ARUN KUMAR SHARMA Vs. BIN AAHA SHARMA

JUDGEMENT

(1.) The two appeals arise out of common judgment of the Court of the II Additional Judge, City Civil Courts, Hyderabad, in O.S. Nos.355 and 581 of 1993. The Civil Revision Petition arises out of order passed by that Court in I.A. No.401/97 in O.S. No.581/93. The appellants in both the appeals are the plaintiffs in O.S. No.355 and defendants in O.S. No.581 of 1993. They are also respondents in LA. No.401 /97. For the sake of convenience, the appellants are referred to as the plaintiffs and the respondents as defendants.

(2.) One Dr. Ayendra Sharma and his wife Smt. Nirmala Devi Sharma had two sons and three daughters. The 1st plaintiff Mr. Arun Kumar Sharma and the 2nd defendant Mr. Uday Kumar Sharma are their sons. The 1st defendant Mrs. Asha Sharma, the 3rd defendant Mrs. Rekha Amamath and the 4th defendant Mrs. Maya Badrinath are their daughters. Smt. Nirmala Devi owned and possessed immovable properties viz., one big house and one small house over an area of 934.44 sq. yards at Domalguda and a plot of 1153 sq. mts, at Banjara Hills. Dr. Ayendra Sharma appears to have died long back whereas Smt. Nirmala Devi died in April 1989.

(3.) The 1st plaintiff filed O.S. No.355/93 against the defendants for partition as well as mandatory injunction. It was his plea that his mother Smt. Nirmala Devi owned and possessed the three items of immovable properties referred to above, that initially she executed a Will on 12-11-1988 whereunder she bequeathed the said three items of properties in equal shares to her five children, i.e., two sons and three daughters, and that thereafter in supercession of this Will, she executed another Will and last testament on 29-3-1989 bequeathing the bigger house to him, the smaller one to his brother i.e., the 2nd defendant and the landed property at Banjara Hills in equal shares to the sons and daughters. According to him, the Will dated 29-3-1989 contained a clause whereunder in case any one of the legatees intends to sell their share in the plot in Banjara Hills, the other legatee will have a right of preemption. The plaintiff pleaded that the defendants were planning to sell their shares of the property in favour of one Mr. Sangameshwar Reddy. On these pleadings, he sought for a preliminary decree of partition of the plot at Banjara Hills into five equal shares, allot one such share to him and a mandatory injunction requiring the defendants to execute the sale deed in respect of their respective shares in favour of the plaintiff on receiving the consideration.