Partition-Joint family property-Appel/ant and Respondents co-owners entered into a family settlement-Appellant was to pay a stipulated sum in consideration of which Respondents were to relinquish their share in the property-Amount not paid by Appellant-Suit for partition subsequently filed by Respondents-Held: ls liable to be decreed as the family settlement was not given effect. Code of Civil Procedure 1908-0rder VIII, rr. 3 & 5-Partition suitAverments made by plaintiff-Not denied by defendant in written statementHeld: Averments made by plaintiff would be deemed to be admitted-Fact admitted need not be proved-Evidence Act, 1872-s.58. 'D Appellants and Respondents were co-owners of joint family property. They entered into a family settlement in terms of which Appellant had to pay a stipulated sum in consideration of which the Respondents were to relinquish their share in the joint property. Appellant did not make payment of the stipulated amount. The question which arose for consideration in the present appeal is whether the suit for partition subsequently filed by the Respondents was liable to be decreed as the family settlement was not given effect.

1

M. VENKA TARAMANA HEBBAR (D) BY L.RS. A

v.

M. RAJ AGO PAL HEBBAR AND ORS

APRIL 5, 2007

B

[S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Partition-Joint family property-Appel/ant and Respondents co-owners

entered into a family settlement-Appellant was to pay a stipulated sum in

consideration of which Respondents were to relinquish their share in the C

property-Amount not paid by Appellant-Suit for partition subsequently

filed by Respondents-Held: ls liable to be decreed as the family settlement

was not given effect.

Code of Civil Procedure 1908-0rder VIII, rr. 3 & 5-Partition suitAverments made by plaintiff-Not denied by defendant in written statementHeld: Averments made by plaintiff would be deemed to be admitted-Fact

admitted need not be proved-Evidence Act, 1872-s.58.

'D

Appellants and Respondents were co-owners of joint family property. They

entered into a family settlement in terms of which Appellant had to pay a

stipulated sum in consideration of which the Respondents were to relinquish E

their share in the joint property. Appellant did not make payment of the

stipulated amount.

The question which arose for consideration in the present appeal is

whether the suit for partition subsequently filed by the Respondents was liable . p

to be decreed as the family settlement was not given effect.

Dismissing the appeal, the Court

HELD: 1.1. The execution of the deed of family settlement is not in

question. It is furthermore not in dispute that all the co-shareholders are not G

parties thereto. Any co-owner can cause a severance in the status of joint

family by expressing his unequivocal intention to separate. Such intention

can be expressed even by filing a suit for partition. But, despite such

separation in the joint status, parties may continue to possess the lands jointly

941 

942 SUPREME COURT REPORTS {2007] 4 S.C.R.

A unless a partition of the joint family property takes place by metes and bounds. . . . . ~ .. .

(Para 9) f 946-EJ

1.2. For the purpose of this case, this Court will proceed on the

assumption that the said deed of family settlement was not required to be

compulsorily registered, in terms of Section 17 of the Registration Act as by

B reason thereof; the relinquishment of the property was to make effect in future.

But there cannot be any doubt whatsoever that before the Court rejects a claim

of partition of joint family property, at the instance of all the co-owners, it

must be established that there had been a partition by metes and bounds. By

reason of the family settlement, a complete partition of the joint family

C property by metes and bounds purported to have taken place. One of the cosharer, however, did not join in the said purported family settlement.

(Para 10)(946-F-G]

1.3. The contract between the parties, moreover was a contingent

coQtract It was to have its effect only on payment of the said sum ofRs.15,000/

D - by the plaintiff and other respondents by the defendant Nos. I to 3. No such

payment had been made. Even there had been no denial of the assertions made

by the appellant in their written statement in that behalf. The said averments

would, therefore, be deemed to be admitted. (Para 111 (946-H; 947-AI

1.4. If a plea which was relevant for the purpose of maintaining a suit

E had not been Si>t:Cifically traversed, the Court was entitl~ to draw an.inference ·

that the ~ame had been ad~itted. A fact-admitted in terms of-Section 58 ofthe .

Evidence Act need not be proved. (Para 12) [947-G)

2. Even otherwise, the Court had framed an issue and arrived at a positive

F finding that the appellant did not pay the said sum of~ 15;~0/- in favour of

plaintiff Nos. 1 to 3. The High Court has also affirmed the said finding. The

High Court, therefore, cannot be said to have committed any error' whatsoever

in arriving at the finding that by reason of the said purported de_ed of family

settlement, the co-owners had not partitioned thejoint family property by

metes and bounds. The plaintiffs/respondents were thus, yet to relinquish their

G rights in the joint family properties by receiving the said amount of Rs.

15,000/-. Deed of family settlement had not been given its full effect to. The

High Court was right in holding that even on that count, the plai,ntiff's suit

should ·have been decreed. (Paras 13, 14 and lSJ.(947-ff; 948.-A-C)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 706 I of 2000.

H 

(

M. VENKATARAMANA HEBBAR (D) BY L.RS. v. M. RAJAGOPAL HEBBAR [S.B. SINHA, l.) 943

From the Final Judgment and Order dated 11.03.1999 of the High Court A

of Kamataka at Bangalore in R.F ,A. No. 513 of 1992.

S.N. Bhat, N.S. Panwar and D.P. Chaturvedi for the Appellants.

Sunita Harish, Lalit Mohini Bhat, Naveen R. Nath, K.K. Mani and Shiv

Kumar Suri for the Respondent. B

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Defendant No. 1 in the suit is the appellant herein.

The parties hereto were admittedly co-owners of the suit property. The

relationship between the parties shall appear from the following genealogical C

table:-

M. VenkatramAnd Hebbar

(D-1)

I

I

I

I

M. Ramakrishna Hebbar

= Smt. Sundari Amma (D-9)

M. Rajgopala M. Mohana

Hebbar Hebbar

(P-1) (D-5)

I I

I I

11

I

I

I

I

I

Srirarna Srikrishna . Srivittala

(P-2) (P-3) (P-4)

I

M. Gopal

Krishna

Heb bar

(D-2)

M. Harisha

Hebbar

(D-3)

Prasanna

(D-7)

M. Janardhana

•

M. Anantha

Heb bar

(D-6)

I

I

Prashantha I

(D-8)

2. A suit for partition was filed by the plaintiff'> claiming one-fourth

share in the suit property. It is not in dispute that on or about 30.3.1973, a

purported family settlement was arrived at by the parties. One of the

defendants, however, was not a signatory thereto. In the said purported

family settlement, it was stated:-

D

E

F

G

H 

A

B

c

D

E

F

G

H

944 SUPREME COURT REPORTS -, [2007) 4 S.C.R.

"We each of us are entitled to l/4 share in the family property. As that

property is a small areca garden and•as there are no sites near by to

construct a separate houses, that property cannot be divided. Hence

as owelty No. I of us is liable to pay to No. 2 and 4 of us Rs. 15,000/

- each. That amount js to be paid in 15 yearl"y instalments of Rs. l 000/

- each. On payment of last instalment 2 and 4 of us release their rights

in favour of No. I of us at his costs. We No. l, 2 and 4 of us have

agreed for this. The Ist instalment is to begi,n with the ~nd of March

1973 and end with the period of 15 years at the end of March 1987.

The marriage of Nos. 2 and 4 of us is to be performed by No. 1 of

us in the family House: If the instalments cannot be paid due to the

marriage in that year 112 the amount is to be paid in that year and the

balance is to be paid in the subsequent year. Accordingly if the entire

amount is not paid as stipulated the same is to be paid by the end

of March 1990 by number I of us and get a release deed executed from

No. 2 and 4 of us at the costs of No. I of us. -

No. 2 and 4 of us have. to construct separate houses by the end of

May 1976 and reside there.

As there are no sufficient movable and gold jewels in the family house

No. 2 and 4 have no separate share in it. No. I of us is liable to pay

the family dues if any and bear the expenses of the viniyogas of Gods

and devils.

Towards the maintenance of our mother each of us is liable to pay 2

muras of rice and Rs. 25/- every year and obtain receipts and her

obsequies is to be performed by No. I, 2, 3 and 4 of us in equal

shares. No. 2 and 4 are not liable for the family debts. The share of

No. 3 of us is retained by No. l of us he is liable to deliver the same

when he demands, we Nos. l, 2 and 4 of us agreed for the terms in

the presence of the grahastas with our full consent and executed this

agreement we are liable to abide by all the conditions of this agreement.

If any of us incurs loss etc. by non performing as per the agreement, ·

the person who had not performed his part is liable to pay the loss

etc. and that person is entitled to recover the aniounts. Ac~ordingly

we have entered into this agreement."

3. Allegedly, the said family settlement had not been acted upon in so

far as the appellant herein did not pay a sum of Rs; 15;000/- to the respondents

--1--

M. VENKATARAMANA HEBBAR (D) BY L.RS. v. M. RAJAGOPAL HEBBAR [S.B. SINHA, l.] 945

"r herein. In their complaint, the appellant stated:- A

"VI. The plaintiffs further submit that the alleged agreement dt.

30.03.1973 has never come into force and it has never been acted

upon. The 1st plaintiff has never been paid any amount under the said

agreement, the averments made in the notice dated 05.05.1988 and the

reply dated 12.05.1988 in this regard are palpably false, defendants \ B

to 4 cannot take shelter under the said agreement and deny the

plaintiffs their lawful share in the plaint properties. Further, the said

document is also not valid since the 6th and the 9th defendants are

not parties to it."

4. The averments made in the plaint to that effect had not been denied c

or disputed. Appellant, however, raised a contention that by reason thereof

as the parties have arrived at a family settlement and a part of it have been

acted upon; the plaintiffs/respondents were estopped from filing the suit.

Learned trial Judge having regard to the rival contentions raised by the

parties, inter-alia framed the following issue:- D / "3. Whether defendants l to 3 prove that plaintiff-I and defendant6 were paid money in respect of their share as per agreement dated

30.3.1973?"

