Amulya Tripathy & Others vs Ganesh ChandraTripathy And Others

Dr. A.K.Mishra, J

The legal heirs of the appellant-defendant No.3 have preferred these two Letters Patent appeals against the judgment dated 05.07.1999 of Learned

Single Judge in F.A No. 311 of 1999 and corrected on 13.01.2000. By correction order dated 13.01.2000, some typographical mistakes in describing

property was ordered. The appeal was allowed in part and thereby the judgment and decree dated 24.07.1989 passed by the learned Subordinate

Judge, Jeypore in T.S. No. 157 of 1985 in decreeing the suit fully for partition was modified partly. The effect of correction for which the AHO No.48

of 2000 has been preferred by the same appellant has not occasioned to raise any additional point. Hence this common judgment.

Gola Tripathy had five sons, namely Ganesh (plaintiff), Trinath (defendant no.3), Ramesh (defendant no. 5), Prakash (defendant no.6) and Bijaya

(defendant no.7) and two daughters, namely, Kanak (defendant no.4) and Bharati (defendant no.8). Saraswati (defendant no.2) is the wife of Gola.

Gola originally belonged to village Badhiaosta in the district of Ganjam. He had ancestral homestead having a house and Ac. 0.85 decimals of land.

The family shifted to Semiliguda in the district of Koraput and started money lending business. He acquired both movable and immovable properties

some in his name and some in the name of Trinath (defendant no.3) and Ganesh (plaintiff) utilizing the income from the business. He was also

engaged in the contractry work in the name of his son defendant no.3. A flour mill was established over a portion of the family property at Semiliguda.

The license of the floor mill was in the name of defendant no.3. The acquired properties in the name of defendant no.1(father), defendant no.3(eldest

son) and plaintiff are described in item Nos. I, II and III in Schedule-A of the plaint. The ancestral house and property have been described in

Schedule-B of the plaint while the flour mill is described in schedule-C property of the plaint.

2(a). Dispute ensued when defendant No.3 claimed exclusive right over the properties acquired at Semiliguda and over the mill established thereon.

2(b). The plaintiff, one of the sons of GolaTripathy filed a suit, vide T.S. No. 157 of 1985, on 16.11.1985, impleading father, mother, brothers and

sisters with a prayer to partition the properties amongst them in equal share.

2(c). Defendants 4, 5, 6, 7 and 8 were set ex-parte. Defendant no.3 filed written statement with a counter claim and contested the suit. Defendant

No.2-Mother also filed written statement supporting the plaintiff.

2(d). During pendency of the suit, defendant No.1 Gola Tripathy died on 13.02.1987 and the suit was abated vide order dated 11.12.1987.

The contesting defendant No.3 pleaded that his father had no sufficient means for which he could not pursue his study and he worked as a teacher

for some time. He left the teacher ship and carried on money lending business forming a partnership firm for about 5 to 6 years. The income which he

gained from money lending business, was invested by him for establishment of a Mill over which the plaintiff and other defendants had no right. It was

also pleaded that father Gola Tripathy had purchased some lands at village Badhiaosta and the same was not included in the suit for partition. In para-

21 it has been categorically pleaded that father Gola Tripathy died leaving a will bequeathing his property in favour of his sons and widow only and

both the daughters have no claim in the suit properties.

3(a). As per pleadings, the plaintiff claimed all the suit properties as joint family property to which the mother defendant No.2 had lent support. The

eldest son contesting defendant No.3 claimed the properties described in item No. II of Schedule- A and B and C as his self-acquired properties. He

admitting the execution of the will by the father, pleaded that daughters defendant nos. 4 and 8 had no share. He also pleaded that some of the

properties acquired by father at native village Bodhiaosta and at Semiliguda in the name of defendant No. 2(wife) and other defendants should be

brought to hotchpot. The said properties are described in Schedule-A of the written statement.

3(b). Learned Subordinate Judge framed 8 issues taking rival pleadings into consideration. The plaintiff has examined four witnesses including himself

as P.W.3. P.W.1 was a tenant under Gola Tripathy. On behalf of mother defendant No.2, two witnesses were examined including herself as D.W.2.

Five witnesses were examined on behalf of contesting defendant No.3. Defendant No.3 was examined as D.W.5. One advocate, namely, T.C.

Panigrahi, who was engaged by the father Gola Tripathy for amicable settlement was examined as D.W.1. 20 documents were exhibits on behalf of

the plaintiff. On behalf of defendant No.2 mother, the Will dated 12.2.1984 has been exhibited as Exhibit-DD.

