ANNAM MALLA REDDY Vs. BANGI NAGAIAH

JUDGEMENT

(1.) This Court on 5-2-1998 made the following order: Heard. This second appeal is admitted to consider the following substantial question of law: Whether the appellate Court failed to exercise jurisdiction in not considering I.A. No.734 of 1994 filed in AS No.50 of 1993 for additional evidence and as such the findings ultimately recorded are vitiated? This Court in CMP No. 15455 of 1997 granted interim stay of drawing up the final decree and all other proceedings till that stage shall go on.

(2.) Sri P.V. Narayana Rao, the learned Counsel representing the appellants had pointed out that this specific ground was raised as a substantial question of law in ground No.7(e) of the grounds of second appeal. Incidentally, the learned Counsel also had pointed out to the other substantial questions of law raised by him shown as ground No.7(a), (b), (c) and (d) and the said grounds read as under: 7(a) Whether it is necessary under Section 8 of Hindu Minority and Guardianship Act to obtain prior permission for the sale of joint family property insofar as to the extent of share of respondent Nos.1 and 2 in the joint family property for disposing off the undivided interest of minor son in the joint family property ? 7(b) Whether the agreement of sale in Ex.B1 is void for non-mentioning of the survey number in Ex.B1 when the local name of the land is mentioned in Ex.B1 supported by evidence of DWs. 1 to 4. 7(c) Whether the sale of the land under Ex.B1 by respondent No.3 to meet the medical expenses for the treatment of his son, the family members, who suffered from polio and to pay the debts incurred for the said purpose namely treatment of his son is a legal necessity contemplated under Hindu Law ? 7(d) Whether non-consideration of entire material evidence oral and documentary on record having a direct bearing an the disputed issue and non-application of law in proper perspective ? 7(e) Whether the Court of Subordinate Judge at Huzurabad is justified in disposing the appeal in AS No.3 of 1996 without passing any orders on the application in I.A. No.734 of 1994 in AS No.50 of 1993 on the file of the District Judge, Karimnagar without numbering IA No.734 of 1994 after transfer of AS No.50 of 1993 from the Court of the District Judge, Karimnagar to the Court of Subordinate Judge at Huzurabad after establishment of Court of Subordinate Judge at Huzurabad in the month of December 1995 ? The learned Counsel would submit that in the facts and circumstances the view expressed by the Apex Court in the decision in Sri Narayan Bal and others v. Sridhar Sutar and others, AIR 1996 SC 2371 == 1996 (1) ALD (SCSN) 25, would be applicable and hence the findings recorded by the Courts below are unsustainable findings. The learned Counsel would also further submit that even otherwise when application for reception of additional evidence was moved without considering the same disposing of the appeal as such, would vitiate the decree and judgment of the appellate Court and on this ground alone the said decree and judgment are liable to be set aside. The learned Counsel also placed strong reliance on certain decisions to substantiate his submissions.

(3.) Per contra, Sri Gopal Reddy, the learned Counsel representing the respondents-plaintiffs had taken this Court through Section 8 of the Hindu Minority and Guardianship Act and also the findings recorded in relation to Ex.B1 the sale transaction and would submit that in the light of the concurrent findings recorded by both the Courts below it is not a fit matter to be interfered with in the second appeal. While making his submissions in elaboration, the learned Counsel pointed out to the findings, which had been recorded by the Court of first instance and also the appellate Court as well. The learned Counsel would also point out that inasmuch as this being a question of law, which had been decided, the consideration or non- consideration of the additional evidence said to have been placed would not seriously alter the situation and hence the second appeal is liable to be dismissed.