REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3233 OF 2009

[Arising out of SLP©No. 1263 OF 2007]

Maddineni Koteswara Rao ..Appellant

VERSUS

Maddineni Bhaskara Rao & Anr. ..Respondents

JUDGMENT

TARUN CHATTERJEE,J.

1. Leave granted.

2. This appeal by special leave is directed against the

judgment and order dated 26th of October, 2006 of the High

Court of Andhra Pradesh at Hyderabad, wherein the High

Court had dismissed the Civil Revision Case being CRP

No. 986 of 2006 filed before it by the appellant.

3. The relevant facts leading to the present appeal are

as follows:

One M.Veera Raghavaiah, the father of the appellant

(since deceased) and the respondents, had three sons and

1
a daughter. M.Veera Raghavaiah, the deceased father of

the appellant, was acting as a manager and karta of the

joint family till 1966. Thereafter, he fell sick and became

incapable of managing the joint family property and joint

family debts. The appellant herein came forward and

agreed to take up the responsibility. Accordingly, all the

parties agreed to execute a power of attorney in favour of

the appellant. But, the appellant insisted on executing a

separate deed instead of a power of attorney saying that a

power of attorney may not be effective and it can be

terminated at any point of time. The respondents herein

and the deceased father out of confidence signed on the

said deed which was registered on 17th of May, 1966,

without knowing its contents. However, they later came to

know that the said deed was styled as a partition deed

between the parties. On 21st of April, 1978, M. Bhaskara

Rao, one of the sons of the deceased father and the

respondent no.1 herein (hereinafter referred to as the

respondent), filed a suit for partition of the plaint scheduled

property claiming 1/4th share in the same and also for a

declaration that the alleged deed of partition dated 17th of

2
May, 1966 was sham, void and inoperative and for other

incidental reliefs in the Court of Principal Subordinate

Judge, Vijayawada. The suit was decreed by the Principal

Subordinate Judge, Vijayawada and a preliminary decree

dated 1st of October, 1986, was passed whereby all the

parties including the deceased father of the parties were

found to be entitled to 1/4th share each in respect of the

plaint scheduled property. It was further declared by the

trial court that the partition deed dated 17th of May, 1966

was inoperative, ineffective, void and a sham transaction.

4. When the aforesaid suit was pending, M.Veera

Raghavaiah (since deceased) being the father of the

parties, executed a registered Will on 21st of March, 1984

bequeathing his 1/4th share in respect of the plaint

scheduled property in favour of the respondent and also a

sum of Rs.10,000/- was allotted to his daughter/

respondent No.2 herein. M. Veera Raghavaiah died on

17th of January, 1985. While the suit was pending, more

precisely on 25th of February, 1985, the respondent filed a

photostat copy of the Will in the trial court praying that the

3
probate of the will bequeathing his 1/4th share in respect of

the plaint scheduled property to the respondent and Rs.

10,000/- to his daughter be granted. When the photostat

copy of the Will was filed by the respondent for grant of

probate, it was made clear by all the parties that the parties

on record were sufficient and there was no need of

impleading any other legal representatives. An

endorsement to this effect was also made by the counsel

for the appellant stating that “no L.Rs. need be added”. In

view of such stand taken by the parties before the trial

Court and no objection having been raised upto this Court,

we refrain from going into the question whether probate

can be granted to the Will in question in the absence of any

other heirs and legal representatives of the deceased, if

there be any.

5. On 4th of November, 1986, the appellant went in

appeal before the High Court of Andhra Pradesh at

Hyderabad against the preliminary decree declaring 1/4th

share each to the parties including the share in favour of

the deceased father of the appellant before the High Court

which came to be registered as A.S.No. 2879 of 1986

4
which was also dismissed by a learned Judge of the High

Court that had confirmed the judgment and decree of the

trial court. Feeling aggrieved, the appellant also filed a

Letters Patent Appeal which came to be registered as LPA

No.154 of 1997 before the Division Bench of the High

Court. It would be evident from the record that while the

LPA was pending, the respondent on 11th of February,

1988 filed an application for drawing up the final decree in

respect of the plaint scheduled property in which he applied

for appointment of a Commissioner to divide the plaint

scheduled property into four equal shares and to allot two

shares to the respondent as his father M.Veera

Raghavaiah had executed a registered Will dated 21st of

March, 1984. The appellant resisted the said application

on numerous grounds.

