Andhra HC (Pre-Telangana)
Marada Venkateswara Rao vs Oleti Vara Lakshmi And Anr. on 7 November, 2007
Equivalent citations: 2008(2)ALT348, AIR 2008 ANDHRA PRADESH 195, 2008 (6) ALL LJ NOC 1190, 2008 (3) AJHAR (NOC) 1037 (AP), 2008 A I H C (NOC) 822 (AP), (2008) 65 ALLINDCAS 740 (AP), (2008) 3 CIVILCOURTC 416, (2008) 4 RECCIVR 155, (2008) 2 ANDH LT 348
ORDER G. Yethirajulu, J.
1. This revision petition is filed by the second defendant in O.S. No. 72 of 2003 on the file of the II Additional District Judge, Vijayawada.
2. The plaintiff filed the suit for partition of the suit schedule property among herself and the defendants 1 and 2. During the pendency of the suit, the plaintiff filed I.A. No. 3028 of 2004 under Section 45 of the Evidence Act to direct the second defendant to give blood by making himself available for DNA Test. The lower Court allowed the said application directing the second defendant to give his blood by making himself available for DNA Test at the center for DNA Finger Printing and Diagnostics (CDFD) at Nacharam, Hyderabad on 28.10.2004 at 10.30 a.m. and the petitioner is directed to bear the expenses for the said DNA Test as fixed by the Lab authorities either by depositing the said amount into Court or by sending the same by way of demand draft. The revision petitioner, being aggrieved by the order of the Court, preferred the present revision petition challenging its validity and legality.
3. The learned Counsel for the revision petitioner submitted that the lower Court passed the impugned order in a casual manner without assigning sufficient reasons in ordering DNA Test against the revision petitioner, therefore, he requested to set aside the order passed by the lower Court.
The point for consideration is whether the order passed by the lower Court is sustainable or liable to be set aside?
4. The plaintiff has contended that the plaint schedule properties were acquired by her mother Varalakshmi after leaving her husband in their village and settling at Vijayawada by investing the money acquired out of her own assertions. The plaintiff is claiming that herself and the defendants were born to Varalakshmi the owner of the suit schedule properties. It is also mentioned in the plaint that the second defendant was born to Varalakshmi through Kanakaiah and the said Kanakaiah died in the year 1964, and it is also stated that the plaintiff and the first defendant were born to Varalakshmi.
The contention of the second defendant is that since long time i.e., prior to the birth of the plaintiff and the first defendant, there was estrangement of relationship between Varalakshmi and Kanakaiah and Kanakaiah died in the year 1964. Therefore, there was no possibility for the plaintiff and the first defendant, to born to Varalakshmi through Kanakaiah. The second defendant further contended that Varalakshmi brought up the plaintiff and the first defendant who were destitute children. Therefore, they were not born to Varalakshmi, and, they are not entitled for any share in the plaint schedule properties, which were acquired by Varalakshmi.
5. In the light of the above contentions raised by the second defendant, the plaintiff filed the application under Section 45 of the Evidence Act to direct the second defendant to undergo DNA Test along with the plaintiff and the first defendant to establish whether all of them were born to Varalakshmi, When it is the specific contention of the second defendant that the plaintiff and the first defendant were not born to Varalakshmi and when it is the specific contention of the plaintiff that herself and the first defendant were also born to Varalakshmi and when they are claiming shares in the properties of Varalakshmi, the lower Court felt that it is a fit case where the DNA Test would set at rest the conflict of contentions regarding the maternity of the parties to the suit.
6. The learned Counsel for the revision petitioner submitted that the DNA Test cannot be ordered in a casual way and this is not a fit case for ordering DNA Test. The learned Counsel in support of his contention relied on the judgment of the Supreme Court in Banarsi Dass v. Teeku Dutta and Anr. 2005(3) A.L.D. 78 (S.C.), held as follows:
The main object of a Succession Certificate is to facilitate collection of debts on succession and afford protection to parties paying debts to representatives of deceased persons. All that the Succession Certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased. A Succession Certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a certificate under the Act, or is compelled by the decree of a Court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. The respondents, if they so chooses, can also adduce evidence to oppose grant of Succession Certificate. The trial Court erroneously held that the documents produced by the respondents were not sufficient or relevant for the purpose of adjudication and DNA Test was conclusive. This is not a correct view. It is for the parties to place evidence in support of their respective claims and establish their stands. DNA Test is not to be directed as a matter of routine and only in deserving cases such a direction can be given, as was noted in Goutam Kundu's case. Present case does not fall to that category. High Court's judgment does not suffer from any infirmity. We, therefore, uphold it. It is made clear that we have not expressed any opinion on the merits of the case relating to succession application.
7. The Hon'ble Supreme Court gave the above finding on the basis of the facts covered by that case, but they are not applicable to the present case. Since there is a conflict whether the plaintiff and the first defendant were born to Varalakshmi. I am of the considered view that it is essential to order DNA Test, which will set at rest the dispute between the parties regarding the partition of the suit schedule property. After going through the order of the lower Court, I am of the view that the lower Court was right in ordering DNA Test, and, as such, I do not find any grounds to set aside the order passed by the lower Court in I.A. No. 3028 of 2004.
Hence, the revision petition is dismissed. However, the petitioner is at liberty either to go for the DNA Test or to file a memo expressing his unwillingness before the lower Court.