The High Court · 2025

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 stay all further proceedings including passing of final decree in OS.No.1156 of ZO02 on the file of Vlll Additional Senior Civil Judge(FTC), CCC, Hyderabad, pending disposal of the above appeal. CITY CIVIL COURT APPEAL NO: 110 OF 2019 : Appeal filed under Section 96 of C-P.C ' aggrieved by the orders of Final Decree dated 12.02.2019 passed in l.A.No.25 oI 2010 in pursuance of Judgment and Decree dated 15.03.2007 in o.s.No.1156 o1 2002 by the Vlll Additional senior Civil Judge (FTC), City Civil Court, Hyderabad. Between: Sri Kolluri LaxmaR, S/o. Late Sri Kolluri Rajaiah, Hindu, aged about 64.years, OccRetd. Bank Employee, R/o. H.NO.'1-3-183/40/138, Quarter No 66, S.B.l.Colony, flnd Veriture, Gandhinagar, Hyderabad-o8o APPELLANT AND

1. K. Lakshmi,, Wo late K.Hanumantha Rao, (died per L.Rs ie the Respondents/Plaintiffs No. 4 to 7) S. Sumitra,, Wo S.Udaya Kumar, aged 54 yrs, occ household, R /o 1-3-134' Kavadiguda, Hyderabad P. Susheela,, w/o P.Anjaiah, aged 59 yrs, occ. household, R/o C/oR-sudhakar, H.No.6-171, Hamalwadi, Nizamabad 2 c

4. K. Hari Prasad,, Slo Late Sri Hanmantha Rao, Hjndu, aged about. 48 years, Occ. PW Employee,

5. K. Ghanshyam,, S/o Late Sri Hanmantha Rao, Hindu, aged about. 46 years, Occ. Softeware EmPloYee,

6. Smt. K.H. Deepika,, Wo Shiva Kumar, Hindu, aged about.. 44 years, Occ. Housewife,

7. K. Krishna Prasad,, S/o Late Sri Hanmantha Rao, Hindu, Aged about. 41 vears, Occ- Emploiee Respondents/Plaintiffs No.4 to 7 12lO H.No. 3-5- '11 1/16, Rajrnahalla, Kachiguda, Hyderabad.

8. K. Narsing Rao, S/o Late Rajaiah, aged about !?y9?!?' Occ. Retired Raly Employeel Resident of Plot No.66, l'J. No.1-3- 183/40/1 38, Tallabasthi, New Bakaram, Hyderabad.

9. Smt. Kolluri Balarajamma, W/o Late Sri Kolluri Rajaiah (ft Defendant No.3 died per L.Rs i.e the AppellanvDefendattl rspondenU Nr:.2. 1 0. Smt. K. Bharathi, W/o. Late K. Narsing Rao, Aged about € / yr>ars, Occ. House ho{d

11. Smt. K, Lavanya, Wo. Not Known, Aged about 43 years

12. Smt. K. Rajani, W/o. Not known, Aged about 41 years, Cc

13. K. Ravikiran, S/o. Late K.Narsing Rao, Aged about 39 yez RR-10 to 13 are R/o. Flat No.303, Rukmunikrishna Aparlr 307/1 83, Kavadiguda, Hyderabad. )cc. House wife : House wife 's, Occ. Business ents, H,No.1-3- ia. Smt. K.Vani, W/o. Late Sri K.Hari Prasad, Aged about 4a ,ears, Occ. House I 5. K. Grishma, D/o. Late Sri K. Hari Prasad, Aged about '1 5 / being minor Rep.by his natural mother-cum-guardian Sn,t Proposed Respondent No. 1 0 :ars, Occ. Student, K.Vani i.e. the

16. K. Om, S/o. Late Sri K.Hari Prasad, Aged about 12 years, minor Rep.by his natural mother-cum-guardian Smt. K.Vl Respondent No.10 RR-14 to 16 are R/o. H.No.3-5-1'1 1/ 13 Kachiguda, Hyderabad. Or;c Student, being ri i.e. the Proposed Rajmahalla,

17. Pati Anjaiah, S/o. Narsimlu, Hindu, Aged about 69 years Employee. R/o. H.No,3-4-10193, Brindavan Enclave, Nearr Station, Hyderabad, Telangana - 500 010. )cc. Retd. Railway Br:llarum Railway

18. Pati Shashank, S/o. Pati Anjaiah, Hindu, Aged about 33 7 Employee, R/o. H. No.3-4-10/93, Brindavan Enclave, Neau Station, Hyderabad, Telangana - 500 010. rals, Occ. Bank Br:llarum Railway RESPONDENTS lA NO: 'l OF 2019 Petition under Section 151 CPC praying that in the cir ) the affidavit filed in support of the petition, the High Court m:r' all further proceedings in pursuance of order of final decree ct in lA no.25 of 2010 in pursuance of Judgment and Decree c no,1156 of 2002 by the Vlll Additional Senior Civil Judge (F- Hyderabad, pending disposal of the above Appeal. mstances stated in b3 pleased to stay 12 -02-2019 passed :.15-03-2007 in OS Cl City Civil Court, Counsel for the Appellant : SRl. MOHD AZHAR Counsel for the Respondent Nos.2 to 8: SRI M. DAS MOH! PI\TRA The Court delivered the following: JUDGMENT THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA C.C.C.A. Nos.53 and 110 of 2019 l.A. No.1 of 2025 in C.C.C.A. No.53 of 2019 COMMON JUDGMENT: Since the subject matter involved in both the appeals is one and the same and the parties are also same, both the appeals are being disposed of by way of this common judgment

