ORDER :

1st Defendant in the suit filed the above revision against the order dated 14.12.2022 in I.A.No.492 of 2021 in I.A.No.959 of 2012 in O.S.No.33 of 1988 on the file of Principal Senior Civil Judge, Kurnool.

2. Vale Nagamma and Mandlem Veeramma @ Eramma filed suit O.S.No.33 of 1988 on the file of Principal Subordinate Judge, Kurnool seeking partition of schedule properties. As per the pleadings, plaint schedule properties belonged Vale Mareppa. 1st plaintiff Nagamma is the wife of Mareppa and 2nd plaintiff Veeramma is the daughter of 1st plaintiff and Mareppa. Defendants 1 to 3 are children of Busappa, son of Mareppa and Nagamma. Thus, the grandmother and paternal aunt filed suit for partition against the nieces.

3. A preliminary decree was passed on 17.10.1989. As per the preliminary decree, 1st plaintiff is entitled to 1/4th share in the plaint schedule properties; Ac.5.00 cents of land out of item Nos.1 to 8, gifted to 2nd defendant by her father Busappa. Equities may be worked out while passing final decree.

4. Aggrieved by judgment and preliminary decree, plaintiffs filed appeal A.S.No.118 of 1990. Defendants filed appeal A.S.No.2209 of 1989. The Division Bench of the High Court allowed A.S.No.118 of 1990 partly and dismissed A.S.No.2209 of 1989. The Division Bench of High Court granted 1/6th share to each plaintiff. S.L.P.Nos.11792 and 11793 of 2004 were dismissed by the Apex Court. Review Petition (Civil) No.362 of 2007 was dismissed on 17.07.2007. Curative Petition Nos.140 and 141 of 2011 were dismissed on 12.01.2012. Thus, the preliminary decree passed by the High Court became final.

5. I.A.No.959 of 2012 was filed by defendants under Order XXVI Rules 13 and 14 and Section 151 of CPC to appoint an advocate commissioner and to divide the schedule properties by metes and bounds for the purpose of passing of final decree.

6. Pending the final decree petition, respondents 12 to 14, who were impleaded as parties, by virtue of order dated 13.11.2012 in I.A.No.1369 of 2012, filed I.A.No.492 of 2021 under Section 151 of CPC to modify the preliminary decree and to allot 5/9th share to 2nd plaintiff.

7. The affidavit was deposed by Y.Prasanth Babu, 13th respondent in final decree petition and 2nd petitioner in I.A.No.492 of 2021. In the affidavit, it was contended that petitioners along with father of deponent purchased part of item No.1 of plaint schedule properties during the pendency of suit, without knowledge about pendency of suit. They were impleaded as party respondents to final decree petition. The 2nd plaintiff was granted 1/6th share of decree schedule property on the ground that she is not a coparcener and her right is only to claim one share in the share of her father. By virtue of Hon’ble Apex Court’s judgment in Vineetha Sharma Vs. Rakesh Sharma, daughters became coparceners and they are entitled to equal share along with sons. Since, the partition is pending, 2nd plaintiff is entitled to 1/3rd share on her own and 1/3rd share in the property of her father. She is also entitled to full share of her mother, since her mother executed a Will dated 03.03.1988 bequeathing her share of property. In all 2nd plaintiff is entitled to 5/9th share in the entire schedule property. The 2nd plaintiff is no more, and her legal representatives are entitled to claim share. Petitioners are entitled to claim the property purchased by them out of 5/9th share of 2nd plaintiff. Hence, filed the application to modify the preliminary decree allotting 5/9th share. The natural heirs of 2nd plaintiff are shown as respondents 6 to 9 in the final decree petition.

8. 1st Respondent, who is 1st defendant in the suit, filed counter and opposed the application. In the counter, it was contended interalia that petitioners have no right to ask to modify the preliminary decree by allotting 5/9th share in favour of 2nd plaintiff. There is no mention about the Will dated 03.03.1988. An enquiry was conducted pursuant to the directions of this Court