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