The learned Subordinate Judge in answering issue No.1 has recorded that Gola Tripathy was well to do man and was earning a good amount, with

the help of which he acquired some lands and property at his native place and also at Semiliguda, and the family had sufficient nucleus out of which,

acquisitions were made. He answered that the entire suit properties were not the ancestral properties of the parties and the properties situated at

Semiliguda were the self acquired property of Gola Tripathy. Gola Tripathy had also purchased land at his native place at Ganjam district.

4(a). In answering issue No.2 with regard to income from business, it was found that father and son with the help of few assets developed their

business and acquired property which was a part of common hotchpot of the joint family.

4(b). Considering the evidence in answering issue No.3, the learned Subordinate Judge has held that Mill was under control of all the brothers and the

father and was not the exclusive property of defendant No.3. While answering issue Nos. 4 and 5, learned Subordinate Judge has held that the

property described in plaint schedule are liable for partition and the theory of self acquisition was not available to contesting defendant No.3. Further it

is held in answering issue Nos. 6 and 7 that suit was not barred by Section 32 of the Arbitration Act, 1940 as the D.W. No.1-T.C.Panigrahi, Advocate

was not acted as an arbitrator. While answering issue No.8 as to, to what relief the plaintiff is entitled, learned Subordinate Judge accepted the Will

Exhibit-DD under which deceased defendant No.1 Gola Tripathy had expressed that his properties were to be divided between his five sons and

widow Saraswati only. The Will was proved by the scribe DW-1 Bhagaban Patra and it was produced by widow DW.-2 Saraswati. On the basis of

above findings, the learned Subordinate Judge decreed the suit on contest against defendant Nos.2 and 3 and ex-parte against others and calculated

the share giving 1/6th share to each of the five sons and widow defendant No.2 while keeping two daughters away in view of the Will executed by

father deceased defendant No.1.

Defendant No.3 as appellant preferred appeal F.A. No. 389 of 1989, but on his death, his legal heirs were substituted on 13.03.1992. In the appeal

the self same plea about self acquisition of defendant No.3 was urged. Learned Single Judge held that the suit for partition was maintainable. The

learned Single Judge further found on analysis of evidence that the income from the money lending business could not be treated as income of the joint

family and the evidence in this regard was nebulous in nature. In such state of affairs it was difficult to raise any presumption relating to the nature of

acquisition, as such each transaction should be considered on the basis of evidence on record. It is also held by the learned Single Judge that as

defendant No.1 father had expired in the meantime, it was immaterial as to whether such properties were joint family properties or self acquired

properties of defendant No.1, because his heirs were to succeed the same. On the point of Will, it is found by learned Single Judge that contesting

defendant No.3 had admitted execution of such Will and mother defendant No.2 had produced the same from her custody and it was proved and

basing upon the same, the share was to be allotted excluding the daughters defendant Nos. 4 and 8 who did not choose to contest being made parties

as respondent Nos. 3 and 7. Learned Single Judge also found that the property acquired in the name of the plaintiff was to be partitioned as plaintiff

himself had not claimed the same to be his self acquired property.

5(a). Learned Single Judge also found that on 21.02.1964 Ac.16.41 decimals of land was purchased under Exhibit.14 in the name of defendant No.3.

While on the same day Ac.4.52 decimals of land was purchased in the name of the plaintiff under Exhibit-8, Ac.23.05 decimals of land was purchased

in the name of defendant No.1 under Exhibit-7. The Vendor of all the three sale deeds was common and money was paid by defendant No.1 father.

As such the property purchased under Exhibit-14 in the name of defendant No.2 was brought to the hotchpot for partition. It was also found that the

subsequent sale and purchase by defendant No.3 in respect of Ac.1.50 decimals of land out of Exhibit-14 was a paper transaction as the consideration

amount was put forth after seven days of the first Sale deed was improbable and possession was found all along with the family of defendant No.1.

5(b). Learned Single Judge held that so far as Ac.4.40 decimals appertaining to Khata No.64/82 described in item No. II of Schedule-A was

concerned, there was no evidence as to who paid the consideration under two Sale deeds executed on 11.11.1968 vide Exhibit-17 and on 30.10.1968

vide Exhibit-15 and the said property was found to be the self-acquired property of defendant No.3. It was also found that the property purchased in

the name of defendants other than defendant Nos. 1 and 3 were not proved to be the joint family properties. Learned Single Judge also found that in

respect of the house constructed on the land purchased in the name of defendant No.3 and the Mill operating thereon was not the exclusive property

of defendant No.3 and the same was liable to be partitioned. But on the ground of equity, the Mill should be allotted to defendant No.3 with

apportionment of assets and liability.

