BAILADUGU PERAIAH Vs. BAILADUGU PEDDARAMULAMMA

JUDGEMENT

(1.) One Avula Venkateswaralu, proposed parry filed an application I.A.No. 1297/1999 in O.S.No.242/1989 on the file of the Principal Junior Civil Judge, Addanki under Order 22 Rule 3 and Section 151 of the Code of Civil Procedure to implead him as the 2nd plaintiff In the suit, as the legal representative of the deceased sole plaintiff, B.Peda Ramulamma, It is stated that the said B. Peda Ramulamma, the original plaintiff in the suit died on 14-5-1999 and while residing in the house of the said proposed party the deceased executed a Will on 15-7-1995 bequeathing her properties in a sound and disposing state of mind and in view of the same the proposed party is entitled to the suit properties, the subject matter of the suit, and hence he should be brought on record as the legal representative of the deceased plaintiff. The lst respondent in the said application the 1st revision petitioner herein, filed a counter affidavit denying all the allegations and the same was adopted even by the 2nd revision petitioner, 2nd respondent in the said application. Specific stand was taken that the Will is forged one and the proposed party cannot make an application of this nature without complying with the provisions of the Indian Succession Act, 1925 (for short hereinafter referred to as the "Act") and prayed for dismissal of the application. On behalf of the 2nd respondent, the proposed party, had examined himself as P.W. 1 and also examined P.W.2, the identifying witness at the time of the registration of the will and P.Ws. 3 and 4, attestor and scribe respectively of the said Will. Ex. A-1, the death certificate of the deceased, original plaintiff, Ex. A-2, the registration extract of the will and Ex. A-3, the Xerox copy of the original Will were marked through P.W.1. R.W.s. 1 to 3 were examined and Exs. B-1 to B-8 were marked. The evidence of R.W. 3 was eschewed since he did not attend for cross-examination. As can be seen from the impugned order elaborate submissions were made and learned Junior Civil Judge, Addanki after recording reasons in detail ultimately allowed the application without costs and aggrieved by the same, the present civil revision petition is preferred by the revision petitioners, defendants in the suit.

(2.) Sri M.S.N. Prasad, counsel representing the revision petitioners, placing strong reliance on a decision of the Supreme Court in T.V. Narayana v. Venkata Subbamma, had contended that unless probateis obtained on the strength of a Will the legal representative cannot be brought on record. The learned counsel also had drawn the attention of this Court to Sections 213 and 214 of the Act and had submitted that in view of the clear language employed in these Sections obtaining of probate in the case of a Will is mandatory and in the absence of the same, an application to bring on record legal representative could not have been ordered by the learned Principal Junior Civil Judge, Addanki. The learned counsel also submitted that the original Will was not produced and only the registration extract of the Will and the Xerox copy of the original Will were marked as Exs. A-2 and A-3. The learned counsel further commented that the learned Principal Junior Civil Judge, Addanki virtually had decided the suit itself at the stage of deciding the legal representative application and definitely it would prejudice the rights of the petitioners - defendants in the suit

(3.) Per contra Sri Srinivas, learned counsel representing the 2nd respondent - proposed party brought on record as the legal representative of the original plaintiff, contended that when a legatee claiming under a Will intends to come on record an enquiry is mandatory in view of Order 22 Rule 5, C.P.C. and when a dispute is raised contra verting the validity of the will, evidence has to be let in and consequent thereupon the concerned court is expected to record the findings in this regard for the limited purpose of bringing a particular party on record as a legal representative. The learned counsel in all fairness submitted that though this question would be decided at the stage While deciding a legal representative application, the findings recorded, if ay, at this interlocutory stage would not operate as res judicata and this question may have to be independently decided in the suit again. The counsel also had drawn the attention of this Court to the definition of the legal representative under the Code of Civil Procedure and had explained under what circumstances an observation was made by the Apex Court in T.V. Narayana's case (AIR 1996 SC 1807) and had submitted that in the light of the long standing view expressed by this court that probate is not essential for the purpose of putting a Will in a proceeding, this question again need notbe permitted to be reagitated. The learned counsel had placed reliance on A.S. Murthy v. D.V.S.S. Murthy; Dokala Buchiraju v. Dokala Bangaramma and another- Rohini v. All concerned and Gulam Rasool v. Smt. Quasim Bee in this regard.