An appellant may withdraw an appeal before admission, and respondents cannot insist on continuity for share enhancement if no independent appeal is filed.

JUDGMENT :

1. Heard.

2. This Second Appeal is directed against the judgment and decree dated 03.09.2012 of the Principal District Judge, Erode in A.S. No. 9 of 2011, which confirmed the judgment and preliminary decree dated 30.10.2008 of the Subordinate Judge, Bhavani in O.S. No. 29 of 2008. By those orders, the suit for partition was decreed, declaring that the plaintiffs (daughters) are entitled to 2/8th shares in the suit properties, and granting an injunction as a consequential relief until the final decree is passed.

3. The suit properties include both ancestral properties and properties purchased by the parties’ father. The plaintiffs are the daughters of late Narayana Gounder. The first defendant is his son, and defendants 2 and 3 are his granddaughters through a daughter who predeceased him.

4. The Courts below held that, since the father died in 1977, before the amendment introduced by Act 39 of 2005, the plaintiffs could claim a share only in the notional share of their father, and not as coparceners equal to the son. In doing so, they relied on the legal position then prevailing, including Sheela Devi v. Lal Chand (2006) 8 SCC 581 .

5. Challenging the concurrent findings, the first defendant filed this Second Appeal. During the pendency of the appeal, the original appellant died and his legal heirs were brought on record. The appeal has remained pending and has not yet been admitted.

6. When the matter was taken up for admission, learned counsel for the appellant made an endorsement seeking to withdraw the appeal, stating that the appellant is not pressing the Second Appeal.

7. At this stage, learned counsel for the respondents opposed the withdrawal and sought their transposition as appellants under Order XXIII Rule 1A CPC. Counsel also relied on the decision of the Supreme Court in Vineeta Sharma v. Rakesh Sharma , reported in (2020) 9 SCC 1 contending that, in view of the amended Section 6 of the Hindu Succession Act , 1956, the plaintiffs’ shares should be increased from 2/8th to 2/4th.

8. At the stage of admission under Section 100 CPC, the Court must examine whether the appeal raises any substantial question of law and, if so, frame it before the appeal can proceed. Until the appeal is admitted, it does not take the form of a regular appellate proceeding.

9. It is well settled that, at the pre-admission stage of a Second Appeal, the respondent has no vested right of audience unless a caveat has been lodged under Section 148A CPC. In the present case, although notice appears to have been ordered earlier no substantial question of law has been framed and the appeal has not been admitted.

10. If the appellant seeks to withdraw the appeal before it is admitted, the respondent cannot insist that the appeal be continued merely to enlarge the decree or to seek enhancement of share, especially when the respondent has not filed any independent appeal.

11. The power under Order XLI Rule 33 CPC can be exercised only in a properly constituted and admitted appeal. It cannot be used to create jurisdiction at the pre- admission stage, when no substantial question of law has been framed. Likewise, Order XXIII Rule 1A CPC, which deals with transposition, presupposes a pending and maintainable proceeding. If the appeal is withdrawn before admission, no lis survives for transposition.

12. The decisions cited by the respondents, (i) Rajammal (Deceased) Thirupathi v. Mangai, S.A. No. 137 of 2019, dated 05.07.2024 (Madras High Court), (ii) Thangarasu Pillai v. Selvakumar, 2025 SCC OnLine Mad 5114, and (iii) Murugan Asari v. Chinnammal and others, S.A. No. 16 of 2014, dated 12.02.2026 (iv)