THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
CIVIL REVISION PETITION No.561 OF 2012
27-09-2012
Ponnuri Venkata Sai Sivananda Prabhu
Popuri Sunitha and others
Counsel for the Petitioner: Sri T. Durga Prasada Rao
Counsel for the Respondent No.1: Sri Sivalenka Ramachandra Prasad
<Gist:
>Head Note:
?Cases referred: NIL.
ORDER:
The 2nd respondent herein filed O.S. No.123 of 2003 in the Court of the
Senor Civil Judge, Machilipatnam, for the relief of partition and separate
possession of the suit schedule properties. The petitioner herein figured as
8th defendant in the suit.
2. During the pendency of the suit, the 1st defendant, by name, Tammana
Venkateswararao died. The 1st respondent herein i.e. the plaintiff, filed
I.A.No.1503 of 2004 under Order - XXII Rule - 4 stating that according to the
information received by him, the deceased 1st defendant executed a Will in favour of the 1st respondent herein and that she may be brought on record as defendant No.9.
The trial Court dismissed the
I.A through order, dated 16-06-2006, holding that the legatee under Will cannot
be brought on record as legal representative. However, it left open to the 1st
respondent herein, who figured as
9th respondent in I.A. No.1503 of 2004, to come on record on her own accord.
3. The 1st respondent filed I.A. No.429 of 2009 under Order - I Rule - 10
CPC with a prayer to implead her as 9th defendant in the suit. The application
was opposed by the petitioner. The trial Court allowed the I.A. through order,
dated 29-08-2011. Challenging the same, the present revision is filed by the
8th defendant in the suit.
4. Heard the learned counsel for the petitioner and the learned counsel
for the 1st respondent.
5. On the death of the 1st defendant in the suit, efforts were made to
bring his legal representatives on record. The natural legal heirs did not come
forward. On the information available to him, the plaintiff i.e. the 2nd
respondent herein, filed I.A.No.1503 of 2004 with a request to bring the 1st
respondent herein on record as 9th defendant, on the strength of a Will said, to
have executed by the deceased
1st defendant. The trial Court rightly dismissed the I.A., observing that the
legatee under a Will of a deceased party to the suit cannot be brought on record
except when an application is made by such legatee himself. It is in this
context, the 1st respondent filed I.A. and the same was allowed.
6. The plea of the petitioner that it is only on proof of the Will that
the 1st respondent can be brought on record is difficult to be accepted. The
question as to whether the Will, relied upon by the
1st respondent, is true and genuine can be examined only in the trial of the
suit. There cannot be any independent exercise for that purpose. Further, even
to prove the Will, the person, who claims under it, must figured a party, be it
in the context of deposing as a witness or to take other steps in the matter.
Viewed from any angle, this Court does not find any basis to interfere with the
order under revision.
7. Hence, the Civil Revision Petition is dismissed. There shall be no
order as to costs. The miscellaneous petition filed in this revision petition
also stands disposed of.
_______________________
L. NARASIMHA REDDY, J
September 27, 2012.
