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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 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 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.

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 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 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 :-