Allowed

Smt.Dr.Vaddiparthi Shyamala Devi v. Dinavahi Sundari Venkata Rao

Telangana HC8 Nov 2012CRP/5800/2010

Case brief

AI extract

What is this about?

In a revision petition challenging the dismissal of an application for passing a final decree in a partition suit, the High Court set aside the lower court's order. The Court held that the property remained undivided and an advocate-commissioner should have been appointed to effect division before issuing the final decree.

What did the court decide?

The impugned order setting aside the petitioner's application was set aside. The court below is directed to take steps to pass an appropriate order in the FD IA and complete the division of property w

Smt.Dr.Vaddiparthi Shyamala Devi Vs Dinavahi Sundari Venkata Rao — Partition | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR

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C.R.P. NO. 5800 of 2010

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Date of Judgment: 8.11.2012

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Between:

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Dr. Vaddiparthi Shyamala Devi …Petitioner

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and

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Dinavahi Sundari Venkata Rao and others ..Respondents

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THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR

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C.R.P. NO. 5800 of 2010

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ORDER:

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Defendant No.4 in OS No. 84 of 1990 on the file of the Senior Civil Judge, Vizianagram is the revision petitioner herein. The said suit for partition was decreed by passing a preliminary decree declaring the shares of the parties to the suit. It appears that the respondent No. 9 purchased the shares of parties to the suit except the share of the petitioner herein. Since the petitioner was not willing to sell her share to the respondent No.9, she filed an FD IA No. 491 of 2006 for passing of a final decree. The court below dismissed the said application under the impugned order by observing that the petitioner’s motive

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does not appear bona fide and having not sought appointment of advocate-commissioner to make investigation into the question as to the divisibility of the property, the present application was straightaway filed. Aggrieved by the said order, the present revision petition is preferred.

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Heard learned counsel for the petitioner and learned counsel for respondent No.9 who represents other respondents in view of his purchase of the shares of other parties.

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I am unable to appreciate the reasoning of the learned Senior Civil Judge in dismissing the petitioner’s application seeking passing of final decree. It cannot be denied that the property remains undivided and the preliminary decree only declares the shares of parties to the suit. To ascertain even the shares of other parties from whom the respondent No.9 claims to have purchased, division of property is essential. The application seeking passing of a final decree, therefore, ought to have been accepted by the court below and an advocatecommissioner ought to have been appointed for making division of the property by metes and bounds so as to allot the separate share of the petitioner and also other shares which the respondent No.9 claims to have purchased from other parties to the suit. Unless the said exercise of appointment of advocate-commissioner is completed, it may not be possible for the court below to even record a

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conclusion that the property is divisible. The rejection of the petitioner’s application on the ground that her motive is not bona fide is wholly unsupported by any reason. The petitioner, as a party to the suit, is entitled to the final decree to be passed in terms of the preliminary decree.

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The impugned order is, therefore, set aside and the court below shall take appropriate steps in FD IA No. 491 of 2006 and pass an appropriate order in accordance with law as expeditiously as possible, preferably within three months from the date of receipt of a copy of this order.

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The revision petition is accordingly disposed of. Miscellaneous applications, if any, shall stand closed. No costs.

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_________________________ VILAS V. AFZULPURKAR, J

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Dt. 8.11.2012 KR

Smt.Dr.Vaddiparthi Shyamala Devi v. Dinavahi Sundari Venkata Rao

Case brief

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Smt.Dr.Vaddiparthi Shyamala Devi v. Dinavahi Sundari Venkata Rao

Case brief

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What did the court decide?

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