2. CCCA No.53 of 2019 is filed by the appellant, being aggrieved by the judgment and preliminary decree, dated 15.03.2007 passed in O.S.No.1'1 56 of 2007 by the learned Vlll Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad (for short "the trial Court"), while CCCA No.110 of 2019 is filed being aggrieved by the final decree dated 12.02.2019 passed in l.A.No.25 ot2010. l.A. No.1 of 2025 in CCCA No.53 ol 2019 is filed by the petitioner-defendant No.2 to receive the documents viz., copy of Will (Veelunama) dated 27 .07.1996 and copy of Druveekarana Patram daled 14.11 2001

3. The parties herein are referred to as they were arrayed in the suit before the trial Court for the sake of convenience and clarity. ) ) EfD'I CClrA. Nos-53 & 11Ot 2019and A 'o.1 2025 io CCCA No.53/2019 )

4. The averments of the plaint in brief are that tre plaintiffs are the daughters of late Kolluri Rajaiah and cr fendant No 3- Balrajamma, who died on 12.08.1996 intestate lea'ing behind the plaintiffs i.e. three daughters and two sons i e' defer Ctrnt Nos l and 2 and his vrife defendant No.3. lt is their case tha h':ir father was anemployeeofSBlandwasamemberofS.B.l.StrffCo-operative Housing Society Ltd., thus he purchased an operr plot from State Bankoflndia,staffCo-operativeHousingsocietyintlwasallotted plot bearing No.66, admeasuring 265 Sq'yards a1 Ttrllabasti Slum Area, Ward No.1, Block No.3, New Bakaram, Hyde'i brrd' The open plotwasallottedintheyearlgT2andthereafter,abuildingwas constructed according to the sanction of Municipal 'l rrporation The constructed area is 598 Sq.feet and that the plaintf s contributed at the time of remodeling the house. Their case is therl d':fendants and themselves are the members of joint'family antl h'eirs of Kolluri Rajaiah and that their father resided in the suit s< heldule property along with his wife during his life time. The moth.: crf the plaintiffs i.e.defendantNo.3ismaintainingtheentirefamilytndlookedafter the schedule house and after the death of their f' tlrer, they have contributed amounts for repairs and maintenar:€: of the suit dchedule property to therr mother defendant No.3, vl-o looked after the house and that they have been frequently visitir 3 the house and ( ETD) CCCA- Nos-53 a 1'u2019 aid tA No 1/ 2025 io CCCA tto.53/ 2019 staying there as per their convenience and that the defendants also treated them as family members till they made demands for sharing the suit schedule property. The plaintiffs case is that being the members of the joint family, they are in defacto possession of the suit schedule property and they are entitled to 1/6th share to each of the plaintiffs along with the defendants, but the defendants refused to allot any share to the plaintiff.

5. lt is the case of the plaintiffs that on 20.07.2002 lhey demanded the defendants for partition of the suit schedule property, but the defendants refused to give any share and that they are trying to alienate the property to third parties and they found that they started negotiating with intending purchasers to sell the suit schedule property. Thus, they filed the present suit seeking 'll6th share in the property.

6. The defendants 1 and 3 have not contested the suit. Defendant No.2 filed written statement admitting the interse relationship between the parties and also that the father of the defendants purchased the suit schedule property through the society and that he died on'12.08.1996. lt is contended by defendant No.2 that he contributed more amounts not only for remodeling of the house but also for the performance of marriages of plaintiff Nos.2 7 ."/ ETD) cc,\. Nos.53 & 110/ 2019and la,] tl. ozs o ccca No.,x/2019 and 3. He denied that the plaintiffs to be the meml)r:] of the joint family. He further submitted that defendant No.1 l'as working in Railways and used to contribute his earnings to his 1l rrtlnts and that defendant No.2 who is working in State Bank of lnri r also used to contribute his earnings to his parents and for the ma t tenance of the family. He also denied that the plaintiffs conlr btlted for the maintenance of house and repairs of the house. I ir; specifically contended by the defendant No.2 that the propertr -'s were orally partitioned among the plaintiffs and defendants and 1t at the plaintiffs are not entitled to any share over the suit schedule property. He further submitted that their father could not perform te marriages of plaintiff Nos.2 and 3 and that defendant Nos l arr 1l contributed their earnings for marriages of plaintiff Nos.2 and i end that they also gave dowry and other ornaments from their ear rirrgs. He also stated that the dowry of Rs.30,000/- was given to the 1'' plaintiff who was married on 12.05.1968 apart from jewellery frorr tl-e joint family funds and properties and further in '1985 their f:rl re'r, defendant Nos.1 and 2 have given Rs.10,000/- to plaintiff No.1 t I l)urchase plot No.20, admeasuring 200 Sq.yards at Medchal. He iurther averred that plaintiff No.1 has again approached their fat r >r for financial assistance for construction of ground floor bearing I o 3-5-1 '1 1 8/16, Kachiguda, Hyderabad and accordingly, their fat rer has given \l J EIO,J CCCA. ,tos-53 411o/ 2019.n, lA No.l/ 2O2s in CCCA No.53t2019 5 Rs.30,000/- from the joint family funds. He further submitted that the properties were already partitioned and the plaintiff Nos.1 to 3 got their respective shares in the name of dowry, jewellery, cash and lands etc , during the life time of their father from the joint family funds. That the defendant Nos. l and 2 have no other properties except the suit schedule property and the plaintiffs after receiving the said amounts of dowry and cash and also the gold ornaments from the joint family funds, have filed the suit falsely with a malafide intention lo create trouble among the family members. He further submitted that the joint family status is not in existence and that the share of plaintiffs was given to them during the life time of their father and thus, the suit schedule property is the exclusive property of the defendants. The allegation of plaintiffs with regard to the alienation is also denied by the defendants.

