IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REVIEW PETITION No.525/2016 IN REGULAR SECOND APPEAL No.763/2012 (PAR) BETWEEN SMT. PUTTAGOWRAMMA D/O LATE THIMMASHETTY, W/O PUTTARAJASHETTY, AGED ABOUT 47 YEARS, R/AT YACHEGOWDANAHALLI VILLAGE, YELAWALAHOBLI, MYSURU TALUK, MYSURU DISTRICT-571 130.
KARNATAKA STATE. ... PETITIONER (BY SRI A. MITHUN GERAHALLI, ADVOCATE FOR SRI G.D.ASWATHANARAYANA, ADVOCATE) AND 1. SRI SWAMISHETTY S/O LATE THIMMASHETTY, AGED ABOUT 55 YEARS, R/AT HACHEGOWDANAHALLI VILLAGE, YELAWALAHOBLI, MYSURU TALUK, MYSURU DISTRICT-571 130.
KARNATAKA STATE.
2. SRI THIMMASHETTY S/O LATE THIMMASHETTY, AGED ABOUT 69 YEARS, 3. SRI CHIKKASHETTY S/O LATE THIMMASHETTY, SINCE DEAD BY LRs.
3(a) SMT. CHIKKATHAYAMMA W/O LATE CHIKKASHETTY, AGED ABOUT 58 YEARS, R/AT YACHEGOWDANAHALLI VILLAGE, YELAWALAHOBLI, MYSURU TALUK, MYSURU DISTRICT-571 130.
KARNATAKA STATE.
3(b) SMT. SHIVAMMA D/O LATE CHIKKASHETTY, W/O MAHESH, AGED ABOUT 35 YEARS, R/AT BALEKATTE HOBLI, PERIYAPATNA TALUK, MYSURU DISTRICT.
3(c) SMT. THAYAMMA D/O LATE CHIKKASHETTY, W/O SHIVASHETTY, AGED ABOUT 33 YEARS, R/AT MALUR VILLAGE, BETTADAPURA, PERIYAPATNA TALUK, MYSURU DISTRICT.
4. SMT. THAYAMMA D/O LATE THIMMASHETTY, W/O RAMACHANDRA SHETTY, AGED ABOUT 57 YEARS, R/AT MARAGOWDANAHALLI VILLAGE, K.R.NAGAR TALUK, MYSURU DISTRICT-571 130.
KARNATAKA STATE. ... RESPONDENTS (BY SRI B.C.RAJEEVA, ADVOCATE FOR R-1; SRI T.N.VISWANATHA, ADVOCATE FOR R-4;
R-2 & R-3 (b) (c) – SERVED UNREPRESENTED; R-3(a) NOTICE HELD SUFFICIENT V/O DTD.25.01.2019) THIS REVIEW PETITION IS FILED UNDER SECTION 114 READ WITH ORDER XLVII RULE 1 OF THE CODE OF CIVIL PROCEDURE, PRAYING THIS HON’BLE COURT TO REVIEW THE ORDER DATED 09.11.2015 PASSED IN RSA NO.763/2012, ON THE FILE OF THE HON’BLE HIGH COURT OF KARNATAKA, BENGALURU.
THIS REVIEW PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING ORDER This revision petition is filed by the petitioner who is respondent No.4 in RSA No.763/2012 (par) for reviewing the judgment of this Court passed in R.S.A.No.763/2012 dated 09.11.2015.
2. Heard the arguments of the learned counsel for the petitioner as well as the learned counsel for the respondents.
3. For the sake of convenience, the parties will be referred to as per their rank before the trial Court.
4. The plaintiff – Swamishetty, filed the suit against the defendants for partition and separate possession of the suit schedule properties belongs to one Chennigaraya Shetty who is the brother of plaintiff and son of defendant No.1 – Eramma, alleging that item Nos.1 to 4 of the suit schedule properties described in the plaint schedule has been fallen to the share of his brother - Sri Chennigaraya Shetty under the partition and said Chennigaraya Shetty died on 25.11.2002 who was a bachelor. Therefore, the property shall be fallen to the joint family properties, therefore, he has filed the suit seeking the relief of partition.
