Papamma vs J Girija Kumari on 30 January, 2013

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Karnataka High Court

Papamma vs J Girija Kumari on 30 January, 2013

2. The original plaintiff namely Papamma had filed a suit for partition and separate possession of 1/5th share in the suit schedule properties. After her death, her second son namely Ramesh was permitted to come on record as her legal representative. During pendency of petition, Ramesh also died. Therefore, his wife and children were permitted to come on record as prayed for in I.A.No.1/2013.

3. The learned trial judge while accepting the application filed by deceased Ramesh has held that deceased Ramesh is permitted to come on records to establish the rights of deceased Papamma in suit schedule properties however, the learned trial judge has declined to consider the will put forth by deceased Ramesh and has observed that deceased Ramesh could work out his rights under the alleged will in a separate proceeding.

4. The learned counsel for petitioner relying on the judgment of Supreme Court reported in 2009 AIR SCW 6 5319 ( in the case of Maddineni Koteswara Rao -vs- Maddineni Bhaskara Rao & Anr.) would submit that the trial court should not have directed deceased Ramesh to work out his remedy in a separate proceeding. The trial court should have decided the rights of parties under the will in the instant suit. The learned counsel for respondent would justify the impugned order.

5. In a decision reported in 2009 AIR SCW 5319 ( in the case of Maddineni Koteswara Rao -vs- Maddineni Bhaskara Rao & Anr.) the Supreme Court has held:

"10. It is well settled that a suit for partition stands disposed of only with the passing of the final decree. It is equally settled that in a partition suit, the court has the jurisdiction to amend the shares suitably, even if the preliminary decree has been passed, if some member of the family to whom an allotment was made in the preliminary decree dies thereafter. The share of the deceased would devolve upon other parties to a suit or even a third party, depending upon the nature of the succession or transfer, as the case may be. The validity of such succession, whether testate or intestate, or transfer, can certainly be considered at the stage of final decree proceedings. An inference to this effect can suitably be drawn from the decision of this Court in the case of Phoolchand v Gopal Lal (AIR 1967 SC 1470). In that decision, it was observed as follows:

"There is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if the circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented... it would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specifications of shares in the preliminary decree varied before a final decree is prepared. If this is done there is a clear determination of the rights of the parties to the suit on the question in dispute and we see no difficulty on holding that in such cases there is a decree deciding these disputed rights, if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court.

11. Therefore, relying on the decision of this Court and following the principles as aforesaid, both the courts below granted two shares to the respondent in respect of which we do not find any reason to differ. The courts below were also justified to hold that the two shares granted at the final stage could be treated as two preliminary decrees which are permissible in law. However, the learned counsel for the appellant pointed out that in Phoolchand's Case (supra), the death of two parties had taken place after the preliminary decree was passed. A new circumstance had emerged after the passing of the preliminary decree, that is why the court had passed a second preliminary decree modifying the shares of the other parties, accordingly, based on the Will executed by the deceased. But, in the present case their father had executed the Will and died before the passing of the preliminary decree. Therefore, no new circumstance has arisen after the passing of the preliminary decree. Accordingly, the 8 appellant contended that the High Court as well as the trial court were not justified in taking into consideration the question regarding the genuineness of the Will of the deceased father of the parties and allot two shares to respondent in the final decree.

12. So far as the first question, as noted herein earlier, is concerned, we are of the view that such a contention of the learned counsel for the appellant was of no substance. According to the learned counsel for the appellant, as noted herein earlier, the genuineness of the Will of the deceased father of the parties not having been proved in a separate suit, the High Court as well as the trial Court had specifically considered this point before passing the final decree. As noted herein earlier, in Phoolchand vs. Gopal Lal (supra), this question has been squarely answered. In the said decision, the appellant also filed a suit for partition of the joint property in which a preliminary decree was passed before passing a final decree. The father and the mother of the appellant died and the brother of the appellant claimed that he was entitled to the share of the father as the same was declared by way of a Will executed by the father and the appellant claimed his right in the share of the mother as the same was sold to him by the mother. This question relates to the preliminary shares of the parties which were redistributed, however, the trial court did not prepare another formal preliminary decree on the basis of this re-distribution of shares. The appeal was taken to the High Court by the brother of the appellant against distribution which finally came to this Court and this Court held that Will executed by the father in favour of the brother of the appellant was genuine and, therefore, the appellant was not entitled to take advantage of the share of the mother and the same must be distributed equally. In view of the aforesaid decision of this 9 Court, it is clear that in a suit for partition, a party who is claiming share in the plaint scheduled property, is entitled to plead for grant of probate of the Will executed by the deceased father of the parties and for which no separate suit needed to be filed."

6. In the aforestated judgment, the Supreme Court has held: a suit for partition stands disposed of only with the passing of the final decree. The Supreme Court has held that, in a suit for partition, the court has jurisdiction to amend the shares suitably, even if the preliminary decree has been passed, if some member of the family to whom an allotment was made in the preliminary decree dies thereafter.

7. In the case on hand, the trial court has to quantify the share of deceased Papamma (original plaintiff) in the suit schedule properties. Therefore, what has been held in the aforestated judgment is not applicable to the present case.

8. The learned trial judge has observed that Legatee under the will said to have been executed by deceased Papamma should have obtained probate of the will. 10

9. In view of the judgment reported in AIR 1986 KAR 9 ( in the case of Srinivasa and others -vs- K.V.Srinivasa Rao) such an observation is not warranted. The petition is dismissed with these observations.

Sd/-

JUDGE Np/-

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Karnataka High Court