Telangana High Court
Basetti Chokkaiah vs Basetti Shankar And Another on 29 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.1035 OF 2012
JUDGMENT:
Aggrieved by the judgment dated 28.08.2012 (hereinafter
will be referred as 'impugned judgment') in A.S.No.10 of 2010 on
the file of learned II Additional District Judge, Karimnagar at
Jagtial, the defendant No. 1 filed the present Civil Miscellaneous
Appeal to set aside the impugned judgment.
2. For the sake of convenience, hereinafter, the parties will
be referred as per their array before the trial Court.
3. The brief facts of the case as can be seen from the record
available before this Court are that the sole plaintiff filed suit
vide O.S.No.174 of 1983 on the file of learned District Munsif at
Jagtial for partition against the defendant Nos.1 and 2 for
partition and separate possession in respect of suit schedule
properties. A preliminary decree was passed on 16.11.1983.
Subsequently, during the pendency of the suit, the sole plaintiff
died and thereafter, the defendant No.1 was transposed as
plaintiff No.2. Subsequently, a petition vide I.A.No.502 of 1987
was filed for passing final decree and accordingly, the said
petition was allowed by allotting 2/3rd share in the schedule
properties to the plaintiff No.2 and rest of the 1/3rd share was
2 MGP,J
CMA_1035_2012
allotted to defendant No.2. Aggrieved by the same, the
defendant No.2 filed A.S.No.10 of 2010 under Order XLI Rule 1
of the Code of Civil Procedure against the judgment and decree
dated 05.03.2010 in O.S.No.174 of 1983 on the file of learned II
Additional District Judge, Karimnagar at Jagtial. The learned II
Additional District Judge, Karimnagar at Jagtial after
considering the rival contentions, allowed the appeal by setting
aside the order dated 04.01.2002 in I.A.No.502 of 1987 in
O.S.No.174 of 1983 and remanded back the matter to the trial
Court to dispose of I.A.No.502 of 1987 afresh keeping in view of
the observations made in the order. Aggrieved by the same, the
defendant No.1, who was transposed as plaintiff No.2 has filed
the present Civil Revision Petition to set aside the impugned
judgment.
4. Heard both sides and perused the record including the
grounds of appeal.
5. The learned counsel for the defendant No.1/transposed
plaintiff No.2 contended that the first appellate Court ought to
have seen that the appellant herein is the legatee of the Will
Deed under Ex.A3, hence, there is no necessity for him to
obtain probate of the Will. It is pertinent to note that under
Section 212(2) of the Indian Succession Act, 1925, Hindus,
3 MGP,J
CMA_1035_2012
Muslims, etc., are not bound to apply for letters of
administration (Probate) and it is optional and not
mandatory for these persons to seek probate of the Will.
6. As seen from the order dated 04.01.2002 in I.A. No.502 of
1987, the case of the defendant No.1 is that his father executed
will deed bequeathing his share to him and on the other hand
the case of defendant No.2 is that his father did not execute the
alleged will deed and that his father sold away his 1/3rd share to
the wife of defendant No.2 on 25.02.1984 for Rs.15,000/-. If at
all the deceased plaintiff has alienated his share to the
defendant No.2 prior to filing of the suit, there will not be any
occasion for the plaintiff to file a suit seeking partition of the
properties after three years of above said alienation in favour of
wife of the defendant No.2. In support of his contentions, the
defendant No.1 got examined PWs 1 to 5 and got marked Exs.A1
to A4 and defendant No.2 got examined RWs 1 to 3 and no
documentary evidence was adduced on behalf of defendant
No.2.