5. The defendants appeared before the trial Court and filed their written statement explaining that defendant No.5 who is the petitioner herein has taken the contention that she was adopted daughter of deceased Chennegaraya Shetty and also claiming the suit schedule property in her name by way of Will by considering the evidence on record.
6. After framing of the issues, the trial Court decreed the suit by granting 1/5th share in the suit schedule properties between the plaintiff and Defendant Nos.1 to 4. Assailing the judgment and decree, the defendants appeared before the First Appellant Court i.e., III Additional District Judge, Mysuru in R.A.No.1229/2010 dated 03.11.2011. After considering the evidence on record and re-appreciating the materials on record, the First Appellate Court dismissed the suit filed by plaintiff by setting aside the judgment and decree passed in O.S.No.60/2005 dated 27.10.2010 of the trial Court holding that Chennigaraya Shetty was a bachelor and defendant No.1 – Eramma was his mother who is only the Class-I legal heir left behind the deceased Chennigaraya Shetty. The plaintiff and defendants who are Class-II legal heirs are not entitled for the said properties in view of defendant No.1 who is the mother of deceased Chennigaraya Shetty, alone would be the Class-I legal heir and set aside the judgment and decree. Aggrieved by the same, the plaintiff filed the Regular Second Appeal before this Court in R.S.A.No.763/2012.
7. During the pendency of this second appeal, the said Eramma - defendant No.1, who is mother also died. Hence, this Court considering the same and after hearing the arguments of both the parties, modified the judgment and decree passed by the Courts below holding that the suit properties are liable to be divided into four equal share among the plaintiff and defendant Nos.2 to 4 as the Class-I heir-Eramma, their mother has died. The properties divided among the Class-II heirs. Subsequently, defendant No.5 who is the petitioner herein preferred a special leave petition before the Hon’ble Supreme Court of India in S.L.P.No.18480/2016 dated 03.10.2016 and during the pendency of the SLP, the same was withdrawn with liberty to approach this Court by way of review petition. Hence, the petitioner is before this Court by way of review petition.
8. The petitioner has contended in the petition that during the pendency of the second appeal, Eramma - mother of the plaintiff and defendants died on 05.12.2013, she has left a Will dated 09.01.2012 and the same was not came to her knowledge until passing the judgment by this Court. Thereafter, when they came to know about the execution of Will made by Eramma in favour of the present petitioner who is defendant No.5 in the suit and since she is the adopted daughter of Chennigaraya Sheety, she also the grand daughter of Eramma. Therefore, the petitioner filed an application before the Hon’ble Apex Court to produce additional documents and ultimately, SLP has been withdrawn by the petitioner and filed this revision petition. The petitioner also filed I.A. under Order XLI Rule 27 of CPC., seeking permission to produce almost 15 additional documents in this petition and has contended that the petitioner has not able to produce these documents during the pendency of the appeal and she was not aware of the execution of the Will and it came to her knowledge only after disposal of the second appeal by this Court. If this Will would have been produced before this Court, the order would have been passed in her favour and partition of the properties to the plaintiffs and other defendants would have not been allotted as they are Class-2 legal heirs and they are not entitled to the property belongs to the deceased Chennigaraya Shetty, except the mother who is the Class-1 legal heir which was bequeathed to the petitioner by a Will. Hence, prayed to allow the application and to review the judgments passed by the courts below by considering the additional documents and she prayed to reconsider the findings of this Court recorded in the second appeal.
9. Per contra, learned counsel appearing for plaintiff/respondent No.1 has contended that this Court already dealt with all the documents produced before the trial court as well as First Appellate Court and after considering the case of the parties, has rightly allowed the second appeal by allotting 1/4th share to the plaintiffs and other defendants. The alleged Will said to be executed on 09.01.2012 during the pendency of the second appeal when defendant No.1 – Eramma was alive and she died on 05.12.2013. Even the appeal was disposed of in the year 2015 and the same was not brought to the notice of this Court. Even though some averments made in the appeal memo regarding the Will filed before the Hon’ble Apex Court in SLP. Further, the learned counsel for respondent No.1 also contended that so many documents were produced by the petitioner and those additional documents are not necessary before this Court. The documents are copy of the plaint, written statement, judgments of trial court and First Appellate Court which were already been placed on record. Therefore, these documents are not to be considered as new documents or new evidence find out to be produced in this petition before this Court and hence prayed for dismissal of the review petition stating that there is no error occurred on the face of the record to review of the judgment of this Court.
