1. This regular appeal filed under Section 96 of the code of Civil Procedure, challenges a modified preliminary decree passed in a suit for partition.

2. Heard Mr. P. Venkata Swamy, learned counsel for the appellant and Mr. J. Prabhakar, learned counsel appearing for the 1st respondent.

3. The respondents 2 and 3 are dead. They were given up in a previous round of litigation in CCCA No.247 of 2016. Therefore, the above appeal is taken up for final disposal by consent of parties.

4. The 1st respondent herein filed a suit in O.S No.1107 of 2008 seeking partition and separate possession of his 1/5th share in a house property measuring just about 200 square yards, at Vidyanagar, Hyderabad. The 1st defendant in the suit was none other than the mother of the 1st respondent/plaintiff. The defendants 2 to 4 in the suit were the sisters of the 1st respondent/plaintiff.

5. The case of the 1st respondent/plaintiff in the suit was that his father Achyuta Ramaiah purchased an open plot of land way back in the year 1964 and sold a portion of the same to a 3rd party and constructed a house in the remaining portion. The father Achyuta Ramaiah admittedly died intestate in the year 1966 leaving behind him surviving, his widow, who was the first defendant in the suit, three daughters, who were arrayed as defendants 2 to 4 and a son, who was the 1st respondent/plaintiff. The 1st respondent/plaintiff claimed that ever since the death of his father, all the legal heirs, namely, his mother and his three sisters lived along with him in the said property and that disputes arose between himself and his sisters forcing him to seek partition.

6. During the pendency of the suit, the mother (1st defendant) died and hence the shares of one son and three daughters got enlarged from 1/5th to 1/4th share. Thereafter, the trial Court passed a preliminary decree on 25.10.2010 declaring the entitlement of the 1st respondent/plaintiff to 1/4th share in the schedule property.

7. Admittedly, the preliminary decree passed on 25.10.2010 declaring the plaintiff’s entitlement to partition and separate possession of his 1/4th share in the suit property was never challenged by any of the parties and the said preliminary decree attained finality.

8. After the preliminary decree, one of the sisters, by name, Swarajya Lakshmi, who was the 2nd defendant in the suit, died on 12.11.2013. We do not know whether the 2nd defendant left behind any class-I legal heir. If she had left behind any class-I legal heir, they would have succeeded to her 1/4th share. If she had not left behind any class-I heir, the entitlement of each of the surviving heirs of Achyuta Ramaiah would have got enlarged from 1/4th share to 1/3rd share.

9. After the death of the 2nd defendant on 12.11.2013 (3 years after the preliminary decree dated 25.10.2010), the 1st respondent/plaintiff took out a very strange application in I.A. No.711 of 2015, seeking a final decree for his 1/3rd share. The application was filed under Order – XX Rule 18 CPC.

10. In the said application I.A. No.711 of 2015, the appellant herein who was the 3rd defendant in the suit set up 2 Wills, one executed by the mother (1st defendant) long before the first preliminary decree and another executed by the sister Swarajya Lakshmi (2nd defendant) after the preliminary decree. It was the claim of the appellant herein (3rd defendant) that even during the life time of the mother (much before the filing of the partition suit) the house property was divided into several portions and that the mother had bequeathed identified portions in favour of each of the 4 children by a Will dated 30-03-1993 and that the deceased 2nd defendant, in turn, had bequeathed her ½ undivided share in the first floor portion of the suit property in her favour, by a Will dated 28-10-2010. Without even taking the Will on record and marking the same as exhibit and without following the procedure prescribed by law, the trial Court passed a decree on 14.10.2016 appointing