Chennupati Naga Venkata Krishna vs Chennupati Jagan Mohan Rao

Appeal under section 96 of CPC, against the Judgment and Decree dated 26-3-2015 passed in OS No. 197 of 2009 on the file of the XII Additional District Judge, Krishna at Vijayawada.

Between:

Chennupati Naga Venkata Krishna, S/o. Kesavara Rao, Hindu, Occ;Properties and Student, Kurasavari Street, Patamata Center, Vijayawada, Rep. by GPA Holder C. Manikyamma @ Mani

...APPELLANT / PETITIONER AND

Chennupati Jagan Mohan Rao, S/o Madhava Rao Properties R/o. patamata Center, Vijayawada, Krishna District.

...RESPONDENT/ DEFENDANT

lA NO: 1 OF 2022

Petition under Section 151 CPC, praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings pursuant to the decree and judgment dated 26-03-2015 passed in O.S No. 197/2019 by the XII Additional district Judge Krishna at Vijayawada pending disposal of the appeal. lA NO: 1 OF 2023

Petition under Section 151 CPC, praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to receive the above documents as Ex.A4 to A8.

Counsel for the Appellant : SRI N.SUBBA RAO, SENIOR COUNSEL, ASSISTED BY MS KAMIREDDY DIVYA

Counsel for the Respondent : SRI K.S. GOPALA KRISHNAN, SENIOR COUNSEL, ALONG WITH SRI A.SUMANTH

CROSS OBJECTIONS (SR) No.1549 OF 2016 IN APPEAL SUIT No.8410F 2015

Between:

Chennupati Jagan Mohan Rao, S/o Sri Madhava Rao, Hindu, Aged about 68 years, R/o. Patamata Center, Vijayawada, Krishna District.

...PETITIONER

(RESPONDENT/DEFENDANT) AND

Chennupati Naga Venkata Krishna, S/o. Late Sri Kesavara Rao, Hindu, aged about 20 Years, R/o Kurasavari Street, Patamata Center, Vijayawada.

...RESPONDENT

(APPELLANT/ PLAINTIFF)

Cross Objections filed under Order 41 Rule 22 of CPC in AS.No.841 of 2015 against the Judgment and Decree passed in OS No 197/2009 dated 26.03.2015 on the file of XII Additional district Judge Krishna at Vijayawada.

Counsel for the Petitioner : SRI K.S. GOPALA KRISHNAN, SENIOR COUNSEL, ALONG WITH SRI A.SUMANTH

Counsel for the Respondent : SRI N.SUBBA RAO, SENIOR COUNSEL ASSISTED BY MS KAMIREDDY DIVYA

The Court made the following COMMON JUDGMENT : * THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI & *THE HON'BLE SRI JUSTICE MAHESWARA RAO KUNCHEAM

+ APPEAL SUIT No.841 OF 2015 & CROSS-OBJECTION(SR) No.1549 OF 2016

% 26.09.2025

# Chennupati Naga Venkata Krishna, S/o. Kesava Rao, resident of Patamata Center, Vijayawada, Krishna District.

Appellant And;

$ Chennupati Jagan Mohan Rao, S/o. Madhava Rao, resident of Patamata Center, Vijayawada, Krishna District. ....Respondent.

[Counsel for the appellant ; Sri N. Subba Rao

A Counsel for the respondent ; Sri K.S. Gopala Krishnan

<Gist; >Head Note: ? Cases referred: ' AIR 1970 SC 1714 - AIR 2008 Calcutta 13 ^ AIR 2023 SC 4707 ■'(2012) 5 see 265 ' 2025 see OnLine SC 835 "1951 sec OnLine SC 34 ' AIR 1961 SC 790 "2002 see OnLine J&K 9 " (AIR 1985 Patna 251) 2

(AIR 1985 Patna 251) 10

II. 2025 INSC 1059 12.1997 see OnLine Mad 991 13.(1987) 2 sec 547 14.(1978) 2 see 542 15.(1994) 2 see 41 16(1998)7 see 327 17(1969) 1 see 813 18(1995) 5 see 631 19.1995) 3 see 413 20.1959 see OnLine eal 18 HIGH COURT OF ANDHRA PRADESH

APPEAL SUIT No.841 OF 2015 & CROSS-OBJECTION(SR) No.1549 OF 2016

DATE OF JUDGMENT PRONOUNCED: 26.09.2024

SUBMITTED FOR APPROVAL

THE HON'BLE SRI JUSTICE RAVI NATH TiLHARi

&

THE HON'BLE SRI JUSTICE MAHESWARA RAO KUNCHEAM

1. Whether Reporters of Local newspapers Yes/No

may be allowed to see the Judgments'!^ 2. Whether the copies of judgment may be Yes/No

marked to Law Reporters/Journals 3. Whether Your Lordships wish to see the Yes/No

fair copy of the Judgment';' 4

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI &

THE HON'BLE SRI JUSTICE MAHESWARA RAO KUNCHEAM

APPEAL SUIT No.841 OF 2015 &

CROSS-OBJECTIQNfSR) No.1549 OF 2016 JUDGMENT:

per the Hon'ble Sri Justice Ravi Nath Tilharr

Heard Sri N. Subba Rao, learned Senior Counsel for the appellant assisted by Ms. Kamireddy Divya, learned counsel and Sri K.S. Gopala Krishnan, learned Senior Counsel appearing for

the respondent, along with learned counsel Sri Sumanth Amirapu

in respective appeal and cross objection.

2. This appeal under Section 96 of the Code of Civil

Procedure (in short C.P.C) has been filed by the plaintiff in

O.S.No.197 of 2009 on the file of XII Additional District Judge, Krishna at Vijayawada being aggrieved from the judgment and decree dated 26.03.2015.

I. FACTS:

1. O.S.No.197 of 2009:

i) Plaintiff's case:

3.

The suit O.S.No.197 of 2009 giving rise to the present appeal, was filed for declaration that the plaintiff Chennupathi Naga Venkata Krishna was the absolute owner of Items I to III of

the plaint schedule-'A' properties and for consequential relief of

recovery of possession of the suit schedule properties after

setting aside/cancelling the compromise decree/order dated

07.07.1995 passed in I.A.No.3857 of 1995 in previously filed

O.S.No.552 of 1994 on the file of the II Additional Subordinate

Judge's Court, Vijayawada, being illegal, void and contrary to law.

4. The prayer made in O.S.No.197 of 2009 reads as under;

"Therefore, the plaintiff prays that the Hon'ble Court may be pleased to pass a decree and judgment in favour of the plaintiff and against the defendant:

i) For declaration that the plaintiff is the absolute owner of the item Nos.1 to 3 of the plaint 'A' schedule properties and for consequential relief of recovery of possession of the item Nos.1 to

3 of the plaint 'A' schedule property from the hands of the

defendant by setting aside/cancelling decree dated 07.07.1995

ini.A.No.3857 of 1995 in O.S.No.552 of 1994 on the file of II

Additional Subordinate Judge Court, Vijayawada, as it is illegal, void and contrary to law.

ii) For costs of this suit; and

iii) For such other relief or reliefs as the Flon'ble Court deems

fit and proper in the interests of justice and equity."

5. One Chennupathi Kesava Rao was married to Chennupathi

Pushpavathi. They were not having issues. Chennupathi Kesava

Rao married Chennupathi Manikyamba @ Mani on 02.10.1987 as 6

per the Hindu tradition and customs. The plaintiff-appellant

Chennupathi Naga Venkata Krishna is their son born on

01.10.1988. Chennupathi Kesava Rao died on 31.05.1990. The respondent Chennupathi Jagan Mohan, the defendant in the suit is the elder brother's son of Chennupathi Kesava Rao.

Chennupathi Kesava Rao died intestate. At the time of his death

Chennupathi Pushpavathi (wife) and Ravamma, (mother) of Chennupathi Kesava Rao and plaintiff were alive. 6

In O.S.No.197 of 2009, the plaintiff's further case was that

taking the advantage of the death of Chennupathi Kesava Rao, the defendant in contacts with Chennupathi Pushpavathi started managing the estate of Chennupathi Kesava Rao. The plaintiff was minor. The plaintiffs mother Chennupathi Manikyamba @ Mani had studied only upto 7'^ Class. The defendant taking the

advantage of the old age of Ravamma, by playing fraud and mis- representation obtained signatures on some papers under the

pretext of providing maintenance to Ravamma and Chennupathi Pushpavathi. Plaintiffs further case was that the maternal grand father of the plaintiff representing as plaintiffs guardian and next friend, filed O.S.No.552 of 1994 which was managed by the

defendant, in which the compromise dated 07.07.1995 was got recorded. He pleaded that all the records in O.S.No.552 of 1994

were with the maternal grandfather and the same were

misplaced. Subsequently, the plaintiffs mother Manikyamba @

Mani obtained the certified copies of the judgment and decree

passed in O.S.No.552 of 1994. The plaintiff after attaining the

majority became aware about all these facts and filed the present

O.S.No.197 of 2009 to set aside the compromise decree passed

in I.A.No.3857 of 1995 in O.S.No.552 of 1994 and for other reliefs

within the period of limitation after attaining the majority.

II. Defendant's case:

7. The defendant-respondent filed the written statement

denying all the material allegations made in the plaint. The

marriage of Chennupathi Kesava Rao with Chennupathi

Manikyamba @ Mani was denied. The plaintiff Chennupathi Naga

Venkata Krishna was denied to be the son of Chennupathi

Kesava Rao. It was pleaded that after the death of Chennupathi

Kesava Rao, Chennupathi Manikyamba started claiming share in

Chennupathi Kesava Rao's property as also the maintenance

which was not agreed upon by Ravamma and Pushpavathi.

Chennupathi Manikyamba @ Mani as plaintiff No.1 and the

present plaintiff as plaintiff No.2 through plaintiff No.1, being 8

minor, filed O.S.No.667 of 1990, against Pushpavathi (Defendant No.1) and Ch. Jagan Mohan Rao (Defendant No.2 i.e defendant of O.S.No.197 of 2009), for partition of the properties, against Ravamma (the mother) and Pushpavathi (the wife) of

Chennupathi Kesava Rao. In the said suit, the present defendant was shown as 2"'' defendant. Ravamma died on 06.07.1990 after executing the registered will dated 25.06.1990 by bequeathing her share in favour of the defendant. O.S.No.667 of 1990 was

compromised on 09.09.1993 in I.A.No.5904 of 1993 and a

compromise decree was passed, agreeing to give an amount of Rs.5,50,000/- to the 2 ^ plaintiff therein, on humanitarian grounds, in full and final settlement of all the claims whatsoever

of the plaintiff No.1 and plaintiff No.2 in the estate of the

deceased Kesava Rao. The defendant's further case was that

after passing the compromise decree, Chennupathi Pushpavathi mobilized funds to deposit the amount in the name of the plaintiff

but at that time Chennupathi Manikyamba and her father

requested Chennupathi Pushpavathi and the present defendant

to give some property instead of cash as agreed in the

compromise decree dated 09.09.1993, which was refused. 9

8. Defendant-respondent's further case was that another

O.S.No.552 of 1994 was filed by the plaintiff through next friend,

the maternal grandfather namely Mande Nageswara Rao, to set

aside the compromise decree passed in O.S.No.667 of 1990.

During pendency of O.S.No.667 of 1990, Chennupathi

Pushpavathi died on 26.12.1994 after execution of a registered

will dated 29.09.1993 in favour of the present defendant. The

O.S.No.552 of 1994 also ended under a compromise decree in

I.A.No.357 of 1995 dated 07.07.1995 whereby in lieu of cash of

Rs.5,50,000/-, the properties mentioned in the schedule attached

to that compromise decree were given to the plaintiff. Possession

was also delivered to the plaintiff through guardian and next

friend.