7. Based on the above pleadings, the trial Court has framed the following issues for trial: 1) 2) Whether the properties were already partitioned and the plaintiffs 1 to 3 received their share in the form of dowry, jewellery, cash and land etc.? Whether the plaintiffs are entitled for partition of suit property, if so, to what share they are entitled? 3) To what relief? I ) 6 cccA N"s-i3,-. fio/ r:1!?;: t.\No.1/2025 io CCca No.s3/ 2o1s

8. Atthe time of trial, the plaintiffs got examirrd pWs.l to 3 and got marked Exs.A1 to 43. On behalf of the def,-. rdants, DW1 was examined and no documents were marked. Base I on the evidence on record, the trial Court has passed a prelinirary decree ulde judgment dated .15.03,2007 holding that the plaintr f Nos.1 to 3 and defendant Nos.1 to 3 are entiiled to 1/6th share each in the suit schedule property bearing No. 1_3_183/40/138, New Tallabasti, Musheerabad IVlandal, Hyderabad. Bakaram,

9. After the said preriminary decree was passed, rerfendant No.3_ mother of the parties passed away on OB.1j.2O1S I td a memo was filed on 11.04.2017 intimating about the death r f their mother, thereafter, the shares were amended to 1/5rh shar parties to the suit s kl each of the

10. Defendant No.2 filed l.A.No.2.l of 201g seeki g to set aside the preliminary decree stating that he has tracer j out a Telugu Written Veelunaama (Will) and Dhruveekaran a patretr rvhile shifting his house fo'owing the death of his mother and that ir )c,)rding to the Will, he is the sole successor to the suit schedule : .o rerty, which was dismissed by the trial Court Against which, O lF, No 128 of 2Q19 was filed and the s ame was dismissed by the I li(lh Court on \ i ETD) ccca. Ito.5, e l1d2019.od ta No,t/2025in CCCA No SA 2019 7

04.02.2019. Challenging the preliminary decree, dated 15.03.2007, the defendant No.2 filed CCCA No.53 ot 2019.

11. ln lhe meantime, the trial Court proceeded with the final decree petition in l.A.No.2S of 2010 and pronounced orders on

12.02.2019 passing the final decree and allotting 1/Sth share each to the parties and also holding that there is a provision to file an appeal against the preliminary decree. Aggrieved by the orders dated

12.02.2019, the defendant No.2 filed CCCA No.110 of 2019.

12. Heard the submissions of Mohd.Azhar, learned counsel for the appellant and Sri M.D.Mohapatra, learned counsel for the respondents

13. The learned counsel for the appellant has submitted that he is the sole successor of the suit schedule property owning to the Will executed by his father and also the affirmation (Dhruveekarana Patram) executed by his parents on 27.07.1996 and 14-11.2001 respectively. He further submitted that he could trace out the said documents while shifting his house following the death of their mother and that immediately he took the said fact to the notice of the trial Court, but the trial Court failed to appreciate the same and he has also filed the affidavits of the attestors before the trial court but I t 8 ETD.J ;CCA Nos st s,1tu zo9 a;d A N).1/ 1025 in CCCA No.S3/2O19 the trial Court failed to consider the said docl ments and has dismissed the application vide LA.No.21 of 2018. r e fu(her argued that in case if the two documenls are not considere: b.7 this Court by receiving as additional evidence, grave injustice wr,r ld be caused to him and that he would suffer irreparable loss and irj trrr. His case is that he has been sharing the house hold expenser; w_rile his father was over burdened with responsibilities during hr , ife time and considering his contribution to the family, out of rov: and affection their father has executed a Will in his favour and so 1i e surt schedule property entirely belongs to him and that the othe. pirrties do not hold any share ln the said property. He therefore, prit ,eJ to consider his two documents i.e Veelunaama (Will) and l)hruveekarana Patram and set aside the preliminary decree pass;r d by the trial Court. He further submitted that this appeal is filed : ior to passing offinal decree and thus, the final decree proceedings r o not come in the way of this appeal and that the documents filed b1 ttre appellant would strike at the root of the case and therefore, a: tr=ciating the said documents is just and necessary in this case. 14' The rearned respondents counser, on the oflr, ,r hand, has submitted that the appeilant herein is taking incons.r ;t€)nt stands, before the trial Court, in the first instance he has c: ttr:nded that \t I 9 ETD,I CCCA- Nos 53 E, 1lq 2019 adcl lA No,1/ ?025 in CCCA No,53/ 2019 there was an oral partition long ago and that the plaintiffs are not at all entitled to any share in the suit schedule property and has contested the suit. Their mother died in the year 2015 and he came up with a petition along with these fictitious documents in the year

