BUCHIRAIU D Vs. D BANGARAMMA

JUDGEMENT

(1.) This revision petition is filed by the original defendant challenging the judgment and order dated 21-8-1998 passed by the Senior Civil Judge, Kovvur on I.A.No.935/1997 in O.S. No.45/1997.

(2.) By the impugned order, Beela Parvati has been brought on record as the legal representative of the deceased sole respondent Dokala Bangaramma on the basis of the registered Will dated 8-1-1997, marked in the case as Ex.A-1.

(3.) The learned Counsel appearing for the petitioner contended that the Will is not proved according to law and there are suspicious circumstances and the Will is a fabricated document at the instance of P.W.I, Beela Maheswara Rao, the husband of Parvati. He further submitted that on the basis of the Will, a person cannot be permitted to continue the suit in view of the judgment of this Court reported in A. Apparao vs. K. Ammoru. He submitted mat at any rate, the deceased was not of sound disposing state of mind and as such the Will is not genuine. The lands are situated at Polavaram, within the jurisdiction of the Sub-Registrar, Polavaram, whereas, the Will is registered at Rajahmundry. In fact, his client had filed Ex.B-6, a notice before the Sub- Registrar, Polavaram requesting him not to register any document pertaining to the petitioner, without hearing him. But P.W.1 got it registered at Rajahmundry by creating this document. Therefore, he contended that on the basis of these documents, the respondent-Parvati could not have been brought on record as legal representative of the deceased plaintiff. On the other hand, the Counsel appearing for the respondent contended that the Will is genuine and admittedly, the deceased Bangaramma was residing with Parvati at Rajahmundry. The deceased Bangaramma had already filed the present suit against the petitioner and petitioner and his brother had filed a separate suit for declaration bearing O.S.No.144/1996 against the deceased plaintiff Bangaramma and the said suit is pending. The deceased Bangaramma was prosecuting her present suit and also was contesting the said suit of the defendant and his brother and to avoid future litigation she has executed a Will in favour of Parvati, who is no other than her husband's daughter by another wife. The deceased Bangaramma had no issue and out of love and affection, she has executed the Will in favour of Parvati. Even otherwise, the Will is proved by examining P.Ws.2 and 3, who are the attestors of the Will. The scribe of the Will could not be examined, as his whereabouts were not traceable and as such notice could not be served, in spite of the fact that summons were taken to him. He contended that the deceased was contesting the suit against the defendant and his brothers and even the matters went upto the High Court. And as she was litigating till her death, it cannot be stated that she was of unsound mind. At no point of time, her alleged unsoundness was pleaded in any of the proceedings between the plaintiff and defendants, even before the High Court. It is only to take undue advantage of the death of Bangaramma, against whom the defendant and his brother had filed a separate suit in O.S.No,144/96, the defendant and his brother in order to usurp the suit property had taken all such untenable pleas. He further contended that the Will is a registered Will and on the basis of such a Will, a legatee can be brought on record as the legal representative. He submitted that the judgment of this Court reported in A. Apparao"s case (supra) cannot be taken as laying down correct law, in view of the earlier judgment of this Court and also the judgment of the Supreme Court. He submitted that at any rate, the trial Court on appreciation of the entire evidence on record, has brought the respondent-Parvati on record as legal representative of the deceased Bangaramma, and it is not a fit case for interference under Sec. 115 of C.P.C. and therefore prayed for the dismissal of the revision petition.