10. Learned counsel also raised preliminary objection, that without obtaining NOC from the earlier counsel, present counsel filed review petition which is not maintainable and also the Will was not produced before the Court and now the petitioner is disputing the alleged Will executed by Eramma on 09.01.2012, prayed for dismissal of the petition.
11. Learned counsel for respondent No.4 also argued the matter and supported the judgment of this Court granting 1/4th share in the suit schedule properties and also disputing the alleged Will dated 09.01.2012 and prayed for dismissal of the petition as well as I.A.No.1/2019 under Order XLI Rule 27 of CPC.
12. Upon hearing the arguments of the learned counsel for the petitioner on review petition as well as I.A.No.1/2019 under Order XLI Rule 27 of CPC and perusing the records, the following points that arise for consideration are;
1) Whether the review petition is maintainable in view of the non-obtaining of NOC from the earlier counsel who address the arguments in the second appeal on behalf of petitioner?
2) Whether the petitioner made out sufficient grounds to allow I.A. No.1/2019 for production of additional documents at this stage?
3) Whether the impugned judgment of this Court required to be modified based on the additional documents produced before the Court?
13. Point No.1, the preliminary objections for filing the petition by the present advocate Sri G.D.Aswathanarayana, who was not advocate before this Court in the regular second appeal and some other advocate has argued the case before this Court on behalf of petitioner. Therefore, the learned counsel contended that without obtaining ‘No Objection’ from the earlier counsel, present petition could not have filed by another counsel which is not correct and to support his contentions. Learned counsel for respondent No.1 relied upon the judgment of the Hon’ble Apex Court AIR 1997 SCC 1005 in the case of Tamilnadu Electricity Board and Anr. V. N.Raju Reddiar and Anr., learned counsel for the petitioner who is appearing in this petition though, has fairly admitted during the course of the arguments, that he has to obtain ‘No objection’ from the earlier counsel. But subsequently, he has also filed the vakalath by obtaining no objections from the earlier counsel. In view of filing of the fresh vakalath after obtaining “No objection’ from earlier counsel. The contention raised by learned counsel for the respondent regarding maintainability of the review petition on the ground of non obtaining no objection, is not sustainable. Accordingly, I answered point No.1 in favour of the petitioner.
14. Learned counsel for the petitioner also filed I.A.No.1/2019, seeking permission of this Court for production of almost 15 documents. It is stated by the petitioners in the affidavit accompanying the application that during the pendency of the appeal, defendant No.1 - Eramma died on 05.12.2013 and she was executed Will dated 09.01.2012 which was not within her knowledge and when the same was disclosed by her only after May, 2016 after passing of the judgment. New documents will go to the root of the issue and properties might not devolved on the children of the Eramma, who are Class-II heir. Therefore, these documents are very much necessary for reviewing the order and even liberty was granted by Hon’ble Apex Court to the petitioner to file the review petition and having discovered the new important material which is required to be brought to the knowledge of this Court to enable to consider the evidence and decide the matter accordingly. Though, the petitioner sought permission to produce almost 15 documents but the documents goes to show that those documents are already on record except Will dated 09.01.2012 and appeal memo.
Further, the respondents have filed objections to I.A.No.1/2019 and contended that the application came to be filed by the petitioner only during the final decree proceedings before the trial Court for drawing up of the final decree. The First Appellate Court already rejected the contention about the alleged unregistered Will executed by deceased Chennigaraya Shetty in favour of the petitioner. The alleged present Will said to be executed by Eramma, who was aged 85 years, is not a valid Will and it is a fabricated one. The second appeal was allowed on 09.11.2015 and in view of the present Will give new cause of action arise and which is not co- related to the cause of action of earlier second appeal. In the circumstances, there is no merit in the petition and there is no error apparent on the face of the record to file this petition and there is no ingredient incorporated in the order to enable the petitioner to file the revision petition. Hence, prayed for dismissal of I.A.No.1/2019.
15. Learned counsel for the petitioner also restricted his arguments on I.A.No.1/2019 in respect of production of alleged Will as well as the copy of appeal memo filed before Hon’ble Supreme Court in SLP and remaining documents are already produced and available as part of the appeal in RSA i.e. plaint, written statement and other documents which are part of the record in the trial Court and First Appellate Court. Therefore, the other documents said to be produced in this petition as additional documents cannot be allowed except two documents i.e. the alleged Will as well as the copy of the appeal memo filed before the Hon’ble Supreme Court in SLP and also another document No.13 - I.A. filed before Hon’ble Apex Court seeking permission to produce additional documents i.e. alleged Will.
16. The learned counsel appearing for respondent Nos.1 and 4 strongly objected in respect of paragraph No.2 of sub-paragraph Nos.vi and vii of the question of law raised in the special leave petition as well as averments made in paragraph No.5, sub para -
(c). Perused the paragraph No.2 sub paragraph Nos.(vi) and (vii) of the appeal memo filed before the Hon’ble Supreme Court while raising the question of law which reads as under:
2. (vi) Is not the Hon’ble High Court erred in reversing the decree passed by the First Appellate Court which had applied Section 8 of Hind Succession Act, 1956 to the facts of the case and without considering the subsequent event, after demise of Defendant No.1 lots of water has flown?
(vii) Is not the Hon’ble High Court erred in not granting time to the Petitioner to place on record, the Will executed by the deceased mother – Defendant No.1 bequeathing the suit property to the Petitioner?
and in the Ground at Para No.5(C) and (F), it has stated as under:
5. C. That the Hon’ble High Court ought to have seen that while framing the substantial question of law at the time of hearing, should have allowed the Petitioner to place on record the subsequent development, having not done that the Hon’ble High Court has erred in not following the procedure prescribed u/s. 100 of CPC.
F. It is respectfully submitted that the Defendant No.1 having bequeathed the suit property to the Petitioner by registered Will and by virtue of the said Will, the decree as passed by the First Appellate Court should have been retained and the Petitioner would have been declared the absolute owner, hence, the impugned judgment passed by the Hon’ble High Court is illegal and requires interference by this Hon’ble Court.
17. On perusal of these grounds in paragraph No.5(C) and (F), the substantial question of law at Para No.2 sub paragraph Nos.(vi) and (vii), it is clear that this Court has not considered the Will and not granted time to the petitioner herein to place the Will on record, the alleged Will and time to place some of records and the ground at Paragraph No.5 sub paragraph Nos.(C) and (F), also shows that as could the petitioner is having the knowledge about the Will and she had sought permission of this Court to produced the same before this Court during the pendency of the appeal, but as per the ground made before the Hon’ble Supreme Court in the SLP goes contrary to the affidavit filed by the petitioner accompanying I.A.No.1/2019, wherein she has categorically stated that after the death of grand mother - Eramma and disposal of the regular second appeal, she came to know about the execution of Will only in the month of May, 2016. Regular second appeal disposed of on 09.11.2015 and when Such being the case, the question of finding fault with the judgment of this Court that the Will has not been considered by this Court is not correct. At that stage, the counsel for the petitioner fairly admits some error occurred in the appeal ground before the Hon’ble Supreme Court.
18. Learned counsel for respondent Nos.1 and 4 contended that the petitioner trying to mislead the Hon’ble Apex Court by making such averments and grounds made before it. However, the Hon’ble Apex Court is required to take necessary action for making such false ground which mislead the Court by the petitioner. Therefore, this Court cannot go into the veracity of the grounds of substantial question of law raised by the petitioner in the SLP filed before the Hon’ble Supreme Court.
19. On considering the documents, the alleged Will, admittedly the registered Will said to be executed by Eramma-defendant No.1 on 09.01.2012 before the Sub-registrar. Admittedly, defendant No.1 – Eramma died on 05.12.2013 during the pendency of the appeal. The judgment of this Court dated 09.11.2015 was challenged before the Hon’ble Apex Court by the petitioner stating that the alleged Will came to their knowledge only in the month of May, 2016 after passing of judgment. The learned counsel brought to the notice of this Court about the alleged Will and also I.A.No.1/2019 for production of almost 15 additional documents produced before the Hon’ble Apex Court.
20. Learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court in the case of STATE OF WEST BENGAL AND OTHERS v. KAMAL SENGUPTA AND ANOTHER reported in (2008) 8 SCC 612 at para No.21 held as under:
21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.
21. At this stage, it is relevant to mention the definition of Order XLI Rule 27 of CPC, which reads as follows;
XLI. 27 . Production of additional evidence in Appellate Court – (a.a) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission 22. Admittedly, the judgment of this Court was challenged by the petitioner before the Hon’ble Apex Court, since defendant No.1 died on 05.12.2013, she has claimed that the said Eramma have left the Will on 09.01.2012 but while passing the judgment, it is not brought to the notice of this Court. It was mentioned by the petitioner that they came to know the execution of Will only in the month of May, 2016 after passing of the judgment.
23. On perusal of the judgment of this Court it indicates the findings of the First Appellate Court restraining the judgment of upholding and it has held that the mother would be the Class - I heir of the deceased son i.e. Chennigaraya Shetty. However, this Court has held that in view of the death of the mother Eramma who is the Class - I heir had died during the pendency of the appeal, therefore, the suit schedule property devolves to Class - 2 heirs of the deceased i.e. to the children of Eramma, who are the plaintiff and defendant Nos.1 to 4.
24. Leaned counsel rightly contended that if the said ‘Will’ would have been produced before this Court during the pendency of the second appeal, the result would be different and this Court could not have awarded or allotted any share in the property to the respondents who are Class-II heirs. In absence of the ‘Will’ executed by the deceased, admittedly, this Court has categorically held that the mother Eramma was Class-1 heir to the deceased Chennigaraya Shetty who was the bachelor and other respondents who are brother and sisters are Class-2 heirs were not entitled for any shares. This court upheld the judgment of First Appellate Court in respect of findings and succession of property in the name of Eramma. In view of the death of said Eramma, this Court has held that the property devolves on the brothers and sisters of Chennigaraya Shetty i.e., children of the Eramma. Admittedly, if the Will would have produced before this Court, the result would be different and also this Court could not have allotted any share to the plaintiff and defendants. Therefore, when the new document is discovered by the petitioner subsequent to passing of the judgment after the death of Eramma is necessary. The petitioner has categorically and clearly establishes that the said Will has not been within her knowledge and could not trace the same and cannot produce the same with due diligence before this Court at the time of passing the judgment on 09.11.2015. Therefore, the objections raised by the learned counsel for the respondent that the alleged Will and other documents now the petitioner sought to produce are within her knowledge during the pendency of the appeal cannot be acceptable and also the reasons assigned to allow I.A.No.1/2019 for production of additional documents before this Court are satisfied and petitioner is allowed to produce the Will, appeal memo and copy of IA filed under XLI Rule 27 of CPC. Accordingly, answer to point No.2 is favour of the petitioner.
25. Learned counsel for the petitioner relied upon the judgment of the Hon’ble Apex Court in the case of KAMLESH VERMA v. MAYAWATI AND OTHERS reported in (2013) 8 SCC 320 has laid down that the principles in respect of the maintainability and non- maintainability of the revision petition at Paragraph Nos.20 and 20.1 which reads as under :
20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1 When the review will be maintainable:
“(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.”
26. In view of the principles laid down by Hon’ble Apex Court at Para No.20 and 20.1(i) of KAMLESH VERMA stated supra and in view of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him. It is also held by the Hon’ble Apex Court that review proceedings cannot be equated with the original hearing of the case. On perusal of the documents as well as the review petition, the Hon’ble Apex Court has granted liberty to the petitioner to file the review petition and therefore, the review petition is maintainable before this Court and I.A.No.1/2019 filed by the petitioner for production of additional documents filed under Order XLI Rule 27 of CPC is deserves to be allowed.
27. As regards to the point No.3 in respect of reviewing the judgment of this Court, it is worth to mention the findings recorded by this Court in para No.13 of RSA No.763/2012, reads as under:
“As already held, concurrent findings of the Court below that suit properties were not bequeathed by Chennigaraya Shetty in favour of the fifth defendant is not challenged. As his mother was alive at the time of the lower Appellate Court considering the regular appeal, the lower Appellate Court was justified in allowing the appeal filed by the defendants 1 to 3 and 5 and setting aside the judgment and decree of the Trial Court and consequently, dismissing the suit holding that mother of Chennigaraya Shetty being alive and she being the Class-I heir was alone entitled to succeed to the estate/suit property of her deceased son.”
