 2(b) of the Specific Relief Act will only mean that the person conveying such a property by settlement would voluntarily do it and agree to do it.

The Apex Court in Namburi Basava Subrahmanyam Vs. Alapati Hymavathi and others, , while dealing with the settlement deed or the interpretation of the deed observed:

(5) The said recital clearly would indicate that the settlement deed executed on that date is to take effect on that day. She created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries mentioned thereunder. A combined reading of the recitals in the document and also the schedule would clearly indicate that on the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property and vested remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on settlor''s demise. A reading of the documents together with the Schedule would give an indication that she had created right and interest in prasenti in favour of her daughter Vimlavathy in respect of the properties mentioned in the schedule with a life estate for her enjoyment during her lifetime. Thus, it could be construed rightly as a settlement deed but not as a Will. Having divested self thereunder, right and title thereunder, she had, thereafter, no right to bequeath the same property in favour of her daughter, Hymavathy. The trial Court and the learned single Judge rightly negatived the claim. The Division Bench was not, therefore, correct in law in interfering with the decree of the trial Court.

In Mallappa v. Kogara Venkatappa 1958 ALT 570, learned Judge of this Court observed:

The question as to whether a certain document is a deed of gift or a will depends not merely upon the form of the document but upon the intention gathered from the words used in the document itself. Various tests are formulated by Courts for determining as to whether a certain document is a deed of settlement or a will. The name by which the document is styled, the registration of it, the reservation of life estate, the reversion of power of revocation and the use of present or future tense are all circumstances which are taken into consideration in coming to one conclusion or the other and all these are indications to find out the intention coupled with the surrounding circumstances. The mere reservation of life estate does not necessarily indicate that the document is testamentary and that, therefore, the agreement is revocable. Nor does the fact that the donor revoked it in a few days itself indicate that he intended to make a will and not a deed of settlement or a deed of gift. In construing the document the conduct of the parties subsequent to the execution should not be taken into consideration, where there is no ambiguity in the words and expressions used in the document. In the instant case the document is styled ''deed of settlement'' and was registered as such. It conferred on the donee immediate title to the property subject to the limited right of enjoyment without rights of sale, gift or mortgage during the life-time of the donor. The donor has not expressly reserved his power of revocation. The fact that he did not reserve his right of revocation and curtailed his rights by way of sale, gift or mortgage all go to show that his intention was to transfer the interest in the property on the settler and not to postpone it subject to his enjoyment during his life.

Further strong reliance was placed on

1) Khushalchand Bhagchand Vs. Trimbak Ramchandra and Others,

2) Koraprolu Veerabhadrayya v. Jajala Seethamma and Ors. AIR 1940 Mad 236

3) Sengamalam Vs. Logambal and Others,

4) Amarsing Ratansing and Another Vs. Gosai Mohangir Somvargir and Others,

5) Ramaswami Naidu and Another Vs. Gopalakrishna Naidu and Others,

6) Ponnuchami Servai Vs. Balasubramanian and Others,

7) Tajo Ram Nath and Anr. v. Baneswar Nath AIR 1962 Ass 106

8) Pravin Kumar Vs. P. Rajeswaran and Others,

9) Kamla Prasad Jadawal Vs. Punjab National Bank, New Delhi and Others,

It is, no doubt, true that the nomenclature given to the document always may not be decisive. The form and substance of the document also may have to be taken into consideration. But however, the transfer of property in prasenti had been conferred. The mere postponement of enjoyment by itself cannot be taken as a ground to contend that Ex.A-1 would not fall under the expression settlement deed and would fall under the expression will. Even otherwise, it is pertinent to note that in the present case even if the contention of the learned Counsel for the appellant/plaintiff that Ex.A-1 to be construed as a will, in the light of the evidence available on record Ex.B-2 being later in point of time and this question whether Ex.A-1 to be taken as a settlement deed or as a will in the facts may not seriously alter the situation. Be that as it may, it is no doubt true that the trial Court also in appreciation of evidence came to a conclusion that the due execution of Ex.A-1 cannot be put into any serious controversy. But however, the trial Court arrived at a conclusion that by virtue of the relevant provisions of the Act since the same would fall under alienation in the light of the specific bar or prohibition, the said document cannot be held to be valid. As far as Ex.B-2 is concerned submissions at length were made that this being a will it would not amount to transfer or alienation and hence, the bar imposed by Section 17 of the Act would not be applicable. The evidence available on record relating to the due execution of Ex.B-2 already had been specified supra. Learned Counsel representing appellant placed strong reliance on the decision of this Court in Rapeti Veerinaidu (died) by LRs. Vs. Thota Gangadhara Rao and Another, , wherein the learned Judge of this Court at paras 12 and 18 observed that:

As to the facts, admittedly there is no dispute that the original defendant executed an agreement of sale in favour of the plaintiff, and in fact, received substantial sums either at the time of the agreement or subsequent thereof, though there is some more balance payable by the plaintiff to the defendant. Though the defendant pleaded that there was a settlement between the elders and thereafter possession of the land was delivered back by the plaintiff to the defendant, but both the Courts disbelieved this version. The trial Court accepted the claim of the plaintiff that he was ready and willing to perform his part of the contract, but he could not pay the balance and demand execution of the registered sale deed in view of the prohibition contained under the Land Ceiling Act and the pendency of the LCC. In fact, the land Ceiling Act, prohibiting the alienations, came into effect on 2-5-1972, whereas the plaintiff was having time to pay the balance consideration on or before 10-5-1973. Therefore, it is clear that the Act prohibiting the alienation has come into effect before the expiry of the time that was available to the defendant for payment, therefore, the plaintiff cannot be found fault for nonpayment of the balance in spite of the prohibition and inability of the defendant to execute the sale deed. In fact, the plaint averments, as extracted even by the lower appellate Court, clearly contains the version of the plaintiff that he is ready and willing to perform his part of the contract, but however, the learned lower appellate Judge overlooking the said averment of the plaintiff, observed that the plaintiff did not even plead his readiness in the plaint Therefore, there is no merit or justification for the lower appellate Court to make such observations, though in fact, finally reversed the judgment on the ground that there is a prohibition u/s 17 of the Act, therefore, no decree could be passed

If we consider the facts of the case in the light of the above decisions, the lower appellate Court erroneously reversed the judgment and decree of the trial court on the premise that the agreement entered into by the plaintiff with the defendant is attracted by the prohibition contained u/s 17 of the Act, relying upon a decision of the Division bench judgment of this Court C. Ramaiah v. Mohammadunnisa Begum, (supra) which was later overruled by a decision of the full Bench in K. Venkateswarlu v. K. Pedda Venkaiah, (supra ). Therefore, on the face of it, the judgment under appeal is not sustainable. Apart from that, the other decisions relied upon by the learned Counsel for the appellants clearly supports their case that any such agreements or decrees that are passed between the parties, though are not binding on the State, but are valid inter se between the parties. Further, the defendant having entered into an agreement and received substantial portion of the consideration, cannot be permitted to take the protection of law, which is intended for a different purpose, to defeat the rights of the purchaser under the agreement for his own benefit

This is a decision concerned with the prohibition of alienation in the context of Section 17 of the Act in relation to an agreement of sale. However, submissions had been made that the same principle to be extended to the present case also especially in the light of the fact that the very object of the Act inasmuch as in a way had been satisfied by virtue of finalisation of surrender proceedings and especially in the light of the fact that the trial Court recorded a positive finding relating to the due execution of Ex.A-1 the bar imposed by Section 17 of the Act cannot be made applicable to the present case.

Learned Counsel for the contesting respondents placed strong reliance on the decision of this Court in Kolaparti Venkatareddi Vs. Kolaparti Peda Venkatachalam, , wherein the learned Judge of this Court at paras 8 and 9 observed as hereunder:

The term public policy however does not admit of any definition and it cannot easily be explained. It is a variable quantity, which must very and does vary, with the habits, capacities and opportunities of the public. There are however certain clauses of contracts which have been dealt with by the Courts as opposed to public policy. It is not disputed that the expression public policy is a very uncertain one and it should not be carelessly extended to any case for what is the policy of the public at one time may not be a sound public policy at another time. The expression public policy therefore was rightly called by Burrough, J., as a very unruly horse and once when you get a stride of it you never know whore it will carry yon. " Although therefore the term public policy is not capable of a precise definition it can be broadly stated that it is equivalent to the policy of the law. It is applicable to the spirit as well as the letter. Whatever lends to injustice of operation, restraint of liberty, commerce and natural or legal right; whatever tends to the obstruction of justice or to the violation of a statute and whatever is against the good morals -- when made the object of a contract is against a public policy and there fore void and not susceptible of enforcement. In Gherulal Parakh Vs. Mahadeodas Maiya and Others, , their Lordships of the Supreme Court observed:

...the primary duly of a Court of law is to enforce a promise which the parties have made and to uphold the sanctity of contracts which form the basis of society, but in certain cases, the Court may relieve them of their duty on a rule founded on what is called the public policy;... but the doctrine is extended not only to harmful cases but also to harmful tendencies; this doctrine of public policy is only a branch of common law, and, just like any other branch of common law, it is governed by precedents; the principles have been crystallized under different heads and though it is permissible for Courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public; though the heads are not closed and though theoretically it may be permissible to evolve a new head under exceptional circumstances of a changing world, it is advisable in the interest of stability of society not to make any attempt to discover new heads in these days.

It is not in my opinion necessary to enumerate the different heads of agreement which have been recognised by Judicial precedents as being against public policy. It is enough if I say that agreements tending to injure the public service are always considered to be opposed to public policy. It therefore follows that any agreement which is in conflict with the public good or public policy in that respect is illegal and void. This very policy is reflected in Section 5 of the Act which mates the emoluments attached by the Stale to certain offices inalienable and not liable to attachment. Similarly Section 6(f) of the Transfer of Property Act enacts that a public office cannot be transferred, nor can the salary of a public Officer, whether before or after it has become payable. The inescapable conclusion of the aforesaid discussion is that if the agreement in question in any way is violative of the public policy as stated above, or any provision of law viz., Section 5 or the Act, or Section 6(f) of the Transfer of Property Act, the agreement cannot be enforced by a. Court of law.

Reliance also was placed on V. Kutumba Reddy v. M. Jagannadha Raju 1981 APHC Notes 82, wherein it was held that the provisions of Sub-section (1) of Section 17 have been made applicable to execution of decree or orders of a civil court. Sub-section (3) of Section 17 states that the provisions of Sub-section (1) shall apply to any transaction of the nature referred to there in execution of decree or order of a civil court of any award or order of any authority. The executing court cannot proceed with the sale of lands which have been included in the declaration filed by the petitioner until that matter is finally disposed of and the lands surrendered as provided in Section 17 of the Act.

Sections 16 and 17 of the Act reads as hereunder:

� 16 Claims for the amount payable.:

The Tribunal shall, after giving the persons known or believed to be interested in the land vested in the Government an opportunity of being heard, determine the amount payable u/s 15 and publish a notification containing particulars of the land so vested and the amount payable therefor. Any person having an interest in the said land, may file a claim for the amount due to him from out of the amount payable, within thirty days from the date of publication of the notification and the Tribunal shall after making an inquiry into the validity of the claim, determine the persons who, in its opinion, are entitled to payment from out of the said amount and the amount to which each of them is entitled and subject to such rules as may be prescribed, make payments in accordance with such determination.

� 17 Prohibition of alienation of holding.:

(1) No person whose holding, and no member of a family unit, the holding of all the members of which in the aggregate, is in excess of the ceiling area as on the 24th January, 1971 or at any time thereafter, shall on or after the notified date, alienate his holding or any part thereof by way of sale, lease, gift exchange, settlement, surrender, usufructary mortgage or otherwise, or effect a partition thereof, or create a trust or convert an agricultural land into non agricultural land, until he or the family unit, as the case may be, has furnished a declaration u/s 8, and the extent of land, if any, to be surrendered in respect of his holding or that of his family unit has been determined by the Tribunal and an order has been passed by the Revenue Divisional Officer under this Act taking possession of the land in excess of the ceiling area and a notification is published u/s 16; and any alienation made or partition effected or trust created in contravention of this section shall be null and void and any conversion so made shall be disregarded.

