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2013 DIGILAW 83 (AP)

K. Krishna Kumari v. Drapaneni Krishna Kumar

2013-02-11

L.NARASIMHA REDDY

body2013
Judgment : The petitioner is the wife of one Sri K. Ankineedu Prasad. They have got four daughters and the respondent is the son of one of the daughters. Ankineedu Prasad purchased an item of immovable property of about Ac.1.00 of land, through sale deed, dated 11.02.1993. He is said to have died on 30.01.2002. After death of Ankineedu Prasad, one of his daughters filed O.S.No.355 of 2008 in the Court of the Principal Junior Civil Judge, Srikalahasti for partition and separate possession of the said item of property. The respondent and his mother were made as parties to the suit. They remained ex parte. The trial Court passed a preliminary decree directing that the property be divided into five equal shares and one each be allotted to the wife i.e. the petitioner herein and her daughters. Final decree proceedings are said to be pending. The respondent filed O.S.No.55 of 2006 against the petitioner for the relief of perpetual injunction in respect of the same property. He pleaded that his grandfather Ankineedu Prasad executed a Will, dated 15.11.1999, bequeathing the property in favour of his mother i.e. one of the daughters of Ankineedu Prasad and on the death of the executant, the property devolved upon the mother of the respondent. It was also pleaded that the mother of the respondent executed a gift deed in his favour in respect of the said property and thereby, he became the absolute owner. The trial of the suit commenced. The petitioner disputed the very execution of the Will by her husband. On an earlier occasion, she filed I.A.No.527 of 2012 with a prayer to direct the respondent herein to produce the original of the Will. The respondent gave a reply stating that the Will is in the custody of his mother. Thereupon, the petitioner filed I.A.No.768 of 2012 under Order 16 Rules 6 and 7 C.P.C. with a prayer to direct the mother of the respondent i.e. Anantha Pushpavathi to produce the Will. The trial Court dismissed the I.A., through order, dated 21.11.2012. Hence, this revision. Heard the learned counsel for the petitioner and the learned counsel for the respondent. It is, no doubt, true that the suit filed by the respondent is one for perpetual injunction. However, the injunction is prayed for against the petitioner, who is none other than the natural legal heir of the original owner. Hence, this revision. Heard the learned counsel for the petitioner and the learned counsel for the respondent. It is, no doubt, true that the suit filed by the respondent is one for perpetual injunction. However, the injunction is prayed for against the petitioner, who is none other than the natural legal heir of the original owner. In other words, the relief of injunction is sought against a rightful owner. According to the respondent, the petitioner does not have any right over the property on account of the fact that the original owner has executed a Will in favour of one of his daughters and that the said daughter has, in turn, executed a gift deed in favour of the respondent. Though not as a measure to declare the title of the respondent or his mother, the trial Court is under obligation to verify the very basis of his claim vis-à-vis the property, as an ancillary issue. When an I.A. was filed requiring the respondent to furnish the Will, he pleaded that the Will is with his mother. The present application is filed to compel the mother of the respondent to file the same. Strictly speaking, the trial Court is correct when it observed that it cannot issue a direction to a person, who is not a party to the suit. All the same, it was the responsibility of the respondent to place the Will before the Court. Since that constituted the link for his title over the property, any failure on his part naturally should lead to an inference that the deed of gift executed in his favour is without any basis. Hence, the civil revision petition is disposed of, directing that the trial Court shall draw an inference to the effect that the respondent did not derive any valid right vis-à-vis the suit schedule property. There shall be no order as to costs. The miscellaneous petition filed in this revision shall also stand disposed of.