2017. He argued that the said documents are brought into existence as an afterthought and that they are very much created documents. He further argued that the copy of Will deed filed by the appellant discloses that they bear thumb impressions of their parents while the Druvikarana patram discloses that it bears the signature of their mother. He further argued that the mother of the parties was an illiterate and thus she could not have signed on the said documents relied upon by the appellant. He further contended that if at all their mother was competent enough to affix the signature, she could have affixed her signature in the first instance when the Will was drafted but it is not done. The errors are apparent on the face of documents and further, the mother of the appellant used to stay with him all along the pendency of the suit and if at all they have executed a Will, she must have stated at any point of time to the defendant but surprisingly their mother does not speak about the said Will till her death in 2015 but suddenly, after the death of the mother and after I two y$ars the defendant puts forth these documents stating that the Will is executed by their father and subsequenfly an affirmation was ./ ./ I ETD) ( 'CA Nas 531 11Ot 2019.nd ta L tl 2r2s to CCCA No s3/2019 10 givenbytheirmother.Hefurtherarguedthatthet;iiddocuments arenotbelievableandarecloudedwithsuspiciona-rcthatitisa secondroundoflitigation.Hehaspointedout.lalearlierthe appellant herein has relied upon the said documerl; and filed an l.A.No.2lot2OlBseekingtosetasidethepreliminar,rlelcreebutthe trial court has dismissed the said lA, against vrhich ir cfP was filed andtheCRPalsogotdismissedbytheHighCourt.lircetheissue pertainingtothedocumentshasbeenspecificallyder;Jedbythetrial court and High court, now taking the same plea agair would amount lo res judicata and that this petition is not maintairi ble under that count also. He therefore, prayed to dismiss the sa r lA seeking to file additional evidence and further prayed not to co.t;icler the same and to dismiss the appeal. He further argued th? there are no merits in the appeal as the appeal is based onlT on these two documents. He further submitted that the matter at.i ined finality as the final decree has already been passed anc ttre Advocate commissioner was appointed and the property was tls;o divided by metes and bounds before the trial court. Now the z ppellant herein intends to unsettle the matter, he therefore, prayerj to dismiss the appeal. \ \ 11 ETO,I CCCA- Nos.53 A 110/ 2019 aa.t lA No.r/ 2025 in CCCA No.53/ ?o19 '15. Based on the above contentions, this Court opines that two preliminary issues arise for consideration before getting into the points that arise for consideration in these appeals 1) 2) Whether the application filed under Order XLI Rule 27 of CPC vrde l A.No.01 of 2025 is hit by the doctrine of res judicata? Whether the application under Order XLI Rule 27 be decided along with the main appeal? 3) To what relief?

16. ISSUE NO.1: a) The contention of the appellant counsel is that the documents filed under Order XLI Rule 27 of CPC are crucial as to the entitlement of the appellant over the suit schedule property and that no other persons could get any share in the suit schedule property when these documents are relied upon. b) The contention of the respondents counsel, on the other hand, is that the question fell for consideration in l.A.No.21 of 2018 before the trial Court and that the trial Court has dismissed the said l.A. and therefore, the present application is barred under res judicata. c) lt is pe(inent to refer Section 11 of CPC in this regard and the same is extracted hereunder ) J I ETD,I c ca Nor 53 a 110/ 2019 and lA t'. '/ 2t'2s in CCCA No.!i/2019 12 "11. Res ludicara.-No Court shall try any suit or issue i vt'hich the matter directly and substantially in issue has been c rectly and substantially in issue in a former suit between the same pitrties, or between pirties under whom they or any of them clair r, litlgating under the same trtle, in a Court competent to try such ut'sequent suit or the suit rn which such issue has been subseque ltl/ raised, and has been heard and finally decided by such Court' d) lf an issue is specifically framed and c: rsidered by a Court and a finding is delivered thereon, then r subsequent proceedings dealing with the same issue would be b;rrred by res judicata. ln the present case, l.A.No.25 of 2010 unri rr Section 15'l of CPC was filed by the appellant herein seeking tc set aside the preliminary decree and the trial Court has dismir; holding that the said petition ought to have been decree proceedings and that the relief of setti preliminary decree cannot be granted unless it (l e,l the same ilerd in a final rg aside the res in appeal against the preliminary decree. With the said obser 'a:ion, the trial Court has dismissed the application but has not gon(l into the merits of the documents. The CRP which was filed againt'l tl e said order was also dismissed by the High court observing that he recourse to the said question would be to file an appeal againsl hr-' preliminary decree and that the CRP is not maintainable. f herefore, the documents in question which are filed under Orde' 4 I Rule 27 of CPC in this suit, the Will Deed dated 21

07.1996 and \ \I I EfD.' CCCA. os.57 A 1ld2019 tad ta No 1/ao25in ccca ito 57/ 2019 13 Druveekaranapatram dated 14.1'1 .200'l were not received and were not examined as to their probative value in the Court of first instance. e) To succeed under a Will it has to be proved under Section 63 of the lndian Evidence Act and it also has to pass the test of ruling out the suspicious circumstances and the proof by attestors so on and so forth. 0 Without examining the strength of the documents, their probative value, the question in this appeal cannot be decided finally. Therefore, it is opined that the issue raised in the application under Order XLI Rule 27 of CPC was not specifically answered earlier by the trial Court. Hence, it is not hit by the doctrine of res judicata. Point No.1 is answered accordingly.

