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2001 DIGILAW 650 (AP)

S. Maldl Reddy (died) v. M. Ramakrishna Reddy

2001-06-29

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THIS Civil Revision Petition is directed against an order passed by the Principal junior Civil Judge, Kurnool dated 8-7-1998 in E. A. No. 420 of 1994 in E. P. No. 181 of 1990 ino. S. No. 428 of 1983. ( 2 ) THE brief facts of the case are that the revision petitioners are said to be the grandsons of S. Maldi Reddy and that s. Maldi Reddy was executing the decree for recovery of money against the respondent and he had brought the E. P. schedule lands for sale on 4-7-1994 and since their grandfather died after executing a Will dated 28-12-1987 bequeathing all his properties, including the amounts in bank and also decrees and registered the same on 31-12-1987 they are entitled to come on record as legal representatives of the deceased Maldi Reddy. The application to bring on record the petitioners as legal representatives of the deceased Maldi reddy was resisted by the respondent judgment-debtor staring that the petitioners are put to strict proof of the execution of the will by the deceased Maldi Reddy and the petitioners have not filed the succession certificate or letters of probate and without production of succession certificate or letters of probate the application to bring on record the legal representatives of the deceased is not maintainable. The Court below had dismissed the application and posted the execution petition giving opportunity to bring all legal representatives in the place of the deceased decreeholder. The Court below had recorded that there is no dispute about the proposition of law that when the E. P. is pending on the death of the decreeholder obtaining succession certificate is not necessary to bring the legal representatives on record. But however at Para 7 the Court below observed as follows:"admittedly, deceased Maldi Reddy has got sons and the petitioners are the sons of his eldest son Chintha Reddy. As seen from Ex. A-1, Maldi Reddy has got another son who is working as m. B. B. S. doctor in Government service. As seen from the Will, though the Will was executed on 28-12-1987, the decree under the suit was not particularly assigned in favour of the petitioners. A general averment was made that all the shares, pronotes and decrees which are in the name of maldi Reddy are bequeathed under the Will. As seen from the Will, though the Will was executed on 28-12-1987, the decree under the suit was not particularly assigned in favour of the petitioners. A general averment was made that all the shares, pronotes and decrees which are in the name of maldi Reddy are bequeathed under the Will. Unless the specific description of the debts are mentioned in the Will in my opinion the petitioners alone cannot be treated as legal representatives those can be brought on record. Had they obtained probate certifying all the debts which are due to Maldi Reddy, the petitioners alone can be brought on record in the present proceedings as legal representatives of Maldi Reddy. Admittedly as seen from the Xerox copy of the Will, Maldi Reddy has got two sons and two daughters, of course maldi Reddy must have got a wife living, since it is not mentioned in any of the averment that she is no more. In such a case, all the sons and daughters shall represent the estate of Maldi reddy in these proceedings, unless the will was certified by the competent court of jurisdiction. Had all the legal representatives are brought on record, the other representatives also could have been known at this stage, whether the other representatives also had no grievance about the Will alleged by the petitioners herein. Were the petitioners alone brought on record, they would be entitled to collect the decree amount without the knowledge of the other legal representatives. Thus, in my opinion in the absence of all the legal representatives either of petitioners or respondent are brought on record, the e. P. cannot be proceeded to. "it is no doubt true that as far as the application under Order XXII Rule 3 C. P. C. is concerned, the provision is applicable only to suits. Be that as it may, the main contention raised on behalf of the respondent was that in the absence of obtaining probate on the strength of the will executed by Maldi Reddy in favour of his grandsons they cannot be brought on record. Be that as it may, the main contention raised on behalf of the respondent was that in the absence of obtaining probate on the strength of the will executed by Maldi Reddy in favour of his grandsons they cannot be brought on record. ( 3 ) SRI S. Laxminarayana Reddy, learned counsel for the revision petitioners had contended that the approach of the Court below is totally erroneous inasmuch as there is no necessity of obtaining the probate relating to a Will executed by deceased Maldi Reddy who belonged to kurnool District in the State of Andhra pradesh. The learned Counsel for