On this finding, the learned Single Judge gave direction in the judgment dated 5.7.1999 in para-19, which is depicted as follows:-

“19. (a) Out of the properties described in schedule-A of the plaint, the properties appertaining to Khata No.64/82 and Plot Nos. 65/871 and 105/856 as described in

Item No.II of schedule-A are to be excluded and all other properties described in schedule-A are to be partitioned.

(b) The Mill standing on part of plot no.105 is to be allotted to defendant no.3 and the value thereof is to be ascertained. The liability on account of the loan for

establishing and running of the Mill is to be borne equally by the persons entitled to share. If after adjusting such liability against the proportionate value of the Mill,

any surplus is found, the said amount is to be given by defendant no.3 to the plaintiff and other defendants entitled to share. However, if the is no surplus and the

liability exceeds the money value, necessary direction can be given in the final decree.

(c) The properties purchased under various sale deeds as per the case of defendant no.3 in the name of defendant no.1 in village Badhiaosta and Semiliguda are also

liable to be partitioned.

(d) The properties alienated by any of the parties to any person are to be excluded from the partition. The properties purchased in the names of defendant no.2 or

defendants 4, 5 ,6 and 7 are not to be partitioned.â€​

Against said decree the AHO No.61/1999 was filed on 3.9.1999.

The description of Khata number and Plot number was corrected on 13.01.2000 in Misc. Case No. 878 of 1999 as made in para-19(a) of the

judgment dated 5.7.1999, which is quoted herein:-

“19(a) Out of the properties described in schedule-A of the plaint, the properties appertaining to Khata No.65/82 and Plot Nos. 65/871 and 165/856 as described in

Item No. II of schedule-A are to be excluded and all other properties described in schedule-A are to be partitioned.â€​

7(a). Against that order AHO No.48 of 2000 was filed on 11.4.2000. During pendency of that AHO No.48/2000 in Misc. Case No.66 of 2005 vide

order No.8 dated 23.8.2018 the appellant No.4, having expired and as his legal heirs against appellant Nos. 1, 2 and 3 were on record, his name was

deleted. Vide that order also respondent No.1 Ganesh Chandra Tripathy, who was original plaintiff having found dead was substituted by his legal

heirs 1(a) to 1(f).

To make party position clear it may be clarified that the father original defendant No.1 Gola Tripathy on his death during pendency of the suit, the

order of abatement was made on 11.12.1987. In these letters patent appeal Nos. AHO 61/1999 and AHO 48/2000 in place of original plaintiff and

contesting defendant No.3 upon their death, their legal heirs have been substituted.

Before us learned counsel for the appellant by filing written submission submitted that when sufficient nucleus to acquire property was not found,

the determination of the nature of property as to whether self acquired or joint family on the basis of payment of consideration was contrary to the

established principle of law inasmuch as there was no evidence as to who paid the consideration amount. Refering para-9 of the impugned judgment

of the learned Single Judge it is argued that the findings are self contradictory and the same needs to be set aside and the properties described in plaint

item Nos. I, II and III of Schedule- A, Schedule- B and Schedule- C property should be held self-acquired property of the deceased appellant No.3. In

support of the above contention reliance is placed upon the decision report in AIR 2003 SC 3800, D.S. Lakshmaiah and Ors. v. L.Balasubramanyam

and Ors. and AIR 2007 SC 1808, Makhan Singh(D) by Lrs. Vs. Kulwant Singh.

9(a). Learned counsel for appellants further submits that with regard to payment of consideration amount, the oral evidence as taken by learned Single

Judge is inadmissible under Sections 91 and 92 of the Evidence Act, in view of the decision reported in AIR 1958 SC 448:Bai Hira Devi v. Official

Assignee of Bombay.

9(b). On behalf of Respondent No.7 (one of the daughters of Gola Tripathy) learned Advocate by filing written note of submission, buttressed his

argument that:-

(I) The Will Exhibit-DD was not proved as per law and basing upon the same the exclusion of daughters from getting shares out of the father’s property as done

by the learned trial court as well as by the appellate court is contrary to law.