9. The defendant further pleaded that the present suit

O.S.No.197 of 2009 was filed to set aside the compromise decree

which was acted upon, so, in any case, the plaintiff had to restore

the property given to him in the compromise decree dated

07.07.1995 in O.S.No.552 of 1994 to the defendant. The plea

was further taken that the O.S.No.197 of 2009 was bad for non

joinder of necessary parties and was also barred by limitation. 10

10. Before proceeding further, we mention about the two previous suits O.S.No.667 of 1990 and O.S.No.554 of 1994 as

referred to in the above pleadings.

2 O.S.No.667 of 1990

11. O.S.No.667 of 1990 was filed by Chennupathi Manikyamba @ Mani along with the plaintiff (then minor, being represented by Manikyamba @ Mani), for partition, with the following relief as per para 8 of the plaint of that suit;

8. The plaintiffs, therefore, pray that the Hon'ble Court may be pleaded to pass a preliminary decree against the defendants for partition of the-

a) Plaint schedule item 1 to 4 into 8 equal shares and for separate possession of six such shares to the plaintiffs 1 and 2;

b) For partition of the plaint schedule item No.5 into four equal shares and for separate possession of two such shares to the plaintiffs 1 and 2;

c) For costs of the suit and

d) For such other reliefs as the Flon'ble Court deems fit and proper in the circumstances of the case."

12. O.S.No.667 of 1990 was decreed in terms of compromise

vide judgment and decree dated 09.09.1993, relevant part of which reads as under;

PLAINT PRESENTED ON: 31.10.1990:

This suit coming on before me for final disposal on this day in the presence of Sri Ravi Rama Mohana Rao, Advocate for the

plaintiffs, and Sri D.V. Daas, Advocate for the defendants, and after

framing issues, both parties entered into compromise and filed

Compromise petition 5904/93 and the same is allowed and the contents of compromise petition are read over to the parties who understood the same and admitted that they are true and correct; and recording the compromise and in so far as it relates to the subject matter on

concerned; this court doth order and decree as follows:

nd

1. That the 1st defendant to pay a sum of Rs.5,50,000/- to the 2 plaintiff is full and final settlement of all the claims what-so-ever of the plaintiffs andl and 2 in the estate of the deceased Sri Kesavarao and

that the said sum of Rs.5.50,000/- deposit in the Fixed Deposits of Rs.4,50,000/- and Rs. 1,00,000/- in any schedule bank or banks and that the first item of Rs.4,50,000/- and the interest accaied thereon shall not

be touched until the 2"'' plaintiff attains majority.

Sd/-xxxx, Sd/-xxxx,

Prl. Subordinate Judge. Prl. Subordinate Judge.

2) that the second item of Rs. 1,00,000/- shall be deposited in a Bank in the 2) name of the 2 (rd) plaintiff, but the first plaintiff as a

Guardian of the Minor, may obtain interest thereof for the maintenance of the Minor keeping the Principal sum intact and that the 2'''^ plaintiff shall have the right to withdraw the second item also after he attains majority, that the sum of Rs.5.50,000/- is agreed to be paid by first nd defendant, gratis, although the 2 plaintiff is not entitled to any share in the properties of late Sri Kesavarao Garu;

12 3) that the Southern side (four) shops up to the Bandar Road and the stair case in the middle shall belong to the 2 (rd) defendant; for his life and thereafter to his 3 minor sons, Ch. Ravi Kumar, Sekhar and Pham Babu as beneficiaries under the Registered WILL dt.25-6-1990. executed by late Smt. Ravamma mother of the deceased Sri Kesavarao;

4) that Item No.l of the plaint schedule consists of 8 (Eight) shops, extending from South to North in the middle of the eight shops there is a stair case, that out of 8 shops the Northern side 4 (Four) Shops i.e. up to the Stair case shall belono o the 1 pi defendant;

SdZ-xxxx, Sd/-xxxx, Prl. Subordinate Judge. Prl. Subordinate Judge.

5) that the second defendant shall discharge all the debts incurred

by late Sri Kesavarao in lieu thereof, the second item of the plaint sch. Shall be given to second defendant with absolute rights and shall take possession of the property exclusively;

6) that item No.3 and (5) of the plaint schedule shall also

exclusively belong, to the First defendant and who ay take possession of 3rd and 5th items with absolute rights;

7) that none of the parties has anything to do with item No.4 of the plaint schedule is concerned which w as already sold away long back

and which is in possession and enjoyment of others;

8) that the first plaintiff shall not be regarded as the widow and 2nd plaintiff a son of late Sri Kesavarao, that what is given to the 2nd 13

plaintiff under this compromise shall be treated as gratia and humanitarian consideration:

9) that the defendants 1 and 2 shall take possession of their respective properties given to them under this compromise with effect from 25-9-1991.

10) that defendants 1 and 2 shall have right to execute the

compromise Decree that may be passed by this court;

11) that each party do bear their own costs. Costs taxed for

plaintiffs Rs.205/-: costs taxed for defendants at Rs. Nil.

(as bill of costs is filed side), (copy of valuation slip, compromise petition) in LA.No.5904/93 along with copy of plaint schedule are attached to the decree. GIVEN UNDER MY HAND AND THE SEAL OF THIS COURT

THIS THE 9™ DAY OF SEPTEMBER, 1993.

Correct issue: ONE

Sd/-xxxxx Sd/-xxx.

Prl. Subordinate Judge. Prl. Subordinate Judge."

3. O.S.No.552 of 1994:

13. O.S.No.552 of 1994 was filed by the plaintiff then (minor)

represented by guardian and next friend maternal grandfather

Mande Nageswara Rao, for setting aside/cancelling the

compromise decree dated 09.09.1994 in O.S.No.667 of 1990. 14

14. The O.S.No.552 of 1994 suit was decreed in terms of the

compromise dated 07.07.1995, which reads as under;

This suit coming on before me on this day for hearing in the presence of Sri C.V. Nageswara Rao, Advocate for plaintiff and of Sri D.V. Dass, Advocate for 2"'^ defendant and of Sri M. Gunnes\A/ara Rao, Advocate for 3'^^ defendant and that the 1"' defendant having been reported died, and that as both parties having entered into compromise on the advice of the relatives and well wishers of both the parties and as both the parties having executed a Memo of Agreement of Compromise and filed the same along with I.A.No.3857 of 1995 to record the compromise, before this court requesting to pass a decree

pursuant to the terms and conditions agreed upon between them, this Court doth order and decree as follows:

"1) That the three items of 'A) schedule be and are delivered to the Plaintiff by the 2nd defendant and the plaintiff be and IS entitled for its possession with absolute rights, instead of the cash payment, as agreed; (possession has already been taken by the plaintiff as per the compromise)

2) that the items 1 and 2 of 'B' schedule bed whe same are

hereby allotted to the 2nd defendant and he should retain possession and enjoyment of the same to himself;

3) that the 3rd item of 'B' schedule be and the same is hereby allotted only for the discharge of the debts contracted by the deceased, Chennupati Keenve Raa from the 3rd parties, viz., (1) Chennupati Damarunthi W/o. Madhusuchana Ras (a) dt.25-6-

1989 for 10,250/- and (la) @t.7-6-1989 for Rs.23,000/-; (ii) Suryadevara Lakshmi Kumari, W/ Ravindra, Dt. 12-12-1989 for Rs.9,950/-; and (iii) Nalluru Rattaiah, SI Venkaiah, for rs. 15,000/-; and that the 2nd defendant shall sign all necessary papers as and when required by the 3rd defendant and the plaintiff for purpose of selling the 3rd item of 'B' schedule, without any reference to the and defendant

4) that in case of default on the part of the parties in discharging their obligations referred to in the conditions above, the aggrieved 15

party shall have the right to proceed against the defaulting party personally and against the properties:

5) that an extent of Ac.0-03 cents out of AcO-16 cents of site, be and the same is allotted to Smt. Chennusati Jayalakshmi, W/o.

Sri Ravindra, in consideration of her rendering services to the family of the deceased, Sri Ch.Kesava Ras, on the northern side of Ac.0-16 cents described in 'C schedule and she is entitled for taking delivery of possession of the same as agreed; (Already possession was delivered as per the compromise petition)

6) That an extent of about Ac.0-02 cents of site, out of Ac.0-16 cents be and the same is earmarked for a joint-passage en the Western side in Ac 0-16 cents in continuation of the 10 feet 6

inches with of the existing passage from the Bandar Road

described as D Schedule, (had already been earmarked as per compromise)

7) That a plan is be and the same is appended to this compromise decree showing the Various allotments made in Ac.0-16 cents of site, with correct measurements noted in the plan;

8) that a separate plan showing with actual measurements for 'A', 'B' and 'C Schedules item-wise and the same is attached hereto which all parties be and are bound for avoiding disputes to measurement or extents to be in their respective possession and enjoyment:

9) that the parties de bear their own costs;

10) that the compromise decrees be and are executable;

11) that the parties do execute necessary regular documents if repaired by any of them at their cost;

Given under my hand and the sea! of the Court, this the 7'^ day of July, 1995.

Sd/--xxxxxxx

II Addl. Subordinate Judge, Vijayawada." 16

4. Issues and Additional Issue in O.S.No.197 of 2009:

15.

In present O.S.No.197 of 2009, the learned trial court framed the following issues and the additional issue;

1. Whether the plaintiff is entitled to the relief of declaration, declaring that he is the absolute owner of Items 1 3 of the plaint schedule properties as

prayed for?

2. Whether the plaintiff is entitled to the relief of recovery of possession of items 1 to 3 of the plaint schedule property as prayed for?

3. To what relief?"

Additional issue:

1.

Whether the decree dated 07.07.1995 in I.A.No.3857 of 1995 in O.S.No.552 of 1994 on the file of II Additional Subordinate Judge's Court, Vijayawada is liable to set aside?"

5. Evidence:

16.

In evidence, the plaintiff/appellant examined his mother

Chennupathi Manikyamba @ Mani (P.W.1) and got marked the documents Ex.A.1 original GPA given by the plaintiff in favour of

P.W.1 to look after the present suit affairs of plaintiff, Ex.A.2 Birth

certificate of the plaintiff and Ex.A.3 certified copy of the

compromise petition in I.A.No.3857 of 1995 and compromise 17

decree passed in 0,S.No.552 of 1994 on the file of Subordinate

Judge's court, Vijayawada respectively.

17. The defendant respondent did not adduce any evidence

oral or documentaryand also did not cross-examineP.W.1.

6. Findings of learned Trial Court in O.S.No.197 of 2009:

18. On additional issue, the learned trial court recorded that the

compromise decree was liable to be set aside. The plaintiff was

born on 01.10.1988. The O.S.No.197 of 2009 was filed on

30.09.2009, within the period of three years from the date of his

attaining the majority. So, it was within the period of limitation.

19. On issue Nos.1 and 2, the learned trial court recorded the

finding that the suit schedule properties were the properties of

Chennupathi Kesava Rao and so after his death the plaintiff, as

per the provisions of Section 16 of the Hindu Marriage Act, 1955

(for short, H.M. Act, 1955) could claim share therein i.e in the

fd properties of his father Chennupathi Kesava Rao, at best 1/3

share, but not the entire plaint schedule properties, i.e, not in the

properties of Kesava Rao which had devolved on Ravamma

(mother) and Chennupathi Pushpavathi (wife), respectively of

Chennupathi Kesava Rao on the death of Kesava Rao, when 18

subsequently they both, Ravamma and Pushpavathi, died intestate.

20. The trial court believed the plaintiff's case that Chennupathi

Kesava Rao remarried Manikayamba @ Mani the mother of the plaintiff on 02.10.1987. The trial court however was of the view

that during the life time of Pushpavathi ( we may at some places refer as the 1 wife for convenience sake), Keshava Rao

remarried. So, the marriage of Chennupathi Manikyamba @ Mani with Chennupathi Kesava Rao was void under Section 5 of the

H.M. Act, 1955. The plaintiff was born of such void marriage.

Therefore, the plaintiff was not entitled to claim rights in the family

properties of Kesava Rao and as per the provisions of Section 16

of H.M.Act, 1955, at best the plaintiff could claim 1/3 in the

property of his father Keshava Rao, on his death.

