2009 Supreme(SC) 941

Supreme Court of India
THE HONOURABLE MR. JUSTICE TARUN CHATTERJEE & THE HONOURABLE MR. JUSTICE HARJIT SINGH BEDI
Maddineni Koteswara Rao
Versus
Maddineni Bhaskara Rao & Another
CIVIL APPEAL NO.3233 OF 2009 [Arising out of SLP)No.1263 OF 2007]
Decided on : 05-05-2009

IMPORTANT POINTS
If during pendency of partition suit some member dies after drawing of preliminary decree, his share would devolve upon other parties to the suit or even a third party by succession, testamentary disposition or transfer. Validity of such devolution can be considered at the stage of final decree proceedings.
A party is entitled to plead for grant of probate of the Will executed by the deceased father of the parties in a suit for partition. The Will is not required to be probated in a separate suit.

Headnote:(a) Property law – Partition – Suit for partition stands disposed of only with the passing of the final decree – Shares can be amended even after passing of preliminary decree – If some member dies after drawing of preliminary decree, his share would devolve upon other parties to the suit or even a third party – Validity of such succession, whether testate or intestate, or transfer, can be considered at the stage of final decree proceedings. (Para 10)

       AIR 1967 SC 1470 – Relied upon

       (b) Property law – Will and partition – In a suit for partition, a party 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 – Will not required to be probated in a separate suit. (Para 12)

       (c) Code of Civil Procedure, 1908 – Section 97 – A party aggrieved by a preliminary decree not appealing – Precluded from disputing its correctness in appeal from final decree – Instantly father of respondent was alive when preliminary decree passed – Accepted by the parties including respondent’s father – No question of challenging the same – Question of father’s share arose only on his death on the strength of the Will – Section 97 not applicable. (Para 15)

       AIR 1963 SC 992; AIR 1961 SC 790 – Distinguished

       Facts of the case:

       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. 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, 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. The suit was decreed 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.

       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. M. Veera Raghavaiah died on 17th of January, 1985.

       While the suit was pending, on 25th of February, 1985, the respondent filed a photostat copy of the Will in the trial court praying that the 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.

       On 4th of November, 1986, the appellant went in appeal before the High Court 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 was also dismissed.

       The appellant also filed a Letters Patent Appeal. 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.

       After the LPA was dismissed, the trial court passed a final decree allotting two shares in respect of the plaint scheduled property to the respondent after considering the Will executed by the deceased father of the parties.

       On 18th of February, 2006, the appellant approached the High Court by filing a Civil Revision Case 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.

       Finding of the Court:

       Impugned judgment does not warrant interference.

       Result:

       Appeal dismissed.