P DHANAVATHI Vs. P RADHA BAI

JUDGEMENT

(1.) The petitioner filed O.S. No.204 of 1990 in the Court of the III Senior Civil Judge, Secunderabad, for the relief of partition and separate possession, against her mother and brother, Respondents 1 and 2, respectively. A preliminary decree was passed in the suit on 24-9-1998. Aggrieved thereby, Respondents 1 and 2 filed A.S. No.81 of 1998, in the Court of XX Additional Chief Judge, City Civil Court, Secunderabad. During the pendency of the appeal, the 1st respondent herein died on 5.3.2002. Petitioner filed a memo to the effect that since no application was filed to bring the legal representatives of the deceased on record, the appeal stood abated insofar as 1st respondent is concerned.

(2.) The 2nd respondent, who is the 2nd defendant in the suit and 2nd appellant in A.S. No.81 of 1998 together with 3rd respondent herein, filed I.A.No.1744 of 2002, under Order 22, Rule 4 C.P.C., read with Rule 28 of Civil Rules of Practice, to bring them as legal representatives of the deceased 1st respondent. So far as 2nd respondent is concerned, there is no dispute as regards his relation with the deceased 1st respondent. The 3rd respondent was sought to be brought on record, on the ground that the deceased executed a will on 17.10.1996, bequeathing her share of the property in his favour. The petitioner resisted the application. Before the Appellate Court, the 3rd respondent was examined as PW.1 and another was examined as PW.2. The Will was marked as Ex.A.l. After discussing the matter on the basis of the material placed before it, the Appellate Court allowed the I.A., through its order, dated 13.4.2004. The same is challenged in this revision.

(3.) Sri R. Chandrashekhar Reddy, learned Counsel for the petitioner submits that on account of failure to take any steps for a period of ninety (90) days from the date of death of the 1st respondent, the appeal stood abated and it was not for Respondents 1 and 2 to file LA. No. 1744 of 2002. He also submits that the Appellate Court recorded a finding as to the validity of the Will, though the same has to be considered at the trial and hearing of the suit.