5. The first part of the said issue, namely whether the appellant herein E had paid the said sum of Rs. 5,000/- in favour of plaintiff No. 1, was answered

in the negative. Despite the said finding, in view of the said purported family

settlement dated 30.3.1973, the learned Trial Judge decreed the suit. On an

appeal having been preferred by the said decree by the respondent herein,

the High Court by reason of the impugned judgment reversed the same intera/~a holding:- F

(i) The said deed offamily settlement dated 30.3.1973 not being registered,

was inadmissible in law.

(2) The family settlement could not have been acted upon as all the

parties are not signatories thereto. G

It was opined:-

...,-

"11. The view of the court below that there was a partition and the

-plaintiff is governed by the same and severance of status cannot be

accepted at all. Even if there be severance of status, there is no H 

946 SUPREME COURT REPORTS [2007} 4 S.C.R.

A partition in the eye of law. Therefore, a preliminary decree has to be

passed declaring that the plaintiff is entitled to one fourth share.

12. It is open to the plaintiff to move to (sic) final decree for division

and separate possession. It is open to the 1st Defendant-Respondent

to put forward all his claim regarding his spending' moneys on the

B family in the minutes of the enquiry to be conducted by the enquiry

authority who shall consider all his objections."

6. Mr. S.N. Bhat, learned counsel appearing on behalf of the appellant

in support of the appeal submitted that the High Court committed a manifest

error in arriving at the aforementioned finding inasmuch as a deed of family

C settlement is not required to be compulsorily registered under Section I 7 of

the Registration Act.

D

7. Learned counsel contended that the said deed of family settlement

has wrongly been held to be ineffective only because all parties did not sign

thereto.

8. The learned counsel appearing on behalf of the respondent, on the

other hand, supported the impugned judgment. ·

9. The execution of the said document is not, in question. It is furthermore

E not in dispute that all the co-shareholders are not parties thereto. Any coowner can cause a severance in the status of joint family by expressing his

unequivocal intention to separate. Such intention can be expressed even by

filing a suit for partition. But, despite such separation in the joint status,

parties may continue to possess the lands jointly unless a partition of the

joint family property takes place by metes and bounds.

F

10. For the purpose of this case, we will proceed on the assumption that

the said deed of family settlement was not required to be compulsorily

registered>in terms of Section I 7 of the Registration. Act as by reason thereof,

the relinquishment of the property was to take effect in future. But there

cannot be any doubt whatsoever that before the Court rejects a claim of

G partition of joint family property, at the instance of all the co-owners, it must

H

. be established that there had been a partition by metes and bounds. By

reason of the family settlement, a complete partition of the joint family property _ . ·

by metes and bounds purported to have taken place. One of the co-sharer,

however, did not join in the said purported family settlement.

11. The contract between the parties, moreover was a contingent contract.

-

....

M. VENKATARAMANA HEBBAR (D) BY L.RS. v. M. RAIAGOPAL HEBBAR [S.B. SINHA. J.) 94 7

It was to have its effect only on payment of the said sum of Rs. 15,000/- by~ A

the plaintiff and other respondents by the defendant Nos. I to 3. It has been

noticed hereinbefore by us that as of fact, it was found that no such payment

had been made. Even there had been no denial of the assertions made by the 1

appellant in their written statement in that behalf. The said averments would,

therefore, be deemed to be admitted. Order VIII Rule 3 and Order VIII Rule, · B

5 of the Civil Procedure Code read thus:-

"3. Denial to be specific.-It shall not be sufficient for a defendant in.

his written statement to deny generally the grounds alleged by the

plaintiff, but the defendant must deal specifically with each allegation .

of fact of which he does not admit the truth, except damages. C

5. Specific denial.-[(l)] Every allegation of fact in the plaint, if not,

denied specifically or by necessary implication, or stated to be not ·

admitted in the pleading of the defendant, shall be taken to be admitted

except as against person under disability.

Provided that the Court may in its discretion require any fact so D

admitted to be proved otherwise than by such admission.

[(2) Where the defendant has not filed a pleading, it shall be lawful

for the Court to pronounce judgment on the basis of the facts '

contained in the plaint, except as against a person under a disability,

but the Court may, in its discretion, require any such fact to be 1

E

proved.

(3) In exercising its discretion under the proviso to sub-rule (I) or 1

under sub-rule (2), the Court shall have due regard to the fact whether

the defendant could have, or has, engaged a pleader.

( 4) Whenever a judgment is pronounced under this rule, a decree shall

be drawn up in accordance with such judgment and such decree shall

bear the date on which the judgment was pronounced.]"

12. Thus, if a plea which was relevant for the purpose of maintaining

a suit had not been specifically traversed, the Court was entitled to draw an 1

G

inference that the same had been admitted. A fact admitted in terms of Section

_ 58 of the Evidence Act need not be proved .

13. Even otherwise, the Court had framed an issue and arrived at a

positive finding that the appellant herein did not pay the said sum of H 

948 SUPREME COURT REPORTS [2007) 4 S.C.R.

A Rs. 15,000/- in favour of the plaintiff Nos. l to 3. The High Court has also

affinned the said finding.

14. The High Court, therefore, cannot be said to have committed any

error whatsoever in arriving at the finding that by reason of the said purported

deed of family settlement, the co-owners had not partitioned the joint family

B property by meets and bounds. The plaintiffs/respondents were thus, yet to

relinquish their rights in the joint family properties by receiving the said

amount of Rs. 15,000/-. Deed of family settlement had not been given its full

effect to.

15. We agree with the High Court that even on that count, the plaintiffs

C suit should have been decreed. We, therefore, do not find any merit in this

appeal which is dismissed accordingly. However, in the facts and circumstances

of the case, the parties shall bear their own costs.

B.B.B. · Appeal dismissed. 

-;

,,..

SECRETARY,AKOLATALUKAEDUCATIONSOCIETY ANDANR A

v.

SHIV An AND ORS.

APRIL 5, 2007

{S. B. SINHA AND MARKANDEY KA TJU, JJ.] B

Maharashtra employees of Private Schools (Conditions of Service)

Rules, 1981-Rule 26(2)(ii)-Termination without notice-Employees not

given three months notice-Order of termination bad in /aw-Labour law- C

Maharashtra Employees of Private Schools (Conditions of Service) Regulation

Act, 1977.

Labour laws-Back wages-Termination of employees-Tribunal found

order of termination malafide and allowed full back wages-Challenge

against-Held: Tribunal ought not to have granted full back wages-Tribunal 'D

failed to take into account the financial condition of employer-Jn peculiar

facts and circumstances, interest of justice would be met if grant of back

wages is confined to 25% from date of termination till their reinstatement.

Appeal-Fresh plea-Plea that institute in question was not recognized E one and Tribunal did not have jurisdiction to entertain the case, raised for

the first time before this Court-Held, not entertainable.

Appellant No. 1 has been imparting vocational training to the students

admitted in their training institute, in different disciplines like Draftsman

Civil, Electrician, Wireman, Welder and Fitter etc. The strength of the F

students in the aforementioned disciplines allegedly began to go down from

year to year. The services of respondents-Employees/teachers were terminated

on the plea that school had to be closed down. The respondents filed appeal

before the School Tribunal. The jurisdiction of the Tribunal to entertain the

said appeals was questioned on the ground that the institute in question was G

not a school within the meaning of the provisions of the Maharashtra

Employees of Private Schools (Conditions of Service) Regulation Act, 1977.

The Tribunal held that the institute was school within the meaning of the

provisions of the said Act and that the plea of the appellant that the institute

had to be closed down being incorrect, the orders of termination were ma/a

fide. Appellant unsuccessfully filed writ petition before High Court. Hence H

949 

950 SUPREME COURT REPORTS [2007) 4 S.C.R.

A the present appeal.

Appellant contended that the Institute is not covered by the definition of

the 'private school' within the meaning of the provisions of the said Act, as it

was not recognized by the authorities under. the said Act; the Tribunal merely

proceeded on the basis that the school, in fact, was not closed down, but having

B failed to take into consideration the charts filed before it, from which, it would

appear that the number of students had gone down in different disciplines;

and that the Tribunal wrongly allowed full back wages to the teachers without

taking into consideration the financial conditions of the appellant

C Partly allowing the appeal, the Court

D

HELD 1.1. The question as to whether the provisions of the said Act

were applicable in the case of Appellant school although raised a question of

jurisdiction, it was necessary for the appellant to plead the jurisdictional fact

in relation thereto. [Para 15) (956-G]

1.2. It is true that in the light of the interpretation clause contained in·

the Maharashtra Employees of Private Schools (Conditions of Service)

Regulation Act, 1977, a 'private school' was-required to be recognized by the

authorities specified therein. The Tribunal had found that it was recognized

E by the Ceritral Government. The State also in its counter affidavit contended

that it is recognized by the State. Appellant did not raise a contention before

the Tribunal that the institute in question was not recognized by the.

authorities specified under sub-section (21) of s~2 of the Act. The said

content.ion was required to be specifically raised so as to enable the

respondents to meet the same. As the jurisdictional fact required for

F determining the jurisdiction of the Tribunal had not been stated by the

appellant, such a contention cannot be allowed to be raised now for the first

time. {Para.16] {956-H; 957-A-B)

2.1. There cannot be any doubt whatsoever that ifthe 'institute' comes·

within the description of 'school' in terms of the provisions of the said Act, G . . before terminating the services of the respondents, it was obligatory on their

part to satisfy the conditions precedent therefor. [Para 17] [957-C]

2.2. Rule 26 of the Maharashtra employees of Private Schools

(Conditions of Service) Rules, 1981 provides that a permanent employee riiay

H be retrenched by the management after giving him three months' notice on

one or more ground specified therein. Stoppage of imparting coaching in

·-

SECRETARY, A KOLA TALUKA EDUCATION SOCIETY v. SHIVAJI 95 J

respect of some courses of studies was one of them. Admittedly, the A

respondents had not been given three months notice. The order of termination

was, therefore, bad in law. (Para 18) (957-D)

