In a partition suit with pending final decree proceedings, the Hon'ble Court allowed the revision to implead the petitioner as respondent. He is the grandson and alleged legatee of a deceased co-sharer. His claim is subject to proof of the Will.
I.A.No.1047 of 2009 allowing impleadment is allowed. Claim subject to proof of Will dated 13.05.2002.
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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY
C.R.P.No.1154 of 2011
ORDER:
The 1st respondent filed O.S.No.159 of 1996 in the Court of II Senior Civil Judge, City Civil Court, Hyderabad, against respondents 2 to 4, for partition and separate possession of the suit schedule properties. A preliminary decree was passed in the suit, directing division of the suit schedule property into four shares and allotment of 1/4th share, each, to the plaintiffs and defendants 1 to 3 i.e. respondents herein. The same became final. I.A.No.1484 of 2001 was filed for final decree proceedings. During the pendency of the final decree proceedings, defendant No.1 in the suit, i.e. Kumrilal Newnahal, is said to have died. The petitioner herein claims to be the grandson of the deceased - 2nd respondent. The petitioner states that his grandfather executed a registered Will, dated 13.05.2002, bequeathing the property, in his favour. Based upon that, he filed I.A.No.1047 of 2009, under Order I Rule 10 C.P.C., with a prayer to implead him as respondent No.4 in the final decree proceedings. The I.A. was opposed by respondents 1, 3 and 4. The trial Court dismissed the I.A., through order, dated 18.02.2011.
Heard Sri Aadesh Varma, learned counsel for the petitioner, and Sri N.Prashanth, learned counsel for the respondents.
In the suit for partition, final decree proceedings are pending. The 1st defendant in the suit, the 2nd respondent herein, died during the pendency of those proceedings. The petitioner claims to be not only the grandson of the deceased - 2nd defendant, but a legatee under a Will, dated 13.05.2002. If the Will is proved, he deserves to be allotted the share of the executant thereof. If, on the other hand,
the Will is not proved, the share that is allotted to the 2nd defendant must accrue to the legal heirs. Further, no one has come forward claiming to be the legal representatives of the deceased - 2nd defendant. It is well settled that even at the stage of final decree proceedings, persons claiming in the interests of the properties that are identified for partition can get themselves impleaded. Ultimately, it is for them to establish their case with acceptable evidence.
Hence, the C.R.P. is allowed and the order under revision is set aside. I.A.No.1047 of 2011 is allowed. The claim of the petitioner shall, however, be subject to proof of the Will, dated 13.05.2002, relied upon by him. There shall be no order as to costs. The miscellaneous petitions filed in this revision shall also stand disposed of.
____________________ L.NARASIMHA REDDY, J.
16.10.2014
GJ
3 issues framed by the court
Whether a person claiming as legatee and grandson can be impleaded during final decree proceedings in a partition suit when a co-sharer dies.
Whether the claimant's entitlement to the deceased's share is subject to proof of a Will.
Whether an order rejecting application for impleadment in final decree proceedings in a partition suit is maintainable.
1 provisions across 1 enactments
KUMLILAL NEWNAHAL (DECEASED)
PETITIONER
RESPONDENTS
L.NARASIMHA REDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
