Telangana High Court
G Anitha Devi vs Venkata Sham 2 Others on 8 February, 2023
Bench: A.Santhosh Reddy
THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
C.R.P.No.3883 OF 2016
ORDER:
This civil revision petition under Article 227 of the
Constitution of India is directed against the order dated 05.01.2016 in
I.A.No.1001 of 2014 in O.S.No.1014 of 2009, on the file of the
I-Additional Senior Civil Judge, Ranga Reddy District, at L.B.Nagar,
wherein the said application filed by the petitioner herein (plaintiff)
under Order XXVI Rule 9 read with Section 151 CPC seeking
appointment of Advocate Commissioner to divide the suit schedule
property by metes and bounds in terms of preliminary decree, was
dismissed.
2. Heard learned counsel for the petitioner. None appears and
there is no representation on behalf of respondents either. Perused
the record.
3. The petitioner is plaintiff and respondents are defendants.
The petitioner filed the suit O.S.No.1014 of 2009 for partition and
separate possession of their respective shares in the suit schedule
property i.e., Plot No.6-176, admeasuring 462.00 square yards in
Sy.No.582, situated at Ghatkesar Village and Mandal, Ranga Reddy
District, against the respondents. In the said suit, a preliminary
decree was passed on 03.07.2014 allotting one such share to the
plaintiff and one such share to defendants 1 to 3 each. Subsequently,
the petitioner filed an application in I.A.No.1001 of 2014 under
Order XXVI Rule 9 read with Section 151 CPC seeking appointment
of Advocate Commissioner to divide the suit schedule property by
metes and bounds in terms of preliminary decree, whereunder the
petitioner claimed that her mother during her lifetime executed a
registered Will dated 21.11.2013 bequeathing all her properties in
petitioner favour of the petitioner and the share allotted to respondent
No.2 herein also fell to her share. The respondents filed counter
resisting the claim of the petitioner on two grounds viz., that the
death of the mother of the petitioner, who was 2nd defendant in the
main suit, was not informed and the Will deed dated 21.11.2013 was
not probated by any Court of law. On a consideration of the material
on record, the trial Court dismissed the said petition holding that
the validity of the Will deed dated 21.11.2013 is not decided and
the petitioner is not entitled to seek her share in the suit schedule
property against the preliminary decree. Challenging the said order,
the revision is filed.
4. The claim of the petitioner is that her mother executed Will
deed dated 21.11.2013 during her lifetime and she died on
23.05.2014 bequeathing all the properties in her favour. In fact, a
preliminary decree was passed on 03.07.2014 and since the suit was
reserved for judgment, the petitioner could not inform the same to
the Court about the death of her mother and meanwhile the
judgment was delivered. Subsequently, the present application for
appointment of Advocate Commissioner and I.A.No.1000 of 2016
were filed for passing of final decree for allotment of shares. The
trial Court dismissed the application filed for appointment of
Advocate-Commissioner mainly on the ground that the validity of
the Will deed was not decided in the main suit O.S.No.1014 of 2009
and unless and until that is decided in the final decree application,
the petitioner is not entitled to seek half share in the suit
schedule property. There is no irregularity in the impugned order.
Learned counsel for the petitioner submits that he will take steps for
filing a separate application claiming the share of mother of the
petitioner basing on the Will deed dated 21.11.2013 subsequent to
setting aside the impugned order
5. Learned counsel for the petitioner further submits that the
pleading of the respondents in the counter that the Will deed dated
21.11.2013 was not probated by any Court of law, is not correct and
learned counsel placed reliance on the judgment of the Hon'ble Apex
Court in KANTA YADAV v. OM PRAKASH YADAV & ORS1
wherein it was held at paras 12 and 13 under:
"The statutory provisions are clear that the Act is
applicable to Wills and codicils made by any Hindu,
Buddhist, Sikh or Jain, who were subject to the
jurisdiction of the Lieutenant-Governor of Bengal or
within the local limits of the ordinary original civil
jurisdiction of the High Courts of Madras or Bombay -
{clause (a) of Section 57 of the Act}. Secondly, it is
applicable to all Wills and codicils made outside those
territories and limits so far as relates to immoveable
property within the territories aforementioned - Clause
(b) of Section 57. The clause (c) of Section 57 of the
Act relates to the Wills and codicils made by any
Hindu, Buddhist, Sikh or Jain on or after the first day of
January, 1927, to which provisions are not applied by
clauses (a) and (b). However, sub-section (2) of
Section 213 of the Act applies only to Wills made by
Hindu, Buddhist, Sikh or Jain where such Wills are of
the classes specified in clauses (a) or (b) of Section 57.
(2020) 14 SCC 102
Thus, clause (c) is not applicable in view of Section
213(2) of the Act.
In view thereof, the Wills and codicils in respect of
the persons who are subject to the Lieutenant-
Governor of Bengal or who are within the local limits of
ordinary original civil jurisdiction of High Court of
Madras or Bombay and in respect of the immoveable
properties situated in the above three areas. Such is
the view taken in the number of judgments referred to
above in the States of Punjab and Haryana as well as
in Delhi as also by this Court in Clarence Pais".
6. After considering the facts and circumstances of the case, the
petitioner is permitted to file a separate application claiming share
of her mother by virtue of registered Will deed dated 21.11.2013.
Upon filing such application, the trial Court shall entertain and
decide the same on merits. After deciding the said application, the
application for appointment of Advocate Commissioner to divide the
suit schedule property by metes and bounds in terms of the
preliminary decree may be taken up.
7. For the foregoing reasons, the civil revision is allowed.
The impugned order dated 05.01.2016 in I.A.No.1001 of 2014 in
O.S.No.1014 of 2009, on the file of the I-Additional Senior Civil
Judge, Ranga Reddy District, at L.B.Nagar, is hereby set aside.
There shall be no order as to costs.
8. Miscellaneous petitions, if any pending, stand closed.
_______________________
A.SANTHOSH REDDY, J
08.02.2023
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