17. ISSUE NO.2: Now, it has to be examined whether this Court can receive the said documents under Order XLI Rule 27 CPC

18. It is pertinent to refer Order XLI Rule 27 CPC in this regard and the same is extracted hereunder: "27. Production of Additional Evidence in Appellate Court. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if- ] l4 fTo,t CCCA. Nos.53 a 110/ 2019 aod ) Na 1/ 2025 ta CCCA No 53/2019 (a) the Court from whose decree the appeal is p-r refused to admit evidence which ought to I admitted, or (aa) the party seeking to produce additional establishes that notwithstanding the exercr;, diligence, such evidence was not within his krrr fe 'red has ave been e'ridence, of due wledge or could not, after the exercise of due diligence, be r him at the time when the decree appealed il( lduced by ai rst was passed, or (b) the Appellate Court requires any docunr( produced or any witness to be examined to ) pronounce judgment, or for any other substantial Appellate Court may allow such evidence or doc l produced, or witness to be examrned. nt to be al)le it to :a use, the nent to be (2) Wherever additional evidence is allowed to be roduced by an Appellate Court, the Court shall record the r as on for rts admission." '19, The documents produced herein were pro<l cr:d before the trial court but under an improper application and lence were not received by the trial court.

20. Thus, under Order XLI Rule 27 CPC, this C;r ur1 can receive the documents only under the conditions which ar ) mentioned as above. ln the present case, the defendant No.2 he s come up with the documents stating that they were not available ' vith him prior to passing of preliminary decree. His case is that the ;aid documents were discovered by him while shifting his house after the death of his '.mother. f hus, prima facie lhe defendant No.2 co I ) C make out his I 15 ETD,I CCCA os.53 3. 11O1 2019 ,nd tA No.lt2O2Sin CCCA No,s! 2019 case. That inspite of exercising due diligence, the said documents were not within his knowledge and thus could not be produced by him at the time when the decree appealed against was passed. The said documents were not available with him prior to passing of preliminary decree, hence could not be produced before the trial court, however, it is not out of place to mention that he could discover the said documents prior to passing of the final decree and the recourse was available to him to produce the documents before the trial court as part of the final decree proceedings or he could have filed an appeal with the said documents before the High Court However, he has not chosen either of the ways, but he has filed the documents along with the petition seeking to set aside the preliminary decree before the trial court and thus, the trial court has dismissed the same holding that the relief of setting aside the preliminary decree cannot be granted unless it is appealed. Then, again he haS preferred a CRP against the said order and the High Court has also observed the same and dismissed the CRp. Thereafter, the defendant No.2 has kept silent for a period of 4 years and then has filed the present application under Order XLI Rule 27 CPC seeking to receive additional evidence in this appeal. ln fact, it was field with a condone delay application which was allowed, as a refult of which the present application is taken on file. Thus, by \/ / ETD'J C:( \ N)s 53 E 11O/ 2019and lANa 1, O2l id CCCANa 5i/2019 16 examining the conditions laid down under Order XLI F ul-' 27 CPC' though it is the case of defendant No 2 that he did rot have the documents within his possession inspite of his due c i gr:nce' even has not resorted tc a Proper court for recetvi rg the said after getting the documents, he proceeding in aPProaching the documents. While so' the contention of the learned () )u1sel for the defendant No.2 is that the appellate court requires tht:: e documents to enable it to pronounce the judgment substantially I lis' contention is that the Will deed and the Dhruveekaranapatram r lli=d upon by him, if taken on file would change the relief that is to btl granted in the appeal. His submission is that according to the //ill deed' his father has executed the Will in his favour bequeat: nr; the entire property only to him. Thus' the preliminary decre'> and the final decree would be nullified with the effect of the VJ ll deed therefore, contends that unless the Will deed is receilt d in evidence' the fate of the appeals cannot be decided, which are based on the preliminary decree and the final decree wherein thr: shares of the He, parties i.e. himself and his siblings are decided' 21 . The learned counsel for the respondents' on t le other hand' would contend that receiving these documents wou t rot be in any way helpful to decide the case because the said dor; tntents are not \ \ l l7 ETD,] ccca. No..53 a 110/ 2019.n<t lANo-1/ 2oZ5 n CCCA No.si/2019 at all reliable as they are struck with errors apparent on the face of the documents. Thus, in order to give finality to the cause in both the appeals and in order to arrive at substantial justice, so that the matter would be disposed of finally on merits, it is opined that the additional evidence be received in this case.

22. Now, the next question would be whether the petition under Order XLI Rule 27 CPC be decided along with the appeal or should it be decided separately.

23. The Apex Court has reiterated time and again that the application under Order XLI Rule 27 CPC for receiving additional evidence on record at a belated stage cannot be filed as a matter of right. The discretion is to be exercised by the court judicially taking into consideration the relevancy of the documents in respect of the issues involved in the case and the circumstances under which such an evidence could not be lead in the trial court and as to whether the applicant has prosecuted his case before the trial court diligenily and as to whether such evidence is required to pronounce the judgment by the appellate court. ln case, the court comes to a conclusion that the application filed falls within the four corners of statutory proJisions itself, the evidence may be take on record, however, the --- ., l EfD,I |:CCA. Nos.53 3, l1U 2019 and \ N t.1/ 2015 tnCCCA Uo_sy 2019 18 court must record reasons as on what basis such ;t I ilpplication had been allowed