7. Decree of Trial Court in O.S.No.197 of 2009:

21. The learned trial Court decreed O.S.No.197 of 2009 in part.

The compromise decree dated 07.07.1995 in I.A.No.3857 of 1995

in O.S.No.552 of 1994 was set aside. The plaintiff was held not entitled for the relief of declaration of his title over the entire suit

schedule properties and thereby not entitled to recover the

possession of the suit schedule properties. It was however held 19

rd that, at best the plaintiff was entitled to claim 1/3 share in the

properties of his father Chennupathi Kesava Rao, as the

illegitimate son and he had to work out his separate share

according to law by way of initiating appropriate legal

proceedings. The plaintiff was also held liable to restore

possession of the properties received by him under the

compromise decree in O.S.No.552 of 1994 to the defendant, in

case he had received those properties from the defendant, or to

the persons from whom he received the properties through his

guardian, before working out his rights in case the properties

were not the properties of Chennupathi Kesava Rao.

22. The operative portion of the judgment/decree dated

26.03.2015 in O.S.No.197 of 2009 reads as under:

"in the result, suit is decreed in part. The compromise decree dated 07.07.1995 in I.A.No.3857 of 1995 in O.S.No.552 of 2014

on the file of II Additional Sub-Ordinate Judge's Court, Vijayawada is hereby set aside, Plaintiff is not entitled for the relief of

declaration of his title over the entire suit schedule properties of

this suit and thereby, nor entitled to recover the possession of the fd suit schedule properties. At best plaintiff is entitled to claim 1/33 share in the properties of his father Kesava Rao as the illegitimate son and he has to work out his separate share according to law by way of initiating appropriate legal proceedings. Plaintiff in the suit is liable to restore possession of the properties received by him under the impugned decreed ini.A.No.3857 of 1994 in O.S.No.552 20

of 1994 to defendant in case he received the said properties from defendant or to the persons from whom he received the properties through his guardian before working out his rights incase the properties are not the properties of Kesava Rao. In view of the facts and circumstances of the case, both parties are directed to bear their own costs."

8. A.S.No.841 of 2015 and the Cross-obiection:

23.

The plaintiff filed the present appeal A.S.No.841 of 2015

being aggrieved from not decreeing the suit as a whole.

24. The defendant-respondent filed Cross-objections (SR) No.1549 of 2016 in A.S.No.841 of 2015.

Submissions of the learned counsels:

1. For the appellant (plaintiffl/respondent in Cross-

objection)

25. Sri N. Subba Rao, learned senior counsel for the appellant submitted that the compromise decree in O.S.No.552 of 1994

would not bind the appellant. He was minor and leave was not

taken from the court, to enter into the compromise. So, on

attaining the majority the plaintiff/appellant had the right to file the

suit for cancellation of the compromise decree and recovery of

possession within the period of limitation. The O.S.No.197 of

2009 was filed within the period of limitation after attaining

majority.

21

26. Sri N. Subba Rao, learned senior counsel submitted that

the plaintiff is the son of Chennupathi Kesava Rao from

Chennupathi Manikyamba @ Mani, who had married

Chennupathi Kesava Rao, though, during subsistence of

Chennupathi Kesava Rao's first marriage with Chennupathi

Pushpavathi. So, the marriage may be void under Section 5 of

H.M.Act, 1955 read with Section 11 but in view of Section 16 of

the H.M.Act, 1955, the plaintiff/appellant would be entitled to the

estate of Chennupathi Kesava Rao on his death, and also on the

death of Chennupathi Kesava Rao's mother (Ravamma) and the

first wife (Chennupathi Pushpavathi), as both died intestate,

leaving no other legal heirs to succeed, except the

plaintiff/appellant, He submitted that so far as Ravamma is

concerned her estate would devolve on the plaintiff, by virtue of

Section 15(1)(a) of Hindu Succession Act, 1956 (for short, the

H.S.Act, 1956) read with the Schedule, he being the Class-1 heir

and so far as Ch. Pushpavati is concerned on her death her

estate would also devolve on the plaintiff, by virtue of Section

15(1)(b) of the H.S. Act, 1956. He submitted that the defendant

set up the case of will(s), from Ravamma and also from Chennupathi Pushpavathi but no evidence was lead to prove 99

alleged will{s). So, will not having been proved, the plaintiff was the absolute owner of the plaint schedule properties. The learned trial court acted illegally in holding the plaintiff entitled at the most to 1/3 of the plaint schedule properties and in not decreeing the suit as a whole.

27. Sri N.Subba Rao, learned senior counsel further submitted

that the defendant did not file any counter claim in the suit. There was no relief prayed by the defendant for refund of the amount or

property. So, the learned trial court acted illegally in passing the decree directing the plaintiff/appellant to restore the possession of

the properties if any received by him under the compromise decree in O.S.No.552 of 1994 as also in not passing the decree for recovery of possession but directing to file the suit for partition and to work out his separate share in separate proceedings. He

submitted that there was no requirement of filing any fresh suit for partition.

28. Learned counsel for the appellant placed reliance in Satya Charan Dutta vs. Urmila Sundari Dassi and others\

Debabrata Mondal and nother vs. State^ and Revanasiddappa

AIR 1970 SC 1714 ' AIR 2008 Calcutta 13 and others vs. Mallikarjun and others^ in support of his

contentions.

2. For the respondent in appeal/Cross-objector:

29. Sri K.S. Gopala Krishnan, learned senior advocate for the

respondent submitted that the compromise decree passed in

O.S.No.552 of 1994 was acted upon. The O.S.No.197 of 2009

filed by the plaintiff for declaration of his right in the plaint

schedule property was not maintainable in view of Order 23 Rule

3A CPC. He submitted that the only remedy available to the

plaintiff was to file application to recall the order on compromise

in O.S.No.552 of 1994 itself, and not by the fresh suit, to set aside

a compromise decree, which was barred by law under Order 23

Rule 3ACPC.

30. Sri K.S. Gopala Krishnan, learned senior counsel further

submitted that Section 15 of H.S. Act, 1955 would not be

attracted and based thereon the plaintiff could not claim to be the

absolute owner. He submitted that Ravamma, the mother of

Chennupathi Kesava Rao, as also Pushpavathi (1®' wife/widow of

Chennupathi Kesava Rao) had executed separate wills in favour

of the defendant. So, on the death of Ravamma and on the death

" AIR 2023 SC 4707 24

of Chennupathi Pushpavathi, the defendant became the owner of

the estate left by them respectively by testamentary succession.

He submitted that it being a case of testamentary succession for the deceased Ravamma and Pushpavathi; Section 15(1) (a) or

15(1)(b) of H.S. Act would have no applicability, He further

submitted that the Will in favour of the defendant did not require

any proof as the plaintiff had admitted the Will in para 5 of the plaint, submitting further that the admission is the best evidence.

31. Sri K.S. Gopal Krishna, learned senior advocate further submitted that the plaintiff did not enter into the witness box. The

only evidence was of the plaintiffs mother as P.W.1. He

submitted that though the defendant did not lead any evidence and also did not cross-examine the plaintiff witness, but, merely because of that reason, the suit could not be decreed, The

plaintiff had to still prove his plaint case.

32. Sri K.S. Gopala Krishna, learned senior counsel placed reliance in C.N. Ramappa Gowda vs C.C. Chandregowda (died) by LRs and another"* and Manjunath Tirakappa Malagi

"(2012) 5 see 265 25

and another vs. Gurusiddappa Tirakappa Malagi (died

through Lrs)^ in support of his contentions.

3. Reply submission:

33. in reply submissions, Sri N. Subba Rao, learned senior

counsel submitted that there was no admission of any Will by the

plaintiff. The defendant failed to lead any evidence relating to

the Will and to prove the same. He submitted that the suit to set

aside the compromise decree was not barred by Order 23 Rule

3A CPC, as no leave of the court was taken for compromise and

the plaintiff was then minor.

Points for determination:

34. The following points arise for our consideration and

determination in the present appeal and the Cross-objection:.

A. Whether the suit O.S.No.197 of 2009 for cancellation of the

compromise decree passed in I.A.No.3857 of 1995 in O.S.No.552 of 1994 was barred by Order 23 Rule 3A CPC? B. Whether it is a case of Testamentary Succession to the

estate left by Ravamma and Pushpavathi on their respective death in favour of defendant?

C. Whether a son born of a void marriage to whom legitimacy has been accorded by Section 16 of the Hindu Marriage Act, 1955, is entitled to the share in the estate of the mother of his father, and the 1®' wife of his father i.e stepmother?

2025 see OnLmc SC 835 26

Or

In other words, whether the plaintiff Chennupati Naga Venkata Krishna is entitled to the estate left by Ravamma, and Chennupati Pushpavathi i.e Chennupathi Kesava Rao's mother and 1 wife respectively?.

D. Whether the plaintiff is the absolute owner of the plaint schedule properties? And if not, to what extent? E. Whether the decree of the learned Trial Court deserves any interference? And if so, what should be the appellate decree?

IV. Analysis:

35. We have considered the submissions of the learned

counsels for the parties and perused the material on record.

36. Before proceeding further, we place on record that, the

judgment in this case was reserved on 31.07.2025. At the time of

dictation some clarification was required. So, the matter was

listed on 21.08.2025, and on that date, Sri N. Subba Rao, learned

senior counsel for the appellant submitted that

a) the defendant is the son of Chennupathi Madhava Rao the elder brother of Chennupati Keshava Rao as per plaint para 4. He clarified, after obtaining instructions from the plaintiff/appellant present in the court, that Madhava Rao was the real brother of Keshava Rao. So, the defendant is also the son's son of Ravamma; and

b) that the plaint schedule-'A' property items 1 to 3 in

O.S.No.197 of 2009 is the same as 'B' schedule property of 27

O.S.No.554 of 1994 of which the compromise decree was sought to be set aside. This 'B' schedule property was given to defendant under compromise decree and 'A' schedule of the compromise decree was given to the plaintiff. The O.S.No.197 of 2009 was only for 'B' schedule property and not 'A' schedule of O.S.No.552 of 1994.

37. The learned counsel for the respondents appeared through

virtual mode and did not dispute the aforesaid submissions, which

are on record in the docket order dated 21.08.2025.

Consideration of Point 'A':

38. Order 23 Rule 3A CPC reads as under;-

"Order 23 Rule 3A: Bar to suit; no suit shall lie to set aside a

decree on the ground that the compromise on which the decree is based was not lawful."

39. Learned counsel for the respondent placed reliance in

Manjunath Tirakappa Malagi (supra), to contend that a

compromise decree cannot be challenged by filing a fresh suit as

there is a bar on filing a fresh suit challenging the compromise

decree under Order 23 Rule 3A of C.P.C.

40. In Manjunath Tirakappa Malagi (supra), the appellants

filed a suit for declaring a compromise decree entered into

between the respondents (defendants) as null and void and not

binding on the appellants. The appellants also sought for 28

partition of a certain share in the ancestral property which was in the possession of the defendants. The suit was dismissed.

There the appellant's father, initially received share in the 1974

partition in a compromise decree. The same was further

partitioned amongst the appellants and the appellants' father.

The compromise decree was never challenged by the appellants. They filed a fresh suit in the year 2003 seeking cancellation of the compromise decree and seeking partition of the suit property. The

appellants' ground for challenging the compromise decree was

that the appellants' father was coerced by his brothers and father

to enter into the compromise. Referring to the provisions of Order

2 Rule 2 and Order 23 Rule 3A CPC, the Hon'ble Apex Court held that even if the contention of the appellants that their father

was coerced by his brothers and father to enter into the

compromise was to be accepted, after passing of the consent

decree a fresh suit was still not a valid remedy, In such a

situation, the appellant's father should have filed a recall

application before the court that had passed the compromise decree but that was not done. The appellant's father had

admitted the compromise decree and never questioned its 29

validity. So, the appellant could not nnaintain fresh suit for

cancellation of such a compromise decree.