. 3.1. In view of the provisions contained in sub-clause (ii) of clause (2) ~f

Rule 26, it was not necessary to obtain prior approval of the Education Officer,

as a technical or a vocational school does not come within the purview thereof. B

· The contention raised by the appellants before the Tribunal that the institute

was required to be closed down was found to be factually incorrect and on that

ground the decision of the Tribunal to the effect that the termination of services

of the respondents were bad in law cannot be said to be suffering from any

error of law apparent on the face of the record. (Para 19) (957-F) C ·

3.2 It is now well-settled that back wages should not granted'

automatically. The Tribunal however, ought not to have granted full back

wages. Full back wages should not be granted only because it would be lawful ·

to do so. Before such an order is passed, a judicial or quasi-judicial authority' D

must consider all aspects of the matter. Appellant has produced facts to show·

decline in strength of the students in different disciplines. The same has not ·

been disputed. In some disciplines the strength of the students has considerably '

gone down. The school is an unaided one. It, therefore, must meet its financial

need from the fees realiud from the students. It was a relevant consideration. 1

The Tribunal failed to take the said fact into consideration. The financial· · E

condition of the school has not been denied or disputed. In the peculiar facts

and circumstances of this case, interest of justice shall be met if grant of

back wages is confined to 25% only from the date of termination of the

respondents till their reinstatement.

(Paras 21 and 23) (957-G-H; 958-B; G, H) F

U.P. State Brassware Corporation Ltd. and Anr. v. Uday Narain Pandey,

(2006) 1 SCC 479; A. P. SRTC and Anr. v. B. S. David Paul, (2006) 2 SCC

282; Banshi Dhar v. State of Rajasthan and Anr., (2006) 11SCAL~199 and

U.P. SRTC v. Mutthu Singh, (2006) 7 SCC 180, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1816of2007.

From the Final Judgment and Order dated 23.01.2006 of the High Court

of Judicature of Bombay, Bench at Aurangabad in Writ Petitions Nos. 1143

to 1149, 1269, 1270 and 1336 of2005.

H 

--+' \

952 SUPREME COURT REPORTS (2007) 4 S.C.R.

A Shekhar Naphade Sr. Adv., Uday B. Dube and Kuldip Singh for the -- Appellants. ,._

Vinayak Dixit Sr. Adv., Shivaji M. Jadhav, Himanshu Gupta, Brij Kishor

Sah, Rahul Joshi and S.S. Shinde (for V.N. Raghupathy) for the Respondents.

B The Judgment of the Court was delivered by . .

S.B. SINHA, J. I. Leave granted.

2: The State of Maharashtra enacted 'The Maharashtra Employees of

c

Private Schools (Conditions of Service) Regulation Act, 1977 (for short, 'the

Act') to regulate recruitment and conditions of service of employees in certain

private schools. It came into force with effect from 20.03.1978. 'Private School'

has been defined in Section 2(20) of the Act to mean :

"Private School", means a recognized school established or

D administered by a Management other than the Government or a local

authority."

3. The terms 'recognized' and 'school' have been defined in Section ,,_

2(21) and 2(24) respectively in the following terms :

E "2(21 ).- "Recognized" means recognized by the Director, the Divisional

Board or the State Board, or by any officer author~zed by him or by

any of such Boards;"

"2(24).- "School", means a primary school, secondary school, higher

secondary school, junior college of education or any other institution

F by whatever name called including technical, vocational or art

institution or part of any such school, college or institution, which

imparts general, technical, vocational, art or, as the case may be, ...

special education or training in any faculty or discipline or subject

below the degree level;"

G 4. Appellant No. I herein runs a training institute. It imparts vocational

training to the students admitted therein in different disciplines e.g. Draftsman

Civil, Electrician, Wireman, Welder and Fitter etc. The strength of the students

in the aforementioned disciplines allegedly began to go down from year to _;

-\ ,

H 

SECRETARY, AKOLA TALUKA EDUCATION SOCIETY v. SHIVAJI [S.B. SINHA, J .] 953

year. So much so, no student took admission in the courses of 'Draftsman A

Civil' or 'Welder'. The relevant portion of the chart showing details of

admissions in the aforementioned disciplines reads as under :

"Sr. Academic Draftsman Civil Electrician Wireman Welder Fitter

No. Year I

Sanctio. Actual Sanctio- Actual Sanctio Actual Sanctio Actual Sanctio-- Actual '

ned admi- ned addmi- ned admi .. ned admi .. ned ad mistrength ssion strength ssion strength ssion strength ssion strength ssion

14 August 16 08 16 18 16 18 16 18 24 29

1998 ...

15 August 16 09 16 18 16 09 16 18 2A 19

1999

16 August 16 07 16 17 16 07 16 12 24 14

2000

17 August 16 00 16 09 16 06 16 05 2A 11

2001

18 August 16 00 16 01 16 05 16 00 24 02

2002

5. Similarly, in the certificate courses of six months and one year also,

there had been a steady decline, as would appear from the following charts:

"Details of Admission for Certificate Courses of six months

Sr. Academic Electric Motor & Armetcher Electronic Assembly &

No. Year Winding Trouble shooting

Sanctioned Actual Sanctioned Actual

Strength Admission Strength Admission

1. Jan. 1999 20 13 25 10

2. Jul. 1999 20 16 25 05

3. Jan. 2000 20 05 25 06

4. Jul. 2000 20 15 25 07

5. Jan. 2001 20 08 25 -

6. Jul. 2001 20 06 25 -

7. Jan. 2002 20 - 25 -

8. Jul. 2002 20 - 25 -

B

c

I

D

E

F

G

H 

954 SUPREME COURT REPORTS [2007) 4 S.C.R.

A Details of Admission for Certificate Courses of one year

Sr. Academic Tailoring & Cutting Lathe Machine Computer Operation

No. Year Operator (Part-time)

Sanctioned Actual Sanctioned Actual Sanctioned Actual

.. Strength Admission Strength Admission Strength Admission

B l. Jul. 1998 40 34 25 17 20

2. Jul. 1999 40 24 25 09 20 - 3. Jul. 2000 40 26 25 05 20 -.-

4. Jul. 2001 40 32 25 06 20 -

c 5. Jul.-2002 40 - 25 - 20

6. Respondent No. I herein was appointed on a temporary basis. The

services of the private respondents were purported to have been temporanly

terminated as allegedly a decision had been taken to close down the institute

.with effect from 12.08.2002, contending that the said purported orders of

D termination were violative of the Act and the Rules framed thereunder.

7. Appeats·thereagainst were filed by the aggrieved employees/teachers

before the School Tribunal, Pllne Region. The jurisdiction of the tribunal to

entertain the said appeals was questioned on the ground that the institute in

question was not a school within the meaning of the provisions of the said

E Act. The Tribunal, however, in its judgment held : (i) As the appellan:t was

duly recognized by the Central Government permanently without grant-in-aid,

it was a school within the meaning of the provisions of the said Act; (ii) Inter

a/ia, on ·the premise that the services of all the staff and teachers were not

terminated, the plea of the appellant that the institute had to be closed down

F .being incorrect, the orders of termination were ma/a fide;

8. The Tribunal furthermore took note of the fact that during pendency

of the said appeals, some new teachers had been appointed.

9. The writ petition preferred by the appellant thereagainst has been

G dismissed by reason of the impugned judgment.

IO. Mr. Shekhar Naphade, the learned Senior Counsel appearing on

behalf of the appellants, would urge :

(i) The institute is not covered by the definition of the 'private school'

within the meaning of the provisions of the said Act, as it was not recognized

H by the authorities under the said Act.

,..

-

+

SECRETARY, A KOLA TALUKA EDUCATION SOCIETY v. SHIVAJI [S.B. SINHA, J.] 955

(iI) The Tribunal in its judgment merely proceeded on the basis that the A .. school, in fact, was not closed down, but having failed to take into

consideration the charts filed before it; from which, it would appear that the

number of students had gone down in different disciplines, and thus, the

impugned judgment cannot be sustained.

(iii) The Tribunal wrongly allowed full back wages to the teachers B

without taking into consideration the financial condition of the appellant.

11. Our attention, in this behalf, has also been drawn to the following

statements made in the Rejoinder to the Counter Affidavit of Respondent

Nos. 1 to 3 before this Court:

"I say that the details of the number of students currently studying C

in the Institute and the fees collected from them are as follows :

Students studying in 2nd 47 x Rs.6,000 (Fees collected Rs.2,82,000/-

year of ITI from every student)

Students studying in lst 72 x Rs.8,000/- (Fees Rs. 5, 76,000/-

year of ITI collected from every

student)

Students studying in 7 x 2,000 (Fees collected Rs.14,000/-

certificate course from every student)

Total Rs.8, 72,000/-

I say that the details regarding the expenses incurred by the

Petitioner on the salary and other miscellaneous expenses are as

follows:

1. Towards salary of Rs. 65,200/- per month x Rs.7,80,400/-

staff at current rate 12 months per annum

of consolidated pay

2 Expenses for raw Rs.2,400 x 126 (No. of Rs.3,02,400/-

material per student students)

per year Rs. 2400

3. Misc. Expenses Rs.2,00,000/-

(Telephone bill,

electricity bill,

stationery, travel

expenses, repairs, etc.

Total Rs.l 2.82.800/-

D

E

F

G

H 

956

A

B

SUPREME COURT REPORTS [2007] 4 S.C.R.