This Court further held as under:
“Now, his mother is no more. Both the Courts have concurrently held that the Will set up by the plaintiff and defendants 1 to 3 and 5 is not proved and the said concurrent findings of both the Courts below is not carried further. Therefore, it is needless to say that suit properties are liable to be partitioned among plaintiff, defendants 2, 3 and 4 equally and they are liable to be partitioned into four equal share among them.”
28. Therefore, now the challenge is relating to partition and the petitioner has contended that after death of the deceased Eramma, the petitioner had obtain the land property in question through a registered Will dated 09.01.2012 executed by Eramma and also sought to review the judgment passed in RSA No.763/2012 dated 09.11.2015. Admittedly, there is no ground urged by the petitioner that there is any error apparent on the face of the record in the judgment of this Court raised in regular second appeal and further the petitioner has filed I.A.No.1/2019 seeking permission to place on record additional documents which are required to be reviewed under Order XLVII Rule 1 of CPC. But this Court, has modified the judgment passed by the courts below only due to the death of Eramma during the pendency of the second appeal and findings of the First Appellate Court has not been disturbed. The said findings has not been challenged by the plaintiffs and defendants by filing any appeal before the Hon’ble Apex Court. Further, defendant No.5 has filed an appeal before the Hon’ble Apex Court praying to grant special leave to file the appeal against the allotment of his share to all sons of Eramma against judgment dated 09.11.2015 passed by this Court. The Hon’ble Apex Court pleased to allow the petitioner to withdraw the special leave petition by granting liberty to file the review petition before this Court.
29. Hence, the petitioner has filed this petition stating that during the pendency of the regular second appeal, defendant No.1 - Eramma mother of the petitioner died and she left the Will dated 09.01.2012. At this stage, this Court cannot go into the aspect of examining the validity of the alleged Will, as the defendants – respondents have already challenged the validity of the Will before this Court by filing statement of objections. This Court is allowing I.A.No.1/2019 only to the extent of permitting the petitioner to produce the Will under Order XLI Rule 27 of CPC, for the purpose of modification of the observations and granting 1/4th share to the plaintiffs and other defendants only after the death of Eramma without knowing the alleged Will left by Eramma.
30. As the Hone’ble Apex Court clearly held in the judgment of STATE OF WEST BENGAL stated supra that where the review is sought on the ground of discovery of new matters or evidence, such matter or evidence must be relevant and must be of such character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground to for review ex debito justitiae. Not only this, the party seeking review, has also to show that such additional matter or evidence was not within his knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier.
31. As already held in the above said para, that the petitioner had no knowledge of the said alleged Will and if the said Will dated 09.01.2012 would have been produced before this Court while passing the judgment in the second appeal, definitely this Court could not have granted 1/4th share to the plaintiffs and defendants as they are Class-II legal heirs of the deceased Eramma who is mother of plaintiff and defendants. The alleged Will left by the deceased Eramma, the observations made by this Court granting of share to the children of Eramma is require to be modified. Accordingly, Point No.3 answered in favour of the petitioners.
32. In view of the allowing of the application filed by the petitioner under Order XLI Rule 27 of CPC for production of the Will said to be executed by the deceased Eramma on 09.01.2012. The observations made by this Court in regular second appeal in R.S.A.No.763/2012 dated 09.11.2015 for having granted the share to the plaintiff and brothers and sisters, 1/4th share each are to be modified and restricting the findings of this Court by upholding the judgment and decree passed by First Appellate Court.
Accordingly, Review Petition deserves to be allowed.
The findings of this Court for granting 1/4th equal share to the plaintiff/defendant Nos.2,3 and 4 by way of partition is modified and appeal filed by the plaintiff- respondent No.1 deserves to be dismissed.
Accordingly, second appeal filed by the appellant Swamishetty in R.S.A.No.763/2012 dated 09.11.2015 is hereby dismissed.
Sd/- JUDGE HA/NS