41. So far as the present case is concerned, there is no dispute

between the parties that at the time of the compromise decree in

O.S.No.667 of 1990, the plaintiff was minor. Again, in O.S.No.552

of 1994 also the plaintiff was minor at the time of compromise

decree. It is not in dispute that such compromise(s) were without

the leave of the court. Consequently, the question involved here

is different than the one in Manjunath Tirakappa Malagi (supra).

There the party entering into compromise was not minor. So, the

question of sanction/leave of the court and without such leave

entering into compromise, was not involved. In the present case.

Order 23 Rule 3A is to be read keeping in view the provisions of

Order 32 Rule 7 C.P.C as it is a case of the compromise on

behalf of the minor without sanction/leave of the court.

42. Order 32 Rule 7 CPC provides for the agreement or

compromise by next friend or guardian for the suit and reads as

under:

Order 32 : Suits by or against minors and persons of unsound mind

Rule 7: Agreement or Compromise by next friend or guardian for the suit:

30 (1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. (lA) An application for leave under sub-ixile (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the

agreement or compromise proposed is. in his opinion, for the benefit of the minor:

Provided that the opinion so expressed, whether m the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor. (2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor."

43. In Bishundeo Narain v. Seogeni Rai\ the Hon'ble Apex Court held that Order 32 Rule 7 CPC must be read as a whole.

Sub-rule (2) contemplates a position where the mandatory provisions of sub-rule (1) have been ignored. It was held that in

such a case, the resultant agreement or compromise is voidable

at the instance of the minor, if the minor chooses to avoid it.

Paragraph-18 of Bishundeo Narain (supra) reads as under:

"18. In our opinion. Order 32 Rule 7, must be read as a whole.

Sub-rule (2) contemplates a position where the mandatory provisions 0951 see OnLine SC 34 of sub-rule (1) have been ignored. In such a case, the resultant

agreement or compromise is not to be held a nullity. It is only voidable. Therefore, it is good unless the minor chooses to avoid it. It follows that a decree or order based on the agreement is also good unless the minor chooses to challenge it. That is the position where there is no sanction of the court. Reading the two provisions together, the Rule merely means this. No next friend or guardian for the suit can enter into an agreement or compromise which will bind ihc

minor unless the court sanctions it. If the Patna decision is meant to

convey that before the guardian even begins negotiations for

compromise with the other side, he must obtain the sanction of the court, wc arc unable to agree with that view."

44. In Kaushalya Devi and others vs. Baijnath Sayal and

others^, the Hon'ble Apex Court held that the plain meaning of

Order 32 Rule 7(2) is that the impugned agreement can be

avoided by the minor against the parties who are major and that

it cannot be avoided by the parties who are major against the

minor. It is voidable and not void. The provision has been made

for the protection of minors. It requires that the minor should be

given liberty to avoid it. Para 6 of Kaushalya Devi (supra) reads

as under:

"The effect of the failure to comply with 0. 32, r. 7(1) is specifically provided by 0, 32, r. 7(2) which says that any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all

AIR 1961 SC 790 32

parties other than the minor. Mr. Jha reads this provision as meaning that the impugned agreement is voidable against the parties to it who are major and is void in respect of the minor; in other words, he contends that the effect of this provision is that the major parties to it can avoid it and the minor need not avoid it at all because it is a nullity so far as he is concerned. In our opinion this contention is clearly inconsistent with the plain meaning of the rule. What the rule really means is that the impugned agreement can be avoided by the minor against the parties who are major, and that it cannot be avoided by the parties who are major against the minor. It is voidable and not void. It is voidable at the instance of the minor and not at the instance of any other party. It is voidable against the parties that are major but not against a minor. This provision has been made for the protection of minors, and it means nothing more than this that the failure to comply with the requirements of 0. 32, r. 7(1) will entitle a minor to avoid the agreement and its consequences. If he avoids the said agreement it would be set aside but in no case

can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest. The protection of the minors' interest requires that he should be given liberty to avoid it. No such consideration arises in

respect of the other parties to the agreement and they can make no grievance or complaint against the agreement on the ground that it has not complied with 0. 32, r. 7(1). The non-observance of the condition laid down by r. 1 does not make the agreement or decree void for it does not affect the jurisdiction of the court at all. The non-observance of

-I ->

the said condition nnakes the agreement or decree only voidable at the instance of the minor. That, in our opinion,

is the effect of the provision of 0. 32, r. 7(1) and (2)."

45. So, the legal position is well settled that where there is no

sanction of the Court and the next friend or guardian of a minor

enters into an agreement or compromise, such compromise or

agreement on behalf of the minor is voidable at the instance of

the minor which the minor can avoid on attaining the age of

majority within the period of limitation and if the minor chooses to

avoid, it would be set aside.

46. In Ghulam Rasool Reshi v. Ghulam Hassan Reshi®, the

High Court of Jammu and Kashmir referred to the judgment of the

Patna High Court in Mahabir Mahton v. Chandeshwar Mahton^

and held that the legal implications of contravening the

provisions of Order 32 Rule 7 has to be read in Order 23 Rule 3A

CPC and so viewed Order 23 Rule 3A does not bar a suit and

the minor can bring a suit for cancellation of compromise decree

entered in violation of Order 32 Rule 7 C.P.C.

47. Paras 11, 12 and 16 of Ghulam Rasool Reshi (supra) are

as follows;

"2002 see Online J&K 9 "(.^IR 1985 Patna 251) 34

"11. Compromise recorded in violation of Order 32, Rules 3 and 7 CPC goes to the very root of the decree based on such compromise. Such a situation cannot be allowed to be used by the other side to the prejudice of the minor xxxxxxxxxxxxxxxxx.

12. In Mahabir Mahton v. Chandeshwar Mahton''°, a learned Judge of Patna High Court held that the compromise decree can be set aside either in regular suit or review application filed by the minor.

16. The contended fraud/misrepresentation alleged in obtaining the compromise decree is in effect fraud on the minor party and abuse of Court proceedings between the parties. Compromise brought about on behalf of minor without complying with the mandatory provisions of Rules 3 and 7 of Order 32 CPC, renders such compromise open to challenge by way of relief in a suit so long it results in prejudice to the interest of minor. Besides, the fraud/mistake committed in the manner and matter, also enables the minor to claim cancellation/rectification of the decree and declaration of rights of minor in the decreed property under Specific Relief Act. Court cannot dose its eyes to commission of fraud/misrepresentation, thoroughly vitiating the compromise. Legal implications of contravening provisions of Rr. 3 and 7 of O. 32 CPC, has to be read in O. 23, R. 3A, CPC, so viewed, O.

(AIR 1985 Patna 251) 35

23, R. 3A CPC, does not bar a suit or proceeding to that end. The minor can and is within his rights to bring a suit, besides other conditions applying to move an application under Section 151 CPC for recalling/cancelling the decree passed by fraud, forgery with prejudice to the minor."

48. We are of the view, in the present case that, the plaintiff

being minor at the time of the compromise which was entered

without leave of the court, he on attaining the majority, within the

period of limitation, could file the suit for cancellation of the

compromise decree, as such a compromise decree would be

voidable at the instance of the minor. In our view the suit for

cancellation of a compromise decree, without leave of court, by a

minor on attaining majority, would be maintainable and Order 23

Rule 3A CPC would not come in the way of filing a suit for

cancellation of such a compromise decree. The remedy to apply

to recall in the same suit may be open but that would not bar filing

of the suit. So, O.S.No.197 of 2009 was not barred by Order 23

Rule 3A CPC .

Consideration of Point-B:

49. Plaintiffs case is that Ravamma and Pushpavati they both

died intestate. The defendant had set up the case of the Will(s), 36

from both i.e separate wills, by those females in his favour. The

defendant is thus, denying intestate succession but claiming testamentary succession. So, under this point it requires

consideration, if it is a case of intestate succession or

testamentary succession.

50. The defendant though set up the case of Will(s), but no Will was filed. No evidence was led. The case of Will(s) thus has not been proved. The burden was on the defendant-respondent to

establish his case of will. He failed.

51. Learned senior counsel for the defendant-respondent submitted that the plaintiff admitted the will and so there was no

legal requirement to prove the will. He submitted that the

admission is the best evidence. In this regard, he referred to para 5 of the plaint to contend that it contained the admission. Sri N.

Subba Rao, learned senior counsel for the appellant submitted that there is no such admission.

52. We have perused para 5 of the plaint. The relevant part which was referred by the defendant's counsel, is as follows;

'5 Subsequently due to the fear of his highhanded behavior, the said

Chennupati Pushpavathi is voiceless and completely in the jaws of the defendant. After the death of Chennupati Kesava 37

Rao as his mother Shri Ravamma was also alive by that time, as she was also legal heir to the said Chennupati Kesava Rao, the defendant taking advantage of her old age of about more than 80 years claiming her property as though she bequeathed through a forged will without her knowledge and with, playing fraud and misrepresentation on her and claiming her share also that belonging to him and his sons "

53. The aforesaid part in plaint, in our view, cannot be said to

be an admission of the plaintiff-appellant with respect to the wills

which, the respondent-defendant claimed to be in his favour. The

pleading is that taking the advantage of old age etc. her property

was being claimed as if the same was bequeathed to the

defendant-respondent. The plaintiff clearly said through a

forged will". There is no reference of any particular will or its

description. Further, it was pleaded 'forged will'. It is settled in

law that for an admission to be binding it must be clear and

specific. Admission cannot be by drawing inference or reading a

word or even a sentence. When read as a whole, the referred

part of the plaint, we are of the considered view that the para 5 of

the plaint does not contain any admission by the plaintiff-

appellant of any will(s).

38 54

Further, it is a settled position in law that a will has to be proved as per the provisions of Section 68 of the Indian Evidence

Act read with Section 63(c) of the Indian Succession Act. It IS so,

even with respect to a registered will. Registration of a Will does not dispense with the requirement of proving a will as per the above statutory provisions nor from removing the suspicious circumstances surrounding the execution of the will. Once the

plaintiffs pleading was, claiming as bequeathed through a forged will, and the defendant had set up a case of will in his written statement, there was the legal requirement for the defendant to

prove the will as per the statutory provisions but it was not done.

55. Recently, in Ramesh Chand (D) Thr. LRs vs. Suresh

Chand and another^^ the Hon'ble Apex Court on the point of will, reiterated that, it is mandatory requirement to examine at least

one of the attesting witness of the will. Paras 23 to 27, read as

follows

"23. The third document that the plaintiff has relied upon to claim his title over the property is a Registered Will dated 16.05.1996 said to have been executed by his father. The term "Will" has been defined under Section 2(h) of the Succession Act. 1925 as "the legal declaration of a testator with respect to his property which he desires to be carried into effect after his death". Its

2025 INSC 1059 39

essentials have been further enumerated by this Court in the case of Mathai Samuel v. Eapen Eapen (Dead) by Lrs.7 thus;

"12. Will is an instrument whereunder a person makes a

disposition of his properties to take effect after his death and

which is in its own nature ambulatory and revocable during his lifetime. It has three essentials;

(1) It must be a legal declaration of the testator's intention; (2) That declaration must be with respect to his property; and (3) The desire of the testator that the said declaration should be effectuated after his death.

13. The essential quality of a testamentary disposition is

ambulatoriness of revocability during the executant's lifetime.

Such a document is dependent upon the executant's death for its vigour and effect."

24. Will has also been expounded upon in the case of Suraj Lamp (supra), thus:

"22. A will is the testament of the testator. It is a posthumous

disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come

into effect only after the death of the testator and is revocable at any time during the lifetime of the testator. It is said that so long as the testator is alive, a will is not worth the paper on which it is

written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the wilt stands revoked. Registration of a will does not make it any more effective."

25. This Court on the issue of the proof of Wills in the case of H.

Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443) has succinctly defined the contours as under;

"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial 40

#

pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the

handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These

provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian

Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his properly by will and the three illustrations to this section indicate

what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the

light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained?