(2) For the purpose of determining whether any transaction of the nature referred to in sub section (1) in relation to a land situated in this State, took place on or after the notified date, the date on which the document relating to such transaction was registered shall, notwithstanding anything in Section 47 of the Registration Act, 1908, be deemed to be the date on which the transaction took place, whether such document was registered within or outside the State.

(3) The provisions of sub section (1) shall apply to any transaction of the nature referred to therein in execution of a decree or order of a civil court or of any award or order of any other authority.

In Gangareddy v. Tahsildar, Armoor, Nizamabad District 1977 APLJ 1 36, a learned Judge of this Court while dealing with Section 17 of the Act observed:

No alienation by way of sale in execution of a decree or order of a Civil Court or of any law or order of any authority, can be made until the extent of the land to be surrendered in respect of holding of a person or of his family unit, has been determined and an order has been passed by the Revenue Divisional Officer under the Act taking possession of the land in excess of the ceiling area and a notification published u/s 16, and that any such alienation made in contravention of the said section is null land void.

In the instant case proceedings under the Act in respect of the petitioner''s holdings have not yet been finalized as required by Section 17(1) of the Act. Therefore the lands of the petitioner cannot be brought to sale at this stage.

In Aravala Appalaswamy Naidu v. State of Andhra Pradesh 1979 Andhwr 1 145, a learned Judge of this Court at para 5 observed that:

Section 27 of the Act empowers the state Government to make rules to carry out any of the provisions of the Act. By virtue of the powers conferred under this section, the State Government framed Rules in g. O. Ms. No. 1141 (Revenue--G) Department, dated 7th December, 1974. Rule 16 (1) provides that all the proceedings before the authorities under the Act shall be summary and shall be governed as far as may be by the provisions of the code of Civil Procedure. Therefore, the provisions of the CPC are applicable to the proceedings before the land Reforms Tribunal and Land Reforms appellate Tribunal. Under Rule 3 of Order 22 when the sole surviving plaintiff dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the plaintiff to be made a party and shall proceed with the suit. Under Article 120 of the Limitation act, an application under this Rule must be made within 90 days from the date of the death of the deceased plaintiff. Under Sub-rule (2) of Rule 3, where no such application is made within the time, the suit shall abate so far as the deceased-plaintiff is concerned. In this case, the declarant filed his application on 5th April, 1975. He died on 16th November, 1975. No application was filed before the Tribunal to bring the legal representatives of the deceased-declarant on record within the time allowed. Therefore, the declaration filed by Aravala ramanna abated and the order passed on 9th September, 1976 by the Land Reforms tribunal is a nullity. But the contention of the learned Government Pleader was that u/s 9 of the Act, the Tribunal shall have to determine the holding of a person on the notified date namely, 1st January, 1975, and since Ramanna was alive on 1st January, 1975, the holding of Ramanna as on 1st January, 1975 had been rightly determined. It is true that Ramanna was alive on 1st January, 1975. But the order determining the holding of Ramanna was only passed on 9th September, 1976. By then Ramanna was not alive. He died on 16th November, 1975. Therefore, the order passed against Ramanna, a dead person, is a nullity.

In Gopavaram Nagalakshmamma and Anr. v. State Special Tahsildar, Land Reforms, Nandyal 1978 APLJ 1 271, while dealing with Sections 7(1) and (2) of the Act, a learned Judge of this Court held that:

In order that Sections 7(1) and (2) of the Act may be attracted the will must answer the description of transfer or alienation. The will as such is not expressly covered by Sections 7(1) or 7(2) of the Act. Unless the disposition under the will constitutes a transfer or alienation Section 7 would have no application. Under the will though the property is bequeathed by a living person in favour of another living person, it operates on the death of the testator, and not by virtue of the execution of the document itself. The expression ''transfer'' in any other manner must refer to transfers similar to those specifically mentioned earlier viz. , transfer by way of sale, gift, usufructuary mortgage, exchange, settlement and surrender. These are transfers inter vivos. The expression "transfer in any other manner" must also on the principle of ejusdem generis refer to transfer inter vivos. So also the term ''alienation'' occurring in subsection (2)of Section 7. ''alienation otherwise'' occurring in subsection (2) of Section 7 must mean the alienation of the kind specifically mentioned in that Sub-section viz. , gift, exchange, usufructuary mortgage which are all transfers inter vivos. That is also clear from the fact that u/s 7(1) of the act the burden of proving that the person wanted to avoid and defeat any of the impending legislation as to the reductions in ceiling on agricultural holding is placed on the executant of the document. As the will operates from the death of the testator, the question of the burden of proving that it was not intended to avoid or defeat the provisions of the ceiling law, lying on such person could not arise. Section 7(1) or 7(2) of the Act has no application to dispositions made under a will. It cannot be said that a will executed after 24-01-1971 is void and cannot be given effect to.