7. Originally, after passing preliminary decree, the deceased
plaintiff filed I.A.No.502 of 1987 under order XX Rule 18 read
with Section 151 of the Code of Civil Procedure seeking
appointment of commissioner for partition of his 1/3rd share in
4 MGP,J
CMA_1035_2012
the properties in terms of preliminary decree. But during the
pendency of the said petition, the sole plaintiff passed away and
thereafter the defendant No.1 was transposed as plaintiff No.2
and filed amended petition with regard to his transposing
himself as plaintiff No.2 and for allotment of 2/3rd share in
pursuance of alleged will deed. One of the grounds on which
the first appellate Court remanded back the matter to the trial
Court is that the defendant No.1 failed to amend the petition
filed for passing final decree and without any pleadings the
defendant No.1 adduced evidence with regard to the alleged
registered will deed. In fact, no party could succeed a case by
adducing evidence without support of pleadings, since the law is
well-settled that one could be permitted to let in evidence only in
tune with the pleadings. In Biraji @ Brijraji and another v.
Surya Pratap and others 1 the Apex Court observed that it is
fairly well settled that in absence of pleading, any amount of
evidence will not help the party.
8. The contention of the learned counsel for the defendant
No.1/transposed plaintiff No.2 is that the advocate, who was
appointed as Commissioner filed report on 30.11.1990 to which
no objections were filed but the respondent preferred CRP
1 Civil Appeal Nos.4883-4884 of 2017 decided on 03.11.2020
5 MGP,J
CMA_1035_2012
No.3933 of 2008 raising several objections against the passing
of the final decree and the said Civil Revision Petition was
dismissed on merits on 20.12.2009. In the impugned order it
was observed by the first appellate Court that CRP No.3933 of
2008 was filed not challenging the validity of the final decree
passed by the lower Court. However, as seen from the
impugned order, the defendant No.1 filed I.A.No.206 of 2002
under Section 151 of the Code of Civil Procedure with a prayer
to give an opportunity to file objections to the report of the
commissioner and the said petition was adjudicated on merits
and allowed the same on 24.07.2002 and in pursuance of the
same on 13.08.2002 the defendant No.1 filed objections. The
impugned order further discloses that the defendant No.2 also
filed objections on 12.09.2002 stating that the commissioner
wrongly described the well as joint well and gave wrong
measurements. The first appellate court observed that the trial
Court did not consider the objections raised by either of the
parties against the commissioner report. Hence, the above
contention of the learned counsel for the appellant does not
sustain.
9. It is further contention of the learned counsel for the
defendant No.1/transposed plaintiff No.2 that the lower
6 MGP,J
CMA_1035_2012
appellate Court ought to have seen that the final decree passed
by the trial court is nothing but validation of the preliminary
decree, so the legality of the final decree cannot be questioned.
It is pertinent to note that as per the preliminary decree plaintiff
and defendant Nos.1 and 2 were allotted one share each but
before passing of the final decree, the plaintiff passed away.
Thus, there is a need for redistribution of the share that fell to
the share of deceased plaintiff. So, the question of validation of
preliminary decree in the final decree does not arise. For
redistribution of the share that fell to the share of the deceased
plaintiff, the trial Court shall adjudicate as to who is entitled for
that particular share and then need to prepare a preliminary
decree and in pursuance of such preliminary decree, the final
decree shall be drawn. But in the case on hand, the final decree
is not in consonance with the preliminary decree in view of the
unfortunate death of the plaintiff after passing of the
preliminary decree.
10. The contention of the learned counsel for the defendant
No.1/transposed plaintiff No.2 is that as per Section 97 of the
Code of Civil Procedure, where any party aggrieved by the
preliminary decree passed does not appeal from such decree, he
shall be precluded from disputing its correctness in any appeal
7 MGP,J
CMA_1035_2012
may be preferred from the final decree. As stated supra, there
was no occasion for the defendant No.2 to challenge the
preliminary decree as he was satisfied with the preliminary
decree and in fact, the dispute between plaintiff No.2 and
defendant No.2 with regard to the share of the deceased plaintiff
arose after passing of the preliminary decree, as the deceased
plaintiff expired after passing of the preliminary decree.