4!

Stated broadly it is the decision of these questions which

determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."

26. Further, in the case of Meena Pradhan v. Kamla Pradhan

((2023) 9 see 734) following essentials to prove a Will were

mentioned:

"10.1. The court has to consider two aspects: firstly, that the will is

executed by the testator, and secondly, that it was the last will executed by him;

10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. 10.3. A will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:

(a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will;

(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of

such signatures;

(d) Each of the attesting witnesses shall sign the will in the

presence of the testator, hovyever, the presence of all witnesses at the same time is not required;

42 10.4. For the purpose of proving the execution of the will , at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; 10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had

signed the will in the presence of the testator; 10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with;

10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence. 10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier.

10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the

consequences, nature and effect of the dispositions in the vyill; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will;

10.10. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. Fiowever, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.

10.11. Suspicious circumstances must be "real, germane and valid"

and not merely "the fantasy of the doubting mind 43

[Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ", Whether a particular feature would qualify as "suspicious" would depend on the facts and circumstances of each case. Any circumstance

raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he

receives a substantial benefit, etc.

27. Considering the aforementioned cases, it is clear that in order to rely upon a Will, the same has to be proved in accordance with lavy. A

Will has to be attested by two witness, and either of the two attesting witnesses have to be examined by the profounder of the will "

56. So, the case as set up by the defendant - respondent

based on the alleged Will(s) remained only the pleading, which

could not be proved. The Will(s) was not filed. Any other evidence

was also not led by the defendant.

57. In our considered view the present is not a case of

testamentary succession on the death of Ravamma or/and

Pushpavati, but is a case of an intestate succession on their

respective death(s) under Hindu Succession Act, 1956.

Consideration of Points C & D:

58. Both these points are related to each other and are being

taken up together.

44

59. We shall first reproduce Sections 5, 11 and 16 of the H.M.Act and Sections 3(1 )(j), 8, 15 and 16 and Schedule-1

(Class-1 heir) of H.S.Act.

60. Section 5(i) of H.M. Act provides as under

"5.

Conditions for a Hindu Marriage; A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled namely;-

(i) Neither party has a spouse living at the time of marriage,

(ii) To (V) "

61. Section 11 of H.M.Act, 1955 reads as under;

"11. Void marriages.-

Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i) , (iv) and (v) of section 5."

62. Section 16 of the H.M.Act, 1955 reads as under;

16. Legitimacy of children of void and voidable marriages.--

(1) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the

commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and 45

whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a

voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been

the legitimate child of the parties to the marriage if at the

date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a

marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."

63. Section 3(1 )(j) of H.S.Act, 1956 reads as under:

"3. Definitions and interpretation .--

(1) In this Act, unless the context otherwise requires,--

(j) "related" means related by legitimate kinship:

Provided that illegitimate children shall be deemed to be related to their mothers and to one another, and their

legitimate descendants shall be deemed to be related to them and to one another; and any word expressing relationship or denoting a relative shall be construed accordingly."

64. Section 8 of H.S.Act, 1956 reads as under;-

"8. General rules of succession in the case of males.--

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:--

46 (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the

Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased."

65. Schedule-I referable to Section 8 of H.S.Act is as under:

THE SCHEDULE

(Sec section 8) HEIRS IN CLASS I AND CLASS II

Class I

Son; daughter; widow; mother; son of a pre-deceased son;

daughter of a pre-deccascd son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre deceased son I [son of a predeceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son].

Class II

I. Father.

II. (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister.

III. (1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter's daughter's son, (4) daughter's daughter's daughter.

47 IV. (I) Brother's son. (2) sister's son. (.7) brother's daughter, (4) sister's daughter.

V. Father's father; father's mother.

VI. Father's widow; brother's widow.

VII. Father's brother; father's sister.

VIII. Mother's father; mother's mother.

IX. Mother's brother; mother's sister.

Explanation.--In this Schedule, references to a brother or sister do not include references to a brother or sister bv uterine blood."

66. Section 15 of Hindu Succession Act, 1956 reads as under;

"15. General rules of succession in the case of female Hindus.

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,--

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1),--

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father;

and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any

son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred 48

to in sub-section (1) in the order specified therein, but upon the heirs of the husband."

67. Section 16 of the H.S. Act reads as under:-

"16. Order of succession and manner of distribution among heirs of a female Hindu.--

The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely;--

Rule 1.--Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.

Rule 2.--If any son or daughter of the intestate had pre

deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death.

Rule 3.--The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such

person had died intestate in respect thereof immediately after the intestate's death."

68. We now refer to the judgment in Revana Siddappa (supra), in which issues in reference were as follows vide para 17:

"17. The reference essentially raises the following issue: whether a child who is conferred with legislative legitimacy under Section 16(1) or 16(2) is, by reason of Section 16(3), entitled to the ancestral/coparcenary property of the parents or is the child 49

merely entitled to the self-earned/separate property of the

parents. The questions that arise before us are - first, whether the legislative intent is to confer legitimacy on a child covered

by Section 16 in a manner that makes them coparceners, and

thus entitled to initiate or get a share in the partition - actual or notional; second, at what point does a specific property transition into becoming the property of the parent. For, it is solely within such property that children endowed with legislative legitimacy hold entitlement, in accordance with Section 16(3)."

69. The Hon'ble Apex Court answered the reference recording

the conclusions, in para 54 of Revana Siddappa (supra) which

reads as under:

"54. We now formulate our conclusions in the following terms:

(i) In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether (i) such a child is born before or after the commencement of Amending Act 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment;

(ii) In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child 'begotten or conceived' before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage if a decree of dissolution had been passed instead of a decree of nullity;

(iii) While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub-section (2) to a child born from a voidable PART K marriage which has been annulled, the legislature has stipulated in sub-section (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person;

50 Ov) While construing the provisions of Section 3(1 )(j) of the HSA 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA 1956.

In other words, a child who is legitimate under sub-section (1) or sub section (2) of Section 16 of the HMA would, for the purposes of Section 3(1)(j)of the HSA 1956. fall within the ambit of the explanation 'related by legitimate kinship' and cannot be regarded as an 'illegitimate child' for the purposes of the proviso;

(v) Section 6 of the HSA 1956 continues to recognize the institution of a joint Hindu family governed by the Mitakshara law and the concepts of a coparcener, the acguisition of an interest as a coparcener by birth and rights in coparcenary property. By the substitution of Section 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of Section 6;

(vi) Section 6 of the HSA 1956 provides for the devolution of interest in coparcenary property. Prior to the substitution of Section 6 with effect from 9 September 2005 by the Amending Act of 2005, Section 6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving members of the coparcenary. The exception to devolution by survivorship was where the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative in Class I claiming through a female relative, in which event the interest of the deceased fn a Mitakshara coparcenary property would devolve by testamentary or intestate succession and not by survivorship. In terms of sub-section (3) of Section 6 as amended, on a Hindu dying after the commencement of the Amending Act of 2005 his interest in the property of a Joint Hindu family governed by the Mitakshara law will devolve by testamentary or intestate succession, as the case may be, under the enactment and not by survivorship. As a consequence of the substitution of Section 6, the rule of devolution by testamentary or intestate succession of the interest of a deceased Hindu in the property of a Joint Hindu family governed by Mitakshara law has been made the norm;

(vii) Section 8 of the HSA 1956 provides general rules of succession for the devolution of the property of a male Hindu dying intestate. Section 10 provides for the distribution of the property among heirs of Class I of the Schedule. Section 15 stipulates the general rules of succession in the case of female Hindus dying intestate. Section 16 provides for the order of succession and the distribution among heirs of a female Hindu; 51

(viii) While providing for the devolution of the interest of a Hindu in the property of a Joint Hindu family governed by Mitakshara law, dying after the commencement of the Amending Act of 2005 by testamentary or intestate succession, Section 6 (3) lays down a legal fiction namely that 'the PART K coparcenary property shall be deemed to have been divided as if a partition had taken place'. According to the Explanation, the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition of the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition;

(ix) For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place; and

(x) The provisions of the HSA 1956 have to be harmonized with the mandate in Section 16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3), as interpreted above."

70. In Revanasiddappa (supra), the Hon'ble Apex Court, thus

settled the legal position, inter alia that, the provisions of the HSA

1956 have to be harmonized with the mandate in Section 16(3) of

the H.M.A 1955 which indicates that a child who is conferred with

legitimacy under sub-sections (1) and (2) will not be entitled to

rights in or to the property of any person other than the parents. 52

The property of the parent, where the parent had an interest in

the property of a Joint Hindu family governed under the

Mitakshara law, has to be ascertained in terms of the Explanation

to sub-section (3). So, with respect to the property of the parents for a child of void, or voidable marriage after its cancellation or

declaration, such a child, under Section 16(3) of Hindu Marriage Act, 1955 conferred with legitimacy, is entitled. He is so entitled

to the property of parents only, and does not have any right in the

property of any other person. The Hon'ble Apex Court with respect to Section 3(1 )(j) of the Hindu Succession Act, 1956,

which defines 'related', which 'means related by legitimate Kinship' with its proviso, held that, the legitimacy which is

conferred by Section 16 of the H.M.Act on a child born of a void

marriage or voidable marriage has to be read in H.S.Act. Such a

child would fall in within the ambit of Explanation 'related by

legitimate kinship' under Section3(1 )(j) of H.S.Act and cannot be

regarded an legitimate child for the purpose of its proviso.

71. The plaintiff is the son of Manikyamaba @ Mani. Plaintiffs

case was of marriage of Ch. Kesava Rao with Manikyamba @ Mani. The defendant had set up the case of no such marriage

and the plaintiff not being the son of Kesava Rao. It remained 53

only the pleading, without leading any evidence nor even cross-

examining the plaintiff's witnesses P.W.1. The evidence of P.W.1

proved marriage. The trial court believed such marriage. But

such marriage was during subsistence of the marriage of Kesava

Rao with Puspavathi (1^' wife). So, by applying the legal

provision the marriage was void under Section 11 read with

Section 5(i) of the H.M. Act, 1955. Plaintiff would therefore be

illegitimate son of Ch. Keshava Rao but conferred with legitimacy

under Section 16(1) of the H.M.Act and also entitled to succeed

to the property of his father Ch. Kesava Rao, as per Section 16(3)

of the H.M.Act read with Section 8 and Schedule-1 - Class-1 heir.

72. Ch. Keshava Rao died intestate. He was survived by

plaintiff-Chennupati Naga Venkata Krishna (son), Ravamma

(mother) and Pushpavathi (wife) respectively. So, they all shall

succeed in egual shares 1/3'"^ each being the heir of Class-1.

73. The next point now is whether the plaintiff would succeed

to the estate left by Ravamma and Pushpavati dying intestate.

74. We shall consider it under separate heads. Firstly, with

respect to Ravamma's estate and then Pushpavati's estate.

75. There is no dispute that the estate left by these two

females on their respective death, had devolved upon them on 54

Ihe death of Keshava Rao father of the plaintiff, being his mother and widow respectively.

Succession to the Estate of Ravamma-

76. So far as the estate left by Ravamma is concerned, on her demise, as per the General Rules of Succession, in the case of female Hindus, it shall devolve according to the Rules set out in Section 16, firstly, upon the sons and daughters (including the children of any predeceased son or daughter), and the husband. The plaintiff is the son of the predeceased son, namely,

Chennupati Kesava Rao of Ravamma. The defendant is also the son of Chennupati Madhava Rao, another son of Ravamma. It not clear whether Chennupati Madhava Rao was alive or had predeceased his mother Ravamma. But, for our purposes, that

would not be very relevant. The reason is that, if Chennupati Madhava Rao was alive, he would take in the estate left by

Ravamma on her death under clause (a) of Section 15 (1) along with the plaintiff, who is the son of the predeceased son

Chennupati Kesava Rao. And, if Madhavarao had also predeceased Ravamma, then the defendant would take along

with the plaintiff. So, in either situation, the defendant would take

along with the plaintiff in the estate of Ravamma, left by her. which she had inherited from his predeceased son Kesava Rao rd, i.e., 1/3 and in that 1/3'^^, the plaitiff and the defendant would

take in equal shares i.e.,1/6'^, each under Section 15(1) (a) of the

Hindu Succession Act.

