* THE HON’BLE SRI JUSTICE D.S.R.VARMA CIVIL REVISION PETITION No.6235 of 2009 % 06.08.2010 Between: Chennagiri Venkata Satyanarayana ..... PETITIONER AND Manepalli Rajya Lakshmamma and four others. .....RESPONDENTS ! Counsel for the petitioner: Sri K.Chidambaram ^Counsel for the respondents: Sri V.S.R.Anjaneyulu < Gist: > Head Note: ? CITATIONS: NIL THE HONOURABLE SRI JUSTICE D.S.R.VARMA CIVIL REVISION PETITION No.6235 of 2009 ORAL ORDER: Heard both sides. 2. This Civil Revision Petition is directed against the order and decree, dated 05.11.2009, passed by the Senior Civil Judge, Avanigadda, dismissing the application I.A.No.768 of 2009 in O.S.No.1 of 2001, filed under Order 16 Rule 14 and Order 19 Rule 1 of the Code of Civil Procedure seeking to summon the first defendant, the second defendant and the husband of the fourth defendant and to examine them as Court witnesses. 3. Petitioner is third defendant, respondents 1 and 2 are plaintiffs 1 and 2 and respondents 3 to 5 are defendants 1, 2 and 4, respectively, in the said suit. 4. For the sake of convenience, hereinafter the parties will be referred to as arrayed in the suit. 5. Originally, the suit was filed by one Rajya Lakshmamma seeking declaration of title over the suit schedule property and cancellation of the sale deeds executed by defendants 1 and 2 in favour of defendant No.3. The said sale deeds, in fact, were executed by D-1 and D-2 in favour of D-3, who is the revision petitioner. From the plaint averments, it appears that she has been claiming the rights over the suit schedule property by virtue of a will said to have been executed by her husband, by name Mr.Venkata Krishna Rao, on 19.07.1985, who died on 17.07.1988. According to the original plaintiff, after the death of her husband, who died during the pendency of the suit, the rights which accrued to her through the said will though appear to be limited - that is only to the extent of life interest and vested remainder is to her sons i.e., D-1 and D-2 - her rights under the said will get enlarged under the provisions of the Hindu Succession Act. Obviously, her contention was that her rights were enlarged as per Section 14 of the Hindu Succession Act and as such, it was her contention that her right over the property by virtue of the said will was not that of a limited estate but absolute. Therefore, she sought the relief of declaration of title and cancellation of sale deeds executed by D-1 and D-2 in favour of D-3. 6. It appears that D-1 initially filed written statement and also filed the chief-examination affidavit, but he was not available, at a later point of time, for cross-examination. In that view of the matter, his evidence was totally eschewed from consideration and as a consequence thereof, his evidence for all purposes was held as to be not necessary. 7. Therefore, the petitioner, who is the purchaser of some of the properties from D-1 and D-2, having been affected with the plaint pleadings, filed the present petition under Order XVI Rule 14 C.P.C. paying the Court to summon D-1, D-2 and the husband of D-4 and to examine them as Court witnesses. The trial Court dismissed the said application. Hence, the present Civil Revision Petition. 8. It is the contention of the learned counsel for the revision petitioner-third defendant that the suit was a collusive one between the mother (the original plaintiff) and her sons, who are arrayed as D-1 and D-2. After the alleged will, which was executed somewhere in 1985, the present suit came to be filed in the year 2001, i.e., after a lapse of about more than 15years. It is his further contention that D-1 and D-2 who sold the properties to D-3 have, in fact, to support the case of D-3, but, on the contrary, having filed written statements they did not choose to prosecute the case any further by contesting themselves, as a result, they were set ex parte and their evidence was eschewed from consideration. Therefore, according to the learned counsel to establish the case of D-1, it is very essential to summon D-1, D-2 and the husband of D-4 and examine them as Court witnesses. 9. Apart from the jurisdiction of the Court to entertain an application filed under Order XVI Rule 14 C.P.C., what is to be looked into in the present set of facts of the case is that who is the main contestant in the suit. The answer is it is the plaintiff alone who is the main contestant. It is for the original plaintiff or on her behalf the present plaintiff who is the beneficiary under an alleged will said to have been executed by the deceased original plaintiff to establish her absolute rights over the suit schedule property under the provisions of the Hindu Succession Act. 10. In other words, it is for her to establish the legal right enlarging the scope and the recitals of the alleged will said to have been executed by her husband in the year 1985 and obviously, the execution of the said will is not in serious dispute. It is only the rights that had flown to the deceased plaintiff from the said will that are in dispute. In other words, whether those rights are limited or absolute or fall within the meaning of Section 14 of the Hindu Succession Act has to be adjudicated in the said suit. 11. It is more or less interpretation of the recitals of the will and to hold as to whether the rights of the deceased plaintiff were limited or absolute. For this purpose, the trial Court has to necessarily interpret the recitals of the will, while reading with the provisions of the Hindu Succession Act and the law. 12. Therefore, the presence of D-1 and D-2, in fact, is not necessary nor they are relevant for the simple reason that the sale transactions executed by them in favour of D-3 are not in dispute. In other words, they are admitted in view of the relief sought for in the suit. 13. As already pointed out, the relief sought in the suit is declaration of title over the suit schedule property pursuant to the recitals of the will and the rights accrued thereon under the provisions of the Hindu Succession Act and also to cancel the sale deeds executed by D-1 and D-2 in favour of D-3. 14. Therefore, the issue as regards the sale transactions entered into between D-1 and D-2 in favour of D-3 are not at all in dispute and the rights that had flown from the will said to have been of the year 1985 to the deceased original plaintiff are to be interpreted only basing on the recitals of the will, the context and the law on the subject by the trial Court. In other words, there is nothing for D-1 and D-2 to establish. Even if they are called for cross- examination, what would eventually emerge would be that they would speak only about the sale transactions entered into between them and D-3 and nothing more. Whether or not they admit the recitals of the will of the year 1985 executed in favour of their mother, it is only a matter of interpretation of the recitals and the context and the other factual circumstances along with the provisions of law that are to be gone into by the trial Court. 15. Therefore, in my considered view, it is needless for the trial Court to go into the aspect of the veracity or otherwise of the sale transactions entered into between D-1 and D-2 on one side and D-3 on the other. It is only for the present plaintiff who has to support the recitals of the will because he has stepped into the shoes of the original deceased plaintiff by a will said to have been executed in his favour in the year 1985. The present plaintiff is the grandson of the deceased plaintiff. For this limited purpose of establishing the rights that had flown to the deceased plaintiff from the will of the year 1985, the presence of D-1 and D-2 is virtually not necessary. Their absence in no way would affect the rights of D-3 nor in any way helpful to the plaintiff to establish the case of the original plaintiff and the rights accrued thereon under the will of the year 1985. 16. To put it in a different way, the onus is more on the second plaintiff to establish the rights of the deceased plaintiff that accrued through the will of the year 1985, but not on the defendants. 17. For the reasons aforementioned, instead of going into the justification of the impugned order, which is a discretionary one, passed by the trial Court, I deem it appropriate to agree with the virtual findings recorded by the trial Court in dismissing the said interlocutory application. Hence, I see no merit in the present Civil Revision Petition and the same is liable to be dismissed. 18. In the result, the Civil Revision Petition is dismissed, subject to the above observations. However, there shall be no order as to costs. ______________________ JUSTICE D.S.R.VARMA 06th August 2010 Note: LR copy to be marked. B/o dr