24. ln Sirajuddin v. Zeenath and othersr, the A:ex Court has held that whenever the application under Order Xl. Fule 27 CPC is allowed and the additional evidence is to be receivr-, I, the application can be disposed of along with the appeal itself. ln ll e said case, the matter was remanded by the High Court for receivi rg the additional evidence. The said decision was held to be not prr pt:r by the Apex Court and it has held that both the appeal and the ilplication can be disposed of simultaneously. Thus, in the light of t re said decision and in view of the above held discussion, the a tp,lication under Order XLI Rule 27 C.P.C. is decided and disposed rf along with the main appeal itself . 25 1.A. No.1 of 2025 in CCCA No.53 of 2019: The documents that are received under th s application are Will deed and Dhruveekarana Patram The W I cleed is dated

27.07.1996 which was executed by the father ot dofendant No.2 and Druveekarana Patram (affirmation) wasi =xecuted on 14.11.2001. The recitals of the Will deed show that dr-.fendant No.2 ' 2oz3 tNSc t7g 19 ETD,I CCCA. Nos,53 t, l1q 2019.n.l ta No.1/ 2025 inCCCANo_'i/ 2019 is the sole successor to the suit schedule property and the other children are not given any share in the property. The requirements to prove a Will are laid down under Section 68 of the lndian Evidence Act, which are as follows: "68. Proof of execution of document required by law to be attested: lf a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the lndran Registration Act, '1908 (XVl of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

26. ln addition to the above requisites, a Will need to be proved beyond all suspicious circumstances. The thumb impressions of both the parents are affixed on the Will and it bears the signatures of two attestors. The first suspicion that exists around the Will is that, why were the other children ignored while executing the Will deed by the testator. lf at all, the testator has not intended to give any share to the daughters on the pretext of giving jewellery and dowry, then why not any share is given to the other son, remains as an unanswered lr/ ) EfD,I t act. Nos.$ A 1l0/ 2019 an'| la\ 1/ 2025 in Ccca No.s3/ 2019 .- ( 20 question. lt is mentioned in the Will that iust becar;e during their last days, defendant No 2 has given them support' irrr luding medical assistance and further that he has helped them 1 attending to repairs of the house and thus they wanted to glve art ry the property that is H.No.1-3-183/40/138, extending 265 sq yds' tc his second soni.e.defendantNo.2herein.ltispertinenttonl>ntioninthis regard, that the suit is contested only by defendant I'l ) il All through his written statement, the defendant No 2 has statei tlat the female children i.e. his sisters were given jewellery and do'r.y at the time of marriage and that they were given certain amounls vrhenever they wereinneedandnecessity'andthereforethey:lntrotclaimany share in the suit scheduled property'

27. He further stated that his elder brother anrl himself used to sharethehouseholdexpensesandalsothereparr;undertakenby the parents, in which case a share must have irr err given to the defendant No.1 also, but it is not done Even if th s V/ill is assumed to be true, there is another document produced ry the defendant No.2, which is Dhruveekarana Patram' alleger [o have been executed by his mother' The said document is dat': I l4' 1 1 '200'1 and it is executed by hls mother' lt is pertinent to ta( I rote of the fact here that the suit was filed in the year 2002 while 't e Dhruveekarana \\ \l ,l ETO) ccca- No..53 tl 11u 2019 aad ta No.1/ 2025 ia CCCA No.53/ 2019 21 Patram is executed in 2001 i.e. much prior to filing of the suit. The thumb impressions of both the parents figured in the Will deed However, the Dhruveekarana Patram is signed by his mother only. lf she had taken a different view from that Will, then she could have executed another Will, but it is not the case here. She has affirmed the view that was taken in the Will. Hence, there was no necessity for her to execute another document. The recitals of Dhruveekarana Patram are a replica of recitals of the Will stating that no other children i.e. their elder son or the daughters did not have any share in the suit schedule property, but for their younger son. lt was signed by K. Balarajamma i.e., the mother of the parties herein. Another striking feature of this document is that it bears the signature of K Balarajamma while the earlier document i.e., Will deed bears the thumb impression of K. Balarajamma. Assuming that both the documents are executed, then another suspicion is that when the Will bears the thumb impressions of both the parents, the Dhruveekarana Patram bears the signature of the mother. lf she had the ability to sign, why she has not signed in the Will deed is another question. Further, it is to be observed that she was staying with the appellant i.e. defendant No.2, all through the pendency of the proceedings before the trial court I t \ EfD,I CCCA- Nos 53 A 11A2019and I No.1/2A25 id CCCA No-'i/ 2019 22

28. lt is not the case of the defendant No.2 that r; re has disclosed about the said Will at any point of time. The suit pe tains to the year 2002, his mother was arrayed as defendant No.3 rr-rt she has not contested the suit. lf at all the Will was in existenc,: she could have resisted the suit. She has not even whispered rrything to the defendant No.2 with whom she was staying, abou. :h= Will deed or about the Dhruveekarana Patram. Theref,t e, all these circumstances create great amount of suspicion, zrr d thus both the documents are surmounted with suspicion whicl- re nder the Will deed and the Dhruveekarana Patram to be invalid

29. Hence, in view of the above held discussior and on a bare perusal of both the documents, it is held that the saic dccuments that are received in additional evidence cannot be r:r nr;idered to be genuine and valid. Thus, keeping aside the said r o,:uments, now this court would look into the points that arise for co I ;icleration in this appeal

30. Since the preliminary issues are answered as e tove, the points that arise for consideration in this appeal are as follo,rs '1 . Whether the suit schedule properties are jci t iamily properties?

2. Whether there was any prior pa(ition of jorrr fzrmily properties?

3. Weather the plaintiffs are entitled to the part :ic,n if so, io .\ I ) I EfD,I CCCA. Nos.53 L 110/2o1gdnd ta No-l/ 2025 in CCCA rL-s! 2019 23 what share?

4. Whether the preliminary decree passed by the trial court is sustainable in law and under the facts?

5. To what relief

31. POINT Nos.1 to 3: Admittedly, the suit schedule properties are joint family properties. Though the defendant No.2 has alleged that there was a prior partition of properties, the plaintiff Nos.1 to 3 have received their shares in the form of dowry, jewellery, cash and land, he has not placed any evidence in this regard. The plaintiffs have denied the above said claim of the defendant No.2. It is the plea taken by the defendant No.2 and hence, the burden lies on him to prove the prior partition. The defendant Nos.1 and 3 i.e. elder brother and the mother of the parties remained ex pade. lt is only the defendant No.2, who contested the suit and got examined as DW.1. The plaintiffs got examined PWs 1 to 3 and they denied the suggestion that there was an oral partition and that dowry was given to their husbands and in laws at the time of their marriages. Though DW.1 has merely stated that there was an oral partition, he didn't give any details of such partition. DW.1 has stated that an amount of Rs.30,0001 was given as dowry at the time of the marriage of PW.1, but no evidence was put forth in this regard. The marriage of PW.1 ) ) i I I J ETD'J C CA Nos.53 & 11O/ Zo19 and tA tt. 1/ 2iI25 ,n CCCA No 5i/ 2019 1 24 is stated to have taken place in 1968. Further, the nrarriages of plaintiff Nos.2 and 3 were performed in the year 1987 F'Ws'2 and 3 have also denied that the dowry was given to their rt- aws Apart from the said suggestion given in the cross examinattr n of PWs l to 3, there is no other evidence to prove the dowry be r 3 given at the time of marriage. There is no other evidence from )VV'1 to prove about the prior partition. Thus, giving some jewellel rlr articles at thetimeofmarriagecannotbeheldtobepriorpartlorlasaverred by the defendant No.2. Hence, the said contenticr taken by the defendant No.2 is not Proved.

32. Admittedly, the suit schedule property is th: self acquired property of Kolluri Rajaiah, father of the parties her: n. lt is culled out from the evidence of parties that their father was i n employee of SBI and was a member of the Staff Cooperative ll lusing Society and that he was allotted Plot No.66. The said Socir ty constructed the suit schedule building and handed over the samrr to the father of the parties and he died intestate on 12.08.1996 Since the suit scheduled property is the self acquired propert'l z nd he died intestate, the plaintiffs and defendants being the Clit s-1 legal heirs would be entitled to equal share in the suit schedule rroperty. Now, it is the settled position that the female heirs also h? re equal share \ \ 25 ETD,I CCCA, No..s3 & 11U 2019 ad.l lA No.1/ 2025 ia CCCA tlo-sl2019 in their father's property. A female heir has a right to claim partition of dwelling house. Thus, the plaintiffs and the defendants are equally entitled to a share in the suit schedule property. lt is pertinent to mention in this regard that during the pendency of the proceedings before the trial court, prior to passing the preliminary decree, the mother of the parties i.e. defendant No.3 was also alive. Therefore, the plaintiff Nos.'l to 3 and defendant Nos.1 to 3 i.e. all the six members were held to be entitled to equal shares in the property. However, subsequent to passing of the preliminary decree, the defendant No.3 has passed away. The trial court, while passing the preliminary decree on 15.03.2007, has held that each of the parties are entitled to 1/6th share. But taking note of the subsequent event i.e. the death of different No.3, the extent of share was modified.

33. As far as the additional documents i.e. Will deed and Dhruveekara.npatram are concerned, it is held supra, that they do not withstand the legal scrutiny and hence, are not considered. Therefore, the share of the parties would be to'1/Sth each in the suit schedule property. Thus, point Nos.'1 to 3 are answered accordingly.

34. POINT No.4: ln view of the reasoned findings arrived at point Nos.'l to 3, it is held that the preliminary decree passed by the trial court needs to l ) \----.1 I ' ETD,J CC A.1tos.53 & 110/ 2019 and lAN, 1 2Oi5 ih CCCA No 53/ 2019 26 be modified only to the extent of shares i'e' taking rrote of the subsequent event, it is held that plaintiff Nos.,l to 3 a rcl defendant Nos.'l and 2 are entitled 1/5th share each in the ;uit schedule property.

35. POINT No.5: ln the result, CCCA No.53 of 20'19 is dismissed ;orfirming the preliminary decree passed vide judgment and I e':ree dated 15,03.2007 passed in O.S.No.1156 of 2OO7 by tlt learned Vlll Additional Senior Civil Judge (FTC), City Civil Court, l-l d:rabad'

36. cccA No.110 of 2019: CCCA No. 1'10 of 2019 is filed by the defendarl No'2 seeking tosetasidethefinaldegreedatedl2.o2,2olg.Thet)i|intSthatar'Se for consideration in this appeal are:

1. Whether the final decree is'in confirmir ion with the ' preliminary decree while allotting tht: slrares in the suit schedule property by metes and krr urds?

2. Whether the final decree is sustainabk: in law and facts?

3. To what relief

37. The application for final decree was filed purst artt to passing of the preliminary decree. Prior to passing of the firri I 'lecree, on a memo filed by the parties intimating about the deat r ':f defendant \ 2l ETD,J CCCA r!os.s3 8 lld2019 aact lA No. 1/ 2025 in CCCA No-53/ 201 9 No.3-mother of the parties, the shares were amended and were changed to 1/5th each and thereafter, l.A. No.25 of 2O1O was filed for passing of final decree by the plaintiffs. During the dependency of the final decree proceedings, the plaintiff No..l also died and petitioner Nos. 4 to 7 were brought on record as Legal Heirs of deceased plaintiff No.1. lt is only the defendant No.2 in the suit, who contested the final decree petition, stating that he is not aware of passing of preliminary decree as his counsel failed to inform him. But, it is not out of place to mention here that he has already filed an application seeking to set aside the preliminary decree by relying on a Will deed and the said I.A. was dismissed by the trial court, as dlscussed in the preceding paragraphs. lt is also to be noted that he has filed written statement and has adduced evidence in the suit. Hence, he was well aware of the proceedings and filed an l.A. to set aside the preliminary decree and the same was dismissed, aggrieved by the said orders, again he approached the High Court by filing a CRP. Further, he has also preferred appeals against both the decrees now.

38. While admitting the appeal against the final decree, no stay was granted and so the Advocate Commissioner was appointed for division of the properties in accordance with the preliminary decree ) ) .t ETD'J *'"| ff"i i i "' a !"L I ::1i :;i ^ and for allotment Thus' the Commissioner has exer; rterd the warrant and fired the report arong with the plan, wherr :i, it is categorically shown about the division of properties by rn :t':s and bounds as per the preliminary decree' No objection has b: :r raised by the defendant No'2 to the said division and allotment {<>wever' the petitioners were willing to the said partition and hence ' they did not express any obiection' Thus' the said division of pr c6rerty by metes and bounds and the allotment was considered b y the trial court and a final decree has been passed allotting the pr lperty into five shares i'e A to E and each of the parties were allotterr a' specific share of 53 sq yds ' and the plan is also annexed to tfr' ' l\dvocate Commissioner's report A perusal of the Advocate Corn nissioner's rePort reveals the said fact' Thus' 'A' portion was given to defendant No' 1 ; 'B' portion was given to defendant No'2; 'C' portion was given to plaintiff No'1; 'D' portion was given to plaintiff No'2; 'E' portion was given to plaintiff No 3'

39. Hence, the final decree Passed on 1212 CI 2019 is tn and the same' is sustained conformity with the preliminary decree Point Nos.1 and 2 answered accordingly EfD,] CCCA. Nos 53 t1lU2019 and 1A No-|/2025 io CCCA No 57/ 2019 29

40. POINT No.3: CCCA No.110 of 20'19 is dismissed confirming the final decree passed on 12.02.2019 in l.A. No.25 of 2019 in O.S .No.1 156 of 2OO2 by the Vlll Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad. \

41. lt is pertinent to take note of the fact that during the pendency of the final decree proceedings, plaintiff No.1-respondent No.1 died and respondent Nos.4 to 7 were brought on record as her Legal heirs and during the pendency of the appeals, respondent No.4 also died and respondent Nos.'14 to 1 6 were brought on record as his legal heirs; plaintiff No.3 died and respondent Nos.17 and '18 were brought on record as her legal heirs, and defendant No.1-respondent No.B also died and respondent No.10 to 13 were brought on record as his legal heirs.

42. ln the result, l.A. No.1 of 2025 in C.C.C.A. No.S3 of 2019 is allowed. Both the appeals i.e. CCCA No.53 of 20'19 and CCCA No.119 of 2019 are dismissed upholding the final decree passed by the trial court. However, the shares allotted by the trial court in the final decree vide order daled 12.02.20 19 in LA. No.25 of 2010 in O.S. No.1156 ot 2002 are confirmed, and the shares falling to the ,'" ETD,J a aA. Nos.57 & 11o/ 2019airt Ano / 2A25 hCCCA No.53/2019 30 deceasedpartieswouldbeheldbythelegalheirsoih<:respective parties. No order as to costs. lVliscellaneous Petitions, pending if any, shall sta tc closed' //TRUE coPY/' SE/ K SRINIVASA RAO JoINT REGISTRAR oFFlcER One Fair Copl' to the llon'blc Smt' JUSTICE TIRUMALI DEVI EADA (For [[er t'adYshiPs Kind Pcrusal) ',=cr'rdN To,

1. The Vlll Additional Senior Civil Judge (FTC), City Civil Cr urt, Hyderabad 2. One CC to SRl. N4OHD AZHAR Advocate [OPUC] 3. One CC to SRl. DAS IUOHAPATRA, Advocate [OPUC] 4. 11 LR CoPies 5 The Under Secretary, Union of lndia, Ministry of Law' Jrt tit;e and Company Affairs, New Delhi

6. The Secretary, Telangana High Court Advocates' Assor; rticn Library' Hih Court for the State of Telangana, Hyderabad '

7. Two CD CoPies AS R/PS L VMr'' / !/ HIGH COURT DATED:0611112025 '6 K\E t r. -i _)- .:) .. .i ,/ JUDGMENT !A..No.1 OF 2025 & CCCA.NoS.S3 & 110 OF 2019 ALLOWING THE I.A. 1 OF 2025 & DISMISSING THE APPEALS @n* qlA>{