Succession to the Estate left by Pushpavathi:

77. Plaintiff is covered under Section 16(1) of H.M.Act, 1956.

He is entitled to the estate of his parents under Section 16(3) of

the H.M.Act. The question is whether Chennupati Pushpavathi

(1®' wife of Chennupati Kesava Rao) would be covered by the expression 'parent' of the plaintiff.

12

78. In K. C. Nithya v. State of Tamil Nadu the issue was

whether the grandfather would be included within the expression

parent" under the prospectus published, to be given admission in

M.B.B.S Course in any one of the Government Medical Colleges

in Tamil Nadu which reserved the seats for children whose

parents worked for the enrichment, propagation and development

of Tamil Language and made significant contribution to Tamil

Society, Culture and Literature. The grandfather of the petitioner

therein had preserved the art of 'Silambattam' and thereby had

contributed to the protection and development of Tamil Culture.

1997 see OnLine Mad 991 56

The candidate's application was rejected on the ground that the prospectus provided for, 'parents' and not 'grandparents'. The

Madras High Court in that context held that naturally it could be only the natural parents. Further, considering that in 'the Law Lexicon' the ordinary meaning for 'parent' was as 'a person who has begotten or borne a child; father or mother, it was held that the word 'parent' or 'parents' may also mean one of both parents

but 'parent' does not include a 'step-father' or 'step-mother.

79. Paragraphs 7 and 8 of K. C. Nithya (supra) read as under;

"7. 1 do not think the interpretation given by learned counsel for petitioner can be accepted. The expression that is used is 'Children whose parents worked for the enrichment'. Naturally, it could be only the natural parents and not grandparents. Apart from this, the prospectus itself gives a contrary intention. When we consider the reservation made for children of freedom-fighters wc find that

admission is reserved for grand-children of freedom-fighters. This Itself shows that the reservation under Special Category to which petitioner applied, applies only to natural parents, i.e., mother or father, and not grandparents.

8. Even in 'The Law Lexicon' relied on by learned counsel for petitioner, the ordinary meaning for 'parent' is given as 'a person who has begotten or borne a child; father or mother'. It is further said that 'the word parent' or 'parents' may be held to mean one of both parents. 'Parent' is generally understood to mean father or mother, but it may also mean any lineal ancestor. It generally applied to the father. The Law Lexicon further says that 'In the 57

legal or ordinary acceptation of the term, 'parent' does not

include a step-father or step-mother. '

80. We also refer to the judgment in Lachman Singh v. Kirpa

Singh^^ in which the Hon'ble Apex Court held that ordinarily laws of succession to property follow the natural inclinations of men

and women. It was observed that according to Collins English

Dictionary a "son" means a male offspring and "stepson" means a

son of one's husband or wife by a former union. Under the

H.S.Act a son of a female by her first marriage will not succeed to

the estate of her "second husband" on his dying intestate. In the

case of a woman it is natural that a stepson, that is, the son of her

husband by his another wife is a step away from the son who has

come out of her own womb. But, under the Act a stepson of a

female dying intestate is an heir and that is so because the family

headed by a male is considered as a social unit. The Hon'ble

Apex Court held that if a stepson does not fall within the scope of

the expression "sons" in clause (a) of Section 15 (1) of the Act, he

is sure to fall under clause (b) thereof being an heir of the

husband. The word "sons" in clause (a) of Section 15 (1) of the

Act includes sons born out of the womb of a female by the same

(1987) 2 see 547 58

husband or by different husbands and adopted sons who are deemed to be sons for purposes of inheritance. Children of any predeceased son or adopted son also fall within the meaning of the expression "sons". It was further held that if Parliament had

felt that the word "sons" should include "stepsons" also, it would have said so in express terms. It was concluded that the word

"sons" in clause (a) of Section 15 (1) of the H.S.Act does not

include "stepsons" and that stepsons fall in the category of the heirs of the husband under clause (b). The Hon'ble Apex Court

held that, when once a property becomes the absolute property of a female Hindu it shall devolve first on her children, as provided in

Section 15 (1)(a) of the Act and then on other heirs subject only

to the limited change introduced in Section 15 (2) of the Act. The

stepsons and stepdaughters will come in as heirs only under clause (b) of Section 15(1) or under clause (b) of Section 15 (2) of the H.S. Act.

81. Paragraph 5 and the relevant part of paragraph 7 of Lachman Singh (supra) read as under:

"5. The only question which is to be determined here is whether

the expression "sons" in clause (a) of Section 15(1) of the Act includes stepsons also i.e. sons of the husband of the deceased by

another wite. In order to decide it, it is necessary to refer to some of 59

the provisions of the Act. Section 3{j) of the y\ct detines "related" as related by legitimate kinship but the proviso thereto states that

illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another and that any word expressing

relationship or denoting a relative shall be constnied accordingly. Section 6 and Section 7 of the Act respectively deal with devolution of interest in coparcenary property and devolution of interest in the property of a tanvaJ, tavazhi, kutumha, /ravarn and///om. Sections 8 to 13 of the Act deal with rules of succession to the property of a male

Hindu dying intestate. Wc are concerned in this case with the rules of succession to the property of a female Hindu dying intestate. Sections 15 and 16 of the Act are material for our purpose. Ordinarily laws of

succession to property follow the natural inclinations of men and

women. The list of heirs in Section 15(1) ot the Act is enumerated

having regard to the current notions about propinquity or neamess ot relationship. The words "son" and "stepson" are not defined in the Act. According to Collins English Dictwnaiy a "son" means a male offspring and "stepson" means a son of one's husband or wife by a fonner union. Under the Act a son of a female by her first marriage will not succeed to the estate of her "second husband" on his dying

intestate. In the case of a woman it is natural that a stepson, that is, the

son of her husband by his another wife is a step away from the son who has come out of her own womb. But under the Act a stepson of a

female dying intestate is an heir and that is so because the family headed by a male is considered as a social unit. If a stepson does not fall within the scope of the expression "sons" in clause (a) ot Section 15(1) of the .Act, he is sure to fall under clause {h) thereof being an heir of the husband. The word "sons" in clause («) of Section 15(1) of

the Act includes (i) sons bom out of the w'omb of a female by the 60

same husband or by different husbands including illegitimate sons too in view of Section 30 of the Act and (a) adopted sons who are deemed to be sons for purposes of inheritance. Children of any predeceased son or adopted son also fall within the meaning of the expression

"sons". If Parliament had felt that the word "sons" should include "stepsons" also it would have said so in express terms. We should

remember that under the Hindu law as it stood prior to the coming into force of the Act, a stepson i.e. a son of the husband of a female by another wife did not simultaneously succeed to the stndhana of the female on her dying intestate. In that case the son bom out of her womb had precedence over a stepson. Parliament would have made express provision in the Act if it intended that there should be such a radical departure from the past. We are of the view that the word "sons" in clause (a) of Section 15(1) of the Act does not include "stepsons" and that stepsons fall in the category of the heirs of the husband referred to in clause (6) thereof"

"7 When once a property becomes the absolute property of a female Hindu it shall devolve first on her children (including children of the predeceased son and daughter) as provided in Section 15{l)(a) of the Act and then on other heirs subject only to the limited change introduced in Section 15(2) of the Act. The stepsons and stepdaughters will come in as heirs only under clause (b) of Section 15(1) or under clause (b) of Section 15(2) of the Act. We do not, therefore, agree with the reasons given by the Allahabad High Court in support of its decision. We disagree with this decision."

82. In Bajaya v. Gopika the question was with resepet to the succession to the interests of one Smt.Sarji, who died

(1978) 2 see 542 61

intestate and issueless under the Hindu Succession Act, 1956.

The interest in the suit property therein was inherited by Smt.

Sarji from her husband. Referring to the General Rules of

succession in the case of female Hindu dying intestate given in

Sections 15 and 16 of the Hindu Succession Act, the Hon'ble

Apex Court held that, then, estate will go to the heirs of her

husband Punjya, under Section 15 (1) (b) of the Hindu

Succession Act.

83. In Bajaya (supra) the Hon'ble Apex Court also considered

the question whether the heirs of the husband in Secton 15 were

to be ascertained with respect to the date of Punjya's demise or

with reference to the date of the death of Smt.Sarji when

succession opened. The Hon'ble Apex Court on consideration of

Section 15 (2) (b) and the fiction raised in Rule 3 of Section 16 of

the Hindu Succession Act held that for the purpose of

ascertaining the order of devolution, it is to be deemed as if the

husband died intestate imraediately after the female intestate's

death, and reverted to the schedule under Section 8 of the

H.S.Act to determine the heirs of Smt. Sarji's husnad on her

death.

62

84. Paragraphs 28 to 34 of Bajaya (supra) are reproduced as

under:

"28. The fijrther question to be considered is: Which of the parties is entitled to succeed to the interest of Smt Sarji deceased under the Hindu Succession Act, 1956?

29. The General Rules of succession in the case of a female Hindu dying intestate are given in Section 15 of the Act, which so far as it is materia! for the purpose, read as follows:

"15. (1) The property of a female Hindu dying intestate shall devolve according to the nales set out in Section 16,-- (u) upon the sons and daughters (including the children of any

predeceased son or daughter) and the husband; (/;) upon the heirs of the husband;

(c) to {e)

(2) Notwithstanding anything contained in sub-section (1);

(«) ■k k k

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of anv predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband."

30. This section should be read along with the Rules set out in Section 16, the material part of which runs as under:

"The order of succession among the heirs referred to in Section 15 shall be, and the distribution ot the intestate's property among those heirs shall take place according to the following rules, namely:

Rule 1-2 * * * 63

Rule 3. The devolution of the property of the intestate on the heirs refeiTed to in clauses (/?). {d) and (e) of sub-section (1) and in sub section (2) of Section 15 shall be in the same order and according to

the same rules as would have applied if the property had been the father's or the husband's as the case may be. and such person had died intestate in respect thereof immediately after the intestate's death"

{Emphasis supplied)

31. The instant case will fall under clause {b), sub-section (2) of Section 15, because Smt Sarji died issueicss and intestate. The interest in the suit property was inherited by her from her husband. The suit land will, therefore, under clause (/?), go to the heirs of her husband, Punjya.

32. The next question is, whether "the heirs of the husband" in Section 15 are to be ascertained with reference to the date of Punjya's

demise in 1936, or with reference to the date of Shrimati Sarji's death

on November 6, 1956, when succession opened out.

33. There appears to be some divergence of opinion among the High Courts on this point. We are however of opinion that once it is found that the case falls under Section 15(2)(/7), the fiction envisaged

in Rule 3 of Section 16 is attracted, according to which, for the purpose of ascertaining the order of devolution, it is to be deemed as if the husband had died intestate immediately after the female intestate's death. Bearing this fiction in mind we have then to go to the Schedule under Section 8 of the Act to find out as to who would be the heirs of

Smt Sarji's husband on the date of her death. Section 8 of the Act

provides that the property of a male Hindu dying intestate shall

devolve according to the provisions of this Chapter;

(a) Firstly, upon the heirs, being the relatives specified in Class I of the Schedule;

64

(b) Secondly, if there is no heir of Class I, then upon the heirs. being the relatives specified in Class II of the Schedule;

(c) Thirdly, if there is no heir of any of the tv'o classes then upon the agnates of the deceased; and id) Lastly, if there no agnate, then upon the agnates of the deceased.

34. Now, Smt Gopikabai, Respondent 1 is admittedly the daughter of the sister of the last male holder. Punjya; whereas the appellants are

his remote agnates. Neither party falls under Class I of the Schedule.

