IN THE
HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT
HYDERABAD
HONOURABLE SRI JUSTICE L. NARASIMHA REDDY
CIVIL REVISION PETITION No.2 OF 2012
Y.V.KARUNAKAR
REDDY & ANR
VS
SMT.Y.P.RAJESWARI
& 10 IRS
ORDER:
The petitioner filed
O.S. No.18 of 2004 in the Court of the District Judge, Anantapur, for partition
and separate possession. A preliminary decree was passed on 05-10-2009 and the
same is said to have become final. Thereafter, the
petitioners filed I.A No.758/2010 before the trail Court with a prayer to
appoint a Commissioner to divide the property by metes and bounds in terms of
the preliminary decree. When the enquiry into that application is under progress, the 1st respondent, who is
the wife of 5th respondent (4th defendant in the suit) field an application under Order – I Rule - 10 CPC
with a prayer to implead her in the final decree proceedings as well as in I.A
No.758 of 2010. She stated that the 1stdefendant in the suit, by name,
Shantamma, executed a Will in favour of her husband in respect of an item of
suit schedule property and on the death of Shantamma, the property devolved
upon the
5th respondent. It was further pleaded that the 5th respondent executed a Gift Deed in favour the 1st respondent on 05-05-2007 and thereby she became an absolute owner of the property covered by the Gift Deed. The application was opposed by the petitioners.
5th respondent. It was further pleaded that the 5th respondent executed a Gift Deed in favour the 1st respondent on 05-05-2007 and thereby she became an absolute owner of the property covered by the Gift Deed. The application was opposed by the petitioners.
2. The trial Court
allowed the I.A. through order, dated
11-11-2011.
11-11-2011.
3. Heard Ms.Tara
Sujatha, learned counsel for the petitioners and Sri N. Ranga Reddy, learned
counsel for the 1st respondent.
4. The family tree of
the parties to the suit is fairly large and it covered the children of three
wives of one Y. Venkata Ranga Reddy.
A preliminary decree was passed on 05-10-2009, determining the shares of the plaintiffs as well as the 10 defendants in the suit. After the decree became final, the petitioners initiated proceedings for final decree and prayed for appointment of an advocate Commissioner. At that stage, the 1st respondent, wife of the 4th defendant in the suit, filed an application to implead her in the proceedings.
A preliminary decree was passed on 05-10-2009, determining the shares of the plaintiffs as well as the 10 defendants in the suit. After the decree became final, the petitioners initiated proceedings for final decree and prayed for appointment of an advocate Commissioner. At that stage, the 1st respondent, wife of the 4th defendant in the suit, filed an application to implead her in the proceedings.
5. It is not uncommon
that even strangers are impleaded in the final decree proceedings in case,
their rights are adversely effected on account of partition. However, in case, a
third party acquires rights through one of the parties to the suit, he or she
cannot be permitted to come on record and to oppose the preliminary decree,
which is already became final.
6. In the instant case,
the basis for the claim, made by the
1st respondent is that her husband – 5th respondent (D-4) got an item of property through a Will executed by the deceased 2nd respondent (D-1) and the 5th respondent inturn executed a Gift Deed in her favour. If, in fact, there existed a Will in favour of the 5th respondent, executed by the 2nd respondent, the same ought to have pressed into service in the suit itself. There would have been occasion for the Court to examine the validity of the Will and for the petitioners to put forward their contentions. The 5th respondent did not take any steps and thereby permitted the preliminary decree to become final.
1st respondent is that her husband – 5th respondent (D-4) got an item of property through a Will executed by the deceased 2nd respondent (D-1) and the 5th respondent inturn executed a Gift Deed in her favour. If, in fact, there existed a Will in favour of the 5th respondent, executed by the 2nd respondent, the same ought to have pressed into service in the suit itself. There would have been occasion for the Court to examine the validity of the Will and for the petitioners to put forward their contentions. The 5th respondent did not take any steps and thereby permitted the preliminary decree to become final.
7. Having kept quiet
during the pendency of the suit, the
5th respondent cannot claim, to himself, the benefit under a Will, which was not the subject matter of verification in the suit. Further, the Gift Deed was executed in favour of the 1strespondent on 29-04-2007 when the suit was very much pending and much before the preliminary decree was passed. Therefore, when the very basis for the 1st respondent is shaky, she cannot be impleaded nor can she agitate her rights vis-à-vis the preliminary decree.
5th respondent cannot claim, to himself, the benefit under a Will, which was not the subject matter of verification in the suit. Further, the Gift Deed was executed in favour of the 1strespondent on 29-04-2007 when the suit was very much pending and much before the preliminary decree was passed. Therefore, when the very basis for the 1st respondent is shaky, she cannot be impleaded nor can she agitate her rights vis-à-vis the preliminary decree.
8. Therefore, the Civil
Revision Petition is allowed and the order under revision is set
aside. The miscellaneous
petition filed in this revision also stands disposed of. There shall be no
order as to costs.
____________________
L. NARASIMHA REDDY, J
September 06, 2012.
KTL
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