MADDINENI KOTESWARA RAO versus MADDINENI BHASKARA RAO AND ANR.

Citation: [2009] 8 S.C.R. 912 · Decided: 05-05-2009 · Supreme Court of India · Bench: TARUN CHATTERJEE · Disposal: Dismissed

Judgment (excerpt)

[2009] 8 S.C.R. 912 
• 
A 
MADDINENI KOTESWARA RAO 
_. 
V. 
MADDINENI BHASKARA RAO AND ANR. 
(Civil Appeal No. 3233 of 2009) 
B 
MAY 05, 2009 
[TARUN CHATIERJEE AND HARJIT SINGH BEDI, JJ.] 
•• 
; 
Partition - Suit for, in respect of joint family property -
Jurisdiction of Court to adjust shares at the final decree stage 
c - Preliminary decree passed whereby the parties as well as 
their father found entitled to 1!4th share each - While partition 
suit was pending for passing of preliminary decree, father of 
the parties executed a registered Will bequeathing his share 
in favour of the respondent and died thereafter - Concurrent 
~-
D findings of fact by Courts below that the Will was genuine -
Such finding of fact not challenged -
Entitlement of 
respondent to plead for grant of probate of the Will in the 
partition suit and consequent re-adjustment of shares vide final 
decree - Held: Suit for partition stands disposed of only with 
E passing of the final decree - Respondent was entitled to plead 
for grant of probate of the Will in the partition suit itself and 
was not required to file a separate suit therefor - However, in 
). 
facts and circumstances of the case, respondent was 
precluded from claiming more shares on basis of the Will or 
F 
leading evidence to prove the Will before passing of the 
preliminary decree -
Courts below were thus justified in 
passing final decree by dividing the joint family property into 
four equal shares and allotting two shares in favour of 
respondent on basis of the Will executed by deceased father 
G of the parties. 
Dispute arose over a partition deed allegedly 
·~--
executed in 1966 in respect of joint family property. 
Respondent filed suit for partition and also for a 
declaration that the alleged partition deed of 1966 was 
H 
912 
MADDINENI KOTESWARA RAO v. MADDINENI 
913 
BHASKARA RAO 
l 
.\. 
sham, void and inoperative. Meanwhile, the father of the A 
parties executed a registered Will bequeathing his share 
in the property in favour of the respondent and died 
shortly thereafter. The suit was decreed and a preliminary 
decree was passed whereby the parties as well as their 
deceased father were found entitled to 1/4th share each B 
and the alleged partition deed of 1966 was declared 
I 
inoperative, void and sham. Respondent, placing reliance 
upon the said Will, filed application for drawing up the 
final decree with prayer to divide the joint family property 
into four equal shares and to allot two shares to him. The c 
trial court found the Will to be genuine and on 
'--.. 
consideration of the same, passed final decree allotting 
two shares to the respondent. 
The High Court declined to interfere with the order 
D 
of the trial court and dismissed the civil revision petition 
filed by the appellant. 
In appeal to this Court, the question which arose for 
consideration was whether the Courts below erred in 
allotting two shares in favour of the respondent on basis E 
of the Will executed by the deceased father of the parties 
-..\ 
and whether the genuineness of the Will could be decided 
' 
by the Court in a suit for partition or had to be 
adjudicated in a separate suit. 
Dismissing the appeal, the Court 
F 
HELD: 1.1. A suit for partition stands disposed of 
only with the passing of the final decree. In a partition suit, 
the court has the jurisdiction to amend the shares 
suitably, even if the preliminary decree has been passed, G 
---1 
if some member of the family to whom an allotment was 
made in the preliminary decree dies thereafter. The share 
of the deceased would devolve upon other parties to a 
suit or even a third party, depending upon the nature of 
_.,. 
the succession or transfer, as the case may be. The H 
914 
SUPREME COURT REPORTS [2009] 8 S.C.R. 
A validity of such succession, whether testate or intestate, 
}. 
or transfer, can certainly be considered at the stage of 
final decree proceedings. [Para 1 OJ [920-B-D] 
1.2. The contention raised that the deceased father 
8 of the parties had executed the Will and died before 
passing of the preliminary decree, and accordingly the 
Courts below were not justified in taking into 
consideration the question regarding the genuineness of 
the Will of the deceased father of the parties and allot two 
shares to respondent in the final decree, is of no 
C substance. In a suit for partition, a party who is claimih~ 
share in the plaint scheduled property, is entitled to plead 
for grant of probate of the

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