6. After the LPA was dismissed by the Division Bench of

the High Court, the trial court before whom the application

for drawing up the final decree was pending, allowed the

same filed by the respondent and passed a final decree

allotting two shares in respect of the plaint scheduled

5
 property to the respondent after considering the Will

executed by the deceased father of the parties. It may be

kept on record that the trial court went into the question of

the genuineness of the Will executed by the deceased

father of the parties and after considering the evidence on

record including examining the scribe and attestor of the

Will found the Will to be genuine and granted probate of the

Will. The trial court also recorded the findings to the effect

that the Will was duly proved as required in law.

7. On 18th of February, 2006, the appellant approached the High

Court by filing a Civil Revision Case being CRP No. 986 of 2006

contending that the Trial Court erred in allotting two shares to the

respondent relying on the Will of the deceased father of the

parties which amounted to alteration of the preliminary decree

passed by the trial court. The High Court declined to accept this

contention of the appellant. The High Court further observed that

in a suit for partition more than one preliminary decree can be

passed. The High Court also observed that a suit for partition

stands disposed of, only with the passing of the final decree. It is

competent for the court to examine the validity of the transfers,

6
 testate or intestate successions in the final decree proceedings,

of which examination had not been done before the passing of

the preliminary decree, to take into consideration the changes

occurring on account of death of a party or transfer made by him.

Therefore, the High Court and the trial court were justified in

taking into account the Will of the deceased father while passing

the final decree in the partition suit. The High Court placed

reliance on a decision of this Court in Phoolchand v Gopal Lal

(AIR 1967 SC 1470). The High Court further held that alteration

of the preliminary decree would occur only if the extent of shares

allotted to each parties or the items identified for partition, were

altered. No such alteration had taken place in the present case.

A mere adjustment of the shares of the parties does not bring

about any alteration in the preliminary decree. Accordingly, the

High Court had refused to interfere with the order of the trial court

in revision.

8. Feeling aggrieved, the appellant filed a special leave petition,

which on grant of leave, was heard in the presence of the

learned counsel for the parties.

7
9. The only question that needs to be decided in this

appeal is whether the High Court as well as the trial court

were justified in allotting two shares in favour of the

respondent on the basis of the Will executed by the

deceased father of the parties and whether the

genuineness of the Will could be decided by the Court in a

suit for partition or not or by a separate suit.

10. It is well settled that a suit for partition stands

disposed of only with the passing of the final decree. It is

equally settled that in a partition suit, the court has the

jurisdiction to amend the shares suitably, even if the

preliminary decree has been passed, if some member of

the family to whom an allotment was made in the

preliminary decree dies thereafter. The share of the

deceased would devolve upon other parties to a suit or

even a third party, depending upon the nature of the

succession or transfer, as the case may be. The validity of

such succession, whether testate or intestate, or transfer,

can certainly be considered at the stage of final decree

proceedings. An inference to this effect can suitably be

drawn from the decision of this Court in the case of

8
Phoolchand v Gopal Lal (AIR 1967 SC 1470). In that

decision, it was observed as follows:

“There is nothing in the Code of Civil

Procedure which prohibits the passing of
more than one preliminary decree if the
circumstances justify the same and that it may
be necessary to do so particularly in partition
suits when after the preliminary decree some
parties die and shares of other parties are
thereby augmented... it would in our opinion
be convenient to the court and advantageous
to the parties, specially in partition suits, to
have disputed rights finally settled and
specifications of shares in the preliminary
decree varied before a final decree is
prepared. If this is done there is a clear
determination of the rights of the parties to the
suit on the question in dispute and we see no
difficulty on holding that in such cases there is
a decree deciding these disputed rights, if so,
there is no reason why a second preliminary
decree correcting the shares in a partition suit
cannot be passed by the court.”