"Sister's daughter" is Item 4 of Lntry IV in Class 11 of the Schedule; while agnates do not figure anywhere in Class II. Thus, Smf Gopikabai's case will come in clause (6), secondly, of Section 8 and, as such, she will be a preferential heir of the husband of Smt Sarji, if he had died the moment after her death on November 6, 1956. in this view, she w'ould exclude the defendant-agnates from inheritance even according to "personal law" which, within the contemplation of Section 151 of the Code, will include the Hindu Succession Act, 1956, in force at the time when Smt Sarji died and succession opened out."

85. We are therefore of the considered view that

i) the plaintiff being the son of Chennupati Kesava Rao and

Manikyamba @ Mani, would be the stepson' of Pushpavathi (1^' wife of Chennupati Kesava Rao). Pushpavathi would not be

included within the expression 'parent', of the plaintiff, she not being the natural mother of the plaintiff, for the purposes of Section 16 (3) of the Hindu Marriage Act. The plaintiff would not be the legal heir of Pushpavathi, on her death, so as to be called 65

her 'son' and therefore would not be entitled to succeed under

Section 15(1) (a) of the Hindu Succession Act. But

ii) in view of the law laid down in Lachman Singh (supra),

Bajaya (supra) and Revana Siddappa (supra), the plaintiffs case

would fall under Section 15 (1) (b) of the Hindu Succession Act.

The plaintiff being the son of Chennupati Kesava Rao, would be

entitled to succeed to the estate of Pushpavathi under Section 15

(1) (b) and Section 15 (2) (b) of the Hindu Succession Act, as the

legal heir (son) of Chennupati Kesava Rao, i.e the pre-deceased

husband of Pushpavathi,

iii) the provision of Section 3(1 )(j) H.S.Act will not come in

the way of such succession. The plaintiff would not be regarded

as illegitimate child, even for the purpose of proviso to Section

3(1 )(j) H.S.Act: and

iv) the defendant respondent would not succeed to the

estate left by Pushpavati, in the presence of the plaintiff (legal

heir of predeceased husband) under Section 15(1 )(b) H.S.Act.

86. Thus considered, the plaintiff is not the absolute owner but th would be entitled to 5/6'*^ share and the defendant to 1/6 as per

the following:-

66

(i) On the death of Chennupati Kesava Rao/plaintiff 1/3 under Section 8 read with Schedule of the HS.Act being Class-1 heir;

(ii) On the death of Ravamma;

a) plaintiff 72 of 1/3^"* of Ravamma, = 1/6*^ under Section 15 (1)(a)of HSAct;

b) The defendant 72 of 1/3™ of Raavamma = 1/6"^ under Section 15 (1) (a) of H.S. Act.

(iii) On the death of Pushpavathi; plaintiff would take her 1/3'"^

estate under Sections 15 (1) (b), 15 (2) (b) r/w Section 16 of H.S Act.

87. Now proceeding further, before considering Point - E, we shall consider the following other submissions of the learned counsel for the respondent.

88. Learned counsel for the respondent placed reliance in C.N.

Ramappa Gowda (supra) to contend that even if the plaintiff was not cross-examined by the defendant and the defendant had also

not let in any evidence, on that ground, the learned Trial Court

could not hold that the plaintiff's case had been proved,

89. in C.N. Ramappa Gowda (supra), the Hon'ble Apex Court held that assertion is no proof and hence, the burden lay on the 67

plaintiff to prove even if there was no written statement to the

contrary or any evidence of rebuttal.

90. There cannot be any dispute on the proposition of law that

even if the defendant does not file written statement or does not

lead his evidence or even does not cross examine the plaintiffs

witnesses, still the plaintiff has to establish his case based on the

evidence on record and the trial court has to record the reasons

for proof of the plaintiff's case. In other words, whatever be the

evidence on record lead by the plaintiff, the trial court has to

appreciate such evidence and has to arrive at a definite finding.

91. In the present case, the trial court has considered the

evidence on record before it. Besides documentary evidence, the

oral evidence was of the plaintiffs witness P.W.1. The trial court

in consideration of the evidence of P.W.1, believed that evidence.

In the absence of any contrary evidence, the trial court had to

record finding considering P.W.1 evidence. We do not find any

illegality in the findings recorded by the learned trial court except

to the extent of interference as in this appeal, nor in the approach

adopted by it. In our view, present is, not a case where the trial

court has not recorded the reasons or did not consider the 68

evidence on record. So, C.N. Ramappa Gowda (supra) is of no help to the respondent.

92. The another contention of Sri K. S. Gopala Krishna, learned Senior Advocate, for the defendant, is that the plaintiff did not appear in the witness box, but only his mother appeared as

P.W 1, and consequently, the plaintiff failed to establish his case

and the same may be taken adverse to the plaintiff/appellant. The said argument deserves rejection. The reason is that in the facts

of the present case, the plaintiff was required to prove that there was marriage between Chennupati Kesava Rao and Manikyamba @ Mani; and that he was born of that marriage. The plaintiffs mother (PW 1) was the best witness to prove that. There was no

dispute on facts that, the property belonged to Chennupati Kesava Rao; that Pushpavathi was his wife (1®' wife); that

Ravamma was the mother of Chennupati Kesava Rao and that at

the time of death of Chennupati Kesava Rao, they were alive.

Further, the plaintiffs date of birth was proved by his mother by filing the Birth Certificate Ex.A.2 which made it evident that, the

compromise decree was passed during the minority of the

plaintiff. The O.S.No.197 of 2009 was filed within the period of

limitation of three years on attaining the age of majority by the 69

plaintiff on which point there is no dispute raised. So, we are of

the view that the non-production of the plaintiff as witness or the

plaintiff not appearing in the witness box, is not fatal to his case.

The question of drawing any adverse inference does not arise. So

far as the succession on the death of Keshav Rao and thereafter

on the death of Ravamma and Pushpavathi is concerned, that

would be as per the position in lav^/ under the H.S.Act.

Consideration on Point-E:

93. We now consider, what should be the appellate decree.

94. Order 41 Rule 33 CPC reads as under:

'33. Power of Court of Appeal.

The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more

decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:

Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any 70

objoction on which tho Court from whos© decree the appeal is preferred has omitted or refused to made such order."

95. Order 41 Rule 33 CPC provides for the Power of Court of

Appeal. According to this provision, the Appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require.

96. In Chaya v. Bapusaheb^^ the Hon'ble Apex Court held that Order 41 Rule 33 CPC is based on a salutary principle that the appellate Court should have the power to do complete justice between the parties and for this purpose, a wide discretionary power is conferred on the appellate Court to pass such decree or

order as ought to have been passed or as the nature of the case

may require, though such power is to be exercised with care and

caution, which in an appropriate case, the appellate Court should

not hesitate to exercise such power.

97. In K. Muthuswami Gounder v. N. Palaniappa Gounder 16

the Hon'ble Apex Court observed that no hard and fast rule can

be laid down as to the circumstances under which the power can

' (1994) 2 see 41 (1998) 7 see 327 71

be exercised under Order 41 Rule 33 CPC and each case must

depend upon its own facts.

98. In Giani Ram v. Ramjilal^^ the Hon'ble Apex Court in the facts of that case observed that if the claim of the respondents

therein to retain any part of the property after the death of Jwala

was negatived, it would be perpetrating grave injustice to deny to

the widow and the two daughters their share in property to which

they were in law entitled and then further observed that, that was

the case in which the power under Order 41 Rule33 CPC ought to

have been exercised.

99. Paragraphs 8 to 10 of Giani Ram (supra) read as under;

"8. Order 41 Rule 33 of the Code of Civil Procedure was enacted

to meet a situation of the nature arising in this case. Insofar as it is matenal, the rule provides:

"The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require,

and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection."

The expression "which ought to have been passed" means "wdtich ought in law to have been passed". If the appellate court is of the view that any decree which ought in law to have been passed, but was in

(1969) 1 see 813 72

#

fact not passed by the subordinate court. It may pass or make such further or other decree or order as the justice of the case may require.

9. If the claim of the respondents to retain any part of the property after the death of Jwala is negatived, it would be perpetrating grave injustice to deny to the widow and the two daughters their share in property to w'hich they are in law entitled. In our view, the case was one in which the power under Order 41 Rule 33 of the Code of Civil Procedure ought to have been exercised and the claim not only of the three sons but also of the widow and the two daughters ought to have been decreed.

10. The appeal is allowed and the decree passed by the High Court is modified. There will be a decree for possession of the lands in suit in favour of the three sons, the widow and the two daughters of Jwala. The interest of the three sons is one-half in the lands in suit and the

interest of the widow and the two daughters is the other half in the lands. The plaintiffs will be entitled to mesne profits from the date of the suit under Order 20 Rule 12 of the Code of Civil Procedure. The

appeal will be allowed with costs throughout."

100. Para-14 of Chaya (supra) reads as under;

"14. This provision is based on a salutary principle that the

appellate court should have the power to do complete justice between the parties. The object of the rule is also to avoid contradictory and inconsistent decisions on the same questions in the same suits. For this purpose, the mle confers a wide discretionary power on the appellate court to pass .such decree or order as ought to have been passed or as the nature of the case may require, notwithstanding the fact that the appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross-objection. While it is true that since the power is 73

derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the appellate court should not hesitate to exercise the discretion conferred by the said aile."

101. The learned trial Court held the plaintiff entitled at the most

1/3'"^. It set aside the compromise decree, but held the plaintiff not

entitled for declaration of absolute title and thereby not entitled to

recover the possession of the suit schedule properties. Also

holding that, the plaintiff had to work out his separate share

according to law by initiating appropriate legal proceedings. The

plaintiff was also held liable to restore possession of the

properties received by him under the compromise decree.

102. We are of the view that the plaintiff is not the absolute

owner, but has 5/6^^ share in property of Chennupati Kesava Rao and the defendant has to the extent, of 1/6*''. Under the

compromise decree, the plaintiff received plaint-A schedule

property in O.S.No.552 of 1994 and the plaint-B schedule

property was received by the defendant. The O.S.No.197 of

2009 was filed only with respect to the plaint-B schedule property

of O.S.No.552 of 1994, as plaint-A schedule property of

O.S.No.197 of 2009. Once the compromise decree has been set 74

aside, the natural consequence would have been to restore the

possession of plaint-A schedule property of O.S.No.197 of 2009 to the ptaintiff/appellant. But, as the defendant is also entitled to

1/6 share, the separate share of both the parties is to be worked out by metes and bounds.

103. Section 2(2) C.P.C defines 'decree' as under;-

2. Definitions

(2)"decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-(a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.

Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;"

104. 'Decree' as defined in Section 2 (2) CPC may be either preliminary or final. As per the explanation, a decree is

preliminary when further proceedings have to be taken before the 75

suit can be completely disposed of. It is final when such

adjudication completely disposes of the suit. It may be partly

preliminary and partly final.

18 105. In Moot Chand v. Dy. Director, Consolidation the

Hon'bie Apex Court observed that a preliminary decree has first

to be passed in a partition suit and thereafter a final decree for

actual separation of shares, in accordance with the proceedings

under Order 26. There are two stages in a suit for partition. The

first stage is reached when the preliminary decree is passed

under which the rights of the parties in the property are

determined and declared. The second stage is when a final

decree is passed which concludes the proceedings before the

Court and the suit is treated to have come to an end for all

practical purposes.

19 106. In Shankar B. Lokhande v. Chandrakant S Lokhande

wherein the Hon'bie Apex Court held that a preliminary decree is

one which declares the rights and liabilities of the parties leaving

the actual result to be worked out in further proceedings. Then, as

a result of the further inquiries conducted pursuant to the

preliminary decree, the rights of the parties are fully determined

19 (1995) 5 see 631 (1995) 3 see 413 76

and a decree is passed in accordance with such determination which is final.

It was observed that preliminary decree in a partition suit is a step in a suit which continues until the final decree is passed.

107. We are conscious that the present is, not a suit for partition. It is also not a suit of the nature under Order 20 CPC, in which

the preliminary decree is required to be passed. But, at the same time, we are of the view that there is no prohibition under law for

passing a preliminary decree in a suit, of a nature, other than the suits under Order 20 CPC.

The nature of the suits, provided under Order 20 CPC is only illustrative and not exhaustive. In

other words, it cannot be said that a preliminary decree can be passed only in a suit of the nature under Order 20 CPC and not in

other suits.

108. In Union of India 20

V. Khetra Mohan Banerjee the

Calcutta High Court observed that the law. recognizes cases

where even after the disposal of the cardinal issues other matters

have to be worked out before the whole case or suit can be

determined. A number of such cases are mentioned in Order 20

of the CPC, as cases where a preliminary decree ought to be

1959 see Online eal 18 77

made at first, and a final decree at a later stage. The Calcutta

High Court did not agree with the contention that the rules in

Order 20 of CPC give exhaustive list of all classes where

preliminary judgments were delivered by the Court.

119. Relevant part of paragraphs 6 and 7 of Khetra Mohan

Banerjee (supra) read as under;

"6, The law, however, recognises cases where even after the disposal of the cardinal issues other matters have to be

worked out before the whole case or suit can be determined. A

number of such cases are mentioned in Order 20 of the CFC, as

cases where a preliminary decree ought to be made at first, and a final decree at a later stage. Dr. Gupta has contended that die cases mentioned in these rules of the Code of Civil Procedure are the only

cases that can arty of cardinal issues being determined and other

masters being left to be worked out subsequently, and that the

decision appealed from, not being covered by any of the rules

mentioned in the Code of Civil Procedure which mention cases where

preliminary decrees ought to be made the order should not be held to be preliminary or interlocutory judgment.

7. I am unable to agree that these rules in Order 20 of the CPC give exhaustive list of all classes where preliminary judgments may be delivered by the Court. Reference may be made in this

connection to the w'eighty observations of the bench consisting of Mookerjee, J. and Rankin, J. in Peaiy Mohan Mookerjee v. Manohar Mookeijee, 27 Cal WN 989 : (AIR 1924 Cal 160), in these words;--

"It is not essential that an adjudication should be covered by

one of the specific cases of preliminary decrees mentioned in Or.

78 XX of the Code in order that it may form the basis of a final decree; those cases are illustrations of preliminary decrees and help us in determining the true meaning of the definition of the term "decree." Whether the order made by the Judge possesses the qualities of a decree, preliminary or final or partly preliminary and partly final, clearly depends upon its contents."

110. We are therefore of the view that for doing complete justice between both the sides, an exercise to work out the shares by

metes and bounds can be done in the present suit itself, instead of relegating the parties to file a partition suit, to bring an end to

the long drawn litigation since 1990 already stretched in three suits.

If the plaintiff was declared the absolute owner, then on setting aside the compromise decree, direction could have been

given to the defendant to restore / deliver entire A-schedule

property of O.S.No.179 of 2009, which was given to the

defendant under the compromise decree.

111. There is another reason, in a suit for partition, firstly there is adjudication of the shares of the parties. A preliminary decree IS passed. Then the final decree is passed by metes and bounds.

The present is not a suit for partition. It is a suit for declaration

and recovery of possession. But, in the present suit, the

adjudication of rights of the parties had already been done by the 79

trial Court and also by this Court determining their rights and

respective shares, which is the same thing as is done in a suit for

partition, vide a preliminary decree. In our view, what now

remains is the division by metes and bounds between the plaintiff

and the defendant as per their respective shares. So, it would be

in the interests of justice as also the parties that, based on the

decree to be passed in this Appeal, the learned trial Court may be

directed to proceed in the present suit itself, for passing the final

decree, like in a suit for partition.

V. Conclusions;

112. We sum up as under:-

a) On point 'A', we hold that O.S.No.197 of 2009 filed

by the plaintiff-appellant to set aside the compromise decree in

O.S.No.552 of 1994 entered during the minority of the plaintiff-

appellant without sanction/leave of the court under Order 32 Rule

7 C.P.C is not barred by Order 23 Rule 3A CPC.

b) On point-'B' we hold that it is not a case of

testamentary succession but an intestate succession on the

respective death of Ravamma and Puspavathi under the Hindu

Succession Act, 1956.

80

C) On points-'C' & 'D', we hold that the plaintiff- appellant is not the absolute owner, but has 5/6*^ share and the

defendant-respondent has 1/6 share in the estate of Ch.

Keshava Rao, 'A' schedule property of O.S.No.197 of 2009 and

'A' schedule property of O.S.No.552 of 1994 taken together..

d) On point 'E'. we hold that the decree of the trial

court deserves interference and the appellate decree to be

passed shall be as per the consideration under this point (supra).

VI. Result:

113. In the light of the above legal provisions, the judgments considered and for the reasons recorded, we are of the view that

a decree deserves to be passed in this appeal as follows:

i) We affirm the trial court's decree to the effect it sets

aside the compromise decree dated 07.07.1995 in

O.S.No.552 of 1994.

li) The plaintiff-appellant shall be entitled to 5/6'^ share

and the defendant-respondent to 1/6'^ share in the 'A'

schedule properties of O.S.No.197 of 2009 (i.e B-

Schedule of O.S.No.552 of 1994) together with A- Schedule property of O.S.No.552 of 1994. A m sM % wm XI ?

% X?

\ s %

preliminary decree is passed to that effect in the

present O S.No.197 of 2009.

iii) Based on this decree, the learned trial court shall

proceed to pass a final decree by meets and bounds

In O.S.No.197 of 2009, like in a suit for partition.

IV) The 'A' schedule property of O S.No.552 of 1994

\A/hich the plaintiff appellant received pursuant to the

compromise decree shall as far as possible be

permitted to be retained by the plaintiff appellant, but

not in excess of his shares

V) I he 'B' schedule property of O.S.No.552 of 1994

given in compromise decree to the defendant, (i.e 'A'

Schedule of O.S.No.197 of 2009) shall be permitted

to be retained by the defendant-respondent, but not

in excess of his shares

VI) The appeal stands partly allowed in the aforesaid

terms

vii) The cross objections (SR) No.1549 of 2016 is

rejected.

114. The parties shall bear their own costs. .f

Consequently, the Miscellaneous Petitions, if any, pending shall also stand closed.

SD/- E.KAMESWARA RAO JOINT REGISTRAR

//TRUE COPY// // gP- SECTION OFFICER

One Fair Copy to the Flonourable Sri Justice Ravi Nath Tilhari

(For his Lordships Kind Perusal) One Fair Copy to the Flonourable Sri Justice Maheswara Rao Kuncheam

(For his Lordships Kind Perusal)

To,

1. The XII Additional District Judge, Krishna at Vijayawada (with records if any)

2. One CC to Sri A.Sumanth, Advocate [OPUC]

3. One CC to Sri N.Subba Rao, Advocate [OPUC]

4. One CC to Sri M.Devi Prasad, Advocate [OPUC]

5. The Section Officer, V.R Section, High court of Andhra Pradesh at

Amaravati

6. Nine (9) L.R. Copies.

7, The Under Secretary, Union of India, Ministry of Law, Justice and Company Affairs, New Delhi.

8. The Secretary, Andhra Pradesh High Court Advocates' Association Library, High Court Buildings, Amaravathi.

9. Two CD Copies.

MV

TAC p

HIGH COURT

DATED: 26/09/2025 \

COMMON JUDGMENT + decree appeal suit No. 841 OF 2015 CROSS OBJECTIONS (SR) No.1549 OF 2016

3^ 51 0 6 OCT 2025 IS Section^^

allowing the appeal suit No.841 OF 2015 IN PART rejkting the cross objections (SR) No.1549 OF APHC010157142015 IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

FRIDAY, THE TWENTY SIXTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE

PRESENT

HONOURABLE SRI JUSTICE RAVI NATH TILHARI

AND

HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM

APPEAL SUIT No: 841 OF 2015

AND

CROSS OBJECTIONS (SR) No.1549 OF 2016 IN APPEAL SUIT No.8410F 2015

APPEAL SUIT No: 841 OF 2015

Between:

Chennupati Naga Venkata Krishna, S/o. Kesavara Rao, Hindu, Occ:Properties and Student, Kurasavari Street, Patamata Center, Vijayawada, Rep. by GPA Holder C. Manikyamma @ Mani

...APPELLANT / PETITIONER

AND

Chennupati Jagan Mohan Rao, S/o Madhava Rao Properties R/o. patamata Center, Vijayawada, Krishna District.

...RESPONDENT/ DEFENDANT Appeal under section 96 of CPC, against the Judgment and Decree dated 26-3-2015 passed in OS No. 197 of 2009 on the file of the XII Additional District Judge, Krishna at Vijayawada.

CROSS OBJECTIONS (SR) No.1549 OF 2016 IN APPEAL SUIT No.8410F 2015

Between:

Chennupati Jagan Mohan Rao, S/o Sri Madhava Rao, Hindu, Aged about 68 years, R/o. Patamata Center, Vijayawada, Krishna District.

...PETITIONER

(RESPONDENT/ DEFENDANT)

AND

Chennupati Naga Venkata Krishna, S/o. Late Sri Kesavara Rao, Hindu, aged about 20 Years, R/o Kurasavari Street, Patamata Center, Vijayawada.

...RESPONDENT

(APPELLANT/ PLAINTIFF)

Cross Objections filed under Order 41 Rule 22 of CPC in AS.No.841 of 2015 against the Judgment and Decree passed in OS No 197/2009 dated 26.03.2015 on the file of XII Additional district Judge Krishna at Vijayawada.

This appeal and Cross Objections coming on for hearing and upon perusing the Memorandum of grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of Sri N.Subba Rao, Senior Counsel, assisted by Ms Kamireddy Divya, Advocates for the appellant, in AS No. 841 of 2015 and for Respondent in Cross Objection (SR) No.1549 of 2016 and of Sri K.S. Gopala Krishnan, Senior Counsel, along with Sri A.Sumanth, advocates for the Respondent in AS No.841 of 2015 and for Cross Objectors in Cross Objection(SR) No.1549 of 2016.

This Court doth order and decree as follows:

1. That the appeal be and hereby is allowed in part

2. That, we affirm the trial court's decree to the effect it sets aside the compromise

decree dated 07.07.1995 in O.S.No.552 of 1994.

3. That the plaintiff-appellant be and hereby is entitled to 5/6th share and the

defendant-respondent be and hereby is entitled to 1/6th share in the 'A'schedule properties of O.S.No.197 of 2009 (i.e B-Schedule of O.S.No.552 of 1994) together with A-Schedule property of O.S.No.552 of 1994. A preliminary decree is passed to that effect in the present O.S.No.197 of 2009.

4. Based on this decree, the XII Additional district Judge Krishna at Vijayawada, shall proceed to pass a final decree by meets and bounds in O.S.No.197 of 2009, like in a suit for partition.

5. That the 'A' schedule property of O.S.No.552 of 1994 which the plaintiff appellant received pursuant to the compromise decree shall as far as possible be permitted to be retained by thie plaintiff appellant, but not in excess of his shares.

6. That the 'B' schedule property of O.S.No.552 of 1994 given in compromise decree to the defendant, (i.e 'A' Schedule of O.S.No.197 of 2009) shall be permitted to be retained by the defendant-respondent, but not in excess of his shares.

7. The cross objections (SR) No.1549 of 2016 be and hereby is rejected.

8. The parties shall bear their own costs.

SDI- E.KAMESWARA RAO

JOINT REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

1. The XII Additional District Judge, Krishna at Vijayawada.

2. Two CD Copies.

MV

TAC HIGH COURT

DATED: 26/09/2025

iS gl 0 6 OCT 2025 M DECREE '^J^^CurrMt S«ctioitx*^ APPEAL SUIT NO: 841 OF 2015

CROSS OBJECTIONS (SR) No.1549 OF 2016

ALLOWING THE APPEAL SUIT No.841 OF 2015 IN PART REJECTING THE CROSS OBJECTIONS (SR) No.1549 OF 2016