Considering the above mentioned two tables, it becomes clear

that the Petitioner is facing a deficit of Rs.4,10,800/- in the current

academic year .. The Petitioner if is directed to pay 100% back wages

to the Respondents employees, it would create a burden of more than

Rs. 40 lacs. The Petitioner is not in a position to pay back wages and

the said direction would affect the poor students, who are studying

in the Institute and the efforts of the Management to re-establish the

Institute would be thwarted. It is respectfully submitted that the

institute is being run by reducing the tuition fees so as to attract the

higher number of students. As stated earlier the fees charged from the

students have dwindled from Rs.20,000/- per annum in the year 1998

C to Rs.6,000/- to 8,000/- at present."

12. It was furthermore submitted that the institute having been set up

in a tribal area, it is unlikely that many students would take admission in the

said institute in future.

D 13. Mr. Vinayak Dixit, the learned Senior Counsel appearing on behalf

of the respondents; on the other hand, supported the impugned judgment

contending that the plea taken by the appellant that the school was required

to be closed down was an act of ma/a fide on the part of the appellants. The

learned counsel would contend that in terms of Rule 26 of the Maharashtra

E Employees of Private Schools (Conditions of Service) Rules, 1981, as the

appellant was bound to give three months' notice and was furthermore required

to obtain prior approval of the competent authority specified therein; and as

the mandatory conditions for retrenching th~ services of the respondents had

not been complied with, the orders of termination were void ab initio.

F 14. It was submitted that the appellant had not paid any salary to the

teachers for the last 23 months, although they had been reinstated in terms

of this Court's order dated 19.08.2006. It was also submitted that even after

their reinstatement, they are being paid salary only on a consolidated basis.

G 15. The question as to whether the provisions of the said Act were

H

applicable in the case of Appellant school although raised a question of

jurisdiction, in our opinion, it was necessary for the appellant to plead the

jurisdictional fact in relation thereto.

16. It is true that in the light of the interpretation clause contained in 

SECRETARY. AKO LA TALUKA EDUCATION SOCIETY~- SHIV All [S.B. SINHA. l.] 957

the said Act, a 'private school' was required to be recognized by the authorities A

specified therein. The Tribunal had found that it was recognized by the

Central Government. The State also in its counter affidavit contended that it

is recognized by the State. Appellant herein did not raise a contention before

the Tribunal that the i~stitute in question was not recognized by the authorities

specified under sub-section (21) of Section 2 of the Act. The said contention B

was required to be specifically raised so as to enable the respondents herein

to meet the same. As the jurisdictional fact required for determining the

jurisdiction of the Tribunal had not been stated by the appellants, we are of

the opinion that such a contention cannot be allowed to be raised before us

for the first time.

17. There cannot be any doubt whatsoever that ifthe 'institute' comes

c

within the description of 'school' in terms of the provisions of the said Act,

before terminating the services of the respondents, it was obligatory on their

part to satisfy the conditions p_recedent therefor,

18. R~le 26 of the Rules provides that a permanent employee may be D

_retrenched by the management after giving him three months' notice on one

~ or more grounds specified therein. Stoppage of impart1. coaching in respect

of some courses of studies was one of them. Admitted I , the respondents had

not been given three months' notice. The order of termination was, therefore,

bad in law.

E

19. We may, however, state that in view oftheprovisions contained in

sub-clause (ii) of clause (2) of Rule 26, it was not necessary to obtain prior

approval of the Education Officer, as a technical or a vocational school does

• not come within the purview thereof. There cannot furthermore be any doubt

whatsoever that the contention raised by the appellants before the Tribunal F

that the institute was required to be closed down was found to be factually

-; incorrect and on that ground the decision of the Tribunal to the effect that

the termination of services of the respondents were bad in law cannot be said

to be suffering from any e.rror of law apparent on the face of the records.

20. The Tribunal, however, in our opinion ought not to have granted full G

back wages. Full back wages, as is well-known, should not be directed to be

granted only because it would be lawful to do so. Before such an order is

passed, a judicial or a quasi-judicial authority" must consider all aspects of the 

matter. Appellant herein has produced facts tci show decline in strength of

the students· in different disciplines. The same has not been disputed. We

-- H

/~ 

958 SUPREME COURT REPORTS (2007) 4 S.C.R.

A have noticed hereinbefore that in some disciplines the strength of the students

has considerably gone down. The school is an unaided one. It, therefore,

must meet its financial need from the fees realized from the students. It was

a relevant consideration. The Tribunal, in our opinion, failed to take the said

fact into consideration. The financial condition of the school, as noticed

B supra, has also not been. denied or disputed.

c

D

E

F

G

H

21. It is now well-settled by a larg~ number of decisions of this Court

that back wages should not granted automatically. Jn U.P. State Brassware

Corporation Ltd. and Anr. v. Uday Narain Pandey, [2006] I SCC 479, this

Court observed :

"22. No precise formula can be laid down as to under what

circumstances payment of entire back wages should be allowed.

Indisputably, it depends upon the facts and circumstances of each

case. It ·would, however, not be correct to contend that it is automatic.

It should not be granted mechanically only because on. technical

grounds or otherwise an order of termination is found to be in

contravention of the provisions of Section 6-N of the U.P. Industrial

Disputes Act."

[See also Banshi Dhar v. State of Rajasthan & Anr., (2006) 11 SCALE

199 Para 11]

22. Jn U.P. SRTCv. MutthuSingh, [2006] 7 SCC 180], this Court opined:

" ... But we are fully satisfied that in the facts and circumstances of the

case, back wages should not have been awarded to the respondentworkman. In several cases, this Court has held t.iat payment of back

wages is a discretionary power which has to be exercised by a court/

tribunal keeping in view the facts in their entirety and neither straight

jacket formula can be evolved nor a rule of universal application can

be laid down in such cases."

[See also A.P. SRTC ar.d Anr. v. E.S. David Paul - [2006] 2 SCC 282]

23. We, therefore, are of the opinion that in the peculiar facts and

circumstances of this case, interest of ju•tice shall be met if grant of back

wages is confined to 25% only from the date of termination of the respondents·

till their reinstatement. It is, however, made clear that the respondents shall

be entitled to recei-:e entire salary for the period they had wo!1<ed prior to their 

-

...

SECRETARY, AKOLA TALUKA EDUCATION SOCIETY v. SHIVAJI [S.B. SINHA, J ] 959

termination as also post reinstatement.

24. The appeal is allowed to the aforementioned extent with the

aforementioned directions. However, in the facts and circumstances of the

case, there shall be no order as to costs.

A

D.G. Appeal partly allowed. B 

Code of Civil Procedure, 1908 - ss. 2(2) and 97 - Partition suit =.. ·Inclusion of property in, after passing of preliminary decree - Permissibility - Held: Ordinarily a suit . for partial partition may not be entertained - But to do complete justice, subsequent events after passing of preliminary decree can be taken into account - On facts, since the addition of property was sought prior to passing of the decree in Written Statement, failure to pass decree in respect of that property was a mistake of the court .... s. 97 is not a bar to amend a decree to rectify the mistake of the court. Words and Phrases - Decree - Meaning of. Predecessor of respondent filed a suit for _partition, claiming share in the propertx. Appellants-defendants in their Written Statement contended that the plaintiff had only 1/3rd share in the suit property. They also mentioned, about. partition .of cycle business. In an application seeking amendment of Written Statement .also they mentioned about the partition of business of cycle. However, issues were not framed on this point. Trial Court passed a decree d·eclaring 1/3td share in favour of plaintiff. Appellants thereafter filed application under Order 20 Rule 18 rlw s.152 CPC with regard to share of· the parties in the business of cycle. Application was allowed. High Cou-rt set aside the order holding that in terms of s.97 · CPC.1 after the. preliminary ·decree attained finality, additional properties cannot be added for partition

A

B

[2008] 16 S.C.R. 904

S. SATNAM SINGH & ORS.

II.

SURENDER KAUR & ANR.

(Civil Appeal No. 7008 of 2008)

·DECEMBER 02, 2008

[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

.Code of Ciltil Procedure, 1908 - ss. 2(2) and 97 -

Partition suit =.. ·Inclusion of property in, after passing of

C preliminary decree - Permissibility - Held: Ordinarily a suit

. for partial partition may not be entertained - But to do

complete justice, subsequent events after passing of

preliminary decree can be taken into account - On facts,

since the addition of property was sought prior to passing of

D the decree in Written Statement, failure to pass decree in

respect of that property was a mistake of the court .... s. 97 is

not a bar to amend a decree to rectify the mistake of the court.

Words and Phrases - Decree - Meaning of.

E Predecessor of respondent filed a suit for _partition,

claiming % share in the propertx. Appellants-defendants

in their Written Statement contended that the plaintiff had

only 1/3rd share in the suit property. They also mentioned,

about. partition .of cycle business. In an application

F seeking amendment of Written Statement .also they

mentioned about the partition of business of cycle.

However, issues were not framed on this point. Trial Court

passed a decree d·eclaring 1/3td share in favour 9f

plaintiff. Appellants thereafter filed application under

G Order 20 Rule 18 rlw s.152 CPC with regard to share of·

the parties in the business of cycle. Application was

allowed. High Cou-rt set aside the order holding that in

terms of s.97 · CPC.1 after the. preliminary ·decree attained

finality, additional properties cannot be added for partition

H . 904 

- S. SATNAM SINGH & ORS. v. SURENDER KAUR & 905

ANR.

in the preliminary decree. A

Allowing .. the. appeal, the Court

HELD: 1.1. A 'decree' as defined in Section 2(2) CPC

means the formal expression of an adjudication which,

so far as regards, the Court expressing it, conclusively B

determines the rights of the parties with regard to all or.

any of the matters in controversy in the suit. It may either

be preliminary or final. It may partly be preliminary and

partly be final. The court with a view to determine whether'

an order passed by it is a decree or not must take into , C

consideration the pleadings of the parties and the

proceedings leading upto the passing of an order. The .