In Y. Laxmi and Others Vs. The State of A.P., , a learned Judge of this Court at paras 4 and 5 observed:

It is not disputed that the husband of the petitioner, being the son (major) of Late Papayya, is entitled to one holding apart from that of Papayya, who is also entitled to a separate holding as on the notified date. In case the ''will'' is proved, the properties covered by the ''will'', if exceed one holding to which alone the testator is entitled, the legatees under the will, whether or not individually hit by the Act, are bound to surrender the same.

It is next contended that the proceedings, which were held without issuing any notice to the legatees, are void. In case it is found that the declarant was holding excess land, he having died, the legatees alone are the affected parties inasmuch as it is they that have got to surrender the excess land, and therefore failure to issue notice to the legatees while adjudicating the ceiling proceedings is basically hit by the principles of natural justice. It is also pertinent to refer to Rule 6 of the A. P. Land Reforms Rules, 1974, which reads:

Enquiry and determination of ceiling area: (1) The Tribunal shall fix the date on which and the time and place at which an enquiry. . . will be held and intimate the same by a notice in form V, to the declarant or the Holder of the land in respect of which the information has been received, to the other persons interested....

Constituting the scope and ambit of the term ''other persons interested'' in the light of Rule 6, this Court held that (i) the persons in possession to whom the land was sold by the declarant, (ii) the mortgage decree-holder against the declarant, and (iii) the maintenance holders pending decision before the Estate abolition Tribunal, are ''persons interested'' in 1978 (2) APLJ (SN) para 9, 1980 (1) ALT 45 and 1980 (1) ALT 19 respectively- On a similar analogy the legatees under a will, the testator having died, are equally persons interested and therefore the proceedings that took place without issuing notice to the legatees are illegal and invalid and in view of the above decisions referred to since, in the instant case, it is not disputed that no notice was issued to the legatees and the proceedings went on, the same are illegal and accordingly set aside. In so far as the holding of the husband of the petitioner, who is no other than the son of Papayya the declarant, is concerned, there is no ambiguity that in the light of Section 4-A of the Act he is entitled to one holding whether or not the bequeath under the will is in his favour, apart from the separate holding to which the deceased Papayya is entitled for purposes of computation of the holding in order to arrive at the excess or otherwise of the holding.

In Eranki Srerama Murthy and Others Vs. Eranki Atchuta Venkata Subramanyam (died) by LRs. and Others, , a Division Bench of this Court observed at para 16 as hereunder:

The first objection thus has to be turned down as meritless. Settlement of the entire holding by the sole plaintiff in favour of defendants is through settlement deed ex. B-12. He as on the date of execution was a member of family of which his wife has also formed part. Their holding put together admittedly exceeded the specified limit as on the date of execution of the settlement deed. As such whether this transaction has to be termed as null and void; or in other words the alienation by settlement deed is or is not prohibited is the next question raised by the learned Counsel for the respondents only by asserting that since the expression ''settlement deed'' is not specifically mentioned in Sub-section (1) or Sub-section (2) of Section 5, therefore, transfer by settlement deed will be deemed to have been excluded. Such an argument has no force. Bar as contained in subsection (1) or Sub-section (2) is for alienating the holding or any part thereof. While illustrating further, certain modes of alienation are expressly stated that whether alienation it is by way of sale, lease exceeding six years, gift, exchange, usufructory mortgage or otherwise. Use of word "otherwise" relates to alienation. After all what is the effect of ''settlement'' in law. ''settlement'' has not been defined in the Act and we have to refer to the word as it is commonly understood. ''settlement'' in common parlance means settling the property, right or claim-conveyance or disposition of property for the benefit of another. Admittedly the effect of execution of settlement deed is transfer of all rights, title and interest, which hitherto vested in the settlor in favour of the settlee. By execution of the settlement deed, Ex. B-12, the sole plaintiff purported to have transferred, conveyed or parted with all his rights, title or interest in the property, in favour of Defendant No. 1. Such a conveyance or disposition of property by the sole plaintiff for the benefit of Defendant No. l by any mode whatsoever has to be treated as alienation for all intents and purposes. On and from the date of execution of such a deed, if it is not hit by Section 5 of the Act, had the effect of vesting all such rights, title and interest in the property in favour of Defendant No. l thereby depriving the plaintiff of any right, title or interest therein. The Legislature in its wisdom in Section 5 did not mention all instances of alienation but elaborated it as "sale, lease, gift, exchange, usufructory mortgage, partition or creation of trust". In case we read literally the provision that "alienation of holding or any part thereof by sale, etc., or otherwise" shall be null and void that alone would convey the meaning of the term used in Sub-sections (1) and (2) that alienation of the property in any form, whatsoever; which has the effect of conveying right, title or interest in favour of the other is clearly hit by the said provisions contained in Section 5 of the Act, if it contravened the provision. Therefore, the reasonings and finding of the trial Court and of the learned Single judge of this Court deserves to be set aside and it must be held that the transfer by the sole plaintiff in favour of Defendant No. l by the settlement deed, Ex.B-12, dated 25. 8. 1973 as registered on 27. 8. 1973 was in contravention of Section 5 of Act No. 13 of 1972 and thus is null and void, thereby conferring no right, title or interest in favour of Defendant No. l and for that reason alone the suit of the plaintiffs deserves to, be decreed.

The evidence of D.W.1 would go to show that though some surrender had been made and some distribution also had been done the surrender proceedings of Satteyya had not been finalized for certain reasons. The evidence of this witness could not be discredited even in cross-examination though certain suggestions were put to this witness in this regard. The main contention advanced by the learned Counsel representing appellant/plaintiff is that when a finding had been recorded relating to the due execution of the settlement deed Ex.A-1 and since rights in prasenti had been transferred in favour of the plaintiff/P.W.1. When the object of the Act by virtue of the surrender proceedings in a way had been satisfied even by that time, the rigor of Section 17 of the Act and the bar imposed thereunder cannot be made applicable. This contention, no doubt, appears to be attractive, but however, for certain reasons the said proceedings had been continued in some form or other. Be that as it may, in the considered opinion of this Court in the light of the relevant dates which had been recorded in clarity by the trial Court, this Court cannot find fault with the findings recorded by the trial Court relating to the applicability of the bar imposed by Section 17 of the Act. As already referred to above, even if the contention of Sri T.V. SPrabhakar Rao that Ex.A-1 also to be construed to be a will to be accepted, since the due execution of the last will Ex.B-2 had been duly proved. On this ground also P.W.1/plaintiff may not be able to succeed.

Hence, viewed from any angle, this Court is satisfied that the findings recorded by the trial Court relating to the validity of Ex.A-1 cannot be found fault and it is needless to say that Ex.B-2 had been duly proved in the light of the evidence which had been already discussed supra. In view of the elaborate findings recorded by the trial Court and also in the light of the legal position which had been discussed supra, especially, in the context of the language employed in Section 17 of the Act, this Court is thoroughly satisfied that the findings recorded by the trial Court cannot be found fault. Accordingly, the said findings are hereby confirmed. No doubt, Sri B.Kantha Rao raised a preliminary objection relating to the maintainability of the appeal on the ground of want of question of law in the light of the language of the Section 96(4) of the CPC. This Court is not inclined to go into the said question. Even otherwise, the said preliminary objection may not be sustainable in the light of the valuation of the suit. Accordingly, the findings recorded by the trial Court are hereby confirmed.

Point No. 4:

In the result, the appeal being devoid of merit the same shall stand dismissed. However, in view of the close relationship between the parties, let the parties bear their own costs.