11. It is further contended by the learned counsel for the
defendant No.1/transposed plaintiff No.2 that as per Section 99
of the Code of Civil Procedure, no decree shall be reversed or
substantially varied, nor shall any case be remanded, in appeal
on account of any mis-joinder or non-joinder of parties or
causes of action or any error, defect or irregularity in any
proceedings in the suit not affecting the merits of the case or the
jurisdiction. In Ganduri Koteswaramma and another v.
Chakiri Yanadi and another 2 the Apex Court observed that it
is not correct statement of law that once a preliminary decree
has been passed, it is not capable of modification. In S. Satnam
Singh and others v. Surender Kaur and another 3 the Apex
Court observed that indisputably, Section 97 of the Code of Civil
Procedure provides for an appeal against preliminary decree but
2 (2011) 9 Supreme Court Cases 788
3 (2009) 2 SCC 562
8 MGP,J
CMA_1035_2012
the said provision, in our opinion would not be a bar to file an
application for amendment of decree. In Venkata Reddy and
others v. Pethi Reddy 4 the Apex Court held as under:
"A preliminary decree passed, whether it is in a mortgage
suit or a partition suit, is not a tentative decree but must, in so far
as the matters dealt with by it are concerned, be regarded as
conclusive. No doubt, in suits which contemplate the making of
two decrees, a preliminary decree and a final decree, the decree
which would be executable would be the final decree. But the
finality of a decree or a decision does not necessarily depend
upon its being executable. The legislature in its wisdom has
thought that suits of certain types should be decided in stages
and though the suit in such cases can be regarded as fully and
completely decided only after a final decree is made the decision
of the court arrived at the earlier stage also has a finality
attached to it. It would be relevant to refer to Section 97 of the
Code of Civil Procedure which provides that where a party
aggrieved by a preliminary decree does not appeal from it, he is'
precluded from disputing its. correctness in any appeal which
may be preferred from the final decree. This provision thus
clearly indicates that as to the matters covered by it, a
preliminary decree is regarded as embodying the final decision of
the court passing that decree."
12. In Maddineni Koteswara Rao v. Maddineni Bhaskara
Rao and another 5 the Apex Court observed as under:
"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,
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
4 AIR 1963 SC 992
5 (2009) 13 SCC 179
9 MGP,J
CMA_1035_2012
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."
13. In view of the principle laid down in the above said
decision, there is no doubt that mere adjustment of the shares
of the parties does not bring about any alteration in the
preliminary decree. But in the case on hand, the final decree
passed by the trial Court is affecting the merits of the case as
allotment of share of the deceased plaintiff to plaintiff No.2 on
the basis of alleged registered Will Deed will cause prejudice to
the defendant No.2 and there is no adjustment of shares
between the parties and in fact, the right of defendant No.2 over
the share of the deceased plaintiff is being affected.
14. It is pertinent to note that the in the impugned order the
first appellate court observed that in pursuance of the order
dated 04.01.2002 no warrant of commission was issued for
dividing the properties into three shares and for allotting 2/3rd
share to the defendant No.1/transposed plaintiff No.2. It was
further observed that the sketch enclosed to the decree is
alleged to be sketch prepared by the commissioner but the
sketch does not bear the signature of the commissioner and
10 MGP,J
CMA_1035_2012
that the possession of the properties was not delivered to the
parties. Moreover, as discussed above, the final decree is not in
consonance with the preliminary decree. Thus, this Court is of
the view that there are certain procedural irregularities while
passing the final decree by the trial Court.
15. In view of the above discussion, this Court is of the
considered view that the first appellate Court has rightly
remanded back the matter to consider the matter afresh by
considering the observations made in the impugned order and
thus, this Court finds no infirmity or irregularity in the
impugned order to interfere with it. Therefore, there are no
merits in the Civil Miscellaneous Appeal and thereby it is liable
to be dismissed.
16. Accordingly, the Civil Miscellaneous Appeal is dismissed
and the concerned trial Court is directed to adjudicate the
matter within three months from the date of receipt of this
order. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand
closed.
_______________________________
JUSTICE M.G.PRIYADARSINI
Date: 29.01.2024
AS
