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2015 Supreme(AP) 240
The High Court of Judicature at Hyderabad
K.C. BHANU & M. SEETHARAMA MURTI, JJ.
Krishna Kumar V. Shah & Another – Appellant
Versus
Anila J. Shah & Others – Respondent
C.C.C.A. No. 38 of 2006 & 225 of 2008
Decided On : 01-06-2015
Advocate Appeared:
For the Appellants: Suryanarayana, Senior Counsel.
For the Respondents:K.V. Satyanarayana, Advocate.
Headnote:
A.P.C.F and S.V. Act– Section 34(2) – Hindu Succession (Andhra Pradesh Amendment) Act, 1986 – Registration Act, 1908 – Indian Succession Act – Sections 59 and 63 – Evidence Act – Sections 67, 68, 45 and 47 – Suit for partition – Decreed – Appeal against – Equal and Equitable shares – Allotment of separated share – Appeals against the decree and judgment passed by XXI Additional Chief Judge in filed for partition of schedule properties originally stood in the name of late Raja and that after his death, his said properties devolved upon his son had inherited all the said properties – In the presence of defendants had declared during his life time that his only daughter, i.e., the plaintiff shall be given an equal share along with his sons in the ancestral properties plaintiff is under the impression that the defendants would partition of suit schedule properties and deliver a share to her in the said properties defendants were and are informing the plaintiff that the partition would be affected after finalization of the Urban Land Ceiling proceedings plaintiff had trusted and believed her brothers – Afterwards, having come to know that there are no such proceedings before the competent authority under the Urban Land Ceiling laws and as the defendants did not come forward to effect partition of the properties and allot a share to the plaintiff, the plaintiff had got issued a notice – Held, Trial Court had ordered the amendment of the judgment and decree on the same day on which the stay orders were granted by this Court in the appeal. In fact, in the other connected appeal preferred by defendants said defendants had filed the amended copy of the judgment and that appeal was preferred assailing the judgment and decree as amended. Along with the grounds of appeal, the decree copy as amended is also filed. However, since the other appeal in was preferred assailing the un-amended decree and judgment, the preliminary objection was raised stating that the said appeal is not maintainable contention is that once a decree is amended original decree ceases to exist and that as the order amending the decree and judgment had become final, the appellants/defendants ought to have assailed the amended decree and judgment; and, hence, the appeal filed challenging the un-amended decree and judgment is not maintainable. Be it noted that the said appeal was preferred even before the decree and judgment were amended as per orders dated trial Court. According to the appellants, no notice was served on the application for amendment and since the amendment related to an accidental slip or omission in the result portion, the amendment ordered of the judgment and the decree is not fatal to the present appeal. One more important aspect is that the plaintiff had lodged a caveat before this court and the stay orders were granted in the appeal by this court after hearing the learned counsel for both the sides – Appellate Court may pass any decree or order as the case may require provided the parties are before the Court and the questions properly arise out of the trial courts judgment power may be exercised notwithstanding that the appeal is as to part only of the decree and may be exercised in of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objections two or more decrees are passed in one suit the power can be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees – Application stand disposed.
M. Seetharama Murti, J.
1. These two first appeal suits, viz., C.C.C.A.No.38 of 2006 and C.C.C.A.No.225 of 2008 filed respectively by the defendants 1 and 2 together and the defendants 3 and 4 together are directed against the decree and judgment dated 19th September 2005 of the learned XXI Additional Chief Judge, City Civil Court, Hyderabad passed in O.S.No.329 of 1999 filed for partition of the plaint A, B, C, D, E, F and G schedule properties into five equal and equitable shares and allotment of one such separated share to the sole plaintiff.
2. Since both the first appeals arise out of a decree and judgment in one suit, the same were heard together as desired by the learned counsel for both the sides. Hence, this common judgment.
3. We have heard the submissions of the learned senior counsel for the appellants/defendants 1 and 2 in C.C.C.A.No.38 of 2006, the learned counsel for the appellants/defendants 3 and 4 in C.C.C.A.No.225 of 2008 and the learned senior counsel for the plaintiff/respondent in both these appeals. We have carefully perused the material record including the summary of written submissions filed on behalf of the appellants/defendants 1 and 2 and the plaintiff/respondent.
4. At the outset it is to be noted that the trial Court had framed the following issues and additional issues for trial:
Issues:
i. Whether the plaintiff is entitled for partition and separate possession of 1/5th share in the plaint schedule properties?
ii. Whether the Will dated 07.01.1987 is true and valid and binding on the plaintiff?
iii. Whether the judgment and decree in O.S.No.7/1963 is binding on the plaintiff?
iv. Whether prior partition pleaded by defendants is true?
v. To what relief?
Additional Issues:
i. Whether plaintiff is in joint possession of schedule properties along with defendants 1 to 4?
ii. Whether the courtfee paid under Section 34(2) of A.P.C.F and S.V. Act is correct and proper?
Be it also noted that while answering the said issues, the trial Court had concentrated on and dealt with the following points:
i. Whether the properties which are subject matter of suit in O.S.No.7 of 1963 are ancestral properties?
If so, whether Plaintiff was a co-parcenar as on the date of filing of the suit in O.S.No.7 of 1963?
ii. Whether the judgment and decree in O.S.No.7 of 1963 are binding on the plaintiff?
iii. Whether late Vallabhadas B.Shah died intestate on 10-06-1990? OR
Whether late Vallabhadas B.Shah executed will dated 7-1-1987 bequeathing his properties? If so, whether the same is true, valid and binding on the plaintiff?
iv. Whether plaintiff is entitled to seek partition and separate possession of her 1/5th share in the plaint schedule properties as claimed? OR
Whether plaintiff is entitled to seek partition and separate possession of her 1/5th share in the properties of her father late Vallabhadas B.Shah?
v. To what relief plaintiff is entitled to?
5. At trial, the sole plaintiff and her supporting witness were examined as PWs 1 and 2 and exhibits A1 to A10 were marked on her side. The defendants 1 and 3 were examined as DWs 1 and 3 and their supporting witnesses were also examined as DWs 2 and 4 and exhibits B1 to B25 were marked on their side. Exhibits X-1, X-1(a), X-1(b) and X2 were also marked. On merits, the trial Court had decreed the suit. The operative portion of the judgment of the trial Court as per the copy of the judgment filed in C.C.C.A.No.225 of 2008 reads as under:
In view of my finding on Issue No.1 to Issue No.4, a preliminary decree is passed declaring that plaintiff is entitled for 1/5th share in share of late Vallabhadas B. Shah.
In the result, suit is decreed, but without costs.
Preliminary decree is passed in favour of plaintiff and against defendants declaring that plaintiff is entitled for 1/5th share in 1/5th share of late Vallabhadass in the following properties:-
1) House at Hanumantekdi known as Goverdhan Kunj bearing Municipal No.4-3-162 to 164 (fell to the share of Vallabhdas B.Shah as per decree in O.
