B. Narsappa & Ors. v. Harijana Anjinappa (died) by Legatee Lakshmamma

THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION Nos.2443 OF 2005 AND 2447 OF 2005 COMMON ORDER: C.R.P.No.2443 of 2005, under Section 115 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) is directed against the order, dated 07.04.2005, in E.A.No.161 of 1999 in E.P.No.2 of 1999 in O.S.No.144 of 1993, on the file of the Junior Civil Judge, Hindupur, whereunder and whereby, the petition, filed under Order XXI Rule 97 and Section 151 C.P.C., to enquire into the objections raised by petitioner No.1/judgment debtor before delivery of the Execution Petition schedule property, was dismissed.

C.R.P.No.2447 of 2005, under Section 115 C.P.C., is directed against the order, dated 07.04.2005, in E.P.No.2 of 1999 O.S.No.144 of 1993, on the file of the Junior Civil Judge, Hindupur, whereunder and whereby, the petition filed for delivery of the E.P. schedule property, was allowed by overruling the objections raised by petitioner No.1/judgment debtor.

Heard.

One of the objections raised by the learned counsel for the petitioners is that under Section 213 of the Indian Succession Act, 1925, the legal heirs without obtaining probate of the Will cannot maintain execution proceedings. The said objection was overruled by the executing Court by relying upon a decision in M. Narayana and others Vs. M. Suryakantham (1997 (5) ALT 459), wherein it is held that obtaining probate of Will is not mandatory to establish the rights under a Will executed by Hindus residing in State of Andhra Pradesh in respect of the properties situated in Andhra Pradesh. A Division Bench of this Court in Sreeram Rangaiah (died) per LRs. V. Gajula Krishnaiah[1], held thus:

….Therefore, it necessarily follows that where the legal representatives claimed through survivorship and not by succession, there is no necessity to seek the aforesaid any succession certificate under provision. However, when the claim rests on the succession the deceased plaintiff/decree- holder, it mandates them to obtain a succession certificate.

Original decree holder – Anjinappa filed suit for eviction and obtained a decree. After obtaining the decree he died. Before his death, he executed a will bequeathing the execution petition schedule property in favour of his wife. The wife filed E.A.No.104 of 1998 for permission to execute the decree. Permission was granted. She is entitled for the properties of the deceased – decree holder by survivorship. The claim of respondent herein is by way of survivorship. That finding cannot be said to be perverse. Basing on the decision of this Court, the executing Court rightly held that obtaining probate of the Will is not mandatory for representatives of the decree holder. The representatives of the original plaintiff are not barred for prosecuting the execution proceedings. The other objection raised is that the extent and measurements of the execution petition schedule property are not tallying with the measurements mentioned in the Will. That objection cannot be said to be a ground to deny the right of eviction, in view of the fact that when there is a dispute with regard to the measurements or identity of the property, the law is well settled that the boundaries will prevail over the measurements or survey number. Therefore, there are absolutely no grounds to interfere with the impugned orders.