THE HON’BLE SRI JUSTICE K.C. BHANU APPEAL SUIT No.285 OF 2010 JUDGMENT: This Appeal Suit, under Section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 12.10.2009, in O.S.No.4 of 1998, on the file of I Additional District Judge, Nellore, whereunder and whereby, the suit filed for partition claiming half share in the petition schedule property, was dismissed as abated. 2. Heard. 3. During the pendency of the suit, the plaintiff and the defendant died. The defendant died intestate leaving behind his wife and three daughters. Second daughter of the defendant i.e., appellant No.2 herein, filed two applications to implead her as plaintiff No.2 and the respondent Nos.2 to 4 herein as defendant Nos.2 to 4, and to implead her and the respondent Nos.2 to 4 herein as legal heirs of the deceased defendant in the suit. First and third daughters of the deceased defendant filed an application to implead them as plaintiff Nos.2 and 3 and appellant No.2 herein as defendant No.2 in the suit. All the applications were dismissed with an observation that the parties can workout their remedies by filing separate suit. Consequently, O.S.No.4 of 1998 was dismissed as abated. 4. It is not in dispute before this Court that O.S.No.4 of 1998 was filed by one Pyda Suseela Devi for partition claiming half share in the petition schedule property against her adopted son. During the pendency of the suit, both the plaintiff and the defendant died. Therefore, necessary applications were filed to implead legal representatives of the deceased plaintiff and the defendant. The legal heirs of the deceased persons are claiming share in the petition schedule property by virtue of two different Wills, dated 01.12.1997 and 22.10.2002. Whether the Wills are correct or not, have to be decided in the suit because it has to be established whether the legal heirs of the plaintiff are entitled for partition or not. As the subject matter in the suit and the property mentioned in the Wills, under which the legal heirs of the parties are claiming right, are one and the same, there is no need for the legatees of the deceased (plaintiff and the defendant) to file separate suit claming share in the property. Therefore, the trial Court ought to have allowed the applications filed by the daughters of the deceased defendant. Hence, the impugned judgment is liable to be set aside. 5. Accordingly, the Appeal Suit is allowed setting aside the impugned judgment and decree, dated 12.10.2009, in O.S.NO.4 of 1998, on the file of I Additional District Judge, Nellore. The trial Court is directed to implead the legal representatives of the deceased plaintiff and the defendant in the suit and try the suit in accordance with law. There shall be no order as to costs. _______________ K.C. BHANU, J March 09, 2011 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU APPEAL SUIT No.285 OF 2010 Between: Pyda Suseela Devi (died) per L.R. and another .....APPELLANTS AND Pyda Madhusudhan Rao (died) per L.Rs. and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU APPEAL SUIT No.285 OF 2010 March 09, 2011