11. Therefore, relying on the decision of this Court and

following the principles as aforesaid, both the courts below

granted two shares to the respondent in respect of which

we do not find any reason to differ. The courts below were

also justified to hold that the two shares granted at the final

stage could be treated as two preliminary decrees which

are permissible in law. However, the learned counsel for

9
the appellant pointed out that in Phoolchand’s Case

(supra), the death of two parties had taken place after the

preliminary decree was passed. A new circumstance had

emerged after the passing of the preliminary decree, that is

why the court had passed a second preliminary decree

modifying the shares of the other parties, accordingly,

based on the Will executed by the deceased. But, in the

present case their father had executed the Will and died

before the passing of the preliminary decree. Therefore, no

new circumstance has arisen after the passing of the

preliminary decree. Accordingly, the appellant contended

that the High Court as well as the trial court were not

justified in taking into consideration the question regarding

the genuineness of the Will of the deceased father of the

parties and allot two shares to respondent in the final

decree.

12. So far as the first question, as noted herein earlier, is

concerned, we are of the view that such a contention of the

learned counsel for the appellant was of no substance.

According to the learned counsel for the appellant, as

10
noted herein earlier, the genuineness of the Will of the

deceased father of the parties not having been proved in a

separate suit, the High Court as well as the trial Court had

specifically considered this point before passing the final

decree. As noted herein earlier, in Phoolchand vs. Gopal

Lal (supra), this question has been squarely answered. In

the said decision, the appellant also filed a suit for partition

of the joint property in which a preliminary decree was

passed before passing a final decree. The father and the

mother of the appellant died and the brother of the

appellant claimed that he was entitled to the share of the

father as the same was declared by way of a Will executed

by the father and the appellant claimed his right in the

share of the mother as the same was sold to him by the

mother. This question relates to the preliminary shares of

the parties which were redistributed, however, the trial

court did not prepare another formal preliminary decree on

the basis of this re-distribution of shares. The appeal was

taken to the High Court by the brother of the appellant

against distribution which finally came to this Court and this

Court held that Will executed by the father in favour of the

11
brother of the appellant was genuine and, therefore, the

appellant was not entitled to take advantage of the share of

the mother and the same must be distributed equally. In

view of the aforesaid decision of this Court, it is clear that in

a suit for partition, a party who is claiming share in the

plaint scheduled property, is entitled to plead for grant of

probate of the Will executed by the deceased father of the

parties and for which no separate suit needed to be filed.

13. While re-allotting the shares of the parties, the trial

court had framed the issues on the genuineness of the Will

of the deceased father of the appellant and decided that

the Will was genuine after considering the evidence on

record including examining the evidence of the scribe and

attestor in respect of the Will in question. This finding of

fact regarding the genuineness of the Will of the father

affirmed by the High Court was also not agitated before us

in this appeal. That being the position, and considering the

concurrent findings of fact it was also not open for us to

interfere with the same if it is found not to be perverse or

arbitrary. In view of our discussions made hereinabove

12
and applying the principles laid down in the aforesaid

decision of this Court, namely, Phoolchand vs. Gopal Lal

(supra), we do not find any substance in the arguments of

the learned counsel for the appellant.

