SIDDAVATAM MOHAN REDDY Vs. P CHINNASWAMY

JUDGEMENT

(1.) The petitioner in I. A.No.1281 of 1986 in I.A.No. 1144 of 1983 in O.S.No. 190 of 1971, Principal Sub-Court, Tirupati is the revision petitioner. R-2 herein filed O.S.N0.37 of 1970, Sub-Court, Chittoor (re-numbered as O.S.No.190 of 1971 on the file of the principal Sub-Court, Tirupati) for partition of the plaint schedule property into four equal shares and for allotment of one such share to her and for separate possession of the same. She alleged that her two brothers and her deceased sister Kuppamma are the heirs of their mother Laxmakka who owned the plaint schedule property. Her plea was accepted and preliminary decree was passed declaring that plaintiff and her brothers are entitled to 1/4 th share each and D-3 to D-5, the children of her deceased sister are entitled to the remaining 1/4th share. It was confirmed in the appeal. In 1983, i.e., after the passing of the preliminary decree, D-3 died. Without bringing the L.Rs. of D-3 on record, I.A.No.1144 of 1983 was filed for passing the final decree. On 25-4-1986, the final decree was passed. I.A.No.1281 of 1986 was filed by the revision petitioner by contending inter alia that the final decree is void as one of the sharers died by the time the final decree was passed and as his L.Rs. were not brought oil record.

(2.) While it is contended for the petitioner that the final decree dt.25-4-1986 is a nullity as one of the respondents was a dead person by the date of the final decree, it was urged for the respondents that the decree is only voidable which is liable to be set aside at the instance of the L.Rs. of D-3 and the said decree is not void. The lower Court upheld the contention of the letter and dismissed the application. The same is attacked in this revision petition.

(3.) It is well-established proposition of law that a suit cannot be dismissed on ground of abatement after a preliminary decree was passed for thereby rights are accrued to one party and liabilities are incurred by the other: vide Lachiminarayan vs. Balmadund. It was observed therein: