HONOURABLE SRI JUSTICE C.V. RAMULU CIVIL MISCELLANEOUS APPEAL No.559 OF 2005 JUDGMENT: This Civil Miscellaneous Appeal is directed against the judgment and decree in A.S. No.102 of 1999 dated 25-03-2005 on the file of the learned VII Additional District Judge (Fast Track Court), Krishna at Vijayawada, whereunder the judgment and decree made in O.S. No.943 of 1992 dated 03-09-1997 dismissing the suit for partition was set aside and the matter was remanded for reconsideration. 2. The appellants are legal heirs of defendant No.2. The suit was filed for partition and separate possession of 1/7th share in item Nos.1 and 2 of the suit schedule property. It appears, one Satyamma was absolute owner of item No.1 of the suit schedule property and item No.2 of the suit schedule property was gifted to her by her mother and thereafter she became absolute owner of item Nos.1 and 2. She executed a Will in favour of her husband, Ramulu, in 1966. In turn, Ramulu gifted item No.1 of the suit schedule property to defendant No.2 in 1979. Likewise, Ramulu also gifted item No.2 property in favour of defendant Nos.1, 3 and 4 in 1979. While that being so, husband and children of daughter (Sarojini) of Ramulu and Satyamma filed the present suit for partition. It was the case of the defendants that suit schedule property was gifted to them by Ramulu. Even Sarojini, who is daughter of Ramulu and Satyamma, did not raise any objection or claim any right over the suit schedule property at any point of time during her lifetime. Both parties i.e., plaintiffs and defendants, were shown as Hindus in the cause title and pleadings also run althrough in the same fashion and based on the merits, suit was dismissed. Aggrieved thereby, respondents – plaintiffs carried the matter in appeal in A.S. No.102 of 1999 before the learned VII Additional District Judge (Fast Track Court), Krishna at Vijayawada. 3. It appears, during the course of arguments, it came to light that parties are Indian Christians and therefore a serious error has been committed by the trial Court in not framing any issue as to “whether the parties are Indian Christians and if that is so, the Will Deed in Ex.B-15 executed by Satyamma was required to be probated.” In fact, it appears, in Will Deed, Satyamma herself signed and shown as Indian Christian. In view of the arguments advanced by both the parties and Ex.B-15, the lower appellate Court recorded its findings as under: The material argument of the counsel or the appellants/defendants in the suit is that the Ex.B15 will executed by late Satyamma is not enforceable without getting probated U/s. 213 of Indian Succession Act, so the respondent 7 to 12 are not at all entitled to rely on the Ex.B15 will, even without going to the merits of the other grounds of the appeal. The counsel for the respondent 7 to 12 argued that the appellant is not entitled to raise such a plea without foundation in the trial court and without even suggestion to the parties that they are Christians and there was no opportunity to the respondent to answer the said plea of the appellant in the trial court on Probate U/s.213 of Indian Succession Act. There is also further argument advanced by the counsel for the respondents 7 to 12 prescribed the title by way of adverse possession as Ramulu was exclusive possession and enjoyment of the item No.1 and 2 from 06.04.66 to 21.06.99 thereafter D2 was in exclusive possession land enjoyment of the property from 21.06.99 till 1992 irrespective of the validity of the will. The counsel for the appellant contended that the said plea of adverse possession is also not pleaded and no evidence in the lower court. In view of the above material contentions of the both parties a close perusal of he pleadings of the lower court it reveals that in the plaint, and the pleadings of the suit in the cause title, both plaintiffs and defendants are shown as Hindus. So the plaintiffs are seeking partition of plaint schedule as Hindus. In the written statements filed by the defendants also there is no whisper whether they are Hindus or Christians and there is also no pleading that the original owner of the property Satyamma or her husband Ramulu are Christians or Hindus. But as per Ex.B15 will the first line of the will the executant of Ex.B15 referred Satyamma @ Manikyamma wife of Ramulu @ David Raju as Indian Christian. The lower court has not gone into the material aspect that the alleged will Ex.B15 was executed by Christians to decide the validity of the will and in respect of probate U/s.270 of Indian Succession Act. A perusal of evidence it reveals that there is a reference in the evidence of PW.1 first plaintiff Tyagaraju cross by D2 John Prasada Rao that appellant/first plaintiff admitted that legatee under Ex.A1 Ramulu is a Christian by religion. In the same way the said DW1 John Prasada Rao in his cross-examination by D3, D4, D6 stated a different story, he got belief in Christian mission, his father never visited the Church. All the names of his brothers related to Christian Religion, he does not know whether his father converted into Christian religion. In the next sentence he stated in his evidence that he is a Christian whatever instructed by him, his Advocate drafted in the plaint. So any such inconsistent evidence without pleadings cannot be considered unless specific pleading by way of amendment on the material fact. Now the argument of the counsel for the appellant is the appeal is that the parties belong to Christian so probate of will is necessary. Admittedly his argument is without any pleading, evidence argument in the lower court or ground of appeal before this Court as argued by the respondents counsel. The decisions relied by the counsel for the appellants reported in AIR 1986 Karnataka 9 between Srinivasa and others, Petitioners Vs. K.V. Srinivasa Rao, Respondent followed by AIR 1961 Supreme Court 1471 and AIR 1962 Supreme Court 1471 between Mrs.Hem Nolini Judah and after her L.Rs Mrs. Marlean Wilkinson, Appellant Vs. Mrs. Isolyne Sarojbashini Bose and others, Respondents U/s.213 of Indian Succession Act creates a bar to establishment of any right under will by a executor or a legatee unless probate or administration have been obtained. In view of the above decision in Para 6 when the parties in the case are Christians, so sec.57 of Indian Succession Act does not apply as Sec.57 of Indian Succession Act is exception to the general rule that no probate is required in respect of the will of Hindus, Buddhist, Sikhs, Jains, Muslims, the right has claimed either by plaintiff or defendant. Further all the relevant provisions under the said act Indian Succession Act is required obtaining of the probate apply to the Christians. The another decision relied by the appellant counsel reported in AIR 1988 Madras 132 between Pravin Kumar, Appellant Vs. P. Rajeswara and others, respondents the religion of testatrix will be proved in respect of probate of the will U/s.213 of Indian Succession Act. In the above decision the testatrix of the will described as Hindu in the plaint, but in the evidence proved as Christians, so the suit was liable to be dismissed for want of probate. So such inconsistency is also there in the suit about the religion of the testatrix and the legatees. Another decision relied by the counsel for the appellants reported in AIR 1980 Orissa 27 between Kanhialal Sarda and another, Petitioners Vs. State of Orissa and others, opposite parties right of the executor under the will cannot disturb a court of law unless it is produced. He also argued that scope of Sec.59(a) of Indian Succession Act with combined reading of Sec.213 of Indian Succession Act by relying decision of our Hon’ble High Court of A.P. reported in 1983 page 334 between Tynala Musalayya Vs. J. Mohanraj and others, in that the Sec.213 of Indian Succession Act makes it abundantly secure that exemption of Christians cannot be spelt out U/s.57 Indian Succession Act as 213 of Indian Succession Act applies only to the process specified in the clause a, b of Sec.57 of Indian Succession Act, but not other categories of wheels. So in the absence of any mention about the exemption regarding the Christians the exemption specified with regard to the Mohammedans cannot be extended to the Christians. The counsel for the appellants further argued that the decision relied by the respondents reported in 2004(6) ALT 18, 1999(2) ALD 132, 2000(2) ALD 288 related to cases where the parties belong to Hindus do not apply to the present case. So the probate or letters of administration is necessary to establish right under the will executed by Christians under Ex.B15 in view of the decisions relied by the counsel for the appellants. The respondents 7 to 12 counsel vehemently argued that when the govt. of A.P. did not issue notification authorizing the District Judges to entertain probate proceedings u/s.213 of Indian Succession Act, so in view of the decisions relied by him 2004(6) ALT 18, 1999(2) ALD 132, 2000(2) ALD 288, no probate is necessary in the wills executed in the property situated in Andhra Pradesh. He further argued by submitting a head note about a decision reported in 1998(1) ALT 426 the bar U/s.213 of Indian succession Act is lifted to Christians also and he also argued U/s.222 of Indian Succession Act question of obtaining probate will arise in cases where an executor was appointed by the will in the absence of probate it will not debar the legatee from claiming his right on the basis of the will. He further argued that there is no opportunity to the respondents to adduce evidence on that aspect of probate as no pleading evidence or argument in the trial court and this is a strange plea before first appeal. Admittedly in the decision 1999(2) ALD 132 between Masimukkula Narayana and others, Vs. Masimukkula Suryakantham, admittedly the parties are Hindus and also basing on Sec.57(a) of Indian Succession act application for certain provisions of part II(a) clause wills made by Hindus, so as per the above decisions the Sec.213 of Indian succession Act excludes wills executed by Hindus in respect of properties situated in Andhra Pradesh from the provisions contained in Sec.213 of the Act. But there is no reference about the exemption of Christians in the said decisions and no decision of Andhra Pradesh High court is submitted when the appellants relied decision reported in Andhra Pradesh weekly reporter 1983 page 334 for the will executed by the Christians the production of probate would be necessary. The decision reported in 1999 ALD Digest 1338 head note without full decision reported in 1998(1) KLT 426 between Thresiamma vs. Joseph that the bar U/s.213(1) of Indian succession act is now lifted to Christians cannot be considered basing on the head notes without perusing the full decision whether any local amendment of that state, in view of the decision of our Hon’ble High Court of A.P. reported in 1983 page 334. As the probate is necessary where the persons are christens claiming rights under the will executed by the Christians. But the argument of the respondents 7 to 12 counsel that there is no opportunity to them to hesitate in the lower court by adducing evidence is tenable as the respondents would have properly prosecuted the suit if the said plea was taken by the appellants in the lower court. So in such circumstances the parties must be given opportunity to hesitate on the said plea of religion of the parties Christians or Hindus and proceedings for grant of probate on the alleged will Ex.B15. Because the said plea is not only legal plea it is a mixed plea of fact and law. The other contention of the respondents 7 to 12 that the appellants cannot raise new plea first time in this court without foundation by relying AIR 1977 SC 1005 and 2004(5) SRJ 403 is not applicable to the present case as in the said case neither terms of agreement nor the correspondence indicated that the parties stated that the time is essence of the contract in a specific performance suit, but the High Court interfered that intention on the part of the parties to treat time as the essence of the contract. So in such circumstances such a new plea cannot be allowed because there is no such term in the agreement. In the same way another decision relied by the respondents 7 to 12 reported in 2004(5) SRJ 403 against the interlocutory order U/s.151 C.P.C. is also not applicable to the present case in view of the recent decision relied by the counsel for the appellant reported in 2005(1) Supreme Court cases 787 as their lordships in Para 36 of the Judgment held that a right to question the correctness of the decree in the first appeal is a statutory right such a right shall not be curtailed nor shall any embargo be fixed thereupon unnecessarily the statute necessarily or implication because in the present suit the appellants are questioning the correctness of decree and Judgment basing on the Ex.B15 will which was not probated U/s.213 of Indian succession Act. So the appellants can raise this plea for not probate will under Ex.B15 that the Judgment itself is illegal. Simply there is no foundation on that plea this appellate court cannot allow a illegal Judgment in view of the above decision relied by the counsel for the appellant and respondents 3 and 4. Unless the said ambiguity is clarified by allowing the parties to make respective amendments of the pleadings and evidence, because the said plea is mixed fact and law. The further argument of the counsel for the respondents 7 to 12 is that D2 prescribed title by adverse possession by relying decisions reported in AIR 1957 Patna 157 between Sribhagwan Singh and others, Appellants Vs. Rambasi Kuer and others, Respondents even transfer having acquired title under an invalid transaction and continuing in possession more than 12 years would have deemed to be acquired a perfectly a good title to the property in spite of the Ex.B15 is a invalid document for non probated U/s.213 of Indian Succession Act is also not pleaded no evidence and no issue framed by the lower court and it is also not the plea of the respondents 7 to 12 in the lower court. It is also a new plea before this appellate Court and it is established law that the plea of adverse possession cannot be entertained without pleadings and evidence as argued by the counsel for the appellant. A close perusal of the pleadings of the parties and the contentions of both counsels on the main material points religion of the parties in the case as discussed above it reveals that both parties mentioned in the cause titles of the pleadings they are Hindus, but material document will Ex.B15 describes that testatrix herself as a Indian Christian. The material plea of the appellants is that will has to be probated because they are Christians. The Respondents 7 to 12 are claiming adverse possession etc. So I feel it is just and proper to decide the above material contentions between parties by giving opportunity to the both parties by seeking amendment to the respective pleadings and to adduce evidence on the said pleadings after framing issues by remanding the suit to the lower court. Simply due to the ignorance, mistake or on improper advise the parties cannot be suffered. Because the appellants raises a plea that the will Ex.B15 is not probated if the entire Judgment of the lower Court is set aside without pleading and evidence in suit it is not proper in the interest of the Justice. In the same way the plea of the Respondents 7 to 12 i.e., the plea of adverse possession basing without plea and evidence, declaring their title by adverse possession without throwing out the pleading and evidence in the lower court is also not proper in the interest of justice. Hence in the interest of both parties, this Court intended to remand the suit to the lower court with a direction to give opportunity to the parties, to amend their respective pleadings on three aspects discussed above, the religion of the parties in the suit if they require, the probate of the Will alleged to be executed by Satyamma and the plea of adverse possession pleaded by the respondents 7 to 12. The lower court has to decide on the above three aspects independently by giving opportunity to the parties as per law without carrying out the observations of this Court in disposing the suit on the above three aspects. It is further observed that the parties are not empowered to hesitate or adduce further evidence on the rest of the pleas pleaded and adduced evidence already in the lower court. The lower court is further directed to dispose the suit within six months from the date of receipt of the record. In the result, the appeal is allowed setting aside the Judgment of the lower court remanding the suit to the lower court with a direction to give opportunity to the parties to amend their pleadings on three aspects i.e., the religion of the parties in the suit, if they require, the probate of the Will alleged to be executed by Satyamma and the plea of adverse possession pleaded by Respondents 7 to 12. The lower court has to decide on the above three aspects independently by giving opportunity to the parties as per law without carrying out the observations of this Court in disposing the suit on the above three aspects. It is further observed that the parties are not empowered to hesitate or adduce further evidence on the rest of the pleas pleaded and adduced evidence already in the lower court. The lower court is further directed to dispose the suit within six months from the date of receipt of the record. Each party do bear their own costs.” 4. But, the fact remains that absolutely there was no pleading or any petition to consider this aspect before the lower appellate Court seeking amendment of the cause title or pleadings etc. In the absence of any petition seeking amendment, the lower appellate Court mainly on the basis of the arguments advanced on behalf of both the parties, has recorded the above findings and remanded the matter for reconsideration on three counts; firstly - whether it requires to be decided as to whether the parties belong to Indian Christians or Hindus, secondly - whether the Will Deed, Ex.B-15, needs to be probated and thirdly - the plea of adverse possession on the part of the appellants herein i.e., defendants. 5. Now, learned counsel for the appellants strenuously contended that there is no necessity of remanding the matter to the trial Court for reconsideration as the entire evidence is available on record, as noticed above, and on the basis of the said evidence, the lower appellate Court has given a finding and just remanded the matter only for the purpose of amending the pleadings directing the trial Court to frame an issue and permit the parties to lead evidence. Insofar as adverse possession is concerned, according to the learned counsel for the appellants, there is any amount of evidence available on record and absolutely there was no necessity of remanding the matter for reconsideration to the trial Court. The lower appellate Court could have framed an issue and decided the matter on its own including the issue as to whether the parties are Indian Christians and whether the Will Deed, Ex.B-15, requires to be probated etc. 6. From the reading of the findings recorded by the lower appellate Court, as noticed above, and the arguments advanced before this Court by the learned counsel on either side, I am of the considered opinion that the issues (points) raised by the learned counsel could have been framed by the lower appellate Court itself as to whether the parties are Hindus or Indian Christians and it could have decided on its own including framing of issue (point) of adverse possession of the appellants. Under these circumstances, I am of the considered opinion that lower appellate Court was not right in remanding the matter to the trial Court for reconsideration; particularly in the absence of any specific petition seeking amendment of cause title etc., as to the status of the parties with regard to religion. 7. Therefore, judgment and decree of the lower appellate Court in A.S. No.102 of 1999 dated 25-03-2005 is set aside and the matter is remitted to the lower appellate Court for reconsideration by framing the points as to (1) whether the parties of the suit are “Indian Christians” or “Hindus” and if they are Indian Christians, whether the Will Deed, Ex.B-15, requires to be probated, and (2) whether the appellants - defendants were in adverse possession of the suit schedule property etc., and then decide the matter on its own merits permitting the parties to lead evidence of both oral and documentary, if necessary. 8. The Civil Miscellaneous Appeal is accordingly allowed. There shall be no order as to costs. _____________________ C.V. RAMULU, J July 22, 2010. PV