the petitioners for this proposition had relied upon a decision in A. S. Murthy vs. D. V. S. S. Murthy wherein the Division Bench was pleased to observe that Section 213 (2) of the indian Succession Act excludes Wills executed by persons residing in the State of andhra Pradesh in respect of the properties situated in Andhra Pradesh and hence even without probate or letters of administration the legatees are entitled to establish their rights relating to the dispute. The learned counsel for the petitioners also had relied upon decisions in M. Narayana vs. M. Suryakanthani; Rohini vs. All Concerned. The learned counsel for the petitioners also had relied upon decisions in M. Narayana vs. M. Suryakanthani; Rohini vs. All Concerned. ( 4 ) IN C. R. P. No. 5111 of 2000 (Gangavath lalu vs. Gangavath Tu/si) this Court vide judgment dated 13-2-2001 while dealing with this aspect had observed that it is clear from the bare reading of Sec. 213 (2) read with Sec. 57 (a) and (b) of the Indian succession Act, 1925 that the prohibition contained in sub-section (1) of Section 213 applies to Wills executed by Hindus on or after 1-9-1870 within the territories which at the said date were subject to the jurisdiction of the Lieutenant Governor of Bengal within the local limits of the ordinary original civil jurisdiction of the High Court of Judicatures at Madras and Bombay and obviously for the Wills executed within the state of Andhra Pradesh in respect of immovable properties situated within the territorial jurisdiction of the State of Andhra pradesh the prohibition contained in sub section (1) of Sec. 213 has no application and further it was also observed that a plain reading of Section 213 (2) and Sec. 57 of the indian Succession Act, 1925 would make it dear that whatever prohibition contained in section 213 (1) of the Act has no application in respect of the Wills executed by Hindus within the State of Andhra Pradesh in respect of immovable properties situated within the territorial limits of State of andhra Pradesh. The learned Counsel for the petitioners also relied upon the decisions reported in Rangaswamy Naicker vs. Rangammal (died) by Proposed L. Rs. 4 and bhaiya Ji vs. Jagadeshwar Dayal Bajpaf. ( 5 ) IN the light of the above decisions it is clear that to bring on record the legal representatives in a pending E. P. proceeding it is not necessary to obtain the probate of the Will. But however when the legal representatives on the strength of a will intend to come on record it is in deviation of the natural course of succession. Most probably that is the reason why the Court below wanted to give an opportunity to other legal representatives also and an observation was made to that effect. It is needless to say that the petitioners are none other than the grand sons of Maldi Reddy. As far as the respondent is concerned, no prejudice is caused to him. Most probably that is the reason why the Court below wanted to give an opportunity to other legal representatives also and an observation was made to that effect. It is needless to say that the petitioners are none other than the grand sons of Maldi Reddy. As far as the respondent is concerned, no prejudice is caused to him. But, however, inasmuch as when the legal representatives are said to be brought on record on the strength of a Will thus deviating the natural course of succession, it is necessary for the Court to conduct an enquiry before bringing on record such legal representatives claiming under a Will. ( 6 ) FURTHERMORE, the petitioners had relied upon only a Xerox copy of the Will and the reasons for non-production of the original will were not explained and despite the counter filed by the respondent none of the persons connected with the will were examined by the petitioners. ( 7 ) IN the said circumstances, in the interests of justice it is a fit matter to be remitted back again to the Court below for deciding the application E. A. No. 420 of 1994 in E. P. No. 181 of 1990 in O. S. No. 428 of 1983 on the file of the Principal Junior Civil judge, Kurnool to decide whether the petitioners are entitled to come on record as legal representatives after making due enquiry and by giving opportunity to both parties in this regard. The petitioners are also at liberty to produce the original Will or to explain the circumstances why they are unable to produce the same and satisfy the Court regarding the adduction of secondary evidence. ( 8 ) WITH the above directions the impugned order dated 8-7-1998 in E. A. No. 420 of 1994 in E. P. No. 181 of 1990 in O. S. No. 428 of 1983 on the file of the Principal junior Civil Judge, Kurnool is hereby set aside and the matter is remitted back to decide the application afresh after giving reasonable opportunity to both parties and also permit the parties to let in evidence if they choose to. do so in the application. ( 9 ) CIVIL Revision Petition is allowed accordingly and the matter is remitted back. In the facts and circumstances of the case, no costs.