·circumstances under which an order had been made

would also be relevant. [Para 14] [912-G-H; 913-A]

1.2. For determining the question as to whether an

·D

order passed by a court is a decree or not, it must satisfy

the tests viz.(i) ·there must be an adjudication; (ii) such

adjudication must have been given in a suit; (iii) it must

have determined the rights of the parties with regard to E

all or any ·of the matters in controversy in the suit; (iv)

such determination must be of a conclusive nature; and

(v) there must be a formal expression of such

adjudi~atic:>n. [Para 15] (913-8-0]

1.3: Ordinarily, a suit for partial partition may not be F

entertained. When the parties have brought on records

by way of pleadings and/or other material that apart from

the property mentioned by the plaintiff in his plaint, there

are other properties which could be a subject matter of

a partition, the court would be entitled to pass a decree G

even in relation thereto. In certain situations, for the

purpose of complete adjudication of the disputes

between the parties, an appellate Court may also take into

consideration subsequent events after passing of the

. preliminary decree. [Paras 16 and 17] [913-E-H] H 

906 SUPREME COURT REPORTS [2008] 16 S.C.R.

A 1.4. Section 97 CPC provides for an appeal against

preliminary decree but the said provision, would not .be 'j...

a bar to file an application for amendment of a decree.

[Para 20] (916-D]

8 1.5. The court may ·not have a suo motu power to

amend a decree but the ·same would not mean that the

court cannot rectify a mistake. If a property was subject

matter of p

0

leadings and the court did not frame an issue

which it ought to have done, it can, at a later stage, when

pointed out, amend the decree. The power of

C amendment, in a case of this nature, would not only be

dependent upon the power of the court but also the

principle that a_ court shall always be ready and willing

to rectify .the mistake it has committed. [Paras 21 and 22]

D

[916-H; 917-A-B] . -

1.6. In the instant case, the issues were not correctly

framed. An additional written statement was permitted to

be filed. A replication thereto also was allowed. It was in

that situation, the question as to whether the -business

E transaction could be a subject matter of the suit for

partition or not was required to be determined on its own

merits. [Para 23] [917-C] ·

1.7. The Trial Court felt that it had committed a

mistake. In such a situation, the court, committed no

F infirmity in directing rectification of its mistake. [Para 24]

[917-D]

Phoolchand andAnr: v. Gopal Lal 1967 (3) SCR 153; Ct.

A. Ct. Nachiappa Chettiar and Ors. v. Ct. A. Ct. Subramaniam

G Chettiar {1960) 2 SCR 209 and Moo/, Chand & Ors .. v. Dy.

Director, Consolidation and Ors. AIR 1995 SC 2493, _Relied

on.

Syed /kramuddin v. Syed Mahamed Ali'AIR 1986 AP 267

and Venkata Reddy and Ors. v. Pethi Reddy AIR 1963 SC

H 992, Referred to 

S. SATNAM SINGH & ORS. v. SURENDER KAUR & 907

ANR.

~ Case Law Reference: A

AIR 1986 AP 267 Referred to Para 12

(1960) 2 SCR 209 Relied on Para 17

(1967) 3 SCR 153 Referred to Para 18 B

.., AIR 1995 SC 2493 Relied on Para 18

I,

AIR 1963 SC 992 Referred to Para 19

CIVIL APPELLATE JURISDICTION : Civil Appeal No.

7008 of 2008. c

From the Judgment and final Order dated 15.6.2007 of the

High Court of Judicature Andhra Pradesh at Hyderabad, in Civil

Revisipn Petition No. 2178 of 2006.

D I

P.S. Narsimha, Somiran Sharma and Aribam Guneshwar

·t Sharma for the Appellants.

i G.V.R. Choudhary and K. Shivraj Choudhury for the

Respondents.

E

The Judgment of the Court was delivered by

S.B. SINHA, J.1. Leave granted.

2. Whether a property can be added in the list of

properties after a preliminary decree is passed in a partition F t~ suit is the question involved herein.·

3. The parties hereto are successors of one late Surender

Singh and one late Harikishan Singh. They were brothers. First

respondent is the widow of late Harikishan Singh and the G

second- respondent is his son. The property which was the

subject matter of the partition suit was a house premises

bearing Municipal No.2-4-1099 situated at Nimbali Adds,

Hyderabad admeasuring 671 sq. yards.

4. The suit was filed by late Harikishan Singh against the H 

908 SUPREME COURT REPORTS (2008] 16 S.C.R~ -

A first petitioner and his son Rajinder Singh. In the written ~ ..._

statement, the said fact was admitted. The question which.

arose for consideration of the court, however, was as regards

the share of the parties therein. Whereas according to the

petitione~, the plaintiff had only 1/3rd share in the suit property,

B according to the plaintiff he had 1/2nd share therein.

5. In the written statement, it was, inter alia, contended : --y

"There has never been any such attempt by the plaintiff for

partition of the property as alleged in the plaint. In fact, the

c plaintiff has failed to render true and proper account of the

business of M/s. Bombay Cycle Company though he was

specifically called upon to do so by the defendant - 2,

individually as well through his counsel. The plaintiff has

also never co-operated in managing the matters

D immediately after the death of Late Sunder Singh, the

father· of the plaintiff and defendant - 1. Having knocked

away some of t the securities and other amounts which

were in the hands of the plaintiff after death of late Sunder r

Singh singularly the plaintiff has chosen to file the present

E suit for partition claiming 50% share in the residential

house, which is mentioned as suit schedule property."

6. An application for amendment of the said written

statement was,.filed, inter alia, stating :

F "It is true that Sri Sunder Singh died on 26.4.1980 intestate

leaving behind his widow, the plaintiff and the defendant -

1 herein. It is also true that wido'tlf of late Sri Sunder Singh,

i.e., Smt. Karam Kaur also died on 14.9.1992. Howev~r.

the allegation that she died intestate is incorrect and false.

G The plaintiff is very well aware that Smt. Karam Kaur

executed a registered will on 1.9.1981 before the Sub- /f.. ..

registrar, Chikkadpally bequeathing her 1/3rd share in the

suit schedule property as well as her 50% rights as a

partner in the business of Mis. Bombay Cycle Company

H to the defendant No.2, herein. In the circumstances the 

S. SATNAM SINGH & ORS. v. SURENDER KAUR & 909

ANR. [S.S. SINHA, J.]

..(' contrary allegations made in the plaint in this respect are A

denied as false and fabricated. It would, thus, be apparent

that by any stretch of imagination the plaintiff cannot deny

50% rights in respect of the suit schedule property as after

the death of Sunder Singh, widow of Sri Sunder Singh,

Karam Kaur, plaintiff I and the defendant 1 herein had B

become entitled to 1/3rd share each. Smt. Karam Kaur

'r having executed a registered will on 1.9.81, her 1/3rd share \

naturally goes to the defendant 2, herein. In the

circumstances the plaintiff would not be entitled to anything

more than 33.33% of the suit Schedule property if at all." c ----..

It was furthermore alleged :

"There has never been any such attempt by the plaintiff for

partition of the property as alleged in the plaint. In fact, the

plaintiff has failed to render true and proper account of the D

4 business of M/s. Bombay Cycle Company though he was

t spedfically called upon to do so by the defendant - 2, ~ individually as well as through his counsel. The plaintiff has

also never co-operated in managing the matters

immediately after the death of Late Sunder Singh, the E

father of the plaintiff and defendant - 1. Having knocked

away some of the securities and other amounts which

were in the hands of the plaintiff after death of late Sunder

. Singh singularly the plaintiff has chosen to file the present

~'

suit for partition claiming 50% share in the residential F

house, which is mentioned as suit schedule property. It

would thus be apparent that there is absolutely no merits

in the suit and the plaintiff would not be entitled for the

share as claimed. The suit, therefore being absolutely

devoid of merits deserves to be dismissed with costs." G

.~ A replication to the said written statement was also filed.

-

7. The learned Trial Judge framed issues which read as Iii

under:

H 

910 SUPREME COURT REPORTS [2008) 16 S.C.R.

A "i. · Whether plaintiff is entitled for partition? If so, to ~

what share? ~

ii. To what relief?

B

On 21.1.02, basing on the pleadings of defendant

No.3, the following additional issues were settled:-

iii. Whether defendant No.3 is the legal heir of -1

defendant No.2?

f

c iv. Whether the Will deed claimed by defendant No.3

is true, valid and binding on the plaintiff?"

8. The suit was decreed declaring 1/3rd share in favour

of the plaintiff as also the first defendant, stating:

D II i. The plaintiff is entitled to partition and separate

possession of 1/3rd share only in the suit schedule

property. -rii. The first defendant is entitled to 1 /3rd share in the

to

E

suit schedule property.

iii. Defendant No.3 being the legal heir of defendant

No.2, who is not heard of since more than 7 years

and thereby presumed to be dead in the eye of law.

Defendant No.3 is entitled to his (D2) 1/3rd share

F in the suit schedule property."

-f

9. An interlocutory application was filed by the appellant

th~reafter purported to be in terms of Order XX Rule 18 of the

Code of Civil Procedure read with Section 152 of the Code of

G Civil Procedure with regard to the ~hare of the partie~ in the

said Bombay Cycle Company. The respondents o jected

thereto. By reason of an order dated 14th March, 2006, the said /\_

application was allowed, directing :

"Admittedly the petitioners have raised a plea in respect

H of Bombay Cycle Company in their written statement but

,,,_

S. SATNAM SINGH & ORS. v. SURENDER KAUR & 911

ANR. [S.S. SINHA, J.]

-t. there was no specific issue framed in the regard. The A

learned counsel appearing for the petitioners submit that

in order to shorten the litigation instead of driving the

parti_es to a separate action, the present dispute can be

decided in the present dispute itself. The petitioners in

support of their contention relied on the decision of our B

Hon'ble High Court in Syed lkramuddin v. Syed Mahamed

~- Ali reported in AIR 1986 AP 267. Further there is a dispute ..,

with regard to the Bombay Cycle Co. business. Whether

it is a joint family business and whether the petitioners are

having any share in the property cannot be decided without c

making any enquiry in that direction.

Therefore, I feel that the parties should be directed

to adduce oral or documentary evidence in respect of their

respective contentions so as to enable this Court to decide

D the point of controversy. It is also not out of place of mention

here that the Hon'ble High Court also directed to dispose

f of the matter at the earliest possible time.

+

Accordingly the parties are directed to lead oral and

documentary evidence in support of their contentions. The E

respondent No.4 herein is not a party to the suit. No relief

is passed against the respondent No.4 herein is not a

party to the suit. No relief is passed against the respondent

No.4 in this petition. Call on 16.3.2006."

10. A civil revi~ion application filed thereagainst by the F

t-· respondents has been allowed by reason of the impugned

judgment. The High Court referred to the decision of this Court . \

m Phoolchand v. Gopal Lal [AIR 1967 SC 1470] to conclude:

"The Supreme Court was dealing with a case where the G

A,_

shares had to be reallocated on account of death of party

and therefore the Court said such facts can be taken into

consideration and appropriate orders could be passed

which could be a fresh preliminary decree. But here we

have a case where it is contended by the defendants that H 

912 SUPREME COURT. REPORTS [2008] 16 S.C.R.

'~

they had mentioned in their.written statement the property ;·

A

which they now sought to include in the preliminary decree. \-

Whole trial went on decree was passed in 2003, and this

. part!cular property was not mentioned in the decme as

joint family property and after three years an application

B . came fo be filed that it should be added in the· decree

which, ·in our view, is not permissibl'e. Therefore, we hold --(- .that the judgment of this Court in Syed lkramuddiri v: Syed f

Mahamed Ali does not lay down a good law and the

question is answered that additional properties cann_ot be

c added for partition in the preliminary decree after the

preliminary decree attained finality in terms of Se_ction 97

· of the Code .. " .. . '

11-. Mr. P.S. Narasimha, learned counsel appearing on

D

behalf of the appellant, would submit that ,as in this case the

only dispute between the parties was with regard· to the s,hare

in the suit property and, thus, it was obligatory on the part of ~

the court to pronounce its decision on all the issues. ~

. 12. It was urged. that a very well .considered decision of

E the.Andhra Pradesh High Court in Syed lkramuddin. it .. Syed

Mahamed Ali [AIR 1986 AP 267] has wrongly been overr~led

by reason of the impugned judgment.

13. Mr. G.V.R. Choudhary, learned counsel appearing on

F

behalf of the respondent, on the other hand, would support the

judgment contending that the courts even do not have any suo ·+ ' . motu power to amend the decree as a preliminary decree once

passed is final.

14. A.'decree' is denned in Section 2(2) of the Code of

G · Cfvil Procedure to. mean the. formal expr~ssion of an

adjudication which, so far as regards, the Court expressing it,

conclusiveiy determines the rights of the parties with regard to

all or any of the matters in controversy in the suit. It may either

be preliminary or final. It may partly be preliminary ~nd partly

H be final. The court with a view to determine whether an order

'

J=I 

S. SATNAM SINGH & ORS. v. SURENDER KAUR & 913

ANR. [S.S. SINHA, J.]

passed by it is a decree or not must take into consideration A

the pleadings of the parties and the proceedings leading upto

the passing of an order. The circumstances under which an

order had been made would also be relevant.

15. For determining the question as to whether an order B

passed by a court is a decree or not, it must satisfy the

\.- following tests : ~

"(i) There must be an adjudication;

(ii) Sucti adjudication must have been given in a suit;. c

(iii) It must have determined the rights of the parties

with regard to all or any of the matters in controversy

in the suit;

(iv) Such determination must be of a conclusive nature; D

and

1

~ (v) There must be a formal expression of such

adjudication."

16. Before adverting to the nval contentions of the parties, E

it must be kept in mind the principle that ordinarily a party should

not be prejudiced by an act of court. It must also furthermore

be borne in mind that in a partition suit where both the parties

want partition, a defendant may also be held to b~ a plaintiff.

Ordinarily, a suit F for partial partition may not be entertained.

When the parties have brought on records by way of pleadings

and/or other material that apart from the property mentioned by

the plaintiff in his plaint, there are other properties which could

b~ a subject matter of a partition, the court would be entitled to

pass a decree even in relation thereto. G

17. In certain situations, for the purpose of complete

adjudication of the disputes between the parties an appellate

Court may also take into cq~sideration subsequent events after

passing of the preliminary decree. H 

914 SUPREME COURT REPORTS [2008] 16 S.C.R.

A In Ct. A. Ct. Nachiappa Chettiar & Ors. V. Ct. A. Ct. '\.

Subramaniam Chettiar[(1960) 2 SCR 209], it was held :

"It would thus be seen that the r~spondent's share in the

family properties was not in dispute nor was his share in

B the prbperties in Burma seriously challenged. The only plea

raised in respect of the latter claim was that the court had

no jurisdiction to deal with it. This state of the pleadings in --+

a sense truly reflected the nature of the dispute between {

the parties. It is common ground that the family is a trading

c family and there could be no doubt that the assets of the

family were partible between the members of the family. It

was on these pleadings that the trial judge framed fifteen

issues and set down the case for hearing."

18. While dealing with the application under Section 21 of

D the Arbitration Act, 1940 where one of the questions was as

to whether an immoveable property situated in Burma could be

a subject matter of reference, in Phoo/chand & Anr. v. Gopal )--

Lal [(1967) 3 SCR 153], it was held : ~

E "7. We are of opinion that there is nothing in the Code of

Civil Procedure which prohibits the passing of more than

one preliminary decree if circumstances justify the same

and that it may be necessary to do so particularly in partition

suits when after the' preliminary decree some parties die

F .. and shares of other parties are thereby augmented. We

have already said that it is not disputed that in partition ~-

suits the court can do so even after the preliminary decree

is passed. It would in our opinion be convenient to the court

and advantageous to the parties, specially in partition suits,

G

to have disputed rights finally settled and specification of

shares in the preliminary decree varied before a final

decree is prepared. If this is done, there is a clear .

determination of the rights of parties to the suit on the

question in dispute and we see no difficulty in holding that

in such cases there is a decree deciding these disputed

H 

S. SATNAM SINGH & ORS. v. SURENDER l"-AUR & 915

ANR. [S.S. SINHA, J.]

rights; if so, there is no reason why a second preliminary A

r decree correcting the shares in a partition suit cannot be

passed by the court. So far therefore as partition suits are

concerned we have no doubt that if an event transpires

after the preliminary decree which necessitates a change

in shares, the court can and should do so; and if there is a

a dispute in that behalf, the order of the court deciding that

dispute and making variation in shares specified in the

-\.- preliminary decree already passed is a decree in itself ., which would be liable to appeal. We should however like

to point out that what we are saying must be confined to c

partition suits, for we are not concerned in the present

appeal with other kinds of suits in which also preliminary

and final decrees are passed. There is no prohibition in

the Code of Civil Procedure against passing a second

preliminary decree in such circumstances and we do not D

see why we should rule out a second preliminary decree

in such circumstances only on the ground thatthe Code

1 of Civil Procedure does not contemplate such a

~ possibility."

The said principle was reiterated in Moo/ Chand & Ors. E

v. Dy. Director, Consolidation & Ors. [AIR 1995 SC 2493),

stating :

"The definition of 'decree' contained in Section 2(2) read

with the provisions contained in Order 20, Rule 18(2) as F

also Order 26, Rule 14 of the Code indicate that a

preliminary decree has first to be passed in a partition suit

and thereafter a final decree is passed for actual

separation of shares in accordance with the proceedings

held under Order 26. There are, thus, two stages in a suit G for partition. The first stage is reached when the preliminary

decree is passed under which the rights of the parties in

,., the property in question are determined and declared. The

second stage is the stage when a final decree is passed

which concludes the proceedings before the Court and the

H 

S. SATNAM SINGH & ORS. v. SURENDER KAUR & 917

ANR. [S.B. SINHA, J.]

rectify a mistake. If a property was subject matter of pleadings A

_.. and the court did not frame· an issue which it ought to have

done, it can, at a later stage, when pointed out, amend the

decree. · · · ·

22. The power of amendment, in a case of this natur~. as 8

noticed hereinbefore, would not only be dependent upon the

power of t~e court but also the principle that a court shall always

t

be ready and willing to rectify the mistake it has committed.,

\ 23. The issues were not correctly framed. An addition~!

written statement was permitted to be filed. A replication c

thereto also was allowed. It was in that situation, the questioh

as to whether the business transaction of Bombay Cycl~

Company could be a subject matter of the suit for partition or

not was required to be determined on its own merits.

D

24. The Trial Court felt that it had committed a mistake. In

such a situation, the court, in our opinion, committed no infirmity

in directing' rectification of its mistake.

i

25. For the reasons aforementioned, the impugned E judgment cannot be sustained. It is set aside accordingly. The

appeal is allowed. No costs.

K.K.T. Appeal allowed. 

Partition - Suit for, in respect of joint family property - Jurisdiction of Court to adjust shares at the final decree stage - Preliminary decree passed whereby the parties as well as their father found entitled to 1!4th share each - While partition suit was pending for passing of preliminary decree, father of the parties executed a registered Will bequeathing his share in favour of the respondent and died thereafter - Concurrent ~-findings of fact by Courts below that the Will was genuine - Such finding of fact not challenged - Entitlement of respondent to plead for grant of probate of the Will in the partition suit and consequent re-adjustment of shares vide final decree - Held: Suit for partition stands disposed of only with passing of the final decree - Respondent was entitled to plead for grant of probate of the Will in the partition suit itself and was not required to file a separate suit therefor - However, in ). facts and circumstances of the case, respondent was precluded from claiming more shares on basis of the Will or leading evidence to prove the Will before passing of the preliminary decree - Courts below were thus justified in passing final decree by dividing the joint family property into four equal shares and allotting two shares in favour of respondent on basis of the Will executed by deceased father of the parties.

[2009] 8 S.C.R. 912

•

A MADDINENI KOTESWARA RAO _.

V.

MADDINENI BHASKARA RAO AND ANR.

(Civil Appeal No. 3233 of 2009)

B

MAY 05, 2009

[TARUN CHATIERJEE AND HARJIT SINGH BEDI, JJ.]

; ••

Partition - Suit for, in respect of joint family property -

Jurisdiction of Court to adjust shares at the final decree stage

c - Preliminary decree passed whereby the parties as well as

their father found entitled to 1!4th share each - While partition

suit was pending for passing of preliminary decree, father of

the parties executed a registered Will bequeathing his share

in favour of the respondent and died thereafter - Concurrent ~- D findings of fact by Courts below that the Will was genuine -

Such finding of fact not challenged - Entitlement of

respondent to plead for grant of probate of the Will in the

partition suit and consequent re-adjustment of shares vide final

decree - Held: Suit for partition stands disposed of only with

E passing of the final decree - Respondent was entitled to plead

for grant of probate of the Will in the partition suit itself and

was not required to file a separate suit therefor - However, in ).

facts and circumstances of the case, respondent was

precluded from claiming more shares on basis of the Will or

F leading evidence to prove the Will before passing of the

preliminary decree - Courts below were thus justified in

passing final decree by dividing the joint family property into

four equal shares and allotting two shares in favour of

respondent on basis of the Will executed by deceased father

G

of the parties.

Dispute arose over a partition deed allegedly ·~-- executed in 1966 in respect of joint family property.

Respondent filed suit for partition and also for a

declaration that the alleged partition deed of 1966 was

H 912 

MADDINENI KOTESWARA RAO v. MADDINENI 913

BHASKARA RAO l

.\. sham, void and inoperative. Meanwhile, the father of the A

parties executed a registered Will bequeathing his share

in the property in favour of the respondent and died

shortly thereafter. The suit was decreed and a preliminary

decree was passed whereby the parties as well as their

deceased father were found entitled to 1/4th share each B

and the alleged partition deed of 1966 was declared

I inoperative, void and sham. Respondent, placing reliance

upon the said Will, filed application for drawing up the

final decree with prayer to divide the joint family property

into four equal shares and to allot two shares to him. The c

trial court found the Will to be genuine and on

'--.. consideration of the same, passed final decree allotting

two shares to the respondent.

The High Court declined to interfere with the order

D of the trial court and dismissed the civil revision petition

filed by the appellant.

In appeal to this Court, the question which arose for

consideration was whether the Courts below erred in

allotting two shares in favour of the respondent on basis E

of the Will executed by the deceased father of the parties

-..\ and whether the genuineness of the Will could be decided

' by the Court in a suit for partition or had to be

adjudicated in a separate suit.

Dismissing the appeal, the Court F

HELD: 1.1. A suit for partition stands disposed of

only with the passing of the final decree. In a partition suit,

the court has the jurisdiction to amend the shares

suitably, even if the preliminary decree has been passed, G

---1 if some member of the family to whom an allotment was

made in the preliminary decree dies thereafter. The share

of the deceased would devolve upon other parties to a

suit or even a third party, depending upon the nature of .,. the succession or transfer, as the case may be. The H 

914 SUPREME COURT REPORTS [2009] 8 S.C.R.

A validity of such succession, whether testate or intestate, }.

or transfer, can certainly be considered at the stage of

final decree proceedings. [Para 1 OJ [920-B-D]

1.2. The contention raised that the deceased father

8 of the parties had executed the Will and died before

passing of the preliminary decree, and accordingly the

Courts below were not justified in taking into

consideration the question regarding the genuineness of

the Will of the deceased father of the parties and allot two

shares to respondent in the final decree, is of no

C substance. In a suit for partition, a party who is claimih~

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 and for which no separate suit

needed to be filed. In the present case, while re-allotting

D the shares of the parties, the trial court had framed issues

on genuineness of the Will of the deceased father of the

parties and decided that the Will was genuine after

considering the evidence on record including examining

the evidence of the scribe and attestor in respect of the

E Will in question. This finding of fact regarding the

genuineness of the Will was affirmed by the High Court

which was not agitated in this appeal. That being the f..

position, and considering the concurrent findings of fact

it was not open for this Court to interfere with the same

F if it was not found to be perverse or arbitrary. As regards

the contention that even if entitlement of share on basis

of the Will was available at the stage of preliminary

decree, the respondent could not have any adjudication

thereof at the final decree stage as it gave a go-by to such

G entitlement, though it is true that a Will was executed by

the deceased father of the parties when the suit was t- _

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

H sham, void and inoperative in law, but until and unless 

MADDINENI KOTESWARA RAO v. MADDINENI 915

BHASKARA RAO

)

• the alleged partition deed was declared inoperative, it was A

,. not open to any one to claim more shares on the basis

of a Will in respect of the plaint scheduled property. 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 • B

deed was void, inoperative and a sham transaction and

1 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 came to the

conclusion that there was a partition as evidenced by the c

partition deed of 1966, the evidence in respect of the Will

would have become totally irrelevant It was only under

those circumstances, the proof of the Will was withheld.

[Paras 11, 12, 13 and 14] [921-C-E; 922-C-H; 923-A, D-H]

' _A

1.3. So far as the contention raised regarding D

! applicability of s.97 CPC, a plain reading of the provision

I would make it clear that if a party aggrieved by a , preliminary decree passed after the commencement of '

the CPC does not appeal from such decree, he shall be

precluded from disputing its correctness in any appeal E

which may be preferred from the final decree. This is not

... the position in this case. [Para 15] [924-C-D] ,

Venkata Reddy & Ors. v. Pethi Reddy AIR 1963 SC 992

and Kaushalya Devi & Ors. v. Baijnath Saya/ (deceased) & F

Ors. AIR 1961 SC 790, held inapplicable.

Phoolchand v Gopal Lal AIR 1967 SC 1470, relied on.

Case Law Reference:

~ -~ AIR 1967 SC 1470 relied on Para 10 G

AIR 1963 SC 992 held inapplicable Para 14

AIR 1961 SC 790 held inapplicable Para 16

H 

916 SUPREME COURT REPORTS [2009] 8 S.C.R.

'

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. ~

3233 of 2009. ·~

From the Judgment & Order dated 2610.2006 of the High

Court of Andhra Pradesh at Hyderabad in C.R.P. No. 986 of

B 2006.

R. Sundaravaradan, K. Subba Rao, Aniruddha P. Mayee

for the Appellants.

;

Pramjit Singh Patwalia, Jaideep Gupta, T.V. Ratnam D.

c Bharat Kumar, M. lndrani, Abhijit Sengupta for the

Respondents.

The Judgment of the Court was delivered by

TARUN CHATTERJEE, J.1. Leave granted. ~

D

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

E 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

F (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

G 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

H and it can be terminated at any point of time. The respondents 

MADDINENI KOTESWARA RAO v. MADDINENI 917

BHASKARA RAO [TARUN CHATIERJEE, J.]

s herein and the deceased father out of confidence signed on A

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 B

(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 c

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

,I parties were found to be entitled to 1/4th share each in respect D

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.

4. When the aforesaid suit was pending, M.Veera

Raghavaiah (since deceased) being the father of the parties,· E

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 herein. M. Veera

Raghavaiah died on 17th of January, 1985. While the suit was F

pending, more precisely on 25th of February, 1985, the

respondent filed a photostat copy of the V\(ill 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. When the G

--1 photostat copy of the Will was filed by the respondent for grant

of probate, it was made clear by all the parties that the parties

on record were sufficient and there was no need of impleading

any other legal representatives. An endorsement to this effect

was also made by the counsel for the appellant stating that "no H 

918 SUPREME COURT REPORTS [2009] 8 S.C.R.

A L.Rs. need be added". In view of such stand taken by the l

parties before the trial Court and no objection having been

raised upto this Court, we refrain from going into the question

whether probate can be granted to the Will in question in the

absence of any other heirs and legal representatives of the

B deceased, if there be any.

5. On 4th of November, 1986, the appellant went in appeal

before the High Court of Andhra Pradesh at Hyderabad against

the preliminary decree declaring 1/4th share each to the parties

c including the share in favour of the deceased father of the

appellant before the High Court which came to be registered

as AS.No. 2879 of 1986 which was also dismissed by a

learned Judge of the High Court that had confirmed the

judgment and decree of the trial cou!Q Feeling aggrieved, the

D appellant also filed a Letters Patent Appeal which came to be

registered as LPA No.154 of 1997 before the Division Bench

of the High Court. It would be evident from the record that 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

E 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.

F

6. After the LPA was dismissed by the Division Bench of

the High Court, the trial court before whom the application for

drawing up the final decree was pending, allowed the same

filed by the respondent and passed a final decree allotting two

G shares in respect of the plaint scheduled property to the

respondent after considering the Will executed by the deceased

father of the parties. It may be kept on record that the trial court t.

went into the question of the genuineness of the Will executed

by the deceased father of the parties and after considering the

H

evidence on record including examining the scribe and attester 

MADDINENI KOTESWARA RAO v. MADDINENI 919

BHASKARA RAO [TARUN CHATIERJEE, J.]

)

~ of the Will found the Will to be genuine and granted probate of A

the Will. The trial court also recorded the findings to the effect

that the Will was duly proved as required in law.

