IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY Civil Revision Petition Nos.2417, 2418, 2419, 2429, 2431 & 2461 of 2010 Between: A. Venkatalaxmi (died) as per L.R. Enabotula Vanamala, W/o.Shiva Kumar, aged about 52 years, Occ: household, R/o.H.No.3-3-203, Enugulagadda, Hanamkonda, Warangal District … Petitioner And Anumala Seena Sagar, S/o.late Rajaiah, aged about 40 years, Occ: Agriculture & Business, R/o.H.No.2-10-125, Waddepalli village, Hanamkonda Mandal, Waranga District … Respondent Counsel for the petitioner: Mr.Vedula Venkataramana Counsel for the respondent: Mr.Vinod Kumar Deshpande The court made the following Common Order: Since the parties in all these revision petitions are same and in view of common questions of law and fact involved, they are heard together and being disposed of by this common order. One Sri Anumala Rajaiah and his wife Smt.Anumala Venkatalaxmi were the plaintiffs in O.S.No.739 of 1998, which was filed for cancellation of adoption deed against the defendant by name Sri Anumala Seena Sagar. The said Seena Sagar filed another suit in O.S.No.1026 of 2000 against the aforesaid two persons for partition of plaint schedule properties into two equal shares and for allotment of one share to him. Both the said suits were clubbed and tried together. The suit in O.S.No.1026 of 2000 was decreed and a preliminary decree was passed. The suit in O.S.No.739 of 1998 was dismissed. Aggrieved by the common judgment in the aforesaid suits, two appeals were filed in A.S.Nos.102 and 118 of 2007 and were pending on the file of the IV Additional District Judge (FTC) Warangal. During pendency of the proceedings, Sri Anumala Rajaiah died on 31-12-2001 leaving his wife as his legal heir. Subsequently, during pendency of the appeals before the first appellate court, Smt.Anumala Venkatalaxmi also died. On the ground that no steps were taken by any of the legal representatives, the aforesaid appeals were dismissed as abated on 17- 08-2009. Subsequently, after the dismissal of the appeals, as abated on 17-08-2009, the petitioner in these revision petitions, claiming that there were registered wills executed by late Sri Anumala Rajaiah, by will dated 02- 07-2001 and another will by late Smt.Anumala Venkatalaxmi, filed three applications in each of the two appeals. One application is filed for setting aside the order of dismissal of the appeal as abated, another application for condonation of delay of 52 days in filing the petition to bring the legal representatives on record and another application to come on record as the legal representative of the deceased-appellant. It is stated in the affidavits filed in support of the applications that the petitioner was claiming her rights through the registered will deeds stated to have been executed by late Sri Anumala Rajaiah and late Smt. Anumala Venkatalaxmi. It is alleged in the affidavits that she came to know about the death of Smt. Anumala Venkatalaxmi only after filing of the memo in the aforesaid appeals; as such the delay was computed from the date of knowledge of the death of the deceased. The said applications were contested by filing common counter. Mainly, it was the case of the respondent that the said wills, which are relied on by the petitioner are forged and fabricated and were brought into existence by the petitioner to claim the suit properties. It is also the case of the respondent that the petitioner cannot come on record as legal representative of the deceased-appellant basing on the will deeds relied on by her. It is also the case of the respondent that there is a delay of 156 days, but not 52 days as stated by the learned counsel for the petitioner and on the aforesaid grounds sought dismissal of the applications. The lower appellate court, by impugned common order dated 29-04-2010, rejected the applications of the petitioner mainly relying on the judgment in the case of A. Apparao Vs. Smt.K.Ammoru[1], and recorded a finding that the appellant, who is claiming rights under a will, cannot come on record as legal representative of the deceased-appellant. Further, by holding that the petitioner is not a family member or the legal representative of the deceased-appellant rejected the applications. In these revision petitions, it is submitted by Sri Vedula Venkataramana, learned senior counsel appearing for the petitioner, that a registered will deed was executed by Sri Anumala Rajaiah during his lifetime on 02-07-2001 and he died leaving behind Smt.Anumala Venkatalaxmi as legal heir. It is further submitted that Smt.Anumala Venkatalaxmi also died during pendency of the appeal and she also executed registered will deed dated 04-01- 2007 bequeathing the properties which are subject matter of the suits in favour of the petitioner; as such, it is submitted that the petitioner can represent the estate of the deceased by coming on record as legal representative in view of the provisions contained under