14. A further contention was advanced by the learned

counsel for the appellant that if certain entitlement of share

even on the basis of the Will was available to the parties at

the stage of preliminary decree, but such entitlement was

given a go-by by one of the parties, the parties who have

already given a go-by of such entitlement cannot have any

adjudication at the final decree stage. In support of this

contention, the learned counsel appearing on behalf of the

appellant had drawn our attention to Section 97 of the CPC

and also on a decision of this Court in the case of Venkata

Reddy & Ors. vs. Pethi Reddy [AIR 1963 SC 992]. In our

view, so far as the decision of this Court in Venkata

Reddy’s case is concerned, there is no applicability of the

principles laid down in that decision in the present case. In

that decision, the sale made by the Official Receiver during

the insolvency of the father of the appellant was the subject

13
matter of a final decision by a competent court inasmuch as

the court had decided that the sale was of no avail to the

purchaser as the Official Receiver had no power to that

sale. Nothing more was required to be established by the

appellants before being entitled to the protection of the first

proviso to Section 28-A of the Provincial Insolvency Act. As

noted herein earlier, we are unable to find any applicability

of this decision in the facts of this case. It is true that a Will

was executed by the deceased father when the suit was

pending for passing a preliminary decree in respect of the

plaint scheduled property of the parties and also for

declaration that the alleged partition deed executed was

sham, void and inoperative in law. Until and unless the

partition deed is declared in operative, it is not open to one

who claimed more shares on the basis of a Will in respect

of the plaint scheduled property. In our view, it was also not

open to the respondent to lead any evidence to prove the

Will before passing the preliminary decree, since the suit

itself was for a declaration that the partition deed was void,

inoperative and a sham transaction and that being the

factual position, there was no point in proving the Will

14
before the said declaration was granted by the court. If

ultimately, the court comes to the conclusion that there was

a partition as evidenced by the partition deed dated 17th of

May, 1986, the evidence in respect of the Will would totally

become irrelevant. It was only under those circumstances,

the proof of the Will was withheld. That being the position,

this decision is distinguishable on facts and also on law. So

far as Section 97 of the CPC is concerned again, we do not

find that the said provision is at all applicable to the present

case. To understand the problem, it would be appropriate

for us to produce Section 97 of the CPC which runs as

under :-

“Appeal from final decree where no appeal

from preliminary decree- Where any party
aggrieved by a preliminary decree passed after
the commencement of this Code does not
appeal from such decree, he shall be precluded
from disputing its correctness in any appeal
which may be preferred from the final decree.”

15. A plain reading of this provision would make it clear

that a party aggrieved by a preliminary decree passed after

the commencement of the CPC does not appeal from such

decree, he shall be precluded from disputing its

15
correctness in any appeal which may be preferred from the

final decree. This is not the position in this case. Here

admittedly, a preliminary decree was passed declaring the

share of the parties including the share in favour of the

deceased father of the parties. That preliminary decree is

final, but on the death of the father of the parties, the

shares allotted to the deceased father of the parties would

fall either to the parties in equal shares or if by Will or by

any form of transfer, such share has been given to one of

the parties. Therefore, in that situation, the respondents

could not have filed any appeal against the preliminary

decree because (1) at this stage, the father was very much

alive and only on the death of the father, the question of

getting one more share that is the share of the father would

come into play and (2) the declaration made in the

preliminary decree by the Court was also accepted by the

parties at that stage. Therefore, Section 97 of the CPC

could not be an aid to the appellant and therefore, the

submission of the learned counsel for the appellant in this

Court cannot be accepted and therefore it is rejected.

16
16. Before parting with this judgment, we may refer to a

decision of this Court in the case of Kaushalya Devi &

Ors. vs. Baijnath Sayal (deceased) & Ors. [AIR 1961 SC

790] on which reliance was also placed by the learned

counsel for the appellant. The learned counsel for the

appellant also had drawn our attention to paragraph 9 of

the said decision. At this stage, it would be appropriate if

we reproduce Para 9 on which strong reliance was placed

by the learned counsel for the appellant. Para 9 of the said

decision runs as under :-

“If the preliminary decree passed in the present

proceedings without complying with the
provisions of Order 32 Rule 7(1) is not a nullity
but is only voidable at the instance of the
appellants, the question is ;can they seek to
avoid it by preferring an appeal against the final
decree ? It is in dealing with this point that the
bar of Section 97 of the Code is urged against
the appellants. Section 97 which has been
added in the Code of Civil Procedure, 1908 for
the first time provides that where any party
aggrieved by a preliminary decree passed after
the commencement of the Code does not appeal
from such decree he shall be precluded from
disputing its correctness in any appeal which
may be preferred from the final decree.”

17. We have already explained in this judgment that

Section 97 of the CPC is not applicable to the facts and

17
circumstances of the present case and, therefore, we do

not find any applicability of Paragraph 9 of the decision

thereof in this decision of this Court in the facts and

circumstances of the present case.

18. No other point was raised by the learned counsel for

the parties before us. Accordingly we do not find any merit

in this appeal. The appeal is thus dismissed. There will be

no order as to costs.

……………………………J.
[TARUN CHATTERJEE]

New Delhi; ………………….………J.

May 05, 2009. [HARJIT SINGH BEDI]

18