7. On 18th of February, 2006, the appellant approached

the High Court by filing a Civil Revision Case being CRP No. B

986 of 2006 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. The High c Court further observed that in a suit for partition more than one

preliminary decree can be passed. The High Court also

observed that a suit for partition stands disposed of, only with

the passing of the final decree. It is competent for the court to

,,,,.

examine the validity of the transfers, testate or intestate

D successions in the final decree proceedings, of which

examination had not been done before the passing of the

preliminary decree, to take into consideration the changes

occurring on account of death of a party or transfer made by

him. Therefore, the High Court and the trial court were justified

in taking into account the Will of the deceased father while E

passing the final decree in the partition suit. The High Court

~ placed reliance on a·decision of this Court in Phoolchand v.

,/ Gopa/ Lal (AIR 1967 SC 1470). The High Court further held

that alteration of the preliminary decree would occur only if the

extent of shares allotted to each parties or the items identified F

for partition, wert: altered. No such alteration had taken place

in the present case. A mere adjustment of the shares of the

parties does not bring about any alteration in the preliminary

decree. Accordingly, the High Court had refused to interfere

with the order of the trial court in revision. G

-1 8. Feeling aggrieved, the appellant filed a special leave

petition, which on grant of leave, was heard in the presence of

the learned counsel for the parties.

9. The only question that needs to be decided in this H 

920 SUPREME COURT REPORTS [2009] 8 S.C.R.

A appeal is whether the High Court as well as the trial court were ' • justified in allotting two shares in favour of the respondent on

the basis of the Will executed by the deceased father of the

parties and whether the genuineness of the Will could be

decided by the Court in a suit for partition or not or by a

B separate suit.

10. It is well settled that a suit for partition stands disposed

of only with the passing of the final decree. It is equally settled

that in a partition suit, the court has the jurisdiction to amend

c

the shares suitably, even if the preliminary decree has been

passed, if some member of the family to whom an allotment

was made in the preliminary decree dies thereafter. The share

of the deceased would devolve upon other parties to a suit or

even a third party, depending upon the nature of the succession

D

or transfer, as the case may be. The validity of such succession,

whether testate or intestate, or transfer, can certainly be

considered at the stage of final decree proceedings. An

inference to this effect can suitably be drawn from the decision

of this Court in the case of Phoo/chand v. Gopal Lal (AIR 1967

SC 1470). In that decision, it was observed as follows:

E

"There is nothing in the Code of Civil Procedure which

prohibits the passing of more than one preliminary decree

,.\. if the circumstances justify the same and that it may be

necessary to do so particularly in partition suits when after '

F the preliminary decree some parties die and shares of

other parties are thereby augmented ... it would in our

opinion be convenient to the court and advantageous to

the parties, specially in partition suits, to have disputed

rights finally settled and specifications of shares in the

G preliminary decree varied before a final decree is

prepared. If this is done there is a clear determination of

the rights of the parties to the suit on the question in dispute ·-

and we see no difficulty on holding that in such cases there

is a decree deciding these disputed rights, if so, there is

H

no reason why a second preliminary decree correcting the 

MADDINENI KOTESWARA RAO v. MADDINENI 921

BHASKARA RAO [TARUN CHATIERJEE, J.]

)

J shares in a partition suit cannot be passed by the court." A

11. Therefore, relying on the decision of this Court and

following the principles as aforesaid, both the courts below

granted two shares to the respondent in respect of which we

do not find any reason to differ. The courts below were also B

justified to hold that the two shares granted at the final stage

could be treated as two preliminary decrees which are

permissible in law. However, the learned counsel for the

appellant pointed out that in Phoo/chand's Case (supra), the

death of two parties had taken place after the preliminary c decree was passed. A new circumstance had emerged after

the passing of the preliminary decree, that is why the court had

passed a second preliminary decree modifying the shares of

the other parties, accordingly, based on the Will executed by

,-l the deceased. But, in the present case their father had executed

D the Will and died before the passing of the preliminary decree.

Therefore, no new circumstance has arisen after the passing

of the preliminary decree. Accordingly, the appellant contended

that the High Court as well as the trial court were not justified

in taking into consideration the question regarding the

genuineness of the Will of the .deceased father of the parties E

and allot two shares to respondent in the final decree.

~ 12. So far as the first question, as noted herein earlier, is

/

concerned, we are of the view that such a contention of the

learned counsel for the appellant was of no substance. F

According to the learned counsel for the appellant. as noted

herein earlier, the genuineness of the Will of the deceased

father of the parties not having been proved in a separate suit,

the High Court as well as the trial Court had specifically

considered this point before passing the final decree. As noted G

herein earlier, in Phoo/chand vs. Gopal Lal (supra), this

' -~ question has been squarely answered. In the said decision, the

appellant also filed a suit for partition of the joint property in

, which a preliminary decree was passed before passing a final

decree. The father and the mother of the appellant died and H 

922 SUPREME COURT REPORTS [2009] 8 S.C.R.

A the brother of the appellant claimed that he was entitled to the ...

share of the father as the same was declared by way of a Will

executed by the father and the appellant claimed his right in the

share of the mother as the same was sold to him by the mother.

This question relates to the preliminary shares of the parties

B which were redistributed, however, the trial court did not prepare

another formal preliminary decree on the basis of this redistribution of shares. The appeal was taken to the High Court

by the brother of the appellant against distribution which finally

came to this Court and this Court held that Will executed by the

c father in favour of the brother of the appellant was genuine and,

therefore, the appellant was not entitled to take advantage of

the share of the mother and the same must be distributed

equally. In view of the aforesaid decision of this Court, it ls clear

that in a suit for partition, a party who is claiming share in the

D plaint scheduled property, is entitled to plead for grant of -/...

probate of the Will executed by the deceased father of the

parties and for which no separate suit needed to be filed.

13. While re-allotting the shares of the parties, the trial court

had framed the issues on the genuineness of the Will of the

E deceased father of the appellant and decided that the Will was

.genuine after considering the evidence on record including

examining the evidence of the scribe and attestor in respect ~

of the Will in question. This finding of fact regarding the ' genuineness of the Will of the father affirmed by the High Court

F was also not agitated before us in this appeal. That being the

position, and considering the concurrent findings of fact it was

also not open for us to interfere with the same if it is found not

to be perverse or arbitrary. In view of our discussions made

hereinabove and applying the principles laid down in the

G aforesaid decision of this Court, namely, Phoo/chand vs. Gopal

Lal (supra), we do not find any substance in the arguments of t- '

the learned counsel for the appellant.

14. A further contention was advanced by the learned

counsel for the appellant that if certain entitlement of share even

H on the basis of the Will was available to the parties at the stage 

MADDINENI KOTESWARA RAO v. MADDINENI 923

BHASKARA RAO [TARUN CHATIERJEE, J.]

~ of preliminary decree, but such entitlement was given a go-by A

by one of the parties, the parties who have already given a goby 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 B

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 c

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 D 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 E preliminary decree in respect of the plaint scheduled property

of the parties and also for declaration that the alleged partition

4 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 F

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 G ....... · ... 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. H 

924 SUPREME COURT REPORTS [2009] 8 S.C.R. .

A 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

B as under:-

"Appeal from final decree where no appeal from

preliminary decree - Where any party aggrieved by a

preliminary decree passed after the commencement of this

c

Code does not appeal from such decree, he shall be

precluded from disputing its correctness in any appeal

which may be preferred from the final decree."

f15. A plain reading of this provision would make it clear

that a party aggrieved by a preliminary decree passed after the

D commencement of the CPC does not appeal from such decree,

he shall be precluded from disputing its correctness in any

appeal which may be preferred from the final decree. This is

not the position in this case. Here admittedly, a preliminary

decree was passed declaring the share of the parties including

E the share in favour of the deceased father of the parties. That

preliminary decree is final, but on the death of the father of the

parties, the shares allotted to the deceased father of the parties j. would fall either to the parties in equal shares or if by Will or by

any form of transfer, such share has been given to one of the

F parties. Therefore, in that situation, the respondents could not

have filed any appeal against the preliminary decree because

(1) at this stage, the father was very much alive and only on the

death of the father, the question of getting one more share that

is the share of the father would come into play and (2) the

G declaration made in the preliminary decree by the Court was

also accepted by the parties at that stage. Therefore, Section ~ 97 of the CPC could not be an aid to the appellant and

therefore, the submission of the learned counsel for the " appellant in this Court cannot be accepted and therefore it is

H rejected. 

MADDINENI KOTESWARA RAO v. MADDINENI 925

BHASKARA RAO [TARUN CHATTERJEE, J.]

) 16. Before parting with this judgment, we may refer to a A

- decision of this Court in the case of Kaushalya Devi & Ors.

vs. Baijnath Saya/ (deceased) & Ors. [AIR 1961 SC 790] on

which reliance was also placed by the learned counsel for the

appellant. The learned counsel for the appellant also had drawn

our attention to paragraph 9 of the said decision. At this stage, B

it would be appropriate if we reproduce Para 9 on which strong

• reliance was placed by the learned counsel for the appellant.

Para 9 of the said decision runs as under:-

"If the preliminary decree passed in the present c proceedings without complying with the provisions of Order

.32 Rule 7(1) is not a nullity but is only voidable at the

• instance of the appellants, the question is ;can they seek .

to avoid it by preferring an appeal against the final decree

;- ? It is in dealing with this point that the bar of Section 97

D of the Code is urged against the appellants. Section 97

which has been aaded in the Code of Civil Procedure,

1908 for the first time provides that where any party

aggrieved by a preliminary decree passed after the

commencement of the Code does not appeal from such

decree he shall be precluded from disputing its correctness E

in any appeal which may be preferred from the final

-i decree."

I

17. We have already explained in this judgment that

Section 97 of the CPC is not applicable to the facts and F

circumstances of the present case and, therefore, we do not

find any applicability of Paragraph 9 of the decision thereof in

this decision of this Court in the facts and circumstances of the

present case.

18. No other point was raised by the learned counsel for G

_.... ,._ the parties before us. Accordingly we do not find any merit in

this appeal. The appeal is thus dismissed. There will be no

order as to costs.

B.B.B. Appeal dismissed. H