PADALA SADANANDAM Vs. PADALA ANJAIAH

JUDGEMENT

(1.) THIS second appeal by the fifth defendant is directed against the decree and judgment dated 11.3.2013 of the learned Principal District Judge, Karimnagar whereby the learned District Judge while dismissing the said appeal had confirmed the decree and order dated 30.5.2011 of the learned Principal Junior Civil Judge, Karimnagar made in IA No. 50/2010 filed by the plaintiff/first respondent herein under Order VI Rule 17 read with Sections 152 and 153 of the Code of Civil Procedure (for short 'the Code') requesting to amend the preliminary decree to the effect that he is entitled to a half share in the schedule 'A' and 'B' properties instead of 1/3rd share as originally mentioned in the preliminary decree in view of the changed circumstance that the father P. Agaiah/first respondent -defendant had died after passing of the preliminary decree and so also the mother, and that consequent to the said deaths of the parents the plaintiff and his brother (since died) represented by his legal heirs/representatives who are brought on record are equally entitled to a half share each in the 1/3rd share of the deceased father. The parties in the second appeal shall be referred to as arrayed in the proceedings before the Court below.

(2.) THE introductory facts are as follows: 'The plaintiff filed the suit against his father and brother for partition of the plaint 'A' and 'B' schedule properties into three equal shares and for allotment of one such separated share to him. On merits, the suit of the plaintiff was decreed preliminarily and the plaintiff was allotted 1/3rd share in plaint 'A' and 'B' schedule properties towards his share. However, after the preliminary decree was granted, the father of the plaintiff i.e., the first defendant in the suit had died. The mother of the plaintiff and the second defendant i.e., wife of the deceased first defendant had also died. Therefore, according to the plaintiff, he and his brother i.e., the second defendant (since died being represented by his legal representatives) are equally entitled to a half share each in the 1/3rd share of the deceased first defendant, who is their father, and that in view of the subsequent event viz., the death of the father (the first defendant), the plaintiff on one hand and the legal representatives of the deceased second defendant on the other are now entitled to a half share each in the plaint 'A' and 'B' schedule properties. Hence, the plaintiff had filed the interlocutory application for amendment of the preliminary decree in respect of the shares and to rectify the preliminary decree by specifying his share in the suit schedule properties as a half share instead of 1/3rd share as originally mentioned in the preliminary decree. The said application for amendment was resisted by the legal heirs/legal representatives of the deceased second defendant, who are his wife and children.

(3.) I have heard the submissions of the learned Counsel for both the sides. I have perused the material record.