MADDINENI KOTESWARA RAO Vs. MADDINENI BHASKARA RAO

JUDGEMENT

(1.) The petitioner and respondents 1 and 2 are brothers. Against his father and two brothers, the petitioner filed O.S.No.197 of 1978 in the Court, of Principal Senior Civil Judge, vijayawada, for partition of suit schedule property. A preliminary decree was passed on 01.10.1986, directing that the suit schedule property shall be divided into four equal shares and each one of the parties shall be allotted one share. A.S.No.2879 of 1986, filed against the preliminary decree before this Court, was dismissed, and L.P.A.No.154 of 1997 was also rejected.

(2.) After the preliminary decree became final, the petitioner filed I.A.No.1161 of 1998, with a request to pass final decree. An Advocate and an Engineer were appointed by the trial Court as Commissioners, to undertake division of the suit schedule property into four equal shares. The father of the parties herein, by name Veera Raghavaiah, died on 17.01.1985, even when the suit was pending. The first respondent claimed that his father executed a registered Will, dated 21.03.1984, bequeathing his entire share to him, and in that view of the matter, he is entitlled to be allotted two shares. The petitioner opposed the same and took the plea that such a course would amount to modification of the preliminary decree. It was also his case that the validity of the Will was not at all considered by the trial Court, while dealing with the preliminary decree, and unless an independent adjudication is undertaken into it, the claim of the first respondent through the Will cannot be accepted. Through the order, dated 02.01.2006, the trial Court repelled the contention of the petitioner and allotted two shares to the first respondent and one share each to the petitioner and the second respondent. The same is challenged in this Civil Revision Petition.

(3.) Sri B.Narasimha Sharma, learned counsel appearing for the petitioner submits that the preliminary decree was passed, directing the division of the suit schedule properly into four equal shares, with a direction that the parties to the suit shall be entitled to one share each, and the allotment of two shares to the first respondent alone, would amount to alteration of the preliminary decree. He places reliance upon the Judgments of the Supreme Court in M.Ayyanna vs. M.Jaggarao, AIR 1977 SUPREME COURT 292 and Pholchand vs. Gopal Lal, - AIR 1967 SUPREME COURT 1470. He further contends that the validity of the Will, relied upon by the first respondent, was not considered at any stage and that there was no basis for the trial Court, to act upon it.