RAJYALAKSHMI Vs. S V R SUBRAHMANYAM

JUDGEMENT

(1.) The petitioner in these petitions is the second appellant in the appeal and the first defendant in O. S. No. 6 of 1973 on the file of the Court of the Chief Judge, City Civil Court, Hyderabad. The said suit was filed by one Seethamahalashmamma for partition and recovery of her 1/6th share in the plaint schedule properties and for other reliefs. Her case was that her husband, Sri Ramamurthi and their two sons, Radhakrishna and Seethapathi Rao constituted members of a joint family. There was a division between them. Thereafter, Radhakrisha died on 9th June, 1963 and on his death, half of his properties devolved upon his mother, the plaintiff, his widow, the first defendant in the suit and his son the second defendant (who was a minor) in equal shares and the other half devolved upon his son by survivorship. In the result the plaintiff was entitled to 1/6th, the first defendant to 1/6th and the second defendant 2/3rd of the properties. The first defendant resisted the suit contending that the plaintiff had relinquished her rights in item 1 of the suit schedule properties and first and second defendants would alone have exclusive rights in respect of the said item. In regard to item 2, she contended that it was allotted to her by the Housing Board and the plaintiff had also filed an affidavit before the Housing Board disclaiming any interest in the said item. Hence, the plaintiff was not entitled to any share in the second item also. These contentions were negatived and the Court below held that the plaintiff was entitled to 1/6th, the first defendant to 1/6th and the second defendant 2/3rd share in both the item of the suit schedule properties and passed a preliminary decree for partition accordingly on 31th March, 1973. By an order of the same date, the Court below removed the first defendant from the guardianship of her minor son, the second defendant, and appointed Sri Ramamurthi, the paternal grandfather as his guardian.

(2.) Appeal, C. C. C. A. No. 107 of 1976 was filed by the first defendant not only on her behalf but also on behalf of the minor, the second defendant represented by his mother and guardian, the first defendant. The appeal papers were returned for filing the requisite number of printed copies of judgments. There was considerable delay in obtaining the printed copies of judgement and after obtaining the same, the appeal was re-presented on 24th April, 1976 along with an application (C. M. P. No. 3394 of 1976) to execuse the delay in re-presentation. As the court-fee paid also was not sufficient, another application was filed on 18th June, 1976 with an application to condone the delay in payment of deficit court-fee. Both the petitions were ordered and the appeal was taken on file on 1st July, 1976. Meanwhile, the plaintiff who was the sole respondent in the appeal died on 5th March, 1974. An application C.M.P. No. 5871 of 1976 was filed on 1st July, 1976 to bring on record respondents 1 to 4 as her legal representatives, they being the minor grandson, the second son Seethapathi Rao, the husband Sri Ramamurthi and a daughter, Kalpakam. Another application (C. M. P. No. 5872 of 1976) was filed foramending thecause title by noting that the minor was represented by Sri Ramamurty, the Court-guardian appointed by the Chief Judge in his order dated 31st March, 1973 and to transpose him as the fourth respondent. Both the applications are opposed by the respondent. It is stated that the sole respondent having died as early as 5th March, 1974 and no application to bring on record her legal respresentative having been fied within the prescribed time, the appeal had abated. Hence the application to bring on record her legal representatives has to be dismissed. There is no question of amending the cause title as prayed for by the appellants. The case of the petitioners on the other hand is that the appeal has not abated and there is no need to file an application to set aside the abatement or to excuse the delay in seeking to set aside the abatement and both the applications have to be ordered. The second son of the deceased plaintiff who claims to be the sole legal representative by reason of a will dated 29th, June, 1970 executed by her bequeathing her entire interest in the suit properties to him has filed a petition C. M. P. No.10588 of 1976 praying that the Court may dismiss the appeal. His case is that as the appeal has abated had no application having been filed to set aside the abatement or to excuse delay in seeking to set aside the abatement the appeal has to be dismissed as having abated. That three petitions were heard together. After arguments were heard in these petitions, two further petitions, one to set aside the abatement and another to excuse delay in seeking to set aside the abatement were filed and arguments were heard on these petitions also. The contention of the petitioners is that though according to them the appeal has not abated and there is no need to set aside the abatement, these petitions have been filed by way of abundant caution in case the Court takes the view that the appeal has abated.

(3.) Before considering these petitions it is necessary to refer to a few facts which are relevant. As has already been noticed, the second son of the plaintiff is claiming to be the sole legal representative. He therefore filed a petition in April, 1974 in the final decree proceedings to bring himself on record as the legal representative and that petition was not opposed and was ordered on 2nd September, 1974 by the Court below. In certain proceedings before the Rent Controller, Visakhapatnam, for fixation of fair rent also, he was impleaded as the legal representative of the deceased. As the sole representative he also filed E. P. No. 5 of 1975, for the costs decreed in the suit and this was ordered and C. M. A. No. 273 of 1975 filed against the said order in this Court was dismissed.