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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  

J U D G M E N T

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

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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

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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

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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

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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

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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,

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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.     

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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

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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]