B RAMACHANDRA REDDY Vs. NELLI

JUDGEMENT

(1.) Defendants 1 to 3 in O.S. No.46 of 1974 on the file of the Court of the Additional Subordinate Judge, Anantapur, are the appellants.

(2.) 1st respondent filed the said suit against the appellants and 2nd respondent, seeking partition and separate possession of her 1/4th share in the plaint A and B schedule properties and consequential reliefs, alleging that Bolla Rangappa had two sons i.e., 1st appellant and Laxmi Reddy, and that appellants 2 and 3 are the sons of the 1st appellant and that she and the 2nd respondent are the daughters of Laxmi Reddy, and that after the death of Rangappa, 1st appellant and Laxmi Reddy became entitled to half share in the plaint A and B schedule properties and consequent on the death of her father Laxmi Reddy, she and 2nd respondent are entitled to 1/4th share each. Appellants filed a common written statement admitting the relationship between them and the respondents and contending that as per the Will dated 27-9-1973 executed by Laxmi Reddy, 1st respondent is not entitled to any share in the plaint A and B schedule properties. On the basis of the pleadings, the trial Court framed four issues and one additional issue for trial. The additional issue relating to Court fee was decided as preliminary issue in favour of the 1st respondent. 1st respondent examined herself as P.W.I and marked Ex.A1. On behalf of the appellants including the 1st appellant, five witnesses were examined as D.Ws.l to 5 and Exs.Bl to fill were marked. One of the attestors to Ex.B1 Will said to have been executed by Laxmi Reddy, was examined as a Court witness i.e., CW. 1 and Ex.C1 was marked through him. The learned trial Judge held that Ex.Bl Will dated 27-9-1973 is not true and valid and that 1st respondent is entitled to Rs.2,000/- towards her share of the movable properties mentioned in the plaint B schedule, and has 1/4th share in the plaint A schedule properties and passed a decree for partition of her 1/4th share in plaint A schedule properties with a direction to the appellants to pay Rs.2,000/- to 1st respondent towards her share in the movable properties shown in plaint B schedule, and relegated the enquiry relating to profits by a Commissioner to be appointed for that purpose. Aggrieved thereby defendants 1 to 3 preferred the appeal. Dissatisfied with the valuation of the movable properties mentioned in plaint B schedule and claiming a higher amount, 1st respondent preferred cross-objections. During the pendency of the appeal, 2nd appellant, who is the minor son of the 1st appellant, passed away. C.M.P.No.24117 of 2000 is filed by the mother of the 2nd appellant, who is also happens to be the wife of the 1st appellant to come on record as 4th appellant in the appeal.

(3.) From the contentions raised by the learned counsel for the parties, the following points arise for consideration: 1. Whether Ex.B1 Will dated 27-9-1973 said to have been executed by Laxmi Reddy is true, valid and binding on the 1 st respondent? 2. Whether the appeal stood abated due to the non-filing of a petition to bring on record the legal representatives of the 2nd appellant within time and whether the application filed by his mother under Order I Rule 10 C.P.C. to be brought on record is maintainable? Point No.1: