Nayineni Janakamma Vs Bandlamoori Venkalakshmamma

This revision petition is filed under Section 115 of C.P.C. against the order, dated 13.03.2025, dismissing E.P.No.125 of 2018 in O.S.No.41 of 1981 on the file of the Court of the Senior Civil Judge, Atmakur, filed by the 2^nd revision petitioner, under Order XXI, Rule 35 C.P.C. to deliver physical possession of E.P. Schedule property, being half share of the decreed property, to the petitioner through Court by appointing the Court amin and evicting the respondent No.2 / J.Dr.No.2 or any other person in possession thereof on behalf of respondent No.2.

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The suit in O.S.No.41 of 1981 was filed for partition by Nayineni Janakamma, W/o. Nayineni Ramakrishnaiah against her step mother Bandlamoori Venkata Lakshmamma. The suit was finally decreed allotting half share to the plaintiff and another half share to B.V.Lakshmamma. The 2^nd revision petitioner, Nayineni Suresh Kumar, S/o. Nayineni Ramakrishnaiah, filed the present execution petition in E.P.No.125 of 2018 claiming half share of B.V.Lakshmamma. The 2^nd revision petitioner stated that his mother N.Janakamma / D.Hr. got her half share of the property by filing E.P.No.69 of 2008 and the remaining half share of the property which is the present subject property belongs to B.V.Lakshmamma / J.Dr.No.1. She died intestate on 05.11.2011 leaving behind her, N.Janakamma / D.Hr. as her only legal representative and N.Janakamma died on 19.08.2016 leaving behind the 2^nd revision petitioner as her only legal representative by virtue of a registered Will, dated 23.05.2014. However, he seeks recovery of possession of the property from the J.Dr. No.2 stating that it is presently in his possession.

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The petition was opposed by filing counter of the J.Dr.No.2 stating briefly as follows:

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a. B.V.Lakshmamma executed a registered Will on 29.09.2010 in his favour and later she died on 05.11.2011, and therefore, he applied for issue of passbook and title deed, but the 2^nd revision petitioner raised objection. Similarly, this respondent applied for family member certificate before the Tahsildar, Pamulapadu, and the same was rejected on the ground that the 2^nd revision petitioner preferred an appeal before the Revenue Divisional Officer, Kurnool. The 2^nd revision petitioner intentionally suppressed all these facts and filed false execution petition to harass this respondent. While final decree petition in I.A.No.27 of 2002 was pending, N.Janakamma filed I.A.No.141 of 2004 seeking mesne profits against B.V.Lakshmamma and while the petition was pending, B.V.Lakshmamma died. I.A.No.141 of 2004 was dismissed as not pressed by N.Janakamma. During the pendency of I.A.No.141 of 2004, the 2^nd revision petitioner filed I.A.No.269 of 2016 to implead him as the petitioner No.2 alleging that he is the son of N.Janakamma and that she bequeathed all her properties through the registered Will, dated 23.05.2014. This respondent filed a counter raising objection on the genuineness of the Will, dated 23.05.2014. After adding the 2^nd petitioner, a memo was filed in I.A.No.141 of 2004 with a prayer to close the I.A.No.141 of 2004 alleging that B.V.Lakshmamma died intestate on 05.11.2011 leaving behind N.Janakamma who is her step daughter, knowingly that B.V.Lakshmamma bequeathed her properties in favour of this respondent under the registered Will, dated 29.09.2010.

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b. The genuineness of the Will, dated 23.05.2014, of N.Janakamma was not proved. The relationship of N.Janakamma with B.V.Lakshmamma was broken during their lifetime. N.Janakamma left the house of her father since her childhood prior to the marriage of her father with B.V.Lakshmamma and subsequently, developed enmity with B.V.Lakshmamma and did not visit the house of B.V.Lakshmamma during her lifetime and filed number of cases and harassed B.V.Lakshmamma. Even after the death of B.V.Lakshmamma, N.Janakamma did not attend her funerals or death ceremonies. This respondent alone performed all her obsequies as she brought him up since his childhood and fostered him providing everything like shelter, food, clothing, education, marriage, etc. Thus, she executed the registered Will in his favour on 29.09.2010. Thus, he succeeded the E.P. schedule property which is the half share of suit schedule property by virtue of the final decree. The genuineness of the Will, dated 23.05.2014, could be decided in full enquiry of I.A.No.141 of 2004, but, the 2^nd revision petitioner got the petition in I.A.No.141 of 2004 closed with mala fide intention to grab the petition schedule property. Without conducting the enquiry on the genuineness of the Will, dated 23.05.2014, and without seeking declaration of his right over the property, he filed the execution petition in E.P.No.125 of 2018. The registered Will, dated 23.05.2014, is void ab initio and not enforceable. The execution petition is not maintainable without seeking declaration of his title over the property as there is a cloud cast on his title.

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During the enquiry, the 2^nd revision petitioner got himself examined as PW 1 and also examined Sapuru Ravi Kumar as PW 2 and on his behalf, Exhibit P1, original registered Will, dated 23.05.2014, executed by

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Smt. N. Janakamma in favour of N. Suresh Kumar; and Exhibit P2, certified copy of order in I.A.No.269 of 2016 in I.A.No.141 of 2004 were marked.

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The J.Dr.No.2 got himself examined as R.W1 and also examined Gaddam Bala Naganna as R.W. 2 and Dudekula Gokari as R.W.3 and the following documents were marked on his behalf:

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Ex.R1 : Copy of petition in I.A.No.62 of 2013.

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Ex.R2 : Counter in the said I.A.

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Ex.R3 : Notice issued by petitioner’s counsel. Ex.R4 : Copy of Appeal No.532 of 2018 before R.D.O. Kurnool. Ex.R5 : Copy of objections. Ex.R6 : Certified copy of order in I.A.No.62 of 2013 in I.A.No.141 of 2004 in O.S.No.41 of 1981.