Order XXII read with Section 2(11) of the Code of Civil Procedure, 1908 In support of his submissions, learned counsel has relied on judgments of the Hon’ble Supreme Court in Perumon Bhagvathy Devaswom Vs. Bhargavi Amma[2] and Jaladi Suguna(deceased) through Lrs. Vs. Satya Sai Central Trust and Others[3]. On the other hand, it is contended by Sri Vinod Kumar Deshpande, learned counsel appearing for the respondent, that as much as the registered will deeds, which are alleged to have been executed in favour of the petitioner are forged and fabricated, as such, the petitioner cannot be allowed to come on record as the legal representative of the deceased-appellant under Order XXII CPC. It is submitted that the petitioner has already filed a comprehensive suit for adjudication of her rights in O.S.No.3 of 2009 and the same is pending consideration; as such, in view of the judgment of this court in the case of K. Apparao (1 supra), there is no illegality in the order passed by the court below to interfere with the same. It is further submitted that, in any event, the petitioner cannot be allowed to come on record straightaway as legal representative. I have perused the common order passed by the lower appellate court and also the affidavit and common counter filed. In the instant case, it is to be noticed that the petitioner is the daughter of Sri Anumala Durgaiah, who is the elder brother of Sri Anumala Rajaiah. The petitioner is not only the brother’s daughter of late Sri Anumala Rajaiah, but is also claiming rights of the suit schedule property as legal representative to represent the estate of the deceased as per the registered will deeds relied on by her. While it is true that a learned single Judge of this court in the case of K. Apparao (1 supra), held that the person claiming property, under a will cannot be termed as legal representative of the deceased, to come on record to represent the estate of the deceased and he has to establish his right under the will independently in a properly-framed suit, but, in a recent judgment in the case of Jaladi Suguna (3 supra), the Hon’ble Supreme Court, while considering the scope of definition of legal representative, under Section 2(11) CPC, held that legal representative means a person, who in law, represents the estate of the deceased. In the said judgment, in the context of the definition, the Supreme Court has held that a legatee under a will, who intends to represent the estate of the deceased, being an intermeddler with the estate of the deceased, is a legal representative. In view of the said ratio decided by the Supreme Court, the contention of the learned counsel for the respondent that a legatee under a will cannot represent the estate of the deceased testator cannot be accepted. Further, it is also to be noticed, in the case of Perumon Bhagvathy (2 supra), at para-19, the Apex Court held as under: “Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party – LRs of the deceased – on account of the abatement): (i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed; (ii) Neither the counsel for the deceased respondent nor the legal representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant; (iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim. From the facts of the case on hand, it is not in dispute that the sole appellant died during pendency of the appeal. It is the case of the petitioner that it was not to her knowledge about the filing of the appeal against the common judgment and she came to know of the same only after memo was filed intimating the death of Smt.Anumala Venkatalaxmi; in that view of the matter, it cannot be said that the delay was not properly explained. If the correctness of the will is disputed, it is open to the respondent to frame an additional issue, but, in view of the judgments of the Supreme Court referred above, the applications to come on record as legal representative cannot be rejected at the outset. Merely permitting the petitioner to come on record as legal representative will not amount to deciding her rights, if any claimed by her under the wills, but the same is a matter to be adjudicated at the stage of disposal of the appeals. It is also relevant to notice that apart from the claim under the wills, the petitioner, being the daughter of Sri Anumala Durgaiah, who is the real brother of Sri Anumala Rajaiah, is also a class-II heir under the Hindu Succession Act. For the aforesaid reasons and in view of the judgments of the Supreme Court referred above, the order under challenge dated 29-04-2010 in I.A.Nos.310, 302, 303, 304, 305 and 306 of 2009 in A.S.Nos.102 and 118 of 2007 respectively, is set aside. Consequently, all the said I.As. stand allowed. The civil revision petitions are allowed to the extent indicated above. No order as to costs. ___________________ (R. SUBHASH REDDY, J) September 23, 2010 MRR [1] 1998 (2) ALD 303 [2] (2008) 8 SCC 321 [3] (2008) 8 SCC 521