(II) That this respondent No.7 without filing cross objection can question adverse finding under Order 41 Rule 22 of the C.P.C. and is entitled to get equal share along

with other co-sharers. For that reliance is placed in a decision reported in AIR 1999 SC 3571, Shri Ravinder Kumar Sharma v. State of Assam and Others.

(III) That during life time of father the son was not entitled to seek partition as per the decision reported in (2013) II OLR 183: Sri Prasanna Kumar Ram v. Sri

Nabkishore Ram and Others, and for that the suit is to be dismissed.

9(c). Learned counsel for respondent No.1 repelled the above contention stating that both the trial court and appellate court have assigned reasons as

to why the Will was admitted into evidence and the finding with regard to payment of consideration for the Sale deed was based upon the analysis of

the evidence on record appreciated on the principle of the preponderance of probability. It is also submitted that after death of Gola Tripathy deceased

defendant No.1, the nature of property whether acquired by him out of joint family nucleus or his private fund, had lost its relevancy and this aspect

due to the death of common ancestor has beenrightly considered by learned court below and the appellate court, which cannot be interfered with in

these appeals. It is further submitted that the execution of Will (Exhibit-DD) having been admitted by the contesting defendant No.3, who is appellant,

the allotment of share by excluding the daughters cannot be said illegal. It is also contended by learned counsel for the respondent No.1 that daughters

respondent No.7 having not contested the suit in the trial court also in the appellate court, cannot be allowed to appear from the oblivion to put forth

her claim for the first time in these letters patent appeals under Order 41 Rule 22 of the Code of Civil Procedure( hereinafter referred to as

“CPCâ€).Reliance is placed upon the decision reported in (2017) 9 SCC 586, Adiveppa and Others v. Bhimappa and another and 2013(5) Scale

645: V.K.Surendra v. V.K.Thimmaiah & Others.

Rival contentions made before us, have occasioned to answer the following points:-

(I) Whether learned Subordinate Judge and learned Single Judge in appeal have committed error in not holding properties described in Item No. I, Ac.16.41 decimals

of land in Item No.II and item No.III of Schedule-A and total Schedule- B and Schedule- C properties as self acquired properties of defendant no.3?

(II) Whether the admittance of Will Exhibit-DD into evidence is contrary to law?

(III) Whether without filing cross objection, the respondent No. 7 is entitled to claim a share in the properties bequeathed by her father without filing cross-objection?

The High Court in a Letters Patent appeal can review even finding s of fact in an appropriate case but generally speaking, would be slow to

disturb the concurrent findings of fact of the two courts below. It is an intra-court appeal and the High Court can correct its own orders in exercise of

the same jurisdiction as was vested in the single Bench. The scope of letters patent appeal has been outlined by Hon’ble Supreme Court in the

decision reported in AIR 1974 SC 2048:Asho Devi v. Dukhi Sao and another, and 1996 SCC (3)-52: Baddula Lakshmaiah and others v. Sri Anjaneya

Swami Temple and others. Both the decisions are followed by this Court in a decision reported in AIR 2019, Orissa-50: Pramodin Mishra and others

v. Krushna Prasad.

Answer to point No.(I):-

The suit was filed on 16.11.1985. Neither party has claimed that they were living in separate mess and property. The claim of plaintiff for partition

was against his father, mother, brother and sister. The father died during pendency of the suit on 13.2.1987 without filing written statement. Contestant

deceased defendant No.3 had admitted in his written statement that he was born in the year 1938 and while he was serving as a teacher in the M.E.

School, on the advice of his father he joined with them in money lending business at Koraput district. He has also admitted that in the year 1964 he

shifted to Semiliguda with his family and resided there and in the year 1970 he enlisted him-self as a contractor. He has stated that flour Mill industry

at Semiliguda was established in the year 1974. This defendant has categorically stated that land measuring Ac.16.64 decimals was purchased on

21.2.1964 and he had constructed an asbestos roofed house described in Schedule-B The Mill is described in Schedule-C proeprty. If the year of

engagement of defendant No.3 is seen in the backdrop of sale deed dated 21.2.1964, it cannot be said that by the time of purchase he was not a

member of joint family. In absence of any proof of partnership with deceased father, property jointly acquired by the members of a joint family without

the aid of joint family property is to be presumed joint.

