IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FOURTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION Nos : 999 OF 2007 AND 1000 OF 2007 C.R.P.No.999 of 2007 Between: Majeti Sarada Devi and another . .Petitioners And Gollapudi Krishna Murthy and others. .. Respondents C.R.P.No.1000 of 2007 Between: Majeti Sarada Devi and another . .Petitioners And Gollapudi Krishna Murthy and others. ..Respondents THE HON’BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION Nos : 999 & 1000 of 2007 COMMON ORDER : Since these two revisions are interconnected and arising out of the very same proceedings, they are heard together and being disposed of by this common order. These two revision petitions are filed by the defendants 1 and 2 under Article 227 of the Constitution of India against the orders dated 17.01.2007 passed in I.A. No.2972 of 2006 and I.A. No.1503 of 2005 in O.S. No.32 of 2003 filed under Order I Rule 10 and Section 151 of Code of Civil Procedure to implead 6th and 7th plaintiffs respectively as one of the executors of estate of late Palivela Bhaskar Rao in place of plaintiffs 1 and 2. The plaintiffs instituted the above suit as executors of the estate of late Palivela Bhaskararao for declaration and possession in respect of the suit schedule property. As per the Will dated 16.11.1993, which contains a clause that in the event of death or resignation or unwillingness of any of the executors appointed by late Palivela Bhaskararao, the remaining executors shall appoint and fill up the vacancy with majority opinion. In pursuance of the contents of the Will, upon the death of plaintiffs 1 and 2, the proposed plaintiff Nos. 6 and 7 were appointed as executors and therefore, they should be impleaded as plaintiff Nos.6 and 7 in the suit. Defendants 1 and 2-revision petitioners herein filed counter disputing the very execution of the Will dated 16.11.1993 by late Palivela Bhaskararao and denied the appointment of the new executors in place of deceased-plaintiffs 1 and 2. The original Will has not been filed into Court and therefore, the executors cannot act basing on the copy of the Will by appointing the proposed 6th and 7th plaintiffs as executors. The lower Court allowed both the I.As holding that whether the earlier Will has been revoked by subsequent Will, dated 29.6.1994 as contended by the revision petitioners is a matter which can be gone into in the main suit. It was observed that from the contents of the Will, dated 16.11.1993, the appointment of new executor by the remaining executors is possible and therefore, the aspects as to whether the Will dated 16.11.1993 was really executed or was revoked by the testator by subsequent Will can be gone into only in the presence of the new executors who are sought to be impleaded. Learned counsel for the petitioners strenuously contended that unless the original Will is produced and the contents thereof are proved by the remaining executors, impleading of the proposed plaintiffs 6 and 7 being new executors as appointed by the remaining executors does not arise and therefore, they need not be impleaded in the suit unless the Will is proved. In the affidavit filed in support of the impugned I.As before the lower Court, it is clearly mentioned that under the registered Will dated 16.11.1993, late Palivela Bhaskar Rao clearly stated that in the event of death or resignation or vacancy or unwillingness of any of the executors appointed by him, the remaining executors shall appoint and fill up the vacancy with majority opinion. It was pleaded by the plaintiffs that the original Will was with the testator and as such, they being the executors of the Will filed a copy of the same along with the suit. Once, it is pleaded that the Will is registered, the burden lies on the executors-plaintiffs to prove the same either by way of primary evidence or by way of secondary evidence about the execution of the Will by the testator. As rightly observed by the lower Court whether the Will was revoked or not can be gone into in the main suit after full- fledged trial. Further mere impleading plaintiffs 6 and 7, no irreparable injury would be caused to the petitioners-defendants, which can always be corrected in the appeal in the event if the suit is decided against them. In view of the same, the impugned order passed by the lower Court allowing the I.As. do not suffer any illegality or infirmity warranting interference by this Court. The revisions are accordingly dismissed. The petitioners are at liberty to raise all the contentions available to them before the lower Court about the genuineness of the Will and its revocation. No costs. ______________________ JUSTICE A.GOPAL REDDY December 04, 2009 KSH