Suit for partition by mother against her son for her husband’s property after his death in to two equal shares – son produced will deed – claimed entire property – suit dismissed – High court set aside the trial court order and found that the Will Deed is no genuine – Pending appeal – Grand Son impleaded basing on will deed in the place of mother – High court impleaded basing on Will- but left open about the prove of Will by separate proceedings – Apex court confirmed the same.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1046 OF 2017
(Arising out of SLP (C) No. 2230 of 2012)
CHITTIBABU … Appellant
VERSUS
RAMAKRISHNAN & ORS. … Respondents
O R D E R
Leave granted.
The appellant herein is the defendant No. 1 in the suit
O.S. No. 4 of 2002 (previously O.S. No. 57 of 1998). The
said suit was filed by the mother (Chandrakanthammal) of the
appellant herein claiming partition of the suit property into
two equal shares and one share be allotted to her. The suit
was filed by her on the ground that all properties of her
husband Raju Naidu were self acquired and as he died
intestate, she would get a share in the property of her
husband along with her son, i.e., the appellant herein.
Respondent Nos. 2-3 herein, who were impleaded as defendant
Nos. 2-3, are the subsequent purchasers of the property from
the appellant. The appellant as defendant No. 1 contested
the said suit projecting the will dated 10 th
February 1954,
purportedly executed by his father Raju Naidu, as per which,
the testator has bequeathed all the properties in favour of
the appellant. The Trial Court found the said will as
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genuine and therefore, dismissed the suit. The plaintiff
decided to file the appeal and during the pendency of the
appeal, she died on 01.06.2005. On her death, respondent No.
1 herein got himself impleaded in her place on the basis of
will dated 31.12.1997 allegedly executed by the plaintiff.
Respondent No. 1 is the grandson of the plaintiff and
according to him, the properties were bequeathed in his
favour by her grandmother to the exclusion of all. The High
Court accepted the aforesaid version on the basis of will
produced by respondent No.1 and proceeded to discuss the
issue which was involved in the suit, viz., whether the will
dated 10.02.1954 which was produced by the appellant herein
was genuine or not. The appeal has been allowed by the High
Court vide the impugned judgment setting aside the judgment
of the Trial Court and holding that the will dated 10.02.1954
was not genuine. It is this order of the High Court which is
the subject matter of the present appeal.
Insofar as the will dated 10.02.1994 which is produced
by the appellant herein and allegedly executed by Raju Naidu,
his father, is concerned, after going through the judgment of
the High Court, we find that the High Court has rightly held
that the validity of the said will was in doubt and should
not be believed. These are the finding of facts and we are
not inclined to interfere with the same.
It is, however, argued by the learned counsel for the
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appellant that the substitution of respondent No. 1 herein
was allowed by the High Court on the basis of Will dated
31.12.1997 which was produced by him, without going into its
validity and treating it as genuine. We make it clear that
insofar as properties of plaintiff (Chandrakanthammal) are
concerned, the respondent No. 1 may not be entitled to
succeed therein on the basis of the said Will dated
31.12.1997 unless the validity of the said Will is
established. We find that the High Court was conscious of
this fact inasmuch as in the penultimate para of the impugned
judgment, the High Court has observed as under: –
“…….. It shall be sufficient to refer to the above
said observation made by this Court in the order dated
11.09.2009 passed in C.M.P. No. 871 of 2007 which
throws light on the position that the decision
rendered in that petition under Order XXII Rule 5 was
not a conclusive as to the inter se rights of the
parties claiming to be the legal heirs (either
testamentary or non-testamentary) of deceased
Chandrakanthammal. Thus, the said question has to be
necessarily kept open to be adjudicated in a separate
proceeding or in the final decree proceedings. It
shall be sufficient to held that the deceased
Chandrakanthammal was entitled to a decree for
partition directing division of her ½ share in the
suit properties and separate possession of the same
and that it is just and necessary to pass a
preliminary decree to the above said effect.”
Insofar as the suit filed by
plaintiff-Chandrakanthammal is concerned, it was filed by her
to claim the share in the properties left by her husband on
the ground that he died intestate. When Will dated
10.02.1954 produced by the appellant herein could not be
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proved, effect thereof would be that Raju Naidu died
intestate and his property would devolve on his legal heirs,
including his widow-Chandrakanthammal who would be entitled
to inherit half share in the properties left by Raju Naidu.
As far as properties of Chandrakanthammal are concerned,
succession thereto would be determined only after Will dated
31.12.1997 purportedly executed by her is established.
Since this question is kept open by the High Court
itself to be adjudicated upon in separate proceedings, no
further orders are required to be passed.
The appeal stands disposed of.
…………………., J.
[ A.K. SIKRI ]
…………………., J.
[ R.K. AGRAWAL ]
New Delhi;
January 27, 2017.
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ITEM NO.37 COURT NO.7 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No. 2230/2012
(Arising out of impugned final judgment and order dated 28/06/2010
in AS No. 858/2002 passed by the High Court of Madras)
CHITTIBABU Petitioner(s)
VERSUS
RAMAKRISHNAN & ORS. Respondent(s)
(With interim relief and office report)
Date : 27/01/2017 This petition was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE A.K. SIKRI
HON’BLE MR. JUSTICE R.K. AGRAWAL
For Petitioner(s)
Ms. N. Shoba, Adv.
Mr. Sri Ram J. Thalapathy, Adv.
Mr. V. Adhimoolam, Adv.
Mr. Shilp Vinod, Adv.

For Respondent(s)
Mr. K. S. Mahadevan, Adv.
Mr. Rajesh Kumar, Adv.

UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal stands disposed of in terms of the signed
order.

(Nidhi Ahuja) (Mala Kumari Sharma)
Court Master Court Master
[Signed order is placed on the file.]
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