12(a). In the case of D.S. Lakshmaiah (supra), their Lordships have reiterated the principle in the following words:-

“18. The legal principle, therefore, is that there is no presumption of property being joint family property only on account of existence of a joint Hindu family. The

one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was a nucleus with which the joint

family property could be acquired, there would be presumption of the property being joint and and the onus would shift on the person who claims it tobe self-

acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.â€​

12(b). The said decision has been referred to in Makhan Singh(D) by Lrs. (supra) case. In the case of Adiveppa and others (supra), the Hon’ble

Supreme Court has stated with regard to presumption in respect of joint family property in para-19 that:-

“19. It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any

proof of division,, such legal presumption continues to operate in the family. The burden therefore, lies upon the member who after admitting the existence of

jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. (See Mulla, Hindu Law,

22nd Edn. Article 23 “Presumption as to coparcenary and self-acquired propertyâ€​, pp 346 and 347.).â€​

12(c). In V.K.Surendra case (supra) it is stated that if coparcener of a joint family claims that properties are his self-acquired properties, the burden is

on him to prove that the same are the self-acquired properties.

12(d). In the case at hand, the trial court held that all the properties at Semiliguda were the purchased property of deceased defendant No.1 Gola

Tripathy and along with the ancestral properties available at village Badhiaosta in the district of Ganjam, the same was amenable to partition. Learned

Single Judge held that in absence of evidence about joint family nucleus, it was difficult to raise any presumption regarding the nature of acquisition of

the properties and decided the nature of each transaction on the basis of evidence on record. There is no dispute that three Sale deeds were executed

on one day including one in the name of defendant No.3 for land Ac.16.41 decimals vide Exhibit-14. The evidence of defendant No.3 and DW.3 with

regard to payment of consideration was analyzed and found that father deceased defendant No.1 had paid the consideration amount. This part of

payment of consideration is stated to be the contrary to Sections 91 and 92 of the Evidence Act. On careful reading of Bai Hira Devi case (supra), we

found that Section 91 of the Evidence Act excludes the admission of oral evidence for proving the contents of the documents except in cases where

secondary evidence is allowed to be led under the relevant provisions of the Evidence Act. The said decision is not applicable to the facts of this case

on the differentia that the defendant No.3 was the member of the joint family when Exhibit-14 and other two sale deeds were executed on one day in

his absence and the vendor of the said deeds is not a party in the suit. This is not a dispute a dispute between the vendor and vendee of the Sale deeds

under consideration. Persons other than those, who are parties to the Sale deeds in question, are not precluded from giving extrinsic evidence to

contradict, vary, add to or substract from the terms of the document under Section 99 of the Evidence Act. Evidence of contemporaneous conduct is

always admissible as surrounding circumstance. Section 92 does not preclude the parties from showing the real nature of the transaction different

from what the document wants to show.

12(e). As defendant No.1 deceased father is already dead, the property described in item No. I purchased in his name under Exhibit-7 was held

partiable. The plaintiff has not disputed the purchase of Ac.4.52 decimals of land described in Item No. III of the plaint, purchased on that date under

Exhibit-8 for partition. With regard to land under Exhibit-14 measuring Ac.16.40 decimals purchased in the name of defendant No.3, the father was

found to have purchased the same in the name of his son and for that learned Single Judge has allowed the same for partition.

12(f). Learned Single Judge has excluded Ac.4.44 decimals of land under item No. II of Schedule- A property which were purchased in the year 1965

and 1968, on the ground that there is no evidence that somebody else had paid the consideration money for such acquisition in the name of defendant

No.3. It may be stated here that defendant No.3 on his own volition has admitted in the written statement that after shifting to Semiliguda in the

year1964, he worked as a petty contractor. So considering the best evidence available, on the principle of preponderance of probability, the learned

Single Judge has recorded the finding and we don’t find any illegality or unreasonability therein.

12(g). Similarly when the Mill and the house were found to have been constructed on the property of deceased father Gola Tripathy(D.1) and

defendant No.3 was looking-after the same, the learned Single Judge extended the principle of equity. Within the limits of law governing the field of

partition, the principle of equity is not a stranger in a suit for partition where plaintiff and defendant have one status i.e., co-sharer. Further such

equitable consideration is not shown unreasonable in the facts and circumstances of the case where the properties of the deceased father defendant

No.1 are sought to be partitioned. The equitable direction made by learned Single Judge is nothing but to advance the cause of justice in a suit for

partition.

12(h). The deceased father was the sole ancestor and the parties asking for share are his relations upon whom right accrued after his death. In view

of the death of father defendant No.1, the consideration made by learned Single Judge varying the finding of the trial judge in respect of Ac.4.40

decimals of land along with equitable consideration cannot be said illegal.