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Ex.R7 : Certified copy of will dated 29.09.2010.

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The execution Court heard both sides. After extracting the evidence of all the witnesses, the execution Court observed that the 2^nd revision petitioner is not a party to the suit and claiming the relief based on Exhibit P1 / Will, and that the execution Court has limited powers and cannot determine the rights of the parties based on Wills and therefore, the execution petition is not maintainable without decree of a competent Court. Accordingly, the petition was dismissed without going into merits of the contentions or the genuineness of the Wills set up by both parties.

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Aggrieved by the order, this revision petition was filed by the 2^nd petitioner in the execution petition, showing the original D.Hr. also as the 1^st petitioner.

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The learned counsel for the revision petitioners submitted that the execution Court was in error in dismissing the petition on the mere ground that the 2^nd revision petitioner is not a party to the suit and he is claiming the relief based on a Will executed by the D.Hr. / plaintiff. He further submitted that a legal representative of a deceased DHr is entitled to get the decree executed and it is not necessary to file a separate suit to get the right of legal representative declared, but the execution Court erroneously observed that it had no such power. It is his further submission that the execution Court has to enquire and pass appropriate order under Order XXI, Rule 23 C.P.C. and therefore, the execution Court cannot disown the jurisdiction to decide the dispute. It is also submitted by him that since the J.Dr. No.2 did not contest and raise objection when a notice was served under Order XXI, Rule 22 C.P.C., it amounts to constructive res judicata and he cannot raise objection at a subsequent stage even in execution proceedings and placed reliance on the decision of the Madras High Court in Desayi Venkatranga Reddi and others Vs. Paraku Chinna Sithamma and Another¹ and the decision of the High Court of Andhra Pradesh in P. Sainath Reddy and others Vs. G. Narayana Reddy² , which was rendered by following the decision of the Madras High Court (supra).

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1 AIR 1941 MADRAS 440 2 AIR 1982 ANDHRA PRADESH 247

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On the other hand, the learned counsel for the 2^nd respondent / J.Dr. No.2 contended that the execution Court cannot go beyond the decree, and therefore, the petition was rightly dismissed and he placed reliance on the decision of the Supreme Court in Jai Narain Ram Lundia Vs. Kedar Nath Khetan and others³ , Topanmal Chhotamal Vs. Kundomal Gangaram and others⁴ and Bhavan Vaja and others Vs. Solanki Hanuji Khodaji Mansang and Another⁵ . He further submitted that the D.Hr. No.2 / revision petitioner No.2 may have to file a suit based on the Will, but he cannot maintain an execution petition.

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The legal propositions submitted by both the counsels basing on the cases cited supra are undisputed.

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Here, at this juncture, it is pertinent to refer Section 146 C.P.C. which reads as follows:

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“146. Proceedings by or against representatives :--

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Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.”

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A perusal of the above provision makes it abundantly clear that a legal representative can maintain an execution petition representing the

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4 AIR 1960 SC 388

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5 (1973) 2 Supreme Court Cases 40

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3 AIR 1956 SC 359

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deceased party to the suit, without being a party to the suit. In such a case, it cannot be treated that the execution Court is going beyond the decree. The execution Court is apparently in error in observing that it has limited powers and the D.Hr. No.2 cannot seek execution and he has to get his rights determined based on the Will on a different platform. Section 146 C.P.C. has not been brought to the notice of the execution Court. As such, since there is a legal error committed by the execution Court, the order impugned in the revision petition needs to be interfered by setting it aside.

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As the execution Court has not gone into any other merits, the matter shall be decided afresh on the other considerations regarding the Wills and delivery of possession.

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Incidentally, the execution Court may have to decide whether the decree was fully satisfied by execution of the decree when the D.Hr. No.1 filed E.P.No.69 of 2008 and took her share of half of the property and thereby the remaining share of half of the property was taken / retained by the J.Dr.No.1. If, now, the property of the J.Dr.No.1 is to be claimed by the 2^nd revision petitioner, is his remedy lies in execution or a separate suit. If the decree was satisfied fully, the execution Court need not go into the questions of Wills of the parties.

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If the Will pleaded by the J.Dr.No.2 is proved, N. Janakamma (D.Hr.No.1) cannot inherit the property of the J.Dr.No.1 and consequently she cannot pass on any title over the property of J.Dr.No.1 to anyone, including the D.Hr.No.2 even if the Will executed by D.Hr.No.1 to the D.Hr.No.2 / 2^nd revision petitioner is proved to be genuine. But, if the Will

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of J.Dr.No.1 in favour of the J.Dr No.2 is not proved, as the property would be succeeded by the D.Hr.No.1, then depending on the proof of Will of the D.Hr.No.1 to the D.Hr.No.2, it can be decided whether the D.Hr.No.2 is entitled to recovery of possession of the property.

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Since an execution petition can be filed by legal representative of a deceased D.Hr., the question whether D.Hr. No.2 is a legal representative of the deceased D.Hr. No.1 or not shall be examined, along with other aspects noted above.

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In the result, the Civil Revision Petition is allowed setting aside the order, dated 13.03.2025, passed by the Senior Civil Judge, Atmakur, in E.P.No.125 of 2018 in O.S.No.41 of 1981 with a direction to the execution Court to conduct enquiry in the execution petition in the light of the observations made in the preceding paragraphs.

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There shall be no order as to costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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___________________ B. S. BHANUMATHI, J

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Dt.11.07.2025 RSD / RAR

Nayineni Janakamma v. Bandlamoori Venkalakshmamma

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Nayineni Janakamma v. Bandlamoori Venkalakshmamma

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