Answer to point No.II:-

The execution of the Will Exhibit-DD was made by the deceased defendant No.1 Gola Tripathy. He died during pendency of the suit. Defendant No.3

in his written statement had admitted the execution of such Will and had also prayed relief based upon that to deny the share of sisters. Even in the

written statement, in para-21 defendant No.3 had pleaded that for such Will, the impletion of two daughters, defendant Nos.4 and 8, was unnecessary.

The will was produced by defendant No.2 mother. The daughters did not choose to appear either in the suit or in the appeal. No other defendants

challenged the due execution of the Will. The scribe of the Will as DW.1 has proved the signature of Gola Tripathy. So the genuineness of the Will

was not challenged by the parties either in the suit or in the first appeal. The court admitted the same into evidence and passed the decree as parties

before the court had no dispute over the contents of the Will. In view of above, no fault can be found in the finding of the learned court below and the

learned Single Judge in accepting the Will as a genuine and on admitting the same as evidence passed the decree.

Answer to point No.III:-

The consequence of such Will (Exhibit-DD) which was admitted into the evidence and given effect by the court in the suit for partition is now sought

to be challenged by one of the daughters respondent No.7. Learned counsel for respondent No.7 has relied upon the case of Shri Ravinder Kumar

Sharma (supra) to contend that relief to the daughter can be given under Order 41 Rule 22 of the C.P.C. even though, neither, she, preferred any

appeal nor filed any cross objection. The ratio of Shri Ravinder Kumar Sharma Case (supra) has been stated in para-22 of the said judgment, as

quoted below:-

“In our view, the opinion expressed by Mookerjee, J. of the Calcutta High Court on behalf of the Division Bench in Nishambhu Jena’s case and the view

expressed by U.N. Bachawat,J. in Tej Kumar’s case in the Madhya Pradesh High Court reflect the correct legal position after the 1976 Amendment. We hold that

the respondent-defendant in an appeal can, without filing cross-objections attack an adverse finding upon which a decree in part has been passed against the

respondent, for the purpose sustaining the decree to the extent the lower court had dismissed the suit against the defendants-respondents. The filing of cross-

objection, after the 1976 Amendment is purely optional and not mandatory. In other words, the law as stated in Venkata Rao’s case by the Madras Full Bench and

Chandre Prabhuji’s case by this Court is merely clarified by the 1976 Amendment and there is no change in the law after the Amendment.â€​

14(a). In the case of Hardevinder Singh v. Paramjit Singh and others, (2013) SCC 261, the Hon’ble Apex Court has clarified that:-

“21. After the 1976 Amendment of Order 41 Rule 22, the insertion made in sub-rule(1) makes it permissible to file a cross-objection against a finding. The difference

is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to

assail any part of the decree, it is obligatory on his part to file the cross-objection.xxxâ€​

14(b). In the decision reported in AIR 2007 SC 989:S.Nazeer Ahmed vs. State Bank of Mysore and Ors., it is reiterated by Hon’ble aped Court

that :-

“7. Xx xx xx.The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered

by the trial court against him-self. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of

cross-objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of

cross-objection is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been

given by the decree under challenge.â€​

Keeping the above law in view, if the facts of the case at hand is seen, it is found that respondent No.7, who was defendant No.8 in the suit

neither contested the suit nor appeared in the appeal before learned Single Judge even though she was made party and thereby allowed both the

courts to pass the decree. As the defendant has not entered appearance before the trial Judge and in the appeal preferred thereon, she is not entitled

to invoke protection under Order 41 Rule 22 of the CPC. in these letters patent appeals. The decision of Shri Ravinder Kumar Sharma (supra) is not

applicable to the facts of this case.

Once the Will executed by father deceased defendant No.1 was accepted and given effect by both the courts below and the daughters including

respondent No.7 are denied to get any allotment, Respondent No.7 is not entitled to claim any share in these letters patent appeals. Because the right

was denied by the owner of the property, deceased father defendant No.1 on execution of the Will (Exhibit-DD) on 12.2.1984.

In the wake of above analysis independently made on the evidence on record to answer the points urged, we do not find any illegality or

irregularity in the impugned judgments of the learned Single Judge. The correction made in the impugned judgment dated 5.7.1999 does not suffer

from any infirmity and both the letters patent appeals deserve no merit.

In the result, both the letters patent